Investigation that fails to investigate most obvious suspects reaches no conclusions
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Irin Carmon has more on the Supreme Court’s “attempts” to find the real leaker:
A surprise report from the Supreme Court on its investigation into who leaked a draft of the opinion overturning Roe v. Wade informs the public that the disclosure was “a grave assault on the judicial process,” an “extraordinary betrayal of trust,” and that the leaker “brazenly violated a system that was built fundamentally on trust.” The summary of the inquiry, conducted by the Court’s marshal, Gail Curley, provides a tiny window into the pandemic-era workings of one of the most secretive institutions in American life. It describes consulting cell-phone records and printer logs and conducting interviews that culminated in affidavits. We even learn that some of those interviewed breached protocol by blabbing to their spouses. But crucially, it does not tell you whether investigators actually spoke to the justices themselves. Oh, and the report also doesn’t say who leaked to Politico last spring. These omissions may or may not be related.
The report begins with an unsigned statement from the Court that says, “After months of diligent analysis of forensic evidence and interviews of almost 100 employees, the Marshal’s team determined that no further investigation was warranted with respect to many of the ‘82 employees [who] had access to electronic or hard copies of the draft opinion.’” The internal quote is from the marshal’s portion of the report, which never explicitly explains who counts as an “employee.” The marshal does say that “the investigation focused on Court personnel — temporary (law clerks) and permanent employees — who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico.” Are the justices “permanent employees”? (Hard to get more permanent than a lifetime appointment, right?) Well, the marshal writes that “the investigators determined that in addition to the Justices [emphasis mine], 82 employees had access to electronic or hard copies of the draft opinion,” suggesting that the nine weren’t included in that count. I called and emailed the Court’s Public Information Office on Thursday afternoon, asking if the justices were interviewed or scrutinized — and, if they weren’t, why not — and will update if I hear back.
When Politico first published the draft, conservative legal activists pointed the finger at the left, even naming two clerks for liberal justices. (The report addresses the naming of law clerks and says “investigators found nothing to substantiate any of the social media allegations regarding the disclosure.”) In the many months since the leak, nothing has emerged implicating any liberal justices, who are dyed-in-the-wool institutionalists, nor has anyone satisfyingly explained why the leak was supposed to help the pro-choice side.
On the other hand, there are some morsels leading in the direction of the conservative justices. The claim that Chief Justice John Roberts was trying to peel off Brett Kavanaugh’s vote for an abortion compromise — later backed up by the actual, published opinions — appeared in an article by the conservative Wall Street Journal editorial board the week before the draft opinion leaked alongside urging the Republican appointees to stay strong against Roe. In November, the New York Times reported on an account from apostate anti-choicer the Reverend Rob Schenck that in 2014, Justice Samuel Alito or his wife told a couple of conservative donors over dinner that he wrote the opinion in Hobby Lobby, the decision undermining contraceptive insurance coverage, weeks before it was public. Alito didn’t deny the dinner but did say he and his wife never leaked anything. And yet Schenck was able to show contemporaneous emails indicating he somehow knew about the Hobby Lobby outcome before it was public.
In all candor my guess is that the leak was immaterial no matter what; I don’t think Kavanaugh’s vote was ever really in play. But as Paul said yesterday it’s hard to deny at this point that the most likely suspects as Alito or Thomas figuring why take a chance, that’s how they feel about it.
But if you think this investigation was set up to fail, wait until this one:
The House Judiciary Committee is expected to investigate the leak of the draft Supreme Court decision that signaled the overturning of Roe v. Wade after the high court’s formal investigation failed to identify the culprit, Fox News has learned.
Committee Chairman Jim Jordan, R-Ohio, said last year, when he served as committee minority leader, Republicans would investigate the leak of the draft opinion.
Now that the Supreme Court has come up empty, a source close to the committee said the GOP-led panel intends to probe the matter.
Next, Jim Jordan will look into finding out which Ohio State coaches looked the other way while a doctor sexually assaulted their student-athletes.
…res ipsa loquitur :
Sworn affidavits were THE main tool that the marshal used to secure truthful statements from everyone she interviewed because lying on an affidavit is a crime. Yet the justices were exempt from this requirement.— Mark Joseph Stern (@mjs_DC) January 20, 2023
Again, the marshal’s report makes a HUGE deal about the fact that every possible suspect had to sign a sworn affidavit saying they weren’t the leaker, because lying on an affidavit is a crime. But the justices were exempt from this requirement? For reasons that don’t make sense?— Mark Joseph Stern (@mjs_DC) January 20, 2023