A New Development In The Investigation Of The Supreme Court Leaks Is Revealed

OPINION:  This article contains commentary which may reflect the author’s opinion

The leak of Supreme Court Justice Samuel Alito’s draft opinion concerning Roe v. Wade was not only unprecedented, but it also ignited protests toward the Supreme Court justices, even at their private residences. An investigation as to the cause of the leak followed, but when the investigation concluded no one was held accountable for the leak.

Last month, Fox News host Stuart Varney questioned the integrity of the Supreme Court after an investigation into who might have leaked a draft opinion in the landmark Dobbs v. Jackson case last May did not reveal any possible names.

During a segment on “Varney & Co.,” he expressed frustration and disbelief at how the Supreme Court investigation into the leaker of the Roe v. Wade draft decision failed to identify a culprit after interviewing over 75 people in the months-long probe. In May 2022, Politico published a leaked draft opinion for Dobbs v. Jackson Women’s Health Organization, which resulted in nationwide protests and threats of violence to conservative justices in their homes.

Varney also noted that the Supreme Court conducted interviews with nearly 100 employees, but reportedly did not speak with any justices themselves. He noted that it seemed odd that none of the justices appear to have been interviewed in an investigation of this magnitude.

But now, more information has come to light in the U.S. Supreme Court’s investigation into who might have leaked a draft opinion in the landmark Dobbs v. Jackson case last May. CNN reports that the security at the court has been noted to be lax.

The security of documents at the Supreme Court was minimal and included what are called “burn bags” that were simply left in hallways, CNN reported. “Long before the leak of a draft opinion reversing Roe v. Wade, some Supreme Court justices often used personal email accounts for sensitive transmissions instead of secure servers set up to guard such information, among other security lapses not made public in the court’s report on the investigation last month,” CNN Supreme Court Reporter Ariane de Vogue said.

“New details revealed to CNN by multiple sources familiar with the court’s operations offer an even more detailed picture of years long lax internal procedures that could have endangered security, led to the leak, and hindered an investigation into the culprit,” the reporter said.

“Supreme Court employees also used printers that didn’t produce logs – or were able to print sensitive documents off-site without tracking – and ‘burn bags’ meant to ensure the safe destruction of materials were left open and unattended in hallways,” she said. “This has been going on for years,” a former employee said. Another said that the justices were “not masters of information security protocol.”

The Supreme Court released its report last month into who might have leaked the draft opinion, which overturned the Court’s controversial precedent in Roe v. Wade on a “constitutional right” to abortion and returned the issue to the states. The source of the leak to Politico was not identified. Justices themselves were not interviewed in the report, Conservative Brief reported.

The investigation by the marshal of the Supreme Court included a forensic investigation of laptops and phones but found “no relevant information from these devices.” The marshal’s office determined that 82 employees had access to the opinion and interviewed 97 employees, all of whom denied leaking the opinion.

Several have pointed out that it seems odd that none of the justices appear to have been interviewed in the investigation:

It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.

For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation. The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff. After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the “82 employees [who] had access to electronic or hard copies of the draft opinion.” Marshal’s Report of Findings & Recommendations 11 (Jan. 19, 2023). In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person responsible by a preponderance of the evidence. Id., at 17. A public version of the Marshal’s report is attached.

In addition, the marshal investigated connections between employees and contacts in the media, with a particular focus on Politico. They also followed up on social media claims of who might have leaked the decision, but “investigators found nothing to substantiate any of the social media allegations.”

“Some individuals admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules,” the investigation reads.


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