Investigators who are examining the leak of Justice Samuel Alito’s draft opinion overturning Roe v. Wade have narrowed their inquiry to a handful of suspects, including at least one law clerk, though officials have not affirmatively identified a culprit, according to people familiar with the matter.
Chief Justice John Roberts assigned the high court’s marshal, Gail Curley, to investigate the leak in May. But with the institution’s own police lacking the experience in such complex investigations, the court invited outside assistance from government investigators, people familiar with the matter told the Wall Street Journal.
The latest report marks the most significant update on the hunt for the person who leaked Alito’s draft opinion to Politico on May 2. In a small yet notable report in late July, Fox News anchor Shannon Bream reported investigators looking into the leak had “narrowed it down” to about “70 or so” people who had access to the draft, but no names of suspects emerged in her brief report.
The suspect interviews conducted by investigators were at times brief and superficial, according to a person who spoke to the WSJ. The nature of such questions included examples such as, “Did you do it? Do you know anyone who had a reason to do it?” Publicly available information about court employees was used by investigators to develop theories, one person said.
Prior to Bream’s report, the most significant information about the investigation consisted of reporting that investigators asked the justices’ law clerks to sit down for interviews in June and surrender their cellular devices, prompting several of the three-dozen clerks serving in May to seek legal counsel.
Each justice is allowed to maintain four law clerks, though dozens of other court employees could have access to the draft opinion.
Interest in the investigation peaked once again in September, when Justice Neil Gorsuch said at a speaking event that Roberts had appointed an internal committee to oversee the investigation and that an imminent report on the investigation was expected. No new information about the report has been mentioned, and it’s not clear whether it will be made available to the public. Justice Elena Kagan also indicated a report would be forthcoming during a separate event last fall.
Although the unprecedented action of leaking a draft opinion isn’t widely considered unlawful, members of the high court and judiciary advocates saw it as an unfounded breach of protocol, with some lawmakers and legal experts saying it could warrant consequences such as disbarment from practicing the law.
Several justices, including Roberts, Alito, and Clarence Thomas, have opined on the institutional detriment the leak caused to the high court. Thomas likened the situation to a sort of infidelity, while Alito spoke up for his colleague Justice Brett Kavanaugh, who in June was the target of a 26-year-old California man’s alleged plot to kill him after the leak was released.
“The leak also made those of us who were thought to be in the majority and supportive of overruling Roe and Casey targets for assassination because it gave people a rational reason to think they could prevent that from happening by killing one of us, and we know that a man has been charged with attempting to kill Justice Kavanaugh. It’s a pending case. So I won’t say anything more about that,” Alito said during a Heritage Foundation event in October.
