As Jack Wolfsohn detailed yesterday, the latest reporting from the Supreme Court does not paint an optimistic picture of the Dobbs leak investigation and its odds of smoking out the culprit. The window of opportunity for Chief Justice John Roberts to pressure the leaker with a swift, dramatic internal investigation within the first 48 hours has long since closed, yet it does not appear that the more powerful law-enforcement tools outside the Court have been deployed, either. David Lat parses out what the latest CNN report by Joan Biskupic suggests:
First, Biskupic reports that Colonel Curley asked clerks to sign affidavits and to turn over cellphone data, but Biskupic does not discuss whether clerks complied with these requests. It’s possible that some clerks complied and some did not, or some clerks complied but not completely — e.g., they signed affidavits but refused to turn over cellphone data. As Biskupic previously reported, the requests, especially the ones for cellphone data, raised concerns among certain clerks.
Second, Biskupic reports that some permanent employees, i.e., not one-year Term clerks, turned over not just cellphone records, but electronic devices themselves. In my view, this information makes it less likely that the leaker was a permanent employee, like a judicial assistant or chambers aide, and more likely that the leaker was a law clerk. Why? The permanent employees were more cooperative with the investigation because they had less to hide.
I still agree with Lat that a law clerk is the most likely suspect, but it remains enraging that we are left to speculate and not know the answer nearly three months later, when the clerks have all left the Court. Lat’s essay is worth reading for his full explanation of how he thinks the leak could have gone down in true cloak-and-dagger fashion, such that it is possible that even the Politico reporters do not, to this day, know the identity of the leaker. But as Mark Sherman of the Associated Press notes, while the leaker has left a cloud of suspicion over everyone who worked at the Court this past term, there is still one way in which the truth may surface decades from now if it was a clerk:
The public might never know. Then again, Supreme Court clerks often go on to prominent legal jobs. Six of the nine justices once served as law clerks. Sometime in the next few decades, one or more of them might appear for a confirmation hearing for a judgeship or some other high-ranking government job where they might be asked if they leaked the document or know who did.
If I was involved with the Senate Judiciary Committee or other Senate committees holding hearings, I’d make a note to put this in the written questionnaire for any nominee who clerked for the Court in 2021–22.