What happened to the investigation into the Dobbs draft leak?
Supreme Court Justice Samuel Alito called the leak of his draft abortion opinion in Dobbs v. Jackson Women’s Health Organization to Politico last May “a grave betrayal of trust by somebody,” which endangered the justices’ lives. Justice Elena Kagan called the leak “terrible” and “horrible.” Justice Clarence Thomas called the leak “tremendously bad” and “an infidelity.” Chief Justice John Roberts called the breach “absolutely appalling” and a “betrayal” by “one bad apple.”
Roberts promised a full investigation of the matter, and justices said they expected a report from him in late fall. If there has been such a report, it has not been made public, and the public is entitled to an update.
Leaking the draft violated the traditions of the court. It also may have been a criminal offense. The misappropriation of intellectual property is a federal crime. So is the obstruction of justice.
Yet Roberts did not call in the FBI to conduct the investigation. He delegated the task to Gail Curley, a former army colonel, who is the court’s marshal. She’s the one who shouts, “Oyez! Oyez! … God save the United States and this honorable court” at the start of every session. If Curley has any experience or skill in conducting leaks investigations, her qualifications are less than obvious.
Roberts’s appointment of Curley is understandable even if it appears supremely obtuse. The judicial branch does not want the executive branch of government looking over the shoulders of its personnel. But if Roberts really wanted to get to the bottom of it, his reliance on Curley was misplaced. There is the lurking suspicion that Curley’s investigation is, as Shakespeare put it, but “a dagger of the mind, a false creation.”
The Department of Justice has a public integrity section that is admirably suited to the task. Jack Smith is the lawyer Attorney General Merrick Garland commissioned to conduct the Trump investigations. Smith was for five years head of the public integrity section, which investigates politicians and other public figures in corruption inquiries. If there was “corruption in the palace of justice,” the public integrity section would be well equipped to unearth it.
Directing the inquiry to Politico would obviously be off limits. In our country, we don’t investigate First Amendment organizations over their news gathering activities. But outside of that, the gloves should be off.
It’s been almost seven months since the leak, and finding out who did it should not be so hard if you really wanted to know the answer.
Figure out who had access to the draft opinion, a universe consisting of justices, possibly their spouses, their clerks, secretaries and other court personnel, and start asking questions. Phone logs and other electronic evidence might show communications between possible suspects and Politico.
Then start asking questions and interviewing those in a position to know. The FBI is armed with Title 18 U.S.C. §1001, making it a criminal offense to give a false statement to the FBI. Then, there is also the possibility of putting witnesses before a federal grand jury. As the chief justice has stated emphatically, “No one is above the law.” It is our nation’s foundational principle that our law applies “to all, without regard to numbers, wealth, or rank.”
There is also the question of motive. Was the leaker a liberal who wanted to warn the country about what was afoot and bring public pressure to bear on justices who might change their minds? Or was the leaker a conservative who was anxious about a vote or two going wobbly that might turn the court to a different outcome?
There is also the possibility that someone wanted to take the sting out of the opinion and make it anticlimactic so that the court would avoid being swept up in a vortex of public opinion further undermining its legitimacy. The eventual identity of the leaker might reveal his or her motives and allow the institution to rid itself of the “one bad apple” that had done so much damage to the court’s integrity.
Many of these elementary and fundamental techniques of federal investigation may not be available to Curley.
In the court’s 233-year history, breaches have been few and far between. The opinion in Roe v. Wade was itself the subject of a leak, but, unlike the situation with Dobbs, it came a matter of days before release of the opinion.
Also close to the opinion was the alleged 2014 leak of the 5-4 outcome in Burwell v. Hobby Lobby Stores, another Alito chef d’oeuvre in which the court held that a business closely held by religiously devout individuals did not have to offer insurance coverage to its employees under ObamaCare for contraceptive treatment.
A minister, the Rev. Rob Schenck, at the time a leader of the anti-abortion movement, told The New York Times that he had been made aware of the outcome weeks before the opinion was filed. Alito has acknowledged a “purely social relationship” with an Ohio couple who were Schenck’s major donors.
Dissenting in Hobby Lobby, Justice Ruth Bader Ginsburg was apoplectic at the decision. “The Court, I fear,” she wrote, “has ventured into a minefield.”
Justices have traditionally maintained a veil of secrecy over their deliberations, and this is appropriate. The leak of a draft opinion in a commercial case can materially affect the stock market or the value of a patent. Most of all, the leak of a draft opinion makes the court appear to be an internally weak convocation of warring political factions, not a collegial body of jurists dedicated to the rule of law.
True, the views of some justices on ideological issues are well known before they come to court. But it is an article of faith that views can change as drafts are circulated among justices. A dissenting opinion can persuade justices tentatively inclined to vote with the majority and become the opinion of the court. Premature release of draft opinions is to be condemned by all those interested in the due administration of justice.
It has been seven months since the leak, and the public is entitled to an update on the investigation — that is, if the chief justice really wants us to know the answer. And I shouldn’t blame him very much if he didn’t.
James D. Zirin is a former federal prosecutor in the Southern District of New York. He is the author of the 2016 book, “Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court.”