Court leak catnip for those who love juicy whodunit
WASHINGTON — Washington loves a whodunit. And the latest one comes with the stunning plot twist of a leak from the famously buttoned-up Supreme Court.
The publication this past week of a draft opinion that said Roe v. Wade, the landmark 1973 decision establishing a constitutional right to abortion in the United States, was wrong from the start and should be overruled, has set off sleuthing from every corner of the capital.
Who could possibly be behind such a glaring breach of trust? Why did that person choose to leak the draft? Why did that person choose a reporter from Politico? Who will investigate the matter? Will there be consequences?
What will the court’s ultimate opinion say?
Washington, by nature, abhors a vacuum. So the two months before the court actually issues a final ruling will be filled with guesses, surmise, false starts — and maybe even the truth about who is behind the leak.
It’s an intrigue in the tradition of Watergate’s “Deep Throat” — one of Washington’s best-kept secrets for more than three decades; of Iran-Contra, with classified documents spirited out in a secretary’s undergarments; of “Primary Colors,” a roman à clef about a certain Southern governor.
The Trump era provided almost an entire genre. Among them: an unidentified whistleblower’s complaint about Donald Trump’s phone call with
the president of Ukraine and the writings of “Anonymous,” a senior administration official who only stayed anonymous for about two years after he wrote an opinion piece and subsequent book slamming the president.
The Supreme Court leak is “up there with the most important disclosures of this century and the last century — maybe ever,” said Danielle Brian, executive director of the private Project on Government Oversight. “It ranks, certainly, with the Pentagon Papers and Wikileaks and Deep Throat.”
While leaks spout daily in gossipy Washington, the explosive revelation of a draft opinion that would overturn the 1973 decision creating a nationwide right to abortion has captivated the city.
The hunt for the high court leaker is afoot. Chief Justice John Roberts has ordered an investigation into what he called an “egregious breach of trust.” Amateur detectives have been eagerly trading theories on social media.
Is it even possible to keep this kind of secret in Washington anymore?
“Of course not,” said Eric Dezenhall, a crisis communications expert who has watched decades of leaks play out in the capital.
“Very few people who leak truly just keep it to themselves,” Dezenhall said. “There’s always a conversation that says, ‘You have to swear not to tell anybody this’ — and that’s the beginning of the end.”
He added that there’s often a psychic — and financial — incentive to make oneself known as a figure in history.
“The endgame is a book deal, a movie deal, being on TV,” he said.
Even when leakers are circumspect about their doings, there’s the dicey matter of digital footprints, which make it far easier for leak hunters to track down modern sources of information than it was in the past.
“The way some sources have been able to maintain their anonymity has been really impacted by the age of surveillance and technology tracking, so it’s possible that we will find out who it is,” said Brian, who laments a “reflexive instinct” within government to go after leakers and clamp down on information.
Big secrets in Washington have a way of eventually coming out, one way or another.
The identity of Deep Throat, the source who guided Washington Post reporters Bob Woodward and Carl Bernstein in the Watergate investigation, wasn’t known until 2005, when a 91-yearold former FBI official, W. Mark Felt, revealed that he was the one who used to meet the reporters in an underground parking garage at 2 a.m. to share tips about how to unravel wrongdoing by President Richard Nixon and his allies. A Post editor had dubbed him “Deep Throat” after the 1972 porn movie of the same name.
The secret identities of many other truth tellers, leakers and whistleblowers of different stripes have been shorter-lived.
“Anonymous” — whose 2018 New York Times opinion piece and later book bashing Trump left the president fuming and on the hunt for the leaker — chose to reveal himself six days before the 2020 election, when Trump was seeking reelection.
When he stepped out of the shadows, Miles Taylor, a former Homeland Security chief of staff, called Trump “a man without character” and urged other former administration officials to “find their conscience” and speak up, too.
In 2019, it was a CIA officer’s whistleblower complaint about Trump’s phone call with Ukraine’s Volodymyr Zelenskyy that led to the president’s impeachment. The whistleblower’s identity was kept confidential under federal laws that protect whistleblowers from retaliation. But conservatives widely circulated speculation about the officer’s identity.
In January 1996, a fictionalized account of Bill Clinton’s 1992 presidential campaign by an anonymous author set off a hunt for the writer who seemed to know so much about the inner workings of the political operation.
Six months later, journalist Joe Klein confessed to being the author after the Post fingered him through handwriting analysis of an annotated manuscript it had obtained. Klein said he had kept his name off the book, his first novel, because he was not sure it would be any good. He ended up with a movie deal.
Military analyst Daniel Ellsberg, who in 1971 leaked a secret study that laid bare America’s misguided involvement in the Vietnam War, publicly identified himself as the source of the Pentagon Papers a few weeks after the Times and Post published articles that touched off a massive legal battle over the free press. Ellsberg was charged with theft, conspiracy and violations of the Espionage Act, but his case ended in a mistrial when evidence surfaced about government-ordered wiretappings and break-ins.
The drama swirling around the Supreme Court leaker is amplified by conjecture about motivation. Was it someone trying to head off a final opinion overturning Roe? Or someone trying to do the opposite — shore up justices who had initially voted to overturn Roe but might be getting cold feet?
Depending on the politics of the readers, the leaker has been alternately labeled a cultural hero or villain. Some speculators, on reflection, have switched theories mid-debate. The White House wants people to focus less on the leaker and more on the potential implications of the draft opinion itself.
The idea that the leak was designed to ensure the final opinion would track with the first draft “might be too Machiavellian by half,” Dezenhall postulates. “It was probably exactly who you think it is — somebody who wanted to screw this thing up.”