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Supreme Court is unable to ID the leaker in Dobbs decision

The Marshal of the Supreme Court is unable to identify a person who leaked the <em>Dobbs </em>decision, according to a Supreme Court release Thursday.
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The Marshal of the Supreme Court is unable to identify a person who leaked the Dobbs decision, according to a Supreme Court release Thursday.

Updated January 19, 2023 at 5:25 PM ET

The U.S. Supreme Court released a report Thursday saying it has been unable to identify the person or persons responsible for last May's unprecedented leak to Politico of the draft decision overturning Roe v. Wade.

The report follows an eight-month investigation — conducted by Court Marshal Gail Curley with a team of investigators — ordered by Chief Justice John Roberts to ferret out the leaker.

The report details the various steps in the investigation, among them, interviewing some 97 court employees, conducting extensive follow-up interviews with some, hiring forensic experts to track who had access to the draft, who printed it out, who emailed it.

All personnel who had access to the draft opinion signed sworn affidavits affirming that they did not disclose the draft opinion or know anything about who did. A few did say that they had told their spouses the outcome of the case, and the vote. But at the end of the day, as the report puts it, "At this time, by a preponderance of the evidence standard, it is not possible to determine the identity of any individual who may have disclosed the document or how the draft opinion ended up with Politico."

There were some other conclusions worth noting.

"It is unlikely that the public disclosure was caused by a hack of the Court's IT systems," the report said. But 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. And that increased the risk of both deliberate and accidental disclosures of Court-sensitive information."

The report did not say whether the justices themselves were interviewed, nor did it say whether investigators were able to narrow their sights on one or more individuals, though, by inference, it would appear that investigators did have some suspicions about certain people.

Apparently, though, there simply was not sufficient evidence, or even much evidence at all, to justify making any sort of an accusation. In fact, the report went out of its way to essentially exonerate the few people whose names had been floated in social media posts--namely some law clerks for liberal justices.

An independent review of the investigation was conducted by Michael Chertoff, a man with lots of appropriate credentials: former Secretary of Homeland Security, former head of the U.S. Justice Department criminal division, former top federal prosecutor for New Jersey, and and formerly a judge on the U.S. Court of Appeals for the Third Circuit. Concluding that the Supreme Court's Marshal "undertook a thorough investigation," Chertoff said that he could not "identify any additional useful investigative measures" that could have been undertaken.

That said, court investigators have left the door open, noting that they are continuing to review and process some electronic data that has been collected and a few other inquiries remain pending. Unless some new leads are produced, however, Thursday's report is likely the last the public will hear about the probe from the court.

The report pleased neither the left nor the right. On the left, Take Back the Court issued a statement, calling the court an "out-of-touch institution" that "has concerned itself not with the harm it has perpetrated but instead with its own internal machinations."

On the right, some congressional Republicans have threatened to conduct an invesitgation of their own.

Copyright 2023 NPR. To see more, visit https://www.npr.org.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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