Four and a half years after Politico published Justice Samuel Alito's draft opinion in Dobbs v. Jackson Women's Health Organization, the question of who handed it over is back in the hands of federal prosecutors. The New York Times reported on Thursday, 5 November, that the Justice Department is pursuing a criminal investigation into the leak, that the inquiry has picked up speed in recent weeks, and that prosecutors have issued grand jury subpoenas and sought information from people who worked at the Supreme Court in 2022. Fox News, citing multiple sources, reported that the investigation has been under way for at least a year and that it is unclear who received the subpoenas.
Conservatives have waited a long time for someone to take this seriously, and they are right to welcome it. They should also be the first to insist that it be done properly. A leak investigation that ends in a weak indictment, a grand jury refusal or a constitutional brawl with the Court would not repair the damage of May 2022. It would compound it.
Start with why the leak mattered. On 2 May 2022, Politico published a draft majority opinion overruling Roe v. Wade. The next day Chief Justice John Roberts confirmed the document was authentic, called its disclosure "a singular and egregious breach" of trust, and directed the Marshal of the Court to investigate. The final decision came on 24 June 2022 and reached the result outlined in the draft. In the weeks between, protests took place outside the homes of some justices, and in June 2022 a California man was arrested near Justice Brett Kavanaugh's Maryland home and charged with attempting to assassinate him. The Daily Wire notes that he was sentenced in October 2025 to more than eight years in prison.
Justice Clarence Thomas described the institutional cost shortly afterwards. "When you lose that trust, especially in the institution that I'm in, it changes the institution fundamentally," he said, according to Fox News. "You begin to look over your shoulder." Justice Alito, interviewed last month by Shannon Bream of Fox News, called the leak "a grave breach of the trust" and said it "very predictably made the five of us in the majority targets for assassination." A court that cannot deliberate in confidence cannot change its mind in confidence either, and the freedom of judges to revise a draft is part of how good law gets made.
The Court's own effort to find the source was serious but inconclusive. The Marshal's public report, released on 19 January 2023, says investigators conducted 126 formal interviews of 97 employees, all of whom denied disclosing the opinion. It found that 82 people had access to electronic or paper copies, that 34 confirmed printing the draft and four were unsure, and that an outside hack was unlikely. It concluded that investigators could not identify the person responsible "by a preponderance of the evidence." Michael Chertoff, the former Homeland Security secretary whom the Court asked to review the work, said the Marshal "undertook a thorough investigation" and that he could not "identify any additional useful investigative measures."
That report also explains why a criminal case is harder than it sounds. No federal statute specifically makes it a crime to disclose a draft Supreme Court opinion. Bills to create one were introduced in the 117th Congress, H.R. 7917 and S. 4455, and the report cites them, but neither became law. Instead the Marshal listed a set of general statutes that might apply, including theft of government property under 18 U.S.C. 641, unauthorized computer access under 18 U.S.C. 1030 and the removal of court records under 18 U.S.C. 2071. The more promising route may be the one the report itself flagged: every employee with access signed a sworn affidavit denying any role, so anyone shown to have lied could face a false statements charge under 18 U.S.C. 1001.
Even that path is narrow. Back in 2022, Washington lawyer Bradley Moss told The Hill that the property theft statute was the only law that "even remotely" fit and that it was "unlikely to be applied in this context." Prosecutors would need to prove who disclosed the draft and then prove a crime, not just a firing offence. And according to the Times account summarised by The Independent and the Daily Wire, some potentially relevant statutes carry five-year limitation periods that expire in the spring of 2027. The clock explains the sudden urgency. It should not be allowed to dictate the quality of the case.
This is where conservatives need to be honest about the messenger. The investigation is being run by the U.S. Attorney's Office for the District of Columbia under Jeanine Pirro. The Independent, citing the Times, reports that the senior prosecutor assigned to it is Carlton Davis, who previously led the unsuccessful attempt to indict six Democratic lawmakers over a video telling service members they could refuse unlawful orders. Critics of the office have seized on that record. Above the Law, a legal news site, greeted the news with open ridicule. The Washington Examiner, by contrast, reports that the inquiry is being handled primarily by career prosecutors, and the Justice Department has declined to confirm or deny that the investigation exists.
Those details matter because the Dobbs leak is not a partisan question, and the investigation must not look like one. The Court's liberal justices have treated it as an institutional wound. Justice Elena Kagan told Congress in July that the Court would "pursue it till the end," The Independent reports, and Justice Amy Coney Barrett described leaks of certain court materials as illegal. Speculation about the leaker's motives has run in both directions: some on the right have assumed a liberal staffer wanted to derail the majority, while some on the left have suggested a conservative wanted to lock it in. A credible investigation follows the evidence wherever it leads, including to people whose politics prosecutors might share.
There is also a separation of powers problem that the right, of all movements, should not wave away. Michael Dorf, a Cornell law professor, told the Times that the department may investigate federal crimes committed at the Court but that an inquiry without a viable criminal basis risked becoming "the executive branch harassing members of the judicial branch." Duke's Samuel Buell said the Trump Justice Department had again raised questions about "precedents when there are no precedents." One need not share their politics to see the point. The executive branch is a litigant before the Court in case after case. Grand jury subpoenas reaching into chambers, clerks' phones or internal deliberations create leverage that no administration of either party should want the other to inherit.
The appearance problem cuts in another direction too. The Independent, again drawing on the Times, notes that several clerks who worked for conservative justices at the time of the leak now hold executive branch posts, including T. Elliot Gaiser, a former Alito clerk who now leads the department's Office of Legal Counsel. Nobody has suggested any of them did anything wrong. But it is precisely the kind of overlap that requires the department to wall off the inquiry and document that it has done so.
So what should conservatives ask of this investigation? First, a clear legal theory. If prosecutors believe someone lied in a sworn affidavit, that is a concrete, provable offence with a long tradition behind it, and it does not require the government to stretch property theft law to cover the copying of a judicial draft. If they cannot identify such a crime, they should say so and close the matter rather than leave former clerks under a cloud for years.
Second, cooperation with the Court rather than coercion of it. The Marshal's team has already gathered forensic data, print logs and affidavits, and the Court said in 2023 that it would pursue new leads. The Marshal, Gail Curley, later said she spoke with each justice, several more than once, and found no credible lead implicating them or their spouses, according to the ABA Journal. Prosecutors should build on that record through agreed channels, not by issuing subpoenas that force the justices to choose between their institution's confidentiality and the appearance of obstruction.
Third, staffing that commands confidence. Career prosecutors with no public role in the administration's political fights should run the case day to day, and the department should be prepared to explain, once any charge is filed or the inquiry ends, who made the decisions and why. A grand jury in the District of Columbia that refuses to indict, as one did in the case of the six lawmakers according to Above the Law, would be a gift to everyone who claims the investigation is a vendetta.
Fourth, a fix for the future that does not depend on prosecutors at all. The cleanest answer to the absence of a statute is to write one. Congress had bills in hand in 2022 and let them lapse. A narrow law penalising the unauthorised disclosure of confidential draft opinions and deliberations by court personnel, with clear definitions and protections for genuine whistleblowing about misconduct, would deter the next leak without retroactive improvisation. A Democratic Senate that will soon control the Judiciary Committee should have no principled objection to protecting the confidentiality of a Court whose decisions it often dislikes, because that protection will serve future majorities too.
President Donald Trump said in July that "that person should be found," and Mitch McConnell, then the Senate Republican leader, said in 2022 that the department "must pursue criminal charges if applicable." The important words in McConnell's sentence are the last two. The rule of law conservatives defend is not a promise that every wrong will be punished. It is a promise that punishment will follow law, evidence and due process. A leak that undermined trust in the Court cannot be answered with an investigation that undermines trust in the Justice Department.
If prosecutors can prove that someone lied under oath to protect the person who broke the Court's confidence, they should charge it and win it. If they cannot, the honest outcome is a public account of what was found, legislation to close the gap, and an end to the hunt. Either result would serve the Court better than a hurried case built to beat a deadline. Conservatives spent years demanding accountability for the Dobbs leak. They should now demand that accountability be done in a way that would survive a hostile judge, a sceptical jury and a future Justice Department run by the other side.