I was thinking yesterday that we haven’t heard much about this recently. Today the Wall Street Journal reports there has been some progress in narrowing down the list of suspects but still no definitive conclusion.
A day after the draft opinion was published last year by Politico, Chief Justice John Roberts assigned the Supreme Court’s marshal, Gail Curley, to investigate the leak. The court has released no information regarding the investigation since then. 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. With its own police having little experience in complex investigations, the court brought in assistance from outside government investigators, people familiar with the matter said. By early summer, investigators had significantly narrowed the field of suspects, the people said.
The interviews were sometimes short and superficial, a person familiar with the matter said, consisting of a handful of questions such as “Did you do it? Do you know anyone who had a reason to do it?” Investigators relied in part on publicly available information about court employees to develop theories, the person said.
The reference to investigators seeking cellphones from the clerks was revealed back in June by CNN. CNN also reported the clerks had been asked to sign affidavits, presumably attesting to their innocence.
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 are apparently so alarmed over the moves, particularly the sudden requests for private cell data, that they have begun exploring whether to hire 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. However, there could be a case made for disbarment if the clerk can be shown to have lied to the Chief Justice or the marshal. That would certainly be a blow to one of the top 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. That last line from the excerpt above may be significant: “Investigators relied in part on publicly available information about court employees to develop theories.”
There were two general theories circulating after the leak about who was responsible. The general ones were that 1) the leaker was an outraged progressive trying to work up opposition to the decision before it was issued or 2) the leaker was a conservative trying to prevent Chief Justice Roberts from peeling one of the five conservatives (possibly Kavanaugh) over to the other side to create a more moderate decision.
Neither has been proven obviously. 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. Support for the conservative leaker theory comes from rumors circulating at the time that CJ Roberts was indeed trying to sway one conservative justice. This idea was put forward in a story at the Wall Street Journal and Josh Blackman noted at the time that the information seemed too specific to be pure speculation. In other words, it seemed possible someone had leaked information about the deliberations to prevent Roberts from succeeding. That same impetus could have spurred the leak of the full decision.
There was also one specific theory of the case promulgated on Twitter. That theory connected the leak to a specific clerk who appeared to be something of a pro-choice activist and who had previously been quoted by the same Politico reporter who later received the leaked decision. 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.