The leak that exposed the Supreme Court’s draft opinion overturning Roe v. Wade is under criminal investigation by the Department of Justice, years after the court’s own hunt for the culprit came up empty.
U.S. Attorney Jeanine Pirro’s Washington office is leading the probe, multiple sources briefed on the matter told Fox News.
The investigation has been underway for at least a year, sources said. Grand jury subpoenas have been issued during the probe, though it is unclear who received them.
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The New York Times first reported the investigation.
Politico published the draft before the 2022 ruling, prompting Chief Justice John Roberts to order an internal investigation that failed to identify the leaker.
The Justice Department and the U.S. Attorney’s Office declined to comment on the investigation. Fox News also reached out to the Supreme Court, asking whether the court or any justices have worked with outside investigators, including DOJ, or plan to do so.
The criminal probe comes as Justice Samuel Alito says he has an idea who was responsible but lacks sufficient evidence to publicly identify that person.
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“I do have an opinion. But the evidence available at this time is not strong enough for the court or for me to say this is the person who was responsible,” Alito told Fox News chief legal correspondent and “Fox News Sunday” anchor Shannon Bream in an exclusive interview last month.
“It was a grave breach of the trust that everybody who worked in this building had before that point.
“And it very predictably made the five of us in the majority targets for assassination and nearly resulted in the assassination of my colleague Brett Kavanaugh.”
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Politico published the draft on May 2, 2022, revealing that at least five conservative justices were prepared to overturn Roe. The final decision in Dobbs v. Jackson Women’s Health Organization followed on June 24, 2022, ending the nationwide constitutional right to abortion.
Roberts tasked Court Marshal Gail Curley with investigating the leak. After months of forensic analysis and interviews with nearly 100 employees, the court announced in January 2023 that investigators were “unable to identify a person responsible by a preponderance of the evidence.”
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“No one confessed to publicly disclosing the document and none of the available forensic and other evidence provided a basis for identifying any individual as the source of the document,” the marshal’s report concluded.
Multiple sources previously told Fox News that investigators had narrowed their inquiry into approximately 70 people who may have had access to the draft. Much of the initial focus was on roughly three dozen law clerks who worked directly with the justices.
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Fox News was also told at the time that Curley asked several permanent court employees who may have had access to the draft to turn over their cellphones and electronic devices.
Supreme Court law clerks typically serve one-year terms for individual justices, meaning those who worked for the court when the draft leaked have since completed their clerkships.
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Roberts brought in former Homeland Security Secretary Michael Chertoff, a former federal appeals judge, to assess the court’s investigative methods. Chertoff concluded the investigation was thorough.
“At this time, I cannot identify any additional useful investigative measures,” Chertoff said.
The marshal’s report also found it unlikely that someone outside the court had improperly accessed its computer systems. Investigators examined court devices, networks, printers and available call and text logs without finding forensic evidence identifying the source.
The report found that expanded work-from-home arrangements during the coronavirus pandemic and gaps in security policies made it easier to remove sensitive information from the building and the court’s networks.
Some employees also admitted telling a spouse or partner about the draft, violating the court’s confidentiality rules, according to the report.
The leak prompted protests outside justices’ homes and deepened distrust inside the court. A California man was arrested near Kavanaugh’s Maryland home in 2022 and charged with attempting to assassinate him.
“When you lose that trust, especially in the institution that I’m in, it changes the institution fundamentally,” Justice Clarence Thomas said shortly after the leak. “You begin to look over your shoulder.”
Fox News Digital’s Bradford Betz contributed to this report.