Legal and political exerts are blasting the U.S. Supreme Court’s investigation that failed to determine who leaked the draft opinion in the Dobbs case that ultimately served to overturn Roe v. Wade and void the decades-old previously-constitutional right to abortion. Some, having read the Court’s report on the investigation, state it appears the Justices and their spouses were not interviewed or investigated.
In an unsigned statement Thursday the Court announced after a long investigation, “to date” it had been “unable to identify a person responsible by a preponderance of the evidence.”
Frank Figliuzzi, the well-known former FBI Assistant Director for Counterintelligence and MSNBC national security analyst, served up strong contempt for the process chosen by the Court, and what he suggested was the underlying reason the investigation failed to produce the leaker.
Asked point-blank on MSNBCs “Dateline: White House” if he believes the leaker is already known to the Court, he responded with one word: “Yes.”
“Looks like maybe they didn’t want to get to the truth,” he opined.
Noted national security attorney Mark S. Zaid, who also handles government investigation cases, says investigators did not interview or investigate the Justices or their spouses.
“Having read [the] investigative findings, I am completely struck by fact does not appear Justices (or their families) were interviewed, much less investigated,” he tweeted.
“Since bare min[imum] ‘preponderance of evidence’ was standard that could not be met w/staff, who else does that leave as leaker?” he asked.
“When is an investigation really not an investigation?” Figliuzzi also rhetorically suggested to MSNBC anchor Nicolle Wallace. “When you’re told what you can and can’t do, you can’t do what you need to do or talk to the people you need to talk to to solve the investigation, and, when the investigation isn’t conducted by professional investigators.”
Figliuzzi, himself an expert investigator who served as the Bureau’s chief inspector, blasted the decisions made about how the investigation would be conducted and who would conduct it.
“The U.S. Marshal Service did not conduct this investigation. This investigation was conducted by someone called the Marshal of the Supreme Court. I’m sure she’s a wonderful person. But she has no law enforcement training or experience. She’s in charge of securing the building called the Supreme Court building and its justices. That’s what she does.”
He also criticized who he says was not investigated: former clerks and current Justices.
“If you want to do real serious leak investigation, you’re going to talk literally to every person who may have had access to whatever it is that leaked. From what we can see so far, while they may have talked one hundred people, they didn’t talk to ex-clerks. They didn’t talk to the very universe of people who may have done the leaking and then left the court,” he noticed.
“They didn’t call the FBI, because you know what would happen, then a real case would have happened. They wouldn’t have actually had the criminal process.”
“Someone stole government property, someone mishandled government records, potentially a crime. They could have had subpoenas of former clerks and former employees they would have had that leverage over them. They could have subpoenaed phone carriers and internet providers, and they could have see who was talking to whom and when, at the media platform that obtained this information,” he said, presumably referring to Politico which obtained and published the leaked draft opinion. “All of that could have been done.”
“We still have, according to The New York Times reporting today, we have no evidence that the justices themselves were interviewed.”
There was “no serious intent to get to get to the bottom of it, in my opinion,” Figliuzzi added.
Wallace at that point specified she was calling it “a sham investigation,” and then asked, “Why would a sham investigation be ordered? If Justice Alito felt that his quote assassination was possible because of the leak?”
Former Deputy Assistant Director of the FBI’s Counterintelligence Division, Peter Strzok, also points to the fact, based on the report from the Marshal of the Supreme Court, that the Justices and their spouses were not investigated, and former Homeland Security Secretary Michael Chertoff’s claim affirming the quality of the investigation.
“Kind of blows a huge hole in Chertoff’s statement that he ‘[could] not identify any additional useful investigative measures,'” Strzok wrote.
Former RNC chairman Michael Steele went even further, while agreeing with Figliuzzi’s take that the Court knows who the leaker is.
“I don’t think they want to know,” he alleged, also on MSNBC’s “Deadline: White House.”
“I don’t think they want to know because I think they already know. I think they already know enough to know who, what, where, when and why, inside that building.”
Steele, a veteran of politics, declared, “the worst outcome here is not a judicial one. It is a political one. It is one that steeps this building, and its justices in a political vortex that they cannot escape from. Sitting at 26% approval among the American people because of the prior bad acts and opinions in how people are perceiving how this Court is operating.”
“You layer on top of this, someone within their own ranks, whether it was a staffer or a justice, God forbid – which I do not take off the table here – leaking this for nefarious political reasons, whether to create outcome ‘A’ or create outcome ‘B’ around this opinion, that does not create an avenue to further entrust or garner the trust of the American people.
Slate’s legal expert Dahlia Lithwick added to the conversation, “I think that the decision was taken to do this is in-house using the Marshal Service, but probably other choices could have been made, to have a different, perhaps more thorough investigation. But I think the takeaway is exactly what you just heard, that for a leak that was characterized by most of the justices as the single most shocking, egregious violation of norms like trust. It’s still being credited for destroying collegiality amongst the justices.”
“This was a nuclear bomb that went off into court. And now the answer seems to be, ‘so sad, too bad, I’m good,'” she observed. “It’s pretty amazing in light of how absolutely consequential this has been, not just for the justices amongst themselves, but for the sort of integrity and reputational interests of the court.”