Supreme Court Says Unable To Figure Out Who Leaked Abortion Decision Draft
Investigative “team has to date been unable to identify a person responsible by a preponderance of the evidence.”
Just a few days ago I noted that SCOTUS Investigation Into Abortion Leak Seems A Mess.
And what a mess it turned out to be. NBC News reports:
The Supreme Court on Thursday announced that it has been unable to identify the person who leaked an unpublished draft of an opinion indicating the court was poised to roll back abortion rights.
In an unsigned statement, the court said that all leads had been followed up and forensic analysis performed, but “the team has to date been unable to identify a person responsible by a preponderance of the evidence.”
Here’s the court’s statement accompanying the SCOTUS full Report (emphasis added):
In May 2022, this Court suffered one of the worst breaches of trust in its history: the leak of a draft opinion. The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process. To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open. Along the way, though, it is essential that we deliberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.
For these reasons and others, the Court immediately and unanimously agreed that the extraordinary betrayal of trust that took place last May warranted a thorough investigation. The Chief Justice assigned the task to the Marshal of the Supreme Court and her staff. 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.” Marshal’s Report of Findings & Recommendations 11 (Jan. 19, 2023).
In following up on all available leads, however, the Marshal’s team performed additional forensic analysis and conducted multiple follow-up interviews of certain employees. But the team has to date been unable to identify a person responsible by a preponderance of the evidence. Id., at 17. A public version of the Marshal’s report is attached.
Recently, this Court consulted Michael Chertoff. Mr. Chertoff is a former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey. We invited Mr. Chertoff to assess the Marshal’s investigation. He has advised that the Marshal “undertook a thorough investigation” and, “[a]t this time, I cannot identify any additional useful investigative measures” not already undertaken or underway. Statement from Michael Chertoff 1 (2023). A copy of Mr. Chertoff’s statement is attached.
The Marshal reports that “[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending.” Marshal’s Report 2. “To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.” Ibid. The Marshal and her team will continue to have our full support.
MORE TO FOLLOW
Much of the statement seems focused on deflecting criticism of the Marshal. But Jonathan Turley is right, SCOTUS should have turned to the pros right away. As in immediately.
…It will likely revive concerns over whether the FBI should have been asked to take the lead on the investigation. The Court is only a few blocks from the world's leading forensic investigatory body…
— Jonathan Turley (@JonathanTurley) January 19, 2023
We have conspiracy theories from BlueAnon:
I told everybody, from the very beginning, that if the Dobbs leaker turned out to be a Republican, the Supreme Court would somehow never find who did it.
Welp, the report's out and, what do you know, they don't know who did it.
— Elie Mystal (@ElieNYC) January 19, 2023
Donations tax deductible
to the full extent allowed by law.
It would be terribly embarrassing to “out” the Chief Justice so no culprit was found.
In big league politics, there are no coincidences since nothing is left to chance.
The Chief probably did not do the leak, but the Chief does not want to find the leaker. The fix is in and the Chief is behind that. I would love to see Roberts leave, but not when Biden and Schumer get to pick his replacement.
Fitting handle you have there…
Don’t mention it.
SCOTUS should implement a printing system which places an invisible code on every document identifying who received it. This capability is already in laser printers to identify which printer a document comes from. This should be done with anyone other that a security person knowing about it. That would greatly narrow the scope of an investigation.
I would be surprised if they haven’t arranged for drafts of their next “earthshaking” decisions to start out already equipped with canary traps.
ALL laser and ink jet printers already include a dot pattern code that uniquely identifies the printer and the time of printing. The leak was a scanned copy. They absolutely know which printer printed it. They may not know the who leaked it question, though. (or don’t want to know)
Unless they had the printed document, what good does it do?
As I said a long time ago: Breyer. He had nothing to lose at that time, and could have counted on an investigation to take longer than he had remaining on the court to go anywhere.
It must have been the J6 Pipe Bomber.
Everyone that believes that they really tried to find the leaker, please raise your hand …
C’mon … crude hand-gestures do NOT count!!
Investigative “team has to date (John Roberts) been unable to identify (John Roberts) a person responsible by (John Roberts) a preponderance of the evidence (John Roberts).”
A total mystery.
Kind of like Biden’s top secret super confidential investigation
A/K/A crock of shit.
In the world of classified information, which millions of us have had clearances to access, a leak can and will be followed with polygraphs for those with access to the classified information.
The SCOTUS leak “investigators” did not resort to polygraphs because they did not want to find the perp.
The courts have long ago declared that “polygraphs” are junk science, no better than phrenology. That’s why their results cannot be admitted as evidence in any court. The FBI is entitled to its own view, but it would be hypocritical for the supreme court marshal to administer them.
Courts may so decide for evidentiary purposes.
To say they have no value finding a leaker, of classified information or of SCOTUS briefs, is to deny reality.
The courts have stated their view of reality. And they’ve examined the evidence carefully, so I’ll take their word over the FBI’s or yours.
Would you say phrenology or tea leaves have value in finding a leaker?!
Polygraphs are nothing more than anxiety detectors and their “science” is based on the unscientific view that a innocent person would not be anxious. So in other words 100% Bovine Exhaust.
Apologies Milhouse that comment was meant for @FrankJNatoli.
Interesting fact: The polygraph was invented by the creator of Wonder Woman, an S&M aficionado who (along with his wife) had a very long term polyamorous domestic relationship with a young student, and who believed peace was only possible by making men slaves to women. Wonder Woman’s golden lasso was an avatar for his interest in lie detection. His invention was not well received academically, but was of course sucked up wholesale by the security state.
You keep saying “courts”.
I have made clear I agree that polygraphs are not “evidence” in a juridical sense.
You, however, are manifestly incapable of understanding that, while not perfect, unlike you, polygraphs have a very real ability to reveal truth or deception as the case may be, which is what the SCOTUS leak investigation needs.
I’ve been polygraphed twice, civil cases, both times “no deception indicated”.
The first analyst started with a small deck of cards, numbered 1 to 20.
I was told to pick one number, then the analyst would quiz me, and I was always to answer “no”, not the number I had chosen.
If the analyst detected exactly one lie, I was a “good” polygraph candidate.
If the analyst detected two or more lies, or no lies, I was not a “good’ polygraph candidate.
I picked the number, he asked the questions, he concluded “so you actually picked #7”, which was correct.
That is what ignorami call “no different than phrenology”.
The Defense Investigative Agency, for Christ’s sake, uses polygraphs, not to obtain juridical evidence, but to isolate a criminal, because, most of the time, it works.
If I was conducting the SCOTUS leak investigation, I’d get the best analyst from DIA, identify the leaker, and if he or she refused to resign, assign him or her to some federal office in the Aleutians.
But not you; you insist on perfection or nothing.
The truth or falsity of a statement is the sole province of the trier of fact. Admitting Conclusory testimony concerning the truthfulness of other witnesses undermines this fundamental legal precept and could have prejudicial results that far outweigh any possible evidentiary value related to expert observation.
Despite this danger, some states do allow polygraph evidence to be <a href="https://www.lawinfo.com/resources/criminal-defense/are-lie-detector-tests-admissible-in-court.html"admitted under limited circumstances.. Those States are:
Cool. Do those states also allow testimony from “graphologists”, palm-readers, or astrologers?
Worse — they allow testimony from high-level national intelligence veterans.
Thank goodness the federal courts are not political. Chief Justice Roberts said so and we know we can trust him.
Yeah thats what happens when you demand an organization THAT DOES NOT INVESTIGATE CRIMES do the sham ‘investigation’, and then issue NO warrants, NO subpoenas, and put NOBODY under oath in their laughable halfhearted interviews.
Roberts knows goddamn well who it is, he just doesn’t want the stupid unwashed plebes to know because that would compromise his precious ‘apolitical’ court BS.
Oh, come now, Paula! This leak was politically big but did not affect national security and was not a crime. All of those who work at SCOTUS continue to have their constitutional rights. It may well be that almost everyone at SCOTUS thinks they know who the leaker is, but there is no actual proof. Since there was no crime, the “investigation” had to be limited.
Or would you have preferred that the full force of all branches of government be used to trample the rights of the employees at SCOTUS? That would really be a major scandal!
We don’t even know the motive of the leaker. Perhaps the leak achieved its purpose, perhaps not. We may never know.
If they can’t figure out how this leaked they have some serious issues in their document handling procedures. The honor system and depending upon respect of the institution was clearly insufficient to curb the leak. Unless fixed this will become commonplace. The ideological fissures are too pronounced and the stakes too high. Several decades worth of precedent, generations in some aspects, are being threatened by the current composition of SCOTUS. Too many vested interests on the progressive left are threatened for the ideologues not to throw sand in the gears.
Yeah, if the leak couldn’t be immediately, reliably traced their document handling needs help.
What you are so worried about didn’t happen, did it? There was a lot of huffing and puffing and screaming and crying, but in the end the court issued its decision and everything worked as it should.
I am satisfied to let the learned members of the SC to determine for themselves how documents should be handled.
But it did happen. The trust and confidentiality in the court is permanently destroyed. From now on anyone who files anything with the court in confidence can’t rely on it staying in confidence, and the justices themselves can’t trust that their internal communications will stay private.
I’ve seen suggestions that EVERY individual below the justices who had access to these draft documents should be FIRED and replaced.
Harsh? Disruptive? Sure, but MIGHT restore some credibility and respect.
Otherwise, correct, early leaks will become as common as with any other powerful government bureaucracy. Private and public pressures will be asserted.
Including threatening mostly-peaceful demonstrations near private homes and following children to their schools.
Did I say that? I know I thought it.
Conclusion: It is safe to leak more cases in the future.
Sow the Wind, Reap the Whirlwind.
You’re not really good at this.
You presume I had any worry about whether SCOTUS would broadly adopt the outlines of the Alito draft. Nope, not for a minute did I doubt that. My concern then and now is the damage. The loss of trust and creation of suspicion between the Justices and among their staff is something they will never get back. It’s an entirely different perspective for them now. With each other and very importantly between the Court and the Public.
Why should the Citizens of South Carolina decide how documents are handled at the Supreme Court of the United States, SCOTUS?
The Marshall of the Supreme Court, who has about two weeks of investigative experience, tried her very best to find out who leaked the draft decision. But she can’t find out who did it. It’s just too big of a job for her.
Perhaps the Federal Governement should establish some kind of Federal Bureau to Investigate really big, important things like this giving them a huge budget, resources and manpower.
Great idea. They should have raided Mar-a-Lago right away and put, … er … I mean, … “discovered” the evidence there!
This is entirely in keeping with Roberts’ odd ideas of what protects his odd ideas of the reputation of the court.
What a farce! It is known that the material originated with the court. It was provided to Politico. All possible leakers are known and their number is quite limited. The NSA could identify the leaker in about 2 minutes flat by analyzing electronic communications. (Just as it could have produced Hillary’s erased emails). Once the leaker is known, all resources could be allocated to proving it by more conventional means. Apparently, there is no crime involved anyway. The court is as corrupt as any other branch. All is circus.
The court does not seem to be any more corrupt than any other agency or private business. We know that government employees leak info all the time. It may be that most at the court think they know who did it, but there is no proof so no one can be accused. If there is no crime, then how can the NSA or FBI get involved?
How can they get involved? You must be joking.
No, not joking at all! No crime! Simply an employee matter. It is for the members of the court to determine how the court should operate.
Not joking, trolling.
BTW, anyone suggesting the FBI investigate this charade has not been paying attention since 2016.
Oh come on. This is the federal government. “Show us the person, and we’ll pick a crime out of a great big book.” There are plenty to go around.
How about the one they used against the J6 crew: interference with an official proceeding? Ooh ,that sounds scary. Or violation of a fiduciary blah blah, telecommunications abuse to commit zim zam, interstate mopery with intent to corrupt a frammistan, failure to register as a secret agent.
They’re all there and plenty more, whenever they need them.
My initial assessment is unchanged: the leaker is most likely a career employee who was very careful to leave no trail to follow so there will be no texts, e-mail, or other electronic evidence to trace back. The handoff was using an old-school dead drop of a paper copy which was reproduced and then returned the same way it left– in a brief case by an employee with a long-established record of taking work home. Nothing of value was received and no compromise of a government network so no crime.
Oh, you mean a little trade craft?
If that’s all it takes — and that’s all it takes, one suspects that the folks getting caught are meant to be.
You’ve read too much Ludlum. The draft itself might have been handed off as you describe, but there is electronic evidence linking preliminary contact.
Who needs all that spy flim flammery. Just make a copy when nobody is looking, stick it in your pocket. leave the building, and then mail the papers to your nearest convenient media hack at Politico. Job done.
Or if you must, take the copies in an envelope to the nearest park bench and while feeding the pigeons surreptitiously slip the envelope to your media hack from Politico. Again, job more complicated but job done.
Either way, hardly likely the SCOTUS has cameras on every printer & copier in the building. Don’t even know if security pats down people and looks through their briefcases as they leave the building. Sure they don’t worry about the SCOTUS justices or interns. Why should they.
“Either way, hardly likely the SCOTUS has cameras on every printer & copier in the building.”
Well, dumb if they don’t. Also unnecessary. Printers in the US encode the machine’s serial number on each printed page.
— Back in the day, the EFF sold pocket LEDs to make the markings visible
— Not “mandated.” Just cooperating on the D-L Where have we seen this before?
— Nobody outside the club knew they were there, let alone what they were til some curious folks reverse-engineered them.
— Didn’t believe it myself. I spot checked to confirm. Yep.
Don’t hand off something you printed; it fingers the printer, and the gizmos tattle that it was you. (It’s worse than that. Ask me about the “Intel Management Architecture” in their CPUs sometime.) Don’t hit “send” either. Same logs, broadcast, n snoopers problem. (The idiots caught from their e-communications are not the problem. They’re the dumb ones.)
Myself, I think I’d only leak via something like a screen shot, distorted by, say, shrinking a bit. Even vote scanning machines can’t easily get past that, so…
The basic problem with this is that if the leaker hands off his official copy to his external confederate, the telltale points back only to the official copy machine, which is useless. If the confederate copies it on his own machine and gives the original back, you’re stymied.
Well, yeah-ish. That breaks the chain to devices, if the leaker remembers to do that.
Confirming it came from the Left and Roberts is too big of a pussy to say so.
We’ll just have to wait until the culprit is of a certain age and disposition to crow about the deed. It’s the tale of the priest who makes a hole-in-one on Sunday morning. Sooner or later he’s just gotta take credit.
I always heard that joke as about a rabbi who goes golfing on Yom Kippur. His punishment is that he scores a perfect 18, but who’s he going to tell?
Transposing it to a priest on Sunday raises a question: Are there any branches of Christianity that forbid playing golf on a Sunday (before or after church)?
Make it sports betting and it translates. Make it a dogfight and you won’t have to do the comparative religion analysis.
I believe Christian religions should teach to keep the Sabbath day holy, It would then be one’s own decision at that point.
A Church, any Church, should not condemn or damn anyone for their sins. Christ didn’t. He did not condemn the woman taken in adultery. John 3:17: For God sent not his Son into the world to condemn the world, but that the world, through Him, might be saved.
Keeping the Sabbath Day holy is a blessing.
You know…just FYI.
This isn’t about condemning someone for their sins. It’s about defining what a sin is. The Bible doesn’t just say to keep the Sabbath holy, it gives several instructions on how to do so. Whether playing golf violates any of those instructions is a matter for each church to define according to its own doctrines. But the joke only works in the context of a church that says it does violate them, or at least that it’s not an appropriate thing to do, especially for a “person of the fabric”.
Jewish law defines how the Sabbath is to be kept holy in excruciating detail. Of the standard 10-volume edition of the most prominent codification of Jewish law, one entire volume is devoted to the Sabbath. And yes, for various reasons golf is out, so if a rabbi were to score a perfect 18 on a Sabbath, and especially on Yom Kippur, which is “the sabbath of sabbaths”, he would never be able to tell anyone, which would make it the perfect punishment for his sin.
I’m always amused when I read an entire appliance manual and discover easter eggs in the form of a “Sabbath mode.” My refrigerator has one that disables the control panel and the interior light upon opening the door… and for some reason I can’t comprehend, the automatic icemaker. Especially since the instructions advise one can continue to make new ice using manual trays, which I would expect should be exactly backwards.
Unfortunately, with Martin Luther and others, anybody and everyone who wishes may hang out a sign and claim to be Christian. There’s no telling what some of them assert and practice.
Maybe, but a joke that only works in the context of some obscure sects isn’t much good, unless (1) those sects and their laws are well known to the general public, and (2) the joke specifies one of them.
Wesleyans, Amish, and Mennonite.
Tho they all pretty much frown on ever playing golf. Or playing, really.
The judges have too much human sympathy for the culprit(s), and they have made a mistake that will damage the institution they were trying to protect, and also tarnish the reputations of the innocent.
I’ve seen this, before. I did the drafting on a case where my court took the rare step of issuing sanctions for misconduct. The party had filed a brief crammed with misrepresentations that were serious enough to affect the evaluation of the case.
Contrary to what the talking heads had to say about this court, everybody assigned to each case read each brief, and so the misrepresentations were detected. I wrote a draft citing each misrepresentation, in flat language with few adjectives or adverbs.
One judge couldn’t stand it. That judge insisted on a series of deletions of items and several rounds of softening the language. The judge knew the lawyer that signed off on the brief, and said that it was bad enough to have the word “sanctions” next to his name, much less so much “painful” detail. My judge agreed to every change, although all three members of the panel had voted to issue sanctions.
When I got off the court, I got three years worth of earful at the judicial conferences, about how the judges were swinging from the chandeliers, issuing sanctions for no discernible reason. I attended a seminar when one person stoutly held forth on how it would be “malpractice” (!) to fail to allege sanctionable misconduct in every case, because “nobody knows what sanctionable misconduct is.”
People took that advice seriously. I know one attorney who was on the receiving end of a sanctionable misconduct claim. He was eventually cleared because he never did anything wrong, but it took a miserable two years out of his life.
The Supreme Court made its first mistake by failing to turn the investigation over to a neutral outside party. This is standard procedure for internal investigations for large companies, and it makes me wonder whether they sought anybody’s advice on this matter.
Their second mistake was failing to close the investigation with the name(s) of the accused and a referral to the applicable bar association.
These failures will place an indelible blot of Deep State Privilege on the Court, because the Court has just told every other lawyer in the country, “This is our select club, and you’re not in it.”
Every last one of the innocent clerks serving at the time of the leak will have a kind of watermark on their resumes, with some people blaming the nominal conservatives, and others blaming the nominal liberals. This has already happened on Twitter and it will not go away. Fifteen years from now, when some of them are being considered for judgeships, they will be asked about this incident. The philosophical successors to Joe Biden, Adam Schiff, and Chuck Schumer will declare with great certainty that this or that one was the culprit and therefore is unfit for public office, based only on the years in service.
Great comment, especially concerning the lasting effect on the innocent clerks. However, the 2 mistakes you cited are irrelevant if the guilty party is one of the Justices.
It looks like from the comments that absolutely no one believes they really want to find the leaker, especially not Roberts. It would be so easy, just 9 lie detector tests and then the aids. But if it were me I would test only one person and that would be Sotomayor. She is the one with no common sense and thinks all white men are less than her equal. She is also the most outspoken with the least facts or truths. On top of all of this, Roberts would rather resign than hold an impeachment of a justice.
“Lie detectors” are bullshit. That’s why their results are inadmissible in any court in the land.
This was an investigation, not a trial. It doesn’t matter if it’s admissible. Polygraph tests are not useful as evidence of guilt, but rather as a means to smoke out candidates for more intrusive investigation. People act weird when given such tests. They blurt out incriminating things, do things before and after that suggest guilt, and so forth.
No culprit found story dies in a few day
Person named gets banners for weeks, court trial mabe, sentence and talk for months how Roberts court has be compromised
Well Justice, as they say, is blind.
I’m just wondering if there a few on SCOTUS that may have a touch of visual agnosia…..
“Couldn’t find ‘im! ‘N we hired Nancy Drew ‘n EVERYTHING!
Well, Pamela Sue Martin, obviously. There IS no real Nancy Drew, silly!”
So…the leaker was another member of SCOTUS? That would require spineless Roberts to actually do something instead of finding “consensus to maintain the dignity of the Court”. I wonder how the Wise Latina is doing?
Well, they’re just not as smart as they think they are.
Quod erat demonstrandum
The wording is highly suspicious. “Preponderance of evidence.”
What about “probable cause?” Do they have probable cause to issue a search warrant?
I assume from the wording that they do but have no intention of pursuing it. Once again Chief Justice Roberts wimps out.
Nobody at the court wanted to know, because they all knew who it was already. To quote the cankles, “at this point what does it matter!”
My suspicion has always been around that clerk with past ties to Politico, Amit Jain. Or Breyer. I don’t even know if Amit Jain is still around the court, but since he was clerking for Sotomayor back in 2017, he’s been around too long. Those clerk appointments should come with limited terms. Breyer? He had nothing to lose. KBJ? Maybe—I remember the announcements saying she was being briefed on everything going on at the court and was sitting in on meetings, though she was not voting but may have been participating in discussions. This will be fodder for someone’s “tell-all” book in the next few years.
Lets be honest. They know who did it and they have known who did it from the moment it happened, possibly before it happened. This is all just smoke and mirrors to be able to say they did “something”.
Well, they tried. That’s the important thing.
Heh. “Tried” … That’s a good one.
Now everyone involved in this “investigation” can be publicly awarded a participation-trying ribbon. The justices included.
When you don’t conduct a real investigation this is the result
Pffft…yeah, right John.
I’m agreed that it probably was Sotomayor or one of her clerks under her orders, but the big question that is getting avoided is: If so, what could be done about it *without* wrecking any kind of working relationship within the SCOTUS?
Legal sanctions? Please, be serious. Roberts was in a bit of a pickle because finding a clerk did the leak would have been fairly easy to deal with. Bang, out the door, never to be seen in a law office again. But one of the justices? There certainly wouldn’t have been any impeachment over it and nothing that would go through the Senate at all. About the best and only way to keep the Nine Kings working together is to shrug, claim you can’t find anything, and move on.
I believe Roberts is smarter than you’re giving him credit.
If one of the justices was the culprit, or their master, why on earth would you want to “work together”? Name them, ostracize them, and get on with things.
What silly games. The integrity of the Supreme Court is at stake. If we were a nation to be taken seriously then someone would have gone to Politico and started breaking legs. One at a time. Until it was understood that a “JouRnaLisT” may not undermine a nation.
It is being alleged that the justices themselves were never interviewed by investigators. Hard to find evidence you aren’t looking for, and if true points the finger of guilt squarely at one of them.
A suggested revision of the headline: Beltway Unwilling to Risk Disclosing Who Leaked Draft of Dobbs Decision by Conducting Thorough Investigation.
Washington needs a complete deep cleaning; it’s difficult to trust or believe anything that comes out of it.
This was not a thorough or deep investigation No one was placed under oath and no one’s personal electronic devices were inspected
Unfortunately the leakers are awaiting the passage of the Stature of ZL imitations with an oped book deal mini series or movie deal a done deal
Was Nixon’s secretary working for SCOTUS? No one is buying the results.