Here is what we learned from the Supreme Court’s report of its internal investigation of the leak to Politico of the draft Dobbs opinion overturning Roe v. Wade: The Supreme Court isn’t very good at internal investigations.
The investigation, which was conducted by the marshal of the Supreme Court, Col. Gail A. Curley, failed to identify the leaker, or even how the draft Dobbs opinion was leaked. But, as I will explain, that’s not why the Court’s investigation deserves a low grade.
First, some internal investigation basics.
Internal investigations have long been an important institutional governance tool for dealing with a crisis. They allow organizations to detect wrongdoing by officers and employees, take disciplinary action and institute remedial measures. An important objective is to reassure constituents, such as shareholders, that the organization has dealt responsibly and comprehensively with the crisis. Given the inherent conflict when an organization investigates itself, any internal investigation must be crediblein both fact and appearance.
For that reason, organizations typically use experienced outside law firms to ensure that the investigation is independent instead of in house counsel, which have a conflict of interest because they report to the officers who may be under investigation. The investigators must follow up on leads. Any public report of the investigative findings must be well-crafted, accurate and inclusive.
Although the Court called the Dobbs leak “one of the worst breaches of trust in its history,” it did not follow these best practices. Col. Curley, a Court employee, has a strong background in national security law (during her service in the Office of the Judge Advocate General) but apparently less so in prosecutorial or investigative work. The Court explained in a separate statement that it had “consulted” with an outside attorney, Michael Chertoff, a former secretary of Homeland Security and former federal prosecutor, who pronounced Col. Curley’s investigation “thorough” but did not do any investigative work himself. Why didn’t the Court simply retain Chertoff to do the investigation, which would have better served the objectives of independence and credibility? It does not say.
The investigation did not follow all leads, most glaringly by apparently failing to interview spouses of Court clerks and personnel even though, according to Curley’s report, “some individuals admitted to investigators that they told their spouse or partner about the draft Dobbs opinion and the vote count, in violation of the Court’s confidentiality rules.” What were Curley’s reasons for not interviewing spouses and partners, especially since the draft opinion apparently could be accessed from home? Her report does not say.
Curley’s report itself hurt her investigation’s credibility by failing to state whether the investigators interviewed the justices themselves. In response to a storm of criticism, Curley issued a brief statement explaining that the justices had been interviewed (but was silent on whether she interviewed their spouses).
The statement revealed that investigators used a double standard for the interviews. They interviewed the justices in informal, two way-conversations, unlike the interviews of other Court personnel, who were formally questioned and asked to sign affidavits under penalty of perjury that they had not leaked the Dobbs opinion.
Internal investigations are not risk free. They sometimes turn over rocks to find wrongful conduct that wasn’t even suspected when the investigation began. And once started, any officer who tries to rein them in can actually create worse problems than whatever scandal precipitated the investigation in the first place. And that was the Supreme Court’s dilemma: To conduct a credible internal investigation of the Dobbs leak, it would have to relinquish control over the investigation, and relinquishing control is not in the Court’s DNA.
Instead, it tried to have it both ways by using a Court employee to do the investigation and an outside lawyer to give it an arms-length blessing. It’s certainly possible that, had an outside lawyer been retained to do the investigation, and followed up on all leads including spouses, the leaker still would not have been identified. But at least there would have been no doubt about the investigation’s independence and credibility.
Gregory J. Wallance, a writer in New York City, was a federal prosecutor in the Carter and Reagan administrations, where he was a member of the ABSCAM prosecution team that convicted a U.S. senator and six representatives of bribery. His newest book, “Into Siberia: George Kennan’s Epic Journey Through the Brutal, Frozen Heart of Russia,” is due out later this year. Follow him on Twitter at @gregorywallance.