Why the Supreme Court’s botched Dobbs probe shows 'how not to conduct a leak investigation': ex-DOJ IG

06 March 2023

After spending months investigating the leak of a draft opinion in Dobbs v. Jackson Women's Health Organization, the U.S. Supreme Court announced that its probe had turned up nothing. Chief Justice John Roberts had made it clear how furious he was that someone leaked a draft opinion, written by Justice Samuel Alito, to Politico. But in the end, Roberts had no idea who that person was.

The fact that the leak investigation reached a dead end brought even more criticism to the High Court, whose credibility, according to polls, suffered considerably in 2022 — a year that found the Supreme Court, in Dobbs, overturning Roe v. Wade after 49 years. The decision, polls show, is wildly unpopular.

In an article published by The Atlantic on March 6, attorney Glenn Fine — who formerly served as inspector general for the U.S. Department of Justice (DOJ) — lays out some reasons why that investigation was flawed.

"Not all leaks are as egregious as this one," Fine argues. "Many do not warrant a full investigation or the upheaval such an investigation can cause to an organization, particularly given that they are rarely successful. But this one clearly did, because the leak damaged the integrity of the Court and its decision-making process, which the Court recognized."

Fine continues, "Unfortunately, the leak investigation it conducted demonstrates how not to conduct a leak investigation. It also illustrates, again, the need for internal oversight at the Court, which should have a better permanent capacity to police itself by more credibly investigating alleged misconduct and by identifying faulty procedures proactively."

According to Fine, there were multiple flaws with the investigation.

Fine explains, "The first problem in the Court's leak investigation was whom the Court asked to conduct it…. The marshal of the Court, Gail A. Curley…. is a former (U.S.) Army lawyer who does not have experience or expertise in conducting this type of complex investigation…. The second problem was how the investigation was conducted."

The former DOJ IG goes on to say, "According to the report itself, the probe focused on Court personnel — law clerks and permanent employees, who were intensively interrogated. They were required to sign notarized affidavits. Their personal cell phones were scrutinized. They were questioned as to whether they had talked about Court decisions with anyone, including their spouses, in the Dobbs case or other cases, prior to public release. According to the report, follow-up was pursued on leads relating to the clerks and employees. The investigation did not treat the justices in the same way…. It makes no mention of investigating the justices at all."

Failing to probe the Court justices themselves, according to Fine, was "baffling."

"The third problem was that the investigation's report was incomplete," Fine laments. "A report is credible when it comprehensively explains the investigative process, the facts found, and the investigator's analysis based on those facts. Others may disagree with the analysis, but the investigation and the evidence should at least be fully described. This report did not do that. It left many questions unanswered, such as the ones above about how the justices were treated, who the 'seasoned attorneys and trained federal investigators with substantial experience' assisting Curley in the probe were, and whether the justices had input into how the investigation was conducted."

Fine also disagrees with those who assume that the leaker was someone opposed to overturning Roe v. Wade. Possibly, Fine argues, the leaker wanted to "bolster support for" overturning Roe.

"The report itself does not provide sufficient evidence to conclude which theory is more likely," according to Fine. "But the comment suggesting that the opinion had been leaked in 'protest' undermines confidence that the investigation was unbiased."

Read The Atlantic’s full report at this link(subscription required).

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