The Supreme Court on Thursday issued a report on the leaked draft of the Dobbs case decision overturning the Roe and Casey abortion rulings last May. The leaker could not be found and new protocols were put in place for drafts, the report says. Ninety-seven court personnel were interviewed and all denied being leakers. They all signed sworn affidavits under penalty of perjury denying they were leakers. The court said that the investigation is open. A hack of the court’s computer system is “unlikely,” the report says.
(Note: The current Supreme Court is shown. The court decided the Dobbs case, in which Justice Stephen Breyer retired last summer at the end of the 2021-22 session and was replaced by Justice Ketanji Brown Jackson.)
Supreme Court of the United States
Court statement on leak investigation
In May 2022, this Court suffered the worst breach of trust in its history: the leak of a draft opinion. The leak wasn’t just an attempt to derail the protest. This is a blatant attack on the judicial process. To fulfill our responsibilities as judges, we receive submissions from parties and amicus, we engage counsel in oral argument, and we publish explanations of our final decisions. We do all this in the open. Along the way, it is essential that we speak to each other honestly and with confidence on purpose. That stage of the judicial process allows us to work collaboratively to develop initial ideas, reconsider views, persuade each other, and strengthen our collective judgment. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal debates.
For these reasons and others, the court immediately and unanimously agreed that the extraordinary breach of trust last May warranted a full investigation. The Chief Justice delegated this task to the Marshal of the Supreme Court and his staff. After months of painstaking analysis of forensic evidence and interviews with nearly 100 employees, Marshall’s team determined that “no further investigation was warranted with respect to most of the 82 employees.” [who] had access to electronic or hard copies of the draft opinion. Marshall’s Report of Findings and Recommendations 11 (January 19, 2023). However, in following up on all available leads, Marshall’s team conducted additional forensic analysis and conducted multiple follow-up interviews of some employees. But the team has so far been unable to identify the person responsible due to the preponderance of evidence. Id., at 17. Attached is the public version of the Marshall Report.
Recently, this Court consulted Michael Chertoff. Mr. Chertoff is a former Secretary of Homeland Security, Judge of the US Court of Appeals for the Third Circuit, Assistant Attorney General of the Criminal Division of the US Department of Justice, and US Attorney for the District of New Jersey. We invited Mr. Chertoff to judge Marshall’s investigation. He said Marshall had “undertaken a thorough investigation” and, “[a]At this time, I cannot identify any additional useful investigative steps” that have not already been undertaken or are underway. Statement by Michael Chertoff 1 (2023). A copy of Mr. Chertoff’s statement is attached.
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Marshall reported “[i]Investigators continue to review and process some of the electronic data collected and some other inquiries pending. Marshall’s Report 2. “To the extent that further investigation yields new evidence or leads, investigators will pursue them.” Ibid. Marshall and his team will continue to have our full support.
January 19, 2023
Link to Chertoff and Marshall’s court statement and reports.
Excerpts from the Marshall Report:
On May 2, 2022, Politico published a copy of the draft majority opinion in Dobbs v. Jackson Women’s Health Institute, No. 19-1392. On May 3, 2022, the Chief Justice publicly announced that he had directed Marshall to initiate an investigation into the public disclosure of the draft majority opinion. On May 5, 2022, Marshall launched an investigation to determine who had leaked the draft majority opinion. Marshall, in consultation with the court’s close counsel, developed a plan of investigative action. The investigators followed that plan, recorded the course of their investigation, and reported the results. Section II of this report captures the material findings and recommendations. The investigative team consists of experienced attorneys and trained federal investigators with substantial experience conducting criminal, administrative and cyber investigations.
The investigation determined that it was unlikely that the court’s information technology (IT) systems had been improperly accessed by an individual outside the court. After examining the court’s computer devices, networks, printers, and available call and text logs, investigators found no forensic evidence indicating who disclosed the draft opinion. They conducted 126 formal interviews of 97 employees, all of whom declined to reveal their opinion. Despite these efforts, investigators were unable to determine at this time using the preponderance of the evidence standard the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Institute. Or how the draft opinion was provided to Politico. Investigators continue to review and process some of the electronic data collected and some other inquiries pending. To the extent that additional investigation yields new evidence or leads, investigators follow up on them.
If a court employee discloses a draft opinion, that person has brazenly violated a system fundamentally built on trust with limited safeguards to control and restrict access to highly sensitive information. The pandemic and the resulting expansion of the ability to work from home, as well as gaps in court security policies, have created an environment where it is very easy to remove sensitive information from building and court IT networks, increasing intentional risk. and accidental disclosure of sensitive court information. The investigation identified a number of court policies and practices that should be improved, some of which are suggested in Section II
This report is being implemented. A more detailed set of recommendations is included as Annex A to the report; Annex A is not happening
Releasing to the public may unwisely expose court operations and information to potential bad actors. Justices, with the help of court officials, will have to decide whether to adopt some or all of the more detailed recommendations.
At the end of the initial interviews, each employee was asked to sign an affidavit under penalty of perjury stating that he or she had not disclosed the Dobbs Draft Opinion to any person not appointed by the Supreme Court, had not disclosed any information related to the Dobbs Draft Opinion to any person not appointed by the Supreme Court, had not been made public through means authorized by the Court, and had not disclosed the Dobbs Draft Opinion to any person. Provided all relevant information known to them in connection with the disclosure or publication. Each employee was asked to swear to the truth of the statements in the affidavit before a notary public. Each of these employees
Signed the affidavit. Few of the interviewees admitted to telling their spouses about the draft opinion or vote count, so they annotated their affidavits to that effect. If investigators later lie to investigators, that personnel is subject to prosecution for perjury in violation of 18 USC § 1001.
…Investigators scrutinized any contacts between employees and reporters. He especially scrutinized any connections with anyone politically connected. Investigators assessed a wide range of public speculation, mostly on social media, about whoever disclosed the document. A number of law clerks were named in various posts. In their investigation, investigators found nothing to substantiate any social media allegations of disclosure.
At this time, based on a preponderance of the evidence standard, it is not possible to determine the identity of any person who disclosed the document or how the draft opinion ended up with politics. No one has agreed to publicly disclose the document and none of the available forensic and other evidence has provided a basis to identify any individual as the source of the document. Although investigators and court IT experts cannot completely rule out a hack, the evidence so far does not reveal outside improper advice.
entry Investigators cannot rule out the possibility that the draft opinion was inadvertently or negligently disclosed – for example, by leaving it in a public place inside or outside the building.
However, if a court employee is deemed to have intentionally provided a political opinion, that person is able to operate without being detected by any of the court’s IT systems. If it was an employee of the court or anyone with access to the employee’s home, that person could act with impunity due to inadequate security, absence of tracking mechanism regarding the movement of hard copy documents from court to home. Court printers and copiers print jobs and other gaps in security or policies.