Opinion Was leaking the Dobbs opinion the perfect crime? It sure looks that way.
Imagine that a group of people is gathered at a country home for the weekend. One of the guests is shot and killed. The suspects are carefully questioned, their rooms searched for the murder weapon. Except for nine of those present, who are not required to undergo anything like such rigorous interrogation. They simply attest that they didn’t pull the trigger.
The conclusion of this bad Agatha Christie murder mystery will come as no surprise: Authorities pronounce themselves unable to conclusively identify the perpetrator.
From everything that we can deduce from the Supreme Court’s just-released report on the leak of its abortion ruling, that is about what happened during the court’s investigation of itself. That raises the question that Christie would ask: Did the court — did Chief Justice John G. Roberts Jr. — really want to find the leaker, the person responsible for what the court’s statement termed “a grave assault on the judicial process” and an “extraordinary betrayal of trust”?
This court continues to be its own worst enemy, lacking in transparency and disdainful of reasonable inquiries. Thursday’s release of the report by the marshal of the court, Gail Curley, was obscure — my guess is deliberately — about whether the eight-month investigation had included interviews with the justices. Did the chief justice and his colleagues really think that question wouldn’t be asked — or that it could be ducked?
For 24 hours, the court’s press office declined to elaborate. And because the report was so unclear, and appeared to distinguish between court employees and the justices themselves, many of those reading the report assumed, not unreasonably, that the justices hadn’t been subject to questioning.
Now comes Curley with too little, too late. In a statement released Friday afternoon, she assures us that “during the course of the investigation, I spoke with each of the Justices, several on multiple occasions. The Justices actively cooperated in this iterative process, asking questions and answering mine. I followed up on all credible leads, none of which implicated the Justices or their spouses. On this basis, I did not believe it was necessary to ask the Justices to sign sworn affidavits.”
Whoa. What, exactly, is an iterative process? If this is an investigation into whether they played any role in the leak, why were the justices doing the question-asking? What, precisely, were they asked — and were they the same questions as those asked of law clerks and other court employees? Were justices — like others interrogated — asked whether they had shared information about the case with their spouses or others? Why the double standard about requiring sworn affidavits? That should be no big deal if there’s nothing to hide.
Curley’s report relates that investigators “conducted 126 formal interviews of 97 personnel,” informing witnesses “that they had a duty to answer questions about their conduct as employees.” Were her conversations with the justices “formal interviews”? If not, why not. The report notes that investigators “reviewed any available legal research history” to determine if the subjects of their interviews had looked into the legality of disclosing confidential information. Were justices treated the same way?
Further, Curley’s report states that “investigators collected Court-issued laptops and mobile devices from all personnel who had access to the draft opinion” and obtained “call and text detail records and billing statements” for some employees’ personal devices. Were the justices’ laptops and cellphones subject to similar procedures? If not, why not?
These unanswered questions point to the fundamental problem here: A subordinate was tasked with investigating her superiors. And not just any superiors. Justices are treated like deities in Washington, as the decision not to seek signed affidavits underscores. This is an inherently impossible task for an insider, and a recipe for inadequacy. Curley’s report asserts that her team consisted of “seasoned attorneys and trained federal investigators with substantial experience conducting criminal, administrative and cyber investigations.” Seasoned investigators I have spoken with question whether the marshal’s office was up to the job.
Further, it’s not as if the justices are above suspicion. Like others at the court, they had both motive and opportunity to leak. Indeed, it has never made much sense to me that a law clerk, without direction from a justice or at least tacit approval, would have taken that extraordinary step. After all, clerks are among the most careful, deliberate practitioners in the art of climbing the ladder of academic and professional achievement. They aren’t big risk-takers.
Late in the process, Roberts asked former Homeland Security secretary and federal appeals court judge Michael Chertoff to review Curley’s work. In a statement included in the report, Chertoff said the marshal “undertook a thorough investigation” and that he “cannot identify any additional useful investigative measures.”
Chertoff is an experienced investigator. He also has close ties to some justices — including the author of Dobbs, the abortion ruling. Chertoff served from 1987-1990 as first assistant to Justice Samuel A. Alito Jr. when Alito was the U.S. attorney for New Jersey. Chertoff succeeded Alito in that job, and the two served together as federal appeals court judges from 2003 to 2005. I don’t doubt Chertoff’s professionalism, but that’s uncomfortably close.
The court cannot have thought that this report, with its coy avoidance of dealing with how the justices themselves were treated, would satisfy anyone, on the right or left. It didn’t, and shouldn’t. The leak was a disaster for the court. This report, predictably inconclusive and grossly inadequate, piles one disaster on another.