Chief Justice John Roberts’s announcement of an investigation into the leak of a draft Supreme Court opinion that would overturn Roe v. Wade has led to speculation about the form such an investigation would take and how effective it is likely to be. Based on our many years of experience conducting such investigations we know they can be challenging and disruptive to any organization, much less an institution where collegiality and confidentiality are sacrosanct. There are ways, however, to get to the truth while respecting the court’s singular and delicate ecosystem.
Supreme Court Marshal Col. Gail A. Curley has been charged with investigating the leak, and she has an admirable and impressive record of service to our country. This investigation requires specialized technical knowledge and access to robust investigative tools that might not be readily available to her. Moreover, it’s unclear whether the Marshal or the Supreme Court Police would even have authority to conduct a criminal investigation of the leak, as federal law appears to authorize them to make arrests only as necessary to protect the Supreme Court building, grounds, and personnel.
While it is understandable that Chief Justice Roberts may want to handle this matter in-house and avoid involvement of anyone outside of the judicial branch, agents and prosecutors who undertake such work regularly — the professionals of the executive branch — would likely be more effective. We recommend that Chief Justice Roberts consider making a criminal referral or requesting appointment of a special counsel who knows and respects the Court’s traditions but who, unlike the Department of Justice, is not a regular party before the court. A former U.S. attorney with prior service to the court and with extensive experience conducting complex investigations in a civilian environment could get the support needed from the FBI or any other law enforcement agency to accomplish the task.
Whoever conducts the investigation needs to take certain steps and avoid others. Normally, an important first step is to understand who had a motive to leak: Who would benefit from sharing something that was intended to remain secret? However, such an exercise may prove fruitless here, given arguments that either side of the ideological divide might be seeking a benefit — by increasing public pressure to modify the opinion or by applying pressure on conservative justices to support it as written.
Even without establishing motive, the investigator needs swiftly to establish the trail left by the leaked document. Who had access to the draft and when? The document Politico published on May 2 was dated Feb. 10, 2022. Normally, if there were later drafts, the investigator would look for meaningful changes that could indicate why the February 10 version was the one leaked. In a similar vein, the investigator would look for electronic or physical records to identify any individual who accessed the earlier version, or made copies of the physical draft, when it was presumably no longer relevant to the deliberative process. In this case, however, media reports have suggested there were no subsequent drafts. With that in mind, the investigator should look for other triggering events that might explain the delayed disclosure — such as subsequent meetings or emails addressing the opinion or even events that occurred outside the Court — and try to get as much detail as possible concerning those events.
As part of this process, it is imperative that whomever is charged with investigating the leak have access to computers, telephones, and other electronic devices used by court personnel. Recovering a deleted version of the leaked draft on someone’s computer or telephone, identifying instances in which it was remotely accessed and/or downloaded, or finding electronic or telephonic links to Politico staff all could help to identify a suspect.
While the pool of potential leakers might appear to be limited to justices, clerks, and administrative staff, other parties could be involved. Marshal Curley may need to consider the possibility of a leak by security personnel under her own command, adding a layer of complexity to the investigation. Moreover, Politico’s disclosure that it “received a copy of the draft opinion from a person familiar with the court’s proceedings in the Mississippi case along with other details supporting the authenticity of the document,” leaves open the possibility the draft came from someone one step removed from the Court, such as a trusted friend or family member of a court staffer or even of one of the justices. Also, what about other court employees, such as maintenance or IT staff? Might they not have access to court papers and familiarity with the court’s proceedings?
In any event, it makes sense to cast a wide net when looking for suspects — even though gathering information from, and about, third parties will likely be more difficult as they enjoy a higher expectation of privacy than government employees.
Even under the best circumstances, leak investigations are difficult. Sometimes inquiries reveal “smoking gun” evidence in the form of electronic or paper trails, but this is rare. Subpoenas will likely be necessary to gather relevant telephone or business records, and it is almost always necessary to conduct interviews. In this instance, however, to avoid further fracturing the institution, the entire process needs to be executed with heightened discretion and sensitivity to the deliberative process of the court.
Knowing how challenging leak investigations can be, we wish Marshal Curley success in her efforts to identify the leaker and enact procedures to prevent future leaks. It is not an understatement to say that the integrity of the court — and the political health of the nation — hang in the balance.
Given that reality, it may be time for the Chief Justice to put aside any hesitation about inviting the Department of Justice to bring its full symphony of resources to bear on this inquiry — either directly or through appointment of a special counsel.
Nicholas Peck and Thomas Feeney are senior managing directors at Nardello & Co., a global investigations firm.