SCOTUS Investigators Narrow Leak Probe to Small Group of Suspects

I was thinking yesterday that we haven’t heard much about this recently. Today’s Wall Street Journal reports that some progress has been made in narrowing down suspects, but there is still no word. Conclusion definitive.

One day later The draft opinion has been published last year by Politico, Chief Justice John Roberts assigned the Supreme Court’s marshal, Gail Curley, to investigate the leak. The court has not provided any details regarding the investigation. Little has emerged elsewhere, apart from a demand from investigators in June that justices’ law clerks sit for interviews and surrender their cellphones, prompting several of the three-dozen clerks serving in May to seek legal counsel…

Ms. Curley, a lawyer and former Army officer, oversees the Supreme Court’s in-house police force, which has an authorized strength of 189 officers and principal missions of patrolling the court’s property and protecting the justices. People familiar with the matter say that the court sought outside assistance because its police had little experience with complex investigations. People said that the number of suspects was significantly reduced by early summer.

Interviews were not always long and detailed, according to someone familiar with the matter. The interviews consisted of just a few questions, such as “Did you do it? Do you know anyone who had a reason to do it?” The person stated that investigators used publicly available information regarding court employees to help them develop theories.

CNN reported that investigators were looking for cellphones from clerks in June. CNN also reported the  clerks had been asked to sign affidavits, presumably attesting to They are innocent.

Supreme Court officials are escalating their search for the source of the leaked draft opinion that would overturn Roe v. Wade, taking steps to require law clerks to provide cell phone records and sign affidavits, three sources with knowledge of the efforts have told CNN.

Some clerks seem so worried about the movements, especially the sudden requests for cell data, they are exploring the possibility of hiring outside counsel.

The Journal’s description of the brief interviews seems to jibe with the idea that investigators aren’t looking for a confession so much as daring the leaker to lie to a direct question. As the article points out, the leak itself probably wasn’t illegal so there’s no punishment in terms of arrest or imprisonment coming for whoever did this whether they confess or not. If the clerk lies to the Chief Justice and the marshal, however, a case could be made for disbarment. This would be a serious blow to one the most prominent young lawyers in the country.

So it seems the groundwork is there to ruin someone’s career. The problem is that so far they haven’t identified the culprit. The last line in the excerpt may be important: “Investigators relied in part on publicly available information about court employees to develop theories.”

Two general theories circulated after the leak regarding who was responsible. There were two main theories about who was responsible for the leak: 1) The leaker was an angry progressive trying to sabotage the decision before it was issued, or 2) The leaker could have been a conservative trying stop Chief Justice Roberts’s transfer of one of the five conservatives (possibly Kavanaugh), to the other side in order to make a more moderate decision.

Both theories have been proved. The first theory is supported by the fact that the lead did in fact rile up progressives (protests outside Justices’ homes) and this was entirely predictable. According to rumors, CJ Roberts attempted to change one conservative justice. This idea was presented in a Wall Street Journal story. Josh Blackman commented at the time This information seemed to be too specific for speculation. It seemed that someone might have leaked information about Roberts’ deliberations in order to stop him from succeeding. The same impulse could have prompted the leakage of the entire decision.

Twitter also suggested a specific theory about the case. The theory suggested that the leak was connected to a specific clerk, who looked to be pro-choice activist. This same Politico reporter had quoted him before the leak. It didn’t seem wise to me at the time to speculate about a specific name Without certainty (which is why I’m not using one) but as a theory it was certainly as plausible as anything else.

We’ve been waiting seven months now for an answer and it seems most of the progress happened over the summer. At some point, if the marshal can’t come up with an answer, maybe CJ Roberts needs to find another investigator to get to the bottom of this.