Supreme Court Issues Summary of Dobbs Leak Investigation

More thorough than I expected, although not what the FBI could have done.

The Supreme Court has issued a statement and overview about the current status of the Dobbs leak investigation.  The Marshal has not identified who leaked the Dobbs draft.  But they describe the investigation in a lot more detail than you normally expect to get. My overall take: They did a very comprehensive investigation inside the building, but, being only the Marshal and her staff, they didn't do much of an investigation outside the building.

Inside the building, they found that 82 people other than the Justices had access to the draft; interviewed 97 people, obtained statements under oath from them that they had not leaked the draft; and conducted a forensic examination of the Court's network to look for outside intrusions or insider disclosures.  But as far as I can tell, the Marshal and her team didn't conduct the kind of investigation outside the building that the FBI could have done.  No surprise; that's not what the Marshal would be expected to do.  But that means that (as far as I can tell from the report) they didn't obtain legal process and collect phone or Internet records, get warrants, or anything like that.  The investigators did search the few court-issued laptops and phones that some employees had, and they asked employees to volunteer their own phone and text non-content call records during a relevant period.  But the "limited" records that were volunteered didn't reveal anything.

On the whole, this was a more thorough investigation than I expected, given the limited investigatory tools of the Marshal.  But it doesn't look like the kind of full criminal investigation that an outside law enforcement agency could have conducted.  And it's not quite done yet: According to the report, the Marshal and her team are still pursuing some leads, so the investigation isn't entirely over.

Comments

[Drbusybody]

If this were so important, why not call in the FBI? Were any of the justices questioned? When the draft opinion leaked, suspicion immediately fell upon some of the justices. The clerks, of course, have everything to lose by leaking the opinion.

[Caphon]

I think the answer to that is because the FBI is part of a different branch of government, not considered a neutral actor, and the DOJ/Executive (at the time at least) were involved in a powers-battle with their threats of court-packing, tacit endorsement of protests, impugning of legitimacy, etc. The FBI was not, and probably still is not, considered "trustworthy" for such tasks - to let the FBI do the investigation would result in the FBI hoovering up far more info on the dealings of the Court than would directly apply to the investigation - call records of all the justices and their clerks, etc. The leak is important, but not so important as to let the fox in the henhouse.

[Dilan Esper]

What they could have done, and perhaps should have done, is lean on the 84 people to turn over personal phones, e-mail accounts, etc., to the Marshal.

[Brett Bellmore]

Just pissing off 80 or so people for the one who's guilty, and probably to no end.

The fact is that the Court does not hire fools and idiots, and covering your tracks on a leak well enough to make being caught a practical impossibility is relatively straightforward. In all likelihood they were never going to find the perp without an outright confession.

[Dilan Esper]

1. I always laugh when people say what you just said. People get caught all the time. Human beings, even smart ones, have no idea how to cover all their digital tracks, and the caselaw is replete with examples of people getting caught who tried to erase stuff. It's actually extremely hard to leave no trace.

2. The Court actually has enormous leverage here. People's careers hang in the balance-- basically becoming a SCOTUS clerk is all about careerism. If the Court were serious about pursuing this, they could put former clerks in an almost impossible position where refusing to turn over devices could make them look guilty. I suspect what happened is the Justices were too protective of their clerks to allow the Marshal to do this. But there's no doubt the Court would have held all the cards if it had wished to do it.

[Rossami]

" the caselaw is replete with examples of people getting caught" is an example of the statistical fallacy called Survivorship Bias. The caselaw will always have examples of people who got caught. What the caselaw does not and cannot have are examples of the people who didn't get caught. They didn't get caught so there's no case to bring.

You'd be on stronger ground looking at case closure rates. Unfortunately, those statistics would tend to dispute your result. A large fraction of cases never get closed indicating that many folks do in fact leave no trace (or at least, little enough trace that the case remains unprosecutable).

That's not to say that covering your tracks is easy or obvious. Nor do I downplay the role that dumb luck has both in getting caught and getting away. But neither is it so rare or hard that you should laugh at claims like Brett's.

[Dilan Esper]

The sheer numbers of people who get caught despite MAKING attempts to erase indicates that it is harder to do than you think.

And I am not talking about "covering your tracks" generally, but covering electronic tracks specifically. THAT's what's really hard to do.

[Brett Bellmore]

There were hard copies circulating. All you had to do was take one home at the end of the day, copy it at home with the color cartridge removed from your printer to stop it from printing the steganography watermark, and mail it from a nearby town. The next day you take it back in.

Now, they can make that a lot harder by issuing numbered copies that have to be checked back in at the end of the day. There are other, sneakier things they can do going forward. All of which will reduce productivity and lower morale. But they can't hop in a time machine and implement the procedures that would have made this difficult last January.

[Brett Bellmore]

Found out they also circulated it by email. Game over for security, basically.

[John F. Carr]

The leaker's press contact could have offered advice on covering tracks.

[Tallman]

I'd be surprised if SCOTUS would approve a private-sector employer (much less other government employers) 'leaning' on its employees that way.

[gallinalg85]

I'm sure if someone in the White House leaked anything about Biden (like perhaps his crapping his diapers) or something about his criminal drug-addict son, they'd lean on them as hard as they needed.

[Dilan Esper]

What are you talking about? When allegations are very serious, private employers seek this information all the time. E.g., look what happened to Tom Brady during Deflategate.

[Caphon]

Oh I understand the potential advantage of the FBI quite well, but that wasn’t the question. In your list, it’s not just getting records that constitutes the biggest advantage, it’s the seasoned interrogators. It is ah-mazing what a good, deliberate interrogation program can find out, often more than digital records by themselves. There are a lot of tools in that toolbox and almost everyone is highly susceptible to being intimidated, tricked, or lulled into divulging more than they want to. I’m certain the Court’s investigator had very little talent, flexibility, or “circumstance” at their disposal for this,

[grb]

I sure this came up at the time, but I forget. Was the leak a criminal act?

[LawTalkingGuy]

No. Just violates court confidentiality rules. If they lied on the affidavit or in the interview that would be perjury/1001 charge.

[Alkali]

As Josh Marshall points out at TPM, the most natural reading of the Court’s statement is that the Justices were not questioned, but it is possible.

[Dilan Esper]

I disagree. It looks like they talked to all the people who had access. Now, we don't have a lot of information as to exactly how detailed the questioning was, but I would assume the Marshal at least asked each Justice if they leaked it.

(News flash to everyone- no Justice leaked this directly. The reality is that's a fantasy of jerks who dislike the Court.)

[LawTalkingGuy]

(News flash to everyone- no Justice leaked this directly. The reality is that’s a fantasy of jerks who dislike the Court.)

You know how The Brethren was written, right?

[Dilan Esper]

Not by leaking draft opinions.

I am not claiming the justices don't ever talk to reporters or leak information. I'm saying they don't leak drafts.

[LawTalkingGuy]

Yeah. He did way worse. He told the most famous reporter in the county all their inside deliberations and detailed how exactly the Chief Justice was a complete moron. All while he was still on the Court!

A leak of a draft opinion isn’t that crazy compared to that. Especially when we all knew the outcome anyway. Nothing about it was surprising.

[bernard11]

Well, hardly anyone leaks drafts, but I don't see how you can be so absolutely confident about the Justices.

I mean, it's not like asking someone, "Did you leak the draft?" is really a thorough interrogation.

[Dilan Esper]

I agree, but there's really strong norms here.

[myself]

Well there is a direct and fairly reputable (though definitely unconfirmed) accusation that Alito leaked the Hobby Lobby decision.

Ideally the Justices would be the "most principled", but you become a SCOTUS by being highly competent and unusually partisan.

Furthermore, if you think about people who would feel "entitled" to leak the decision Justices would be at the top of the list.

Statistically, there's a lot more non-Judges than Judges who had access to the opinion, but I might put a 30% odds on it being a Judge.

[David Nieporent]

It's not really reputable; Schenck's credibility has been strongly undermined. (Not specifically about that claim, but in general.) But even if you accept his allegation, Alito is accused of leaking the fact that Hobby Lobby won, not the draft of the decision.

[Brett Bellmore]

Also specifically about that claim. Not only did Alito deny leaking it, the person Schenck claimed related the leak to him denies it.

[myself]

The co-conspirators denying is hardly surprising.

This is evidence he knew of the outcome before hand, and while leaking the outcome is not the same as the decision it would be strong evidence that the Justices are likely candidates.

[Noscitur a sociis]

This is evidence he knew of the outcome before hand

Like what?

[myself]

It's in the linked article, but there's contemporaneous emails and texts suggesting he knew the outcome beforehand (and that he was having discussions with co-conspirators that he didn't want to put in writing).

[Bob from Ohio]

Unsurprising but I am confused about the following:

"Some individuals admitted to investigators that they told their spouse or
partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules."

They must have had a scrivner error after that, the report did not continue:

"At the conclusion of the investigation, such individuals were terminated from employment and, if lawyers, the relevant licensing authorities were notified".

[gallinalg85]

You don't get it. They were trying to get the judges to change their minds. And since abortion and gay anal sex to completion are the holy grail of rights, anything done in furtherance of them is by definition a good, noble act.

[Rev. Arthur L. Kirkland]

They were trying to get the judges to change their minds.

Where does the Volokh Conspiracy find this many dumbasses?

And since abortion and gay anal sex to completion are the holy grail of rights, anything done in furtherance of them is by definition a good, noble act.

Does the Volokh Conspiracy generate this type of thinking, or merely attract it?

Carry on, clingers.

[gallinalg85]

Why do you think a man who ejaculates into another man's anus is a hero?

[Mr. Bumble]

In a just world, you and the Rev. Costco would be sent to the Phantom Zone.

[Rev. Arthur L. Kirkland]

In the real world, the culture war, the marketplace of ideas, and demographic reality will sift all of this.

The future is unlikely to favor ignorance, superstition, bigotry, insularity, backwardness, conservative schools, and desolate rural and southern backwaters. Science, reason, inclusiveness, education, modernity, our strongest (liberal-libertarian, mainstream) schools and strong, educated, modern cities and suburbs will continue to shape American progress and success.

Clingers hardest hit.

[Steve Griffin]

If abortion really does become more restricted I think we might need legislation limiting the dissemination of the identities of people who weren't aborted. I'm a little concerned as to how the Rev. Kirklands of the world might treat such people.

[Magister]

Wait, "people who weren't aborted" - wouldn't that be everybody? What information would you be limiting with such legislation?

The protection needed is for women who miscarry or who have no pregnancy but receive a prescription that someone somewhere thinks might be abortion adjacent or who get necessary medical treatment for a failed pregnancy to, you know, avoid dying. And the people to worry about misusing information like that are the people the Reverend rails against.

[Brett Bellmore]

I think he meant "people who weren't aborted due to the restrictions"; I took him to be suggesting that the next step in pro-abort terrorism would be fourth trimester and beyond "abortions" of the people who were born alive due to restrictions.

[Magister]

Well, thanks for translating from the crazy. "Pro-abort terrorism" is of course the most moronic of oxymorons.

The side of the debate that doesn't engage in terrorism and wants to leave the decision to the pregnant woman would generally attack people after they are born? The only person from that side who might consistently bear any ill will to such a child would be the mother or father, and sadly child abuse from many causes occurs across the political spectrum and for many reasons - but hiding information about "people who weren't aborted" really isn't going to protect them from their own parents.

That the side that wants no choice and harasses or attacks those who make or facilitate such a choice, but is not supportive of the "postborn", worries that this might happen bears out the observation that for the right wing, every accusation is confession or projection.

[Magister]

They were just following the precedent set by Alito with Burwell v. Hobby Lobby.

[Mr. Bumble]

Sounds like an "investigation" aiming at making sure it wouldn't find out anything.

[Tallman]

IDK. "Preponderance of the evidence" is a pretty low standard, particularly when the judge and prosecutor roles are merged.

[AtR]

Yeah ... they looked about as hard as Biden's lawyers.

I wonder whether this is just another Roberts "keep-the-peace" noble lie that will end up further eroding our trust in the Supreme Court.

[LawTalkingGuy]

Congress could also have (or can) conduct a more thorough investigation as well and may actually be the best positioned to do so. They're not beholden to the justices for their jobs like the Marshall is. The leak itself isn't a criminal act and how the Court operates is a proper concern of Congress since they pay for it (among other reasons). House or Senate judiciary committees could subpoena the Justices and their outside associates, not just interview employees. They could also subpoena documents and records.

And since the Congress is divided both houses arguably have a unified interest in getting compliance from the justices. The House would want the liberals and the Senate would want the conservatives. So they could actually take a unified stance on pressing their prerogatives to get compliance from the Court.

(Been reading Chafetz's Congress's Constitution and have been thinking more about Congress's ability to assert its authority against other branches).

[Dilan Esper]

I suspect that SCOTUS would strongly resist any attempt by Congress to do any sort of intensive investigation of this, on separation of powers grounds.

[LawTalkingGuy]

Sure they would. But that doesn’t mean Congress needs to acquiesce.

As a formal matter there is no actual separation of powers issue beyond one that the court would make up to protect itself. There is no doubt Congress could investigate a damaging leak from the executive branch and force cabinet officials to testify. The same is obviously true of the judicial branch. And Congress obviously has an interest in maintaining judicial integrity.

Plus Congress has plenty of tools to force the justices to cooperate:
Hold them in contempt if they don’t;
Impeachment and removal;
Defund all operations besides judicial salaries;
Modify court rules to terms the justices might not agree to like forcing cameras for arguments and opinion reading;
Eliminate jurisdiction in various areas;
Eliminate the four vote rule;
Or expand jurisdiction to make them miserable: (all ERISA cases get an appeal as of right for example)

And many more.

[Dilan Esper]

1. The judiciary enforces contempt rulings and wouldn't enforce this one.
2. Partisan polarization prevents impeachment and removal.
3. Yes, they could defund operations. That's the nuclear option, though, and would probably lead to retaliation from the Court. Nobody's ever going to do that.
4. The Justices would strike these down if they were too intrusive.
5. The Justices always construe jurisdiction stripping narrowly and would construe it more narrowly in this situation.
6. The Justices would strike this down.
7. The Justices would send this stuff to Special Masters.

[LawTalkingGuy]

1. A few responses to this:
1: Congress has inherent contempt power
and could send the sergeant at arms to
arrest them. Or The US Atty could
impanel a grand jury and indict them,
then arrest them.
2. The judicial proceedings would need to
create a doctrine of judges are special
boys with special rules to justify non-
compliance. Judicial integrity would be
further damaged. A 9-0 we don’t have to
Vote after ruling on their own case
wouldn’t be great. Or worse some
comply and the others try to get out of
it.
Declining enforcement entails costs!
2. You could easily get the house to impeach the libs
3. How would they retaliate? If no one but the judges are paid who is going to enforce court orders?
4. On what basis? Congress actually has the final say over court rules. It just lets the courts make them up for convenience sake. They could repeal or modify the Rules Enabling Act.
5. Okay, and then Congress would respond with more legislation.
6. This one is completely wrong. The rule of four is created by statute. As is the discretionary docket. The court can’t strike down its repeal without engaging in a massive and discrediting judicial power grab.
7. Who is going to pay for the special master?

[myself]

That's a whole lotta escalation for the mere possibility of finding the leaker.

Besides, Democrats care too much for institutional norms to go to war with the SCOTUS and Republicans have zero interest in upsetting the 6-3 super majority or potentially de-legitimizing the decision that got leaked.

[Brett Bellmore]

"3. How would they retaliate? If no one but the judges are paid who is going to enforce court orders?"

I'd assume that they could stop shading all their rulings in favor of illegitimate claims of federal power, and actually uphold the Constitution's limits on the federal government.

Sure, the elected branches could simply ignore the contrary rulings, but the cost to their legitimacy would be fairly high.

[Tallman]

OTOH, Congress was pretty indignent the FBI raided William "Cold Cash" Jefferson's office. That indignity even crossed party lines.

[Brett Bellmore]

Well, you know. "Who among us hasn't" and all that.

[Caphon]

Probably the best outcome here is that they implement systemic preventative and detective controls to better understand/investigate such an event in the future. Sounds like data loss prevention measures were pretty lax, relying as much as they did on trust.

[gallinalg85]

Yes, and trust doesn't work when it's a liberal trying to uphold their holy grails, killing third trimester babies and ejaculating into other men's rectums, as they sincerely what they're doing is right.

[Krychek_2]

You seem to have a fixation on gay sex. Is there something you'd like to share?

[gallinalg85]

Why do you leftists think it's a holy grail?

[Snorkle]

Your therapist called. Said he'll have to let the parole board know if you miss counseling again.

[Tallman]

+1

[not guilty]

The report notes the introduction of bills in the last Congress that would have expressly prohibited the disclosure of confidential Supreme Court information. Perhaps the judiciary committees of the House or Senate should investigate the Dobbs opinion leak, including calling the justices and their spouses to examine them under oath.

I am not holding my breath, though.

[LawTalkingGuy]

This really is a perfect opportunity for Congress to show some unified institutional muscle against the Court. I mean both houses have an interest in this. Jordan and Durbin could issue subpoenas simultaneously to their targets.

[Hugh Greentree]

I don't think that CJ Roberts really wanted to find out who leaked the draft decision. But this leak probably caused real damage to the Court. Trust between members is probably as low as it has ever been.

This was a terrible breach of professionalism. It was a shameful act. Whoever did it is probably happy for the result. But the probably don't realize how bad things can get.

[Michael D]

F the FBI. #AbolishTheFBI

Stop lending such an incompetent and corrupt organization so much credence.

If you think their forensic analysis would be more thorough, think again and recall how their forensic investigators were caught lying in court and using forensic science that had been debunked.

And we can be 100% certain the judiciary wants no part of the executive branch digging into their business.