A former Chief Justice conducted an investigation producing a thorough and detailed 888-page report that Americans have openly and repeatedly called into question for almost 60 years. The 20-page Dobbs leak report — released yesterday — makes the Warren Report and its investigation look as unimpeachable as George Washington chopping down a cherry tree while doped up on sodium thiopental.
If someone turned in an internal investigation report like this, regulators would drive that company into bankruptcy. Indeed, with the right set of eyes, the Dobbs leak report reads like an internal investigation report framed to answer only the narrowest, least consequential questions and handed over in hopes that the SEC loses interest before considering any obvious follow up.
But there’s no regulator around to push back. From the Court’s preamble to the report:
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.”
This is the first critical point from the report. Chief Justice Roberts controlled every aspect of the investigation up to and including the decision to keep the FBI out of it. He also provides the final word on the quality of the investigation’s conclusions. Just like a tobacco company looking into smoking, Roberts decided there his cherry-picked investigatory sample provided all the evidence he needed to declare the whole thing inconclusive.
On the subject of cherry-picking, consider this from the Marshal’s report on the conduct of the investigation:
The draft majority opinion was circulated on February 10, 2022. Politico published the draft opinion on the evening of May 2. 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.
Clerks and “permanent employees.” The reader can almost hear the coffee mugs clanking at the late night “drafting by committee” meeting where they pitched “how can we make it sound like we might have talked to the justices without revealing that we didn’t talk to the justices?” Alas, the Supreme Court is not a venue for imprecision in writing, and if the investigation had spoken with the justices the report would say so instead of trying to hide behind vagueness. The report’s seemingly deliberate effort to never put the fact that it only interviewed 82 employees who had access to the opinion on the same page that it states “in addition to the Justices, 82 employees had access to electronic or hard copies of the draft opinion,” took some doing and I applaud the effort.
I’m more convinced that Saddam Hussein had weapons of mass destruction than I am in Alito and Thomas having clean hands here.
In another clumsy feint, the Marshal cites, as the fourth and final potentially relevant standard, the code of conduct applicable to federal judges:
(4) Code of Conduct for U.S. Judges. The Code of Conduct for U.S. Judges provides: “A judge should not make public comment on the merits of a matter pending or impending in any court. A judge should require similar restraint by court personnel subject to the judge’s direction and control.” Code of Conduct for U.S. Judges, Canon 3A(6).
If relegating this to the rung of least importance didn’t set off enough red flags, this appears to be included in the vain hope no one would point out that the justices are not bound by the Code of Conduct. “The Code of Conduct, by its express terms, applies only to lower federal court judges. That reflects a fundamental difference between the Supreme Court and the other federal courts,” Chief Justice Roberts has said.
We could feast on kipper for days off this red herring.
Could the Chief be too clever by half? Making a show of a thorough but hopelessly narrow investigation might fool some people, but ultimately trying to obscure the fact that no one looked into the most obvious vectors of the leak only makes one of them look more guilty.
The investigative team received outside assistance with a fingerprint analysis of an item relevant to the investigation. That analysis found viable fingerprints but no matches to any fingerprints of interest.
Oh? There are fingerprints on it that are explicitly NOT the fingerprints of any of the employees? To borrow from Sherlock Holmes, “when you have eliminated all which is impossible, then whatever remains, however COMPLETELY F**KING OBVIOUS, must be the truth.”
The Marshal’s report is not the end of the inquiry though! The Supreme Court also commissioned Michael Chertoff, Sam Alito’s former colleague when they both sat on the Third Circuit, to evaluate the Marshal’s investigation.
His one-page assessment that the Marshal did a bang up job includes similar conspicuously narrow language.
I was asked by the Chief Justice to independently review and assess the thoroughness of the investigation into the Dobbs draft opinion leak and to identify any additional useful investigative measures as well as actions that would improve the handling of sensitive documents in the future.
My review assessed that the Marshal and her experienced investigators undertook a thorough investigation within their legal authorities…
Now, that could mean that they did everything they could without the power to subpoena — picking a name totally at random — Ginni Thomas. But it could also mean within the scope authorized by the Chief Justice. The report does seem to indicate a very thorough review of the limited population the Marshal actually set out to investigate.
As opposed to its 10-second investigation of the Hobby Lobby leak.
The initial round of interviews included a broad swath of employees and were appropriately and professionally conducted.
Having read a lot of reports like this while in practice, let me tell you that “broad swath” is a super convenient phrase when the author can’t in good faith write “all.”
At this time, I cannot identify any additional useful investigative measures.
Well, take your time. Brainstorm for a bit and we can all regroup later.
Bringing us all the way back to the preamble:
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.
That’s perhaps the most straightforward conclusion in the whole report. The leak was “no mere misguided attempt at protest.” Everything about this report makes clear through its omissions that the leaker did not have protest on their mind when releasing the draft to box potentially nervous conservative justices from abandoning the draft in favor of the Chief Justice’s “death of a thousand cuts” approach.
Earlier: All That And The Supreme Court Still Has No Idea Who Leaked The Dobbs Decision
After VERY THOROUGH 10-Second Investigation, Supreme Court Declares Justice Alito Didn’t Commit Ethical Breach
Supreme Court Goes After Clerk Phone Records As Bumbling Abortion Leak Dragnet Continues To Come Up Empty
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.