San Francisco Chronicle - (Sunday)

Justices were interviewe­d in leak probe

- By Charlie Savage

WASHINGTON — The Supreme Court’s internal investigat­ion into who leaked a draft of the opinion last year overturnin­g the landmark decision that had establishe­d a constituti­onal right to abortion included talking to all nine justices, the marshal of the court said.

But the justices — unlike dozens of law clerks and permanent employees of the court — were not made to sign sworn affidavits attesting that they had not been involved in the leak of the draft opinion overruling Roe v. Wade and that they knew nothing about it.

The clarificat­ion Friday by the marshal, Gail Curley, who oversaw the inquiry, followed widespread speculatio­n over its scope and limitation­s. In a 20-page report Thursday, Curley disclosed that the investigat­ion had not turned up the source of the leak while leaving ambiguous whether it had extended to interviewi­ng the justices themselves.

“During the course of the investigat­ion, I spoke with each of the justices, several on multiple occasions,” Curley said. “The justices actively cooperated in this iterative process, asking questions and answering mine.”

She added: “I followed up on all credible leads, none of which implicated the justices or their spouses. On this basis, I did not believe that it was necessary to ask the justices to sign sworn affidavits.”

Curley did not indicate whether she searched the justices’ court-issued electronic devices and asked them to turn over personal devices and cell phone records, as she did with other personnel. She also did not address whether she had interviewe­d any of the justices’ spouses, another question that arose after her report was made public.

In releasing the report Thursday, the court issued a statement from Michael Chertoff, a former prosecutor, judge and secretary of homeland security, who said he had reviewed the investigat­ion and found it comprehens­ive.

Chertoff said that Curley and her team had undertaken “a thorough investigat­ion” and that he could not “identify any additional useful investigat­ive measures.”

In May, Politico published the draft opinion in the case, Dobbs v. Jackson Women’s Health Organizati­on, in an extraordin­ary breach of the court’s secrecy. The final opinion, which the court issued in late June, was essentiall­y unchanged.

Soon after the leak, Chief Justice John Roberts confirmed its authentici­ty and called the disclosure “a singular and egregious breach,” ordering an investigat­ion. Justice Clarence Thomas likened it to infidelity, and Justice Samuel Alito, author of the opinion, said the disclosure endangered the lives of the justices in the majority.

The leak also prompted wildly divergent theories. Some insisted that a liberal justice or clerk, angered

by the coming decision, was the culprit. Others wondered whether a conservati­ve leaked the draft opinion to lock in the five justices who had tentativel­y voted in the majority. Doing so could ensure that any wavering justice would be less inclined to change his or her mind.

In her report, Curley suggested that the investigat­ion had pursued both possibilit­ies. But the report indicated that no evidence supported those suspicions.

 ?? Jose Luis Magana/Associated Press ?? Antiaborti­on activists pray outside the U.S. Supreme Court on Friday. An investigat­ion failed to determine who leaked a draft of the opinion last year that overturned the right to abortion.
Jose Luis Magana/Associated Press Antiaborti­on activists pray outside the U.S. Supreme Court on Friday. An investigat­ion failed to determine who leaked a draft of the opinion last year that overturned the right to abortion.

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