Behind The Final Hunt For The Dobbs Leaker

The Supreme Court spent eight months hunting the Dobbs leaker with every investigative tool except the ones that work. The Justice Department now has roughly six months left to use the ones that do.

The New York Times reported Thursday that the U.S. Attorney’s Office in Washington, D.C., under Jeanine Pirro, has been conducting a criminal investigation into the May 2022 leak for at least a year and that prosecutors have recently issued grand jury subpoenas to people who worked at the Court when the draft walked out the door. The Left called it a vendetta and a hunt for a crime that does not exist. Had a conservative clerk leaked a draft of Obergefell in 2015, the same people would have wanted the grand jury by lunch and the clerk by dinner. The Right said: finally, as if a subpoena were a conviction. Both camps should read the Marshal’s report before they say another word. It lists the crimes the Left says do not exist and records, in the Court’s own words, why nobody has been charged with them yet.

The Marshal’s Report of Findings and Recommendations, released January 19, 2023, is 20 pages of flat institutional prose describing an investigation conducted with all the compulsory powers of a condo board. Investigators conducted 126 formal interviews of 97 employees, collected Court-issued laptops and phones, pulled printer logs, and searched every employee’s legal research history to see whether anyone had looked up the legality of disclosing confidential case information. They had each employee sign an affidavit, sworn before a notary, denying any role.

That sounds pretty thorough at first glance, but here is what they could not do. The Court does not issue phones to most employees, so investigators had to ask for personal call and text records, which employees “voluntarily provided” and only “for a defined period to the best of their abilities.” “Technical limitations in the Court’s computer recordkeeping” made it “impossible to rule out” that someone had simply emailed the draft out. Ninety-seven people swore they did not do it, and yet, somehow, the document arrived at Politico.

Justice Samuel Alito described the gap precisely in his 2023 interview with the Wall Street Journal: “I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody.” A Justice’s hunch cannot subpoena a phone company. But a grand jury can, and it can compel testimony, immunize the small fish to reach the large one, and seize the records that 97 employees were only asked, politely, to hand over.

While the marshal’s report found no statute that specifically criminalizes leaking a draft opinion, it listed seven general ones that might apply, from conspiracy and obstruction to theft of government records. The absence of a bespoke crime has never slowed a prosecutor who can make a general one fit, and two of those seven matter here, although one arrives with a slight hiccup the Justice Department wrote for itself.

The obvious candidate is 18 U.S.C. §641, which punishes anyone who “without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States.” In United States v. Girard, a 1979 case in which a former Drug Enforcement Administration agent sold the contents of the agency’s informant files, the Second Circuit held that the statute reaches information and not merely paper: “Although the content of a writing is an intangible, it is nonetheless a thing of value.” A circulating draft is a record of the United States, and handing it to a reporter is a disposal without authority. The D.C. Circuit, whose law governs an indictment returned in Washington, agrees: in United States v. Collins it held that §641 reaches intangible property and cited Girard for the point.

The problem is the Department’s own policy. Its Criminal Resource Manual says it is inappropriate to bring a §641 prosecution when the thing taken is intangible government information, the defendant took it “primarily for the purpose of disseminating it to the public,” and it was not obtained by wiretap, mail theft, break-in, or trespass. The policy exists to protect whistleblowers and the reporters who print what they bring. An employee who photocopied a circulated draft and handed it to Politico to move public opinion sits inside that language on its face, and a prosecutor who charges §641 anyway will have to explain why this disclosure is different. There is an answer: that the leaker’s purpose was to pressure a court rather than inform the public, and it is probably true but presently unproven: nothing in the Marshal’s report establishes motive, and an exception built on purpose needs evidence of purpose. No court enforces the manual against the Department, so the problem is merely awkward rather than fatal.

Then there is 18 U.S.C. §1001, which criminalizes knowing and material false statements “in any matter within the jurisdiction of the executive, legislative, or judicial branch.” An internal investigation run by the Court’s Marshal qualifies. If the leaker is among the 97 who signed, that affidavit is false. The report warned every signer, in writing, that a lie would be a §1001 offense, but the Marshal could not check. A grand jury with the phone records she never had can, affidavit by affidavit.

There is also a deadline to keep in mind. The general federal limitations period is five years, 18 U.S.C. §3282, so the leak has to be charged by next May, or it never will be. The affidavits came later and have their own five years, which is why the Department can afford to be slow about the lie but not about the leak.

So the Department has six months to do what the Court could not: indict or close the file, and say why. Either beats the answer the country has had since 2022: 97 people saying “not it.” Justice Alito has a pretty good idea who did it. The Court asked nicely. The grand jury will not.

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Dr. Mark Goldfeder, Esq., is Director of the National Jewish Advocacy Center.

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