Unfinished Business: FBI Moves to Reopen Dobbs Leak Investigation

Dan Bongino, the FBI’s deputy director, has announced that the bureau is reexamining the long-controversial investigations into the leaking of the Dobbs decision, the pipe bombs left on Jan. 6th and the cocaine found at the White House. All three investigations led to speculation over political influences on the unresolved outcome. I am aware of no credible evidence of such influence, but there is reason to hope that this reopening of the investigation into the Dobbs leak could bring accountability for the most egregious violation of ethics in the modern Court’s history.

There have been rumors for months that the Court had zeroed in on one or two likely culprits. However, the failure to find the person or persons had led to continued speculation. In reviewing a pattern of leaks from the Court, Professor Josh Blackmun, a close Court watcher, went so far as to suggest that it is “likely that [Justice Elena] Kagan, or at least Kagan surrogates, are behind these leaks.”

There is reason to hope that this renewed investigation might be different. First, the last investigation was largely controlled by the marshals. It does appear that they did an exhaustive job and notably had over a hundred possible suspects sign affidavits of their innocence under penalty of perjury. The nine justices were not required to sign such forms. The FBI, however, is the world’s premier investigative organization.

Second, and most importantly, there is the passage of time. Time tends to be the undoing of many criminals. If this were a clerk or employee (as opposed to a justice), there is a chance that they have revealed their role to acquaintances. The FBI will often interview associates who, like the suspect, are subject to prosecution for lying to federal officers in such interviews.

For the culprit, making another false statement to federal agents would draw serious consequences, as a court might not treat the crimes as running concurrently. 18 U.S.C. § 1001 carries a potential five-year jail sentence, and any culprit would face major aggravating factors, including the misuse of official duties and undermining the judicial system.

Many of us were deeply disappointed in the result of the investigation. While there have been a few prior leaks, the Supreme Court has been largely immune from the weaponized leaks so characteristic of Washington.

In a city that floats on leaks, the court was an island of integrity. And more has been lost at the court than just confidentiality. There is a loss of confidence, even innocence, at an institution that once aspired to be something more than a source for the New York Times.

The person responsible for this act shredded the traditions and values of the Court. The harm to the Court, both as an institution and a community, was immense. I have no reason to doubt the good-faith efforts of the marshals in this investigation. With the possibility of a lone wolf actor, it was obviously a daunting task. However, the addition of both the FBI and the passage of time may offer hope for a resolution.