The Outsider Perspective Issue 327 | The Beltway Outsiders

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Good Friday Morning! Except to the crossword puzzle writer I encountered this week that claims “eew” is a word. If you have an iPhone on you, check the keyboard. “Eww” will bring up an emoji option, but “eew” will bring up nothing. I know emojis aren’t definitive, but it’s a clear victory. Crossword puzzles are my social media replacement for January. I plead the fifth on how many crossword puzzles I’ve completed thus far.

I’m COVID-19-free and back to normal this week. After having every Monday off for what feels like a month, the real world is back. Fun times. This week, I’m diving into the Supreme Court’s report on who leaked the draft Dobbs opinion. Links to follow.

Where you can find me this week

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[01/16/2023] We still know little about the Supreme Court Dobbs leaker – Conservative Institute

[01/20/2023] Trump raid haunts Democrats with Biden classified documents – Conservative Institute

The Supreme Court investigation that isn’t over.

Sometimes, the timing of a column gets arrives perfectly. On Monday, I wrote a column for the Conservative Institute diving into a Wall Street Journal report on the Dobbs draft opinion leak. On Thursday, the Supreme Court released its report on the investigation’s status. The top headline everyone reported was simple: the Supreme Court doesn’t know who did it.

I get why that was the takeaway for most people. But there should be a second takeaway: the investigation continues. What’s fascinating is that nothing in the Wall Street Journal report I relied on for my Monday column got contradicted by the Supreme Court’s statement.

There are three parts to the “Dobbs Public Report” on the Supreme Court website:

The Court speaks about the investigation itself for two pages.
A summary letter from the Chertoff Group going over observations and recommendations on the leak investigation.
The report from the Marshal of the Supreme Court.

From a limited scan of headlines and alerts from media outlets that I’ve seen, the reporting has been poor on this story. My vantage point says that the Wall Street Journal’s reporting from the weekend was accurate – which suggests that the WSJ got a leaked copy of this report and talked to people who know what’s happening on the conservative side of the Court.

Here are my topline takeaways: 1) The Supreme Court has not identified who did it. 2) The Supreme Court has a small list of suspects. 3) At least one law clerk is likely a suspect.

The report starts with a four-paragraph statement by the Supreme Court. Of those, the first and last paragraphs explain the Court’s mindset:

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. It was a grave assault on the judicial process. To meet our obligations as judges, we accept submissions from parties and amici, we engage advocates at oral argument, and we publish explanations of our final decisions. All of this we do in the open. Along the way, though, it is essential that we de- liberate with one another candidly and in confidence. That phase of the judicial process affords us an opportunity to hone initial thoughts, reconsider views, persuade one another, and work collaboratively to strengthen our collective judgment. It is no exaggeration to say that the integrity of judicial proceedings depends on the inviolability of internal deliberations.

The Marshal reports that “[i]nvestigators continue to review and process some electronic data that has been collected and a few other inquiries remain pending.”… “To the extent that additional investigation yields new evidence or leads, the investigators will pursue them.” The Marshal and her team will continue to have our full support.

I want to bring your attention to two early sentences: “The leak was no mere misguided attempt at protest. It was a grave assault on the judicial process.”

In those two sentences, the Supreme Court says this was a leak done with malice. No one considers it a random hack, or someone mislaid the brief somewhere, and it got swiped. SCOTUS believes that this was a purposeful act. Ignoring everything else, that is a strong assertion.

The Court is saying there is a clear motive while saying they haven’t accused anyone yet. That’s a strong statement and one with which I agree.

Next, in the last paragraph, we are told the investigation is ongoing. The Marshal has other ongoing matters to work on, and they are looking for additional evidence. This report is an update on where things stand at the moment. It’s not final.

The next section of the report is a letter from Michael Chertoff (formerly of Homeland Security and a well-known attorney). I don’t have any takeaways from that. Chertoff got brought in to assess the likelihood of an external hacker and review security measures. He gives his recommendations and endorses the Marshal’s investigation.

Finally, we come to the Marshal’s report itself. If you want to know why it’s challenging to figure out who did it, this early section explains why:

If a Court employee disclosed the draft opinion, that person brazenly violated a system that was built fundamentally on trust with limited safeguards to regulate and constrain access to very sensitive information. The pandemic and resulting expansion of the ability to work from home, as well as gaps in the Court’s security policies, created an environment where it was too easy to remove sensitive information from the building and the Court’s IT networks, increasing the risk of both deliberate and accidental disclosures of Court-sensitive information. The investigation has identified numerous Court policies and practices that should be improved.

The Court was lax in its security standards, and the pandemic worsened everything. Whoever did it likely was able to share the draft easily. I’m not overly shocked by this revelation. As a whole, the legal sector could be more tech-savvy. As an attorney on the tech-vendor side of law, I know a thing or two on this because I’ve seen a thing or two (cue the audio: “We are Farmers, bum bum bum bum bum bum“).

An aside for a moment: one time, very early in my legal career, I got asked to help get an attorney set up in our offices. This expert witness was supposed to provide technical guidance and expertise on how to improve our project’s technological workflow and present his findings to the Court. He was an expert on legal technology. I had to help him because he didn’t know how to get the corded plug-and-play USB mouse to work on his laptop. I saved the day by plugging the mouse into the USB slot and giving the computer 10 seconds to find the mouse. TRUE STORY.

All that to say: if the Supreme Court is telling me that it wasn’t technologically proficient, I believe it.

The main conclusion of the Marshal is worded interestingly:

The investigation has determined that it is unlikely that the Court’s information technology (IT) systems were improperly accessed by a person outside the Court. After examining the Court’s computer devices, networks, printers, and available call and text logs, investigators have found no forensic evidence indicating who disclosed the draft opinion. They have conducted 126 formal interviews of 97 employees, all of whom denied disclosing the opinion. Despite these efforts, investigators have been unable to determine at this time, using a preponderance of the evidence standard, the identity of the person(s) who disclosed the draft majority opinion in Dobbs v. Jackson Women’s Health Org. or how the draft opinion was provided to Politico.

When you’ve conducted more interviews than there are witnesses, that suggests some people are more interesting than others. The report emphasizes the number of people interviewed. But it’s apparent a smaller group of people is more important. The report suggests who the people of interest are:

The investigative team obtained forensic information from the Court’s IT systems in order to identify individuals of interest to the investigation, and to furnish the basis for questioning of employees. In several cases, such forensic information caused investigators to hold multiple interviews with certain employees. The investigative team reviewed the operating system event logs and other logging for artifacts relevant to the draft majority opinion. One initial focus of that review was to determine whether the draft opinion had been moved electronically from the Court’s IT system prior to the Politico publication. They found that certain employees emailed the draft document to other employees, with approval. There was no evidence discovered that anyone emailed the draft opinion to anyone else, although technical limitations in the Court’s computer recordkeeping at the time made it impossible to rule out this possibility entirely.

The Court is telling you they have a smaller pool of suspects. When they say they don’t know who did it, they’re not saying it’s out of a collection of all 97 suspects. It’s a much smaller universe.

That brings me back to the Wall Street Journal’s report last weekend, dated January 13, 2023. After seeing everything together, I now believe the WSJ got provided an advance copy of the Marshal’s report (maybe all three parts). But what makes the WSJ’s reporting different is that they talked to the people giving them this report.

I’m going to focus on the anonymous/”people familiar” sections of the WSJ’s account only:

Supreme Court investigators probing the May leak of Justice Samuel Alito’s draft opinion overruling Roe v. Wade have narrowed their inquiry to a small number of suspects including law clerks, but officials have yet to conclusively identify the alleged culprit, people familiar with the matter said.

Ms. Curley, a lawyer and former Army officer, oversees the Supreme Court’s in-house police force, which has an authorized strength of 189 officers and principal missions of patrolling the Court’s property and protecting the justices. With its own police having little experience in complex investigations, the Court brought in assistance from outside government investigators, people familiar with the matter said. By early summer, investigators had significantly narrowed the field of suspects, the people said.

The interviews were sometimes short and superficial, a person familiar with the matter said, consisting of a handful of questions such as “Did you do it? Do you know anyone who had a reason to do it?” Investigators relied in part on publicly available information about court employees to develop theories, the person said.

Interestingly, the sub-headline of that article included this: “At least one law clerk is among those suspected of leaking the draft abortion ruling in May.”

I’m taking the WSJ’s reporting here very seriously for two reasons. First, as I noted in my CI column, the WSJ got tipped off that Roberts was trying to sway votes on Dobbs. That was in an editorial that knew more than it let on.

I laughed at the WSJ’s characterization in this 01/13/2023 article, which framed it as: “The leak came amid rumors that Chief Justice Roberts was seeking to persuade some members of the court’s conservative majority to join him…” The rumors were from the WSJ’s editorial page! And it wasn’t a rumor! It was a fact! End-of-term reporting from CNN and NPR (leaks from the liberals) confirmed what the WSJ Editorial Board said.

We know this: the investigation is ongoing, the number of suspects is smaller, and the WSJ is getting very accurate leaks from the conservative side of the Court.

For years, we knew that Ruth Bader Ginsberg was leaking internal Court deliberations at the end of the term to NPR and CNN (Nina Totenberg and Joan Biskupic). We’ve also known that John Roberts occasionally talks to Biskupic at CNN, too (she wrote a biography of him). RBG was the prominent leaker, though. She’s gone now.

We now know someone on the conservative side is leaking accurate information to the Wall Street Journal. The leaks have mostly centered around the abortion case so far. I’m curious to see where this leads.

The final question after all this talk and conjecture is simple: what will the Supreme Court do if/when they do accuse someone?

I believe they have a better idea than they’re letting on who did it. The question now is whether or not you can get enough evidence to catch that person. Notably, the Marshal got everyone to take an affidavit and oath that they didn’t leak the piece. If they can get the evidence, the Marshal could accuse the leaker of perjury. Leaking a draft opinion isn’t an illegal act, perjury on the other hand…

Some in the legal community believe the Supreme Court will take no action. The reasoning follows two paths: 1) the Court doesn’t want to ruin someone’s life over something that, while wrong, isn’t illegal. Or 2) the Court doesn’t want to make that person a political martyr by giving them the limelight.

I don’t know the veracity of that line of thought. But I have seen and read it.

The flip side of that coin: the Court is setting up to hit the person on a perjury charge. They’ve allowed everyone to confess to doing it, and no one did it. If the Court can pull the evidence together, they charge that person with perjury.

I have no idea which avenue the Court goes with this one. Although, I do hope they take the perjury route. If not, naming the person who did it could end the legal career, which is a net benefit. There need to be consequences for an action like this, whoever did it.

News headlines were only partially correct: it’s true the Supreme Court hasn’t identified who did it. But we may end up getting a second report. If the Marshal settles on a name, will that remain a secret? Or does that leak too? If there is a name, I’d watch the pages of the WSJ.

Links of the week

George Santos Has Got to Go: He’s a bad example to the young, an embarrassment to the old, an insult to the institution and America. – Peggy Noonan, WSJ

Prince Harry and the problem of too much therapy: Whoever is psychoanalyzing him seems to be telling him that nothing is his fault – Kara Kennedy, The Spectator

School Closures Still Link to Learning Loss, Nearly 3 Years Into Pandemic: Reading and math scores declined between 2020 to 2022, reversing two decades of improvement. – Emma Camp, Reason

The clock is ticking on a TikTok ban: Millions spent on lobbyists, a billion spent on safeguards. Will it be enough to stay in the United States? – Sara Morrison, ReCode

The Good, the Bad, and the Ugly of DEI 1.0 – The Michigan Review, Journal of Campus Affairs

Russia’s war in Ukraine reaches a critical moment – Stephen Collinson, CNN

DOJ Held Biden Document News Until After Midterms – Peter Van Buren, The Spectator

The week everything changed for the Biden White House – CNN

Compute! Compute! – John Podhoretz, Commentary

The Biden Classified-Document Payback: Democrats stoked the Trump bonfire for years. Now it’s put them in political hell. – Daniel Henninger, WSJ

The Justice Department’s Double Standards on Classified Documents: Biden and Trump both have special counsels. But the president’s lawyers got to conduct his search, while his predecessor’s weren’t even allowed to be present. – Kimberly Strassel, WSJ