My Latest Theory About The SCOTUS Leaker
Is it possible that even the Politico reporters who published the Dobbs draft don't know the identity of their source?
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The Supreme Court Term is over. The justices have scattered to the winds. And by the end of this month, the clerks from the last Term will be gone as well, having transitioned matters over to their successors.
So… how’s that SCOTUS leak investigation coming along?
Two months after the epic leak of the initial draft majority opinion in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade and sent abortion back to the states, we still don’t know the identity of the leaker. Mark Sherman of the Associated Press just contacted the Court for updates on the leak investigation and received a “no comment.”
We still don’t know who leaked the draft, but we now have additional information about the circumstances surrounding the leak, thanks to a juicy CNN article by Joan Biskupic—whose reporting reflects, yes, more leaks. According to Biskupic’s sources, Chief Justice John Roberts lobbied hard to get his fellow conservatives to preserve Roe, but didn’t succeed—and it was in her view “unlikely” that his most promising prospect, Justice Brett Kavanaugh, ever came close to coming around.
It makes sense to me that Justice Kavanaugh’s vote was never really in play. When the final Dobbs opinion came down, it was strikingly similar to Justice Samuel Alito’s initial draft, with hardly any changes except for the addition of responses to the joint dissent of the three liberals and the concurrence of Chief Justice Roberts. In other words, Justice Alito didn’t have to make any substantive concessions or stylistic tweaks to keep the vote of Justice Kavanaugh (who was instead content to make his conciliatory comments in a concurrence). This suggests to me that within the Court, the ultimate outcome of Dobbs was never seriously in doubt, and it confirms my earlier view that the leaker wasn’t trying to affect the vote through leaking.
Although the final outcome of Dobbs was unaffected by the leak, the leak did cause behind-the-scenes drama at the Court. According to Biskupic’s reporting for CNN, the justices knew about the leak at least a few days before it happened:
The Wall Street Journal editorial page, which has previously obtained inside information about conservative votes, had published an editorial on April 26 warning that Roberts, presumed to be working to save part of Roe, “may be trying to turn another Justice now.”
Roberts indeed was trying, according to CNN’s sources who also revealed that by the end of that April week the justices discovered that the news organization Politico had obtained Alito’s first draft of the Dobbs ruling from February.
Roberts and his colleagues spent a few anxious days quietly awaiting publication of the document, stretching through the afternoon of May 2, when all nine were together for a live-streamed memorial at the court for the late Justice John Paul Stevens. Politico first published its story about the draft that night at 8:32 p.m.
It makes sense that the Court knew about the leak in advance. As a matter of journalistic due diligence, Josh Gerstein and Alexander Ward of Politico would have reached out to the Court after getting their hands on the Dobbs draft to give the Court the opportunity to comment—or to inform the reporters, even off the record, that what they had was not an authentic draft, and they should not embarrass themselves by publishing. But since the draft was authentic, the Court presumably issued a “no comment” when contacted by Politico—then braced itself for impact.
After Politico published the Dobbs draft, Chief Justice Roberts announced the leak investigation by the Marshal of the Court, Colonel Gail Curley. Biskupic has additional details on that too:
As CNN earlier reported, the court’s marshal, Gail Curley, asked law clerks who serve the justices for one-year terms to sign affidavits related to the leak and to turn over cell phone data. She also obtained electronic devices, CNN recently learned, from some permanent employees who work closely with the justices.
Two things to note here—because Biskupic is a careful writer, and her language is precise. 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.
So I adhere to my original theory about the SCOTUS leaker (hereinafter “The Leaker”). First, The Leaker was a law clerk, not a justice and not a permanent staffer. Second, The Leaker was—in the words of the AP article, summarizing the dueling theories—“someone who was so upset by the prospect of overturning Roe that informing the public at the earliest possible moment was of paramount importance.”
But here’s where I was wrong. I speculated that The Leaker, possessing the courage of their convictions, would come forward to take credit for their actions, maybe in an op-ed for a major newspaper. That hasn’t happened yet—and should have happened already if it was going to happen at all.
The public might never know [who leaked and why]. 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.
Indeed. When it comes to the Supreme Court clerks for October Term 2021, don’t be surprised if prospective employers—and members of the Senate Judiciary Committee interviewing Justice Department or judicial nominees—ask if the clerk in question leaked the draft or knows who did.
So here’s my updated theory on whether and when we’ll learn the identity of the SCOTUS leaker. I’m now of the view that The Leaker (1) does not want to be discovered; (2) took elaborate measures to protect their anonymity; and (3) is unknown even to the Politico reporters, Josh Gerstein and Alexander Ward, who published the Dobbs draft and original exposé. As a result, we might never find out The Leaker’s identity, or we might not find out until decades later, a la Deep Throat.
I contacted Gerstein and Ward with my theory that they don’t know the name of their source. I invited them to reassure me, even off the record, that they do know The Leaker’s name, in which case I wouldn’t float my theory. They didn’t do that; instead, they put me in touch with Politico spokesperson Brad Dayspring, who emailed me: “Given the sensitivity of the matter and the importance of protecting sources and methods, we are going to decline to comment—as I am sure that you can appreciate.”
Fair enough. But in that case, since Politico has declined to shoot down my theory, I’ll share it with you. Here’s my speculation about how this all went down:
Using a burner phone, The Leaker contacted the Politico reporters through a secure, encrypted communications app like Signal—which Ward, a national-security reporter who needs to protect his sources of classified information, uses regularly. Because The Leaker used a burner phone, nothing untoward would be revealed even if they complied with the Marshal’s request for cellphone records (because obviously The Leaker would turn over records for their regular phone only, not the burner).
Why Politico? As I previously suggested, it’s respected and credible but not ideological, so the identity of the outlet would not distract from the story. It has a superb legal-affairs reporter in Josh Gerstein. And as a relatively young outlet that has devoted the past 15 years to pulling back the curtain on the inner workings of Washington, Politico would (a) do an excellent job with a story of this nature and (b) publish the draft with less hand-wringing over the propriety of doing so compared to certain more established publications.
Without revealing their identity, The Leaker offered the Dobbs draft to the Politico reporters for publication—who eagerly accepted, subject to the caveat that they wouldn’t publish until they were comfortable with its authenticity.
The Leaker offered a physical or hard-copy version of the draft. Perhaps The Leaker printed out the draft way back in February, when it first came out, but kept it safely hidden at home until May. Between February and May, many copies of the draft opinion were printed on many different printers in many different locations, making it practically impossible to track any particular copy. [UPDATE (3:05 p.m.): Some but not all printers leave “Machine Identification Codes” that are like digital watermarks, which allow a printed document to be traced back to a particular printer. I could imagine The Leaker printing to a shared printer, like one in a library, or perhaps surreptitiously grabbing a printout from another chambers or SCOTUS employee.]
In a manner reminiscent of the cloak-and-dagger methods of Deep Throat, The Leaker told the Politico reporters that the draft would be left in some publicly accessible but obscure place on an agreed-upon evening. The Leaker asked the reporters to stand by that night for notification via Signal of the location, which would come after completion of the drop.
That evening, The Leaker—wearing gloves, as they always did when handling the draft—put the draft in a Ziploc bag, put the Ziploc bag inside a grease-stained paper bag, then casually tossed the paper bag into a garbage can on some random street corner. Anyone who saw the scene—whether in real time or in video surveillance, which is increasingly common in our society—would see nothing more than a person throwing away takeout leftovers. (The trash can is a hypothetical; it could have been any number of publicly accessible but obscure places, like under a park bench on the Mall, behind some bushes in Rock Creek Park, or in a deserted section of a parking garage.)
The Leaker contacted the reporters over Signal and told them exactly where to find the printout. They rushed to the specified location and retrieved it.
Then the Politico reporters and their bosses, editor in chief Matthew Kaminski and executive editor Dafna Linzer, set about confirming the draft was the real deal. They went through what Linzer later described as “an extensive review process” to confirm “the authenticity of the draft.” This language is worth noting: if the Politico editors actually knew the identity of their source, whom they could verify as working at the Court, there would be no need for “an extensive review process.” The need for this review suggests there was some possible doubt about the draft’s authenticity—which there would be for a printout that an unknown person left in a garbage can or under a park bench.
What might that process have entailed? As discussed above, it certainly would have included reaching out to the Court and giving it the chance to deny the draft’s authenticity—which apparently the Court did not do.
The review process could have involved showing the draft to a handful of SCOTUS experts for their take on its authenticity. Pretty much anyone with a decent familiarity with the Court and its opinions could tell, after reading just a few pages, that it was authentic. As New York Times SCOTUS correspondent Adam Liptak put it, based on the draft’s format, structure, and style, it was “inconceivable” that the document was a fake. Veteran high-court advocate Neal Katyal had a similar reaction on Twitter, after “quickly scann[ing]” the draft.
As a seasoned SCOTUS reporter, Josh Gerstein could also have assured Kaminski and Linzer that the draft was legit. But I wouldn’t be surprised if they wanted additional confirmation from outside experts given the high stakes, à la the expert panels used to verify the authenticity of artistic works. I wouldn’t be surprised if Politico hired outside experts, asked them to write memos explaining why they viewed the Dobbs draft as authentic, compensated them for their time, and made them sign nondisclosure agreements.
Most intriguingly, the verification process might also have included The Leaker providing the Politico editors with additional information to establish The Leaker as a bona fide SCOTUS insider—or as “a person familiar with the court’s deliberations,” as Politico put it. For example, The Leaker could have told the Politico reporters about some trivial details in a not-yet-public opinion, and if the details emerged as The Leaker claimed, that would confirm reliability.
For example, The Leaker could have told the Politico reporters about some inconsequential details in the Court’s forthcoming opinion in Shurtleff v. City of Boston—e.g., that the majority would cite to Good News Club v. Milford Central School in the penultimate paragraph of its opinion, that the appendix would include a photograph of flags (photos rarely appear in SCOTUS opinions), or that the first footnote of Justice Alito’s concurrence in the judgment would cite to L. Hugo, Edwardian Shaw: The Writer and His Age.
The Politico reporters wrote their article, had it edited, and prepared it for publication. On the morning of May 2, the Court published its opinion in Shurtleff—and lo and behold, all of The Leaker’s information turned out to be right. With that extra reassurance as a final “green light,” Politico proceeded to publish the article, along with the Dobbs draft, on the evening of May 2. This explains the timing of the publication on May 2: the reporters were waiting on Shurtleff, which came down earlier that day.
Not knowing the actual identity of The Leaker puts the Politico personnel—reporters Josh Gerstein and Alexander Ward, and editors Matthew Kaminski and Dafna Linzer—in a much more comfortable position. Ever since publishing the Dobbs draft, they’ve surely been to numerous gatherings where friends and family members have tried to suss out the identity of the leaker with questions. Was it a clerk? A justice? A justice’s wife? Was it a liberal? A conservative?
But because the Politico reporters and editors don’t know The Leaker’s true identity themselves, they don’t have to worry about accidentally revealing anything through, say, involuntary facial expressions in response to questions. You could torture the Politico people, and they still couldn’t tell you who The Leaker is. When peppered or even badgered with queries, they just smile cryptically, shrug their shoulders, and say, “Who knows?”
Who knows? Not me. Like my prior post, What The SCOTUS Leaker Might Say For Themselves, this post is completely speculative and based on no inside information. You could torture me if you wanted, and you’d get bupkis. And yes, this post is also somewhat embellished, maybe even over-the-top—but remember that I’m also a fiction writer, and I’m working on a novel based on the events of this Term.
I continue to stand by my call for the Supreme Court leaker to come forward and identify themselves, which I believe is the right thing to do. But I’m not so sure The Leaker shares my ideas about what’s wrong and right—and I’m now thinking I might go to my grave without ever finding out their identity.
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