DOJ investigates leak of Supreme Court draft that overturned Roe v. Wade

The Justice Department is investigating who leaked a draft Supreme Court opinion that would overturn Roe v. Wade, years after the court’s own inquiry failed to identify the source.

The probe is being led by the Washington, D.C., U.S. attorney’s office, according to people briefed on the matter. It has been underway for at least a year, and investigators have issued grand jury subpoenas. It is not clear who received them. The New York Times first reported the investigation.

Politico published the draft on May 2, 2022, weeks before the court issued its decision in Dobbs v. Jackson Women’s Health Organization. The June 24 ruling overturned the nationwide constitutional right to abortion.

Chief Justice John Roberts ordered an internal investigation after the leak. Court Marshal Gail Curley led the inquiry, which included forensic analysis and interviews with nearly 100 employees. In January 2023, the court said investigators could not identify the leaker based on the available evidence.

The inquiry examined roughly 70 people who may have had access to the draft, including about three dozen law clerks. Some permanent court employees were asked to hand over their phones and other electronic devices.

Former Homeland Security Secretary Michael Chertoff, brought in by Roberts to review the investigation, described its methods as thorough. He said he could not identify further investigative steps likely to be useful.

The court’s report found no forensic evidence identifying the source in its review of devices, networks, printers and available call and text records. It also said an outside person’s improper access to the court’s computer systems appeared unlikely.

Still, the report noted that expanded remote work during the pandemic and gaps in security rules may have made it easier to remove sensitive information. Some employees also acknowledged discussing the draft with a spouse or partner, contrary to court confidentiality rules.

Justice Samuel Alito has said he has a view about who was responsible, but that the evidence is not strong enough for him or the court to name anyone. In an interview last month, he called the leak a serious breach of trust and said it made the five justices in the majority targets. He added that it nearly led to the attempted assassination of Justice Brett Kavanaugh.

In 2022, a California man was arrested near Kavanaugh’s Maryland home and charged with attempting to assassinate him. The leak also led to protests outside justices’ homes and strained trust within the court. Justice Clarence Thomas said at the time that losing that trust changes the institution and can make people feel they need to look over their shoulders.