WASHINGTON — The Supreme Court announced Thursday that an internal investigation failed to identify the person who leaked the draft opinion to overturn the Roe case. Wade, a 1973 decision establishing the constitutional right to abortion.
In a 20-page report, Court Marshal Gail A. Curley, who is overseeing the investigation, said investigators conducted 126 formal interviews with 97 employees who denied any leaks source. But several employees admitted that they had informed their spouses or partners of the draft opinion and the count, in violation of court confidentiality, the report said.
The investigation did not determine whether any of those discussions resulted in a copy of the draft opinion being made public. Investigators also found no forensic evidence of who might have leaked the opinion when they examined the court’s “computer equipment, network, printers and available call and text logs,” the report said.
The leak released by Politico in May was a serious breach of the court’s customary secrecy rules. In a statement shortly afterward, Chief Justice John G. Roberts Jr. confirmed the veracity of the draft opinion, in Dobbs v. Jackson Women’s Health, but said it did not represent the final version, and announced an investigation.
The report said the marshal’s office would investigate any new information that emerged and made several recommendations to improve security measures. But it conveys a stark impression that there are enough holes in the system that the mystery of who leaked the opinion may never be solved.
“If a court employee discloses a draft opinion, that person is flagrantly violating a system that is fundamentally based on trust and has only limited safeguards to regulate and limit access to very sensitive information,” the report said.
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It added: “The pandemic and resulting expansion of work-from-home capabilities, as well as gaps in court security policies, have created an environment in which sensitive information is easily removed from the building’s and the court’s IT network, Increased risk of deliberate and accidental disclosure of court sensitive information.”
Investigators determined that, in addition to the nine justices, 82 other legal clerks and longtime court employees had access to electronic or paper versions of the draft opinions, the report said. But in discussing the review of “employees,” it did not say whether investigators also interviewed and reviewed devices belonging to the judges themselves or their spouses.
At the conclusion of the interviews, the employees signed “under penalty of perjury” affidavits stating that they did not disclose the draft opinion or related information to anyone not employed by the court and that they had said everything they knew about the disclosure, the report said.
Investigators had been looking for signs of discontent or stress, including anger over the court’s decision, the marshal wrote. Apparently, there was speculation that conservatives might have leaked the draft to make it harder for any of the five justices who seemed likely to vote for the majority to change their minds, and she wrote that they “carefully assessed whether the personnel might have, for strategic reasons, There is reason to disclose the court’s draft decision.”
The report also said investigators “specifically scrutinized any contacts with anyone associated with Politico” and assessed public speculation about possible suspects, including on social media. “Several legal assistants were named in various positions,” the report said. “During their investigation, investigators did not find any allegations that could substantiate the social media disclosures.”
During the investigation, investigators collected all court-issued laptops and cellphones from people entitled to draft opinions, but “did not find any relevant information from those devices.”
The report also said the investigation found nothing relevant in call and text messages and billing records on individual cellphones. While the report said “all employees who were asked to provide them voluntarily provided” such logs, it did not say how extensive the requests were.
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It cites significant technical limitations. For example, while investigators could examine logs of when network printers printed drafts, the 46 printers in the building turned out to be connected only to local computers, so no network logs were generated. In their own local memory, the printers only kept a log of the 60 documents they had previously printed, the report said.
But despite those limitations, the report also said investigators do not believe outside hackers were responsible for extracting copies of Dobbs’ opinions from the Supreme Court’s network.
“It is unlikely that the public disclosure resulted from a hacking of the court’s IT systems,” the report said. “The Court’s IT department has not detected any indications of a hack, but continues to monitor and audit systems for any signs of compromise or intrusion into the Court’s IT infrastructure.”
The leaks have damaged relationships among judges. Judge Clarence Thomas likened it to infidelity. The opinion’s author, Judge Samuel A. Alito Jr., said the disclosure endangered the lives of most judges.
When the court made the overturning Roe v. Wade was largely unchanged in the June opinion draft.
When Chief Justice Roberts assigned Ms Curley to oversee the investigation, there were questions about whether she had the necessary expertise and resources to handle it. She is a former national security attorney for the Army, an Army office with about 260 employees that primarily provides physical security for judges and courthouses.
Chief Justice Roberts also asked Michael Chertoff — a former top federal prosecutor, appeals court judge and Homeland Security secretary — to independently assess Ms. Chertoff’s thoroughness. Curry’s investigation. The court released his one-page statement, saying he could not determine any other steps investigators should take.