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The Supreme Court released a report of its investigation Thursday, announcing that it has not yet been identified who leaked last year’s draft opinion to overturn Roe v. Wade to the media, but at least 90 people had access to the document.
The investigative team “has so far been unable to identify those responsible on the basis of a preponderance of evidence,” the court said in a statement. It is also unlikely that the leak was due to computer hacking, the statement said.
Investigators said they conducted 126 formal interviews with 97 employees, all of whom denied disclosing the opinion. They also performed fingerprinting, “scrutinized any contact between staff and journalists” and “specifically reviewed any contact with those associated with Politico.”
Dozens of people could see the draft, the report said, adding that some employees admitted to telling their spouses about the draft opinion or the justices’ votes. While the report noted a breach of court confidentiality, it did not say whether it led to further investigations or disciplinary action.
Employees were required to sign affidavits affirming that they did not disclose draft comments and provided all “relevant information” related to the draft disclosures, under penalty of perjury. They are also required to swear to the truth of the statements before a notary public.
On May 2, Politico published a draft opinion overturning the landmark 1973 decision establishing a constitutional right to abortion, a leak — the worst in the court’s history — that was Make it public. The revelation shocked the courtroom and left some judges with a feeling of paranoia within the confines of the marble-lined corridor. Shortly thereafter, on May 3, Chief Justice John Roberts issued a statement directing Court Marshal Gail Curley to investigate the leak.
Curley manages about 260 employees, including the Court Police Department, which has arrest powers.
In Thursday’s report, Curley concluded that courts should implement better policies regarding sensitive information “whether or not individuals are identified.”
“Over time, ongoing investigation and analysis may yield additional leads that could identify the source of the disclosure,” Curley said. “Regardless of whether any individual has been identified as the source of the disclosure, courts should act to develop and implement better policies to govern the handling of court sensitive information and to identify optimal security and collaborative IT systems.”
During an appearance in Atlanta later in May, Roberts called the leak “absolutely shocking.” Justice Elena Kagan later called it a “clear and blatant violation of the rules of the court,” and Justice Clarence Thomas equated it with “disloyalty.”
The report concluded that the leak was unlikely to be the result of a hacking of the Supreme Court’s IT systems.
“The Court’s IT department found no indication of any hacking, but continues to monitor and audit systems for any signs of compromise or intrusion into the Court’s IT infrastructure,” the report said, adding that investigators also found no evidence that a An employee with special IT access accesses or moves a draft idea.
Information obtained by investigators from the courthouse’s IT systems was used to identify individuals of interest and resulted in “multiple interviews with certain employees,” the report said.
While investigators found that some employees emailed draft opinions to other employees after they were approved, “there is no evidence that draft opinions were emailed to anyone else, although technical limitations of court computer recordkeeping at the time That scenario cannot be ruled out at all.”
The report noted that the court’s system lacked “extensive logging and search capabilities,” which hampered investigators’ ability to analyze IT logs.
The investigative report revealed that the distribution list used to send out the draft comments on February 10 contained 70 users. On March 22, eight other people received the draft by email. The draft was also distributed in paper form, and 34 individuals confirmed that they printed copies of the draft comments, many printing more than one copy.
“Investigators collected court-issued laptops and mobile devices from all individuals who had access to the draft opinion,” but “found no relevant information” from those devices, the report said.
Additionally, all employees who were asked to hand over their personal phone call and text records did so voluntarily “to the best of their ability.”
“Investigators reviewed retrieved call and text messages but found nothing relevant in the limited records,” the report said.
The report makes clear that the Marshal’s Office employs “well-trained federal investigators,” but does not say whether they are current employees of other government agencies.
“The investigative team is comprised of seasoned attorneys and trained federal investigators with extensive experience conducting criminal, administrative, and cyber investigations,” the report said.
The court also “invited” former federal appeals judge Michael Chertoff, Secretary of Homeland Security, to “evaluate” the investigation.
In his own statement, Chertoff said his “review assessment is that the Marshal and her experienced investigators conducted a thorough investigation within the purview of their law and that, while there is currently insufficient evidence to prosecute or take other legal action, Important insights were gleaned from the investigation that could be acted upon to avoid future incidents.”
He went on to list four recommendations he has made to ensure future leaks do not occur, including “limiting the distribution of hard copy versions of sensitive documents” and “limiting access to sensitive information on external mobile devices”.
On June 24, the “Opinions”, following the draft for comments, was officially released, changing the pattern of women’s reproductive health across the country. The decision opens the door for states to ban abortion outright, with limited exceptions. Abortions will be unavailable in 14 states as of December 2022, and courts have temporarily blocked eight other states from enforcing their bans, according to the Guttmacher Institute. Yet even in states where abortions are available, clinics are overwhelmed by an influx of patients from other states.
The opinion was drafted by Justice Samuel Alito and joined by Justices Thomas, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh.
CNN’s Joan Biskupic exclusively reported that Curley’s team had asked the justice’s legal clerk, who served for a year, to hand over cellphone data and signed an agreement with the potential disclosure of the leak. Related affidavits and some long-term employees are required to provide electronic devices with the justices.
But by midsummer, as is customary, most of the clerks who had served during the term had completed their clerkships and moved on to new jobs.
The view sparked protests across the country, and a man was arrested near Kavanaugh’s home and later charged with attempted murder. Critics accuse the agency of being irreparably tainted with politics.
The court had previously remained silent on the investigation, opting not to issue any official updates.
This story has been updated with more details.
