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Wednesday, December 6, 2023
Courthouse News Service
Wednesday, December 6, 2023 | Back issues
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Supreme Court fails to unmask leak after monthslong probe

Unable to wrest a confession about who leaked a draft of their landmark abortion ruling, the justices say all theories remain viable.

WASHINGTON (CN) — The Supreme Court reported Thursday that it has been unable to identify a culprit behind the biggest leak in its history, a draft of the landmark ruling that overturned Roe v. Wade last year.

Chief Justice John Roberts launched the probe into who sent an early version of the Dobbs v. Jackson Women’s Health Organization opinion after Politico published the document online in May 2021. After almost 100 interviews and an analysis of forensic evidence, the court now says that the source of the breach is inconclusive. 

“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,” a release from the court states. “But the team has to date been unable to identify a person responsible by a preponderance of the evidence.” 

The statement prefaces a 20-page report from the marshal of the Supreme Court, which says the probe did not turn up any evidence that points to a suspect. Explanations like a hack or sloppy recordkeeping remain possible if unlikely, according to the report.

“No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” the marshal wrote. “While investigators and the Court’s IT experts cannot absolutely rule out a hack, the evidence to date reveals no suggestion of improper outside access. Investigators also cannot eliminate the possibility that the draft opinion was inadvertently or negligently disclosed – for example, by being left in a public space either inside or outside the building.” 

The marshal counts 82 court personnel who had access to the draft opinion between February and March of last year. Some court personnel reported printing out copies of the opinion, and several were reported admitting they did not follow the court’s confidentiality policies. 

Employees who were interviewed during the investigation were asked to sign an affidavit, under the penalty of perjury, on whether they leaked the draft opinion or knew who did. The report states that a few employees admitted to telling their spouses about the daft or the vote count. 

“The interviews provided very few leads concerning who may have publicly disclosed the document,” the report states. “Very few of the individuals interviewed were willing to speculate on how the disclosure could have occurred or who might have been involved. The investigators found most of their leads in the IT forensics discussed previously.” 

Little was known about the investigation or its progress prior to the release of Thursday's report. The marshal notes now that the investigation involved a team of attorneys and federal investigators with experience conducting criminal, administrative and cyber investigations. 

Part of these efforts included collecting court-issued laptops and mobile devices from personnel with access to the draft, but the report states no relevant information was obtained through this method. Investigators also asked employees to submit call and text records from personal devices. 

The report appears to place blame on lax security measures resulting from the Covid-19 pandemic. 

“If a Court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information,” the report states. “The pandemic and resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information.” 

Investigators looked into whether personnel researched the legality of disclosing confidential information, searching for potential suspects who might have been interested in leaking information. This search did not yield any relevant information, according to the report. 

The report says investigators outsourced their suspect pool to speculation concerning several law clerks on social media. Following the draft’s leak, some court watchers attacked various law clerks online, publicly suggesting without any evidence to support such claims that they must have leaked the opinion. The report states that investigators followed up on these suspicions but did not find them to be credible. 

Investigators analyzed the digital image of the draft opinion to try to find which court printer or copier it came from. There was also a fingerprint analysis of an item related to the investigation, however, it did not match any person of interest. 

The report does assume that the draft was intentionally leaked, but the court’s IT systems were unable to track the breach. 

“Assuming, however, that the opinion was intentionally provided to Politico by a Court employee, that individual was evidently able to act without being detected by any of the Court’s IT systems,” the report states. “If it was a Court employee, or someone who had access to an employee’s home, that person was able to act with impunity because of inadequate security with respect to the movement of hard copy documents from the Court to home, the absence of mechanisms to track print jobs on Court printers and copiers, and other gaps in security or policies.” 

The investigation uncovered several vulnerabilities in the court’s systems and recommends measures to shore up these weak points. One of these recommendations is limiting who gets access to sensitive documents. The report also suggests utilizing digital copies, which are easier to trace than printouts. 

The report suggests the court should write a new policy concerning the handling of draft opinions. While employees are already beholden to confidentiality policies and federal statutes, there is no written policy specifically tailored to draft opinions. The report also suggests employees do not understand current confidentiality policies and should attend additional training. 

While the official investigation has come to a close, the court says it will still pursue any new leads on the leak if additional information comes to light. 

Follow @KelseyReichmann
Categories / Appeals, Courts, Media

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