Federal prosecutors have accelerated a criminal investigation into the 2022 leak of a draft Supreme Court opinion that overturned federal abortion rights, issuing grand jury subpoenas for testimony and requesting records from court personnel. The inquiry, led by the U.S. Attorney’s Office for the District of Columbia under U.S. Attorney Jeanine Pirro, marks the first major escalation in efforts to identify the source of the leak since the Supreme Court’s own internal review failed to produce results.
The Department of Justice (DOJ) confirmed the investigation is active but declined to comment further, citing standard protocol of neither confirming nor denying ongoing probes. Prosecutors have assigned senior prosecutor Carlton Davis to the case, a career attorney previously involved in local fraud and violence prosecutions, as well as an unsuccessful attempt to indict six Democratic lawmakers for advising military personnel on refusing unlawful orders.
The leak occurred in May 2022, when Politico published a draft majority opinion in Dobbs v. Jackson Women’s Health Organization—a case that ultimately overturned Roe v. Wade—nearly two months before the court’s formal ruling. Chief Justice John G. Roberts Jr. subsequently ordered an internal review, which included interviews with 97 court personnel, including clerks and staff who submitted signed affidavits. Justices were consulted without formal interviews, according to the court’s security report.
In January 2023, the court’s top security official concluded that the leaker could not be identified under a “preponderance” of the evidence standard. The report cited outdated security protocols and noted that online claims targeting liberal figures had complicated the investigation. The DOJ’s renewed probe raises questions about potential federal statutes that may apply, as some have five-year limitations periods approaching expiration.
Justice Samuel Alito, who authored the draft opinion, has stated he has an opinion on the leaker’s identity but lacks sufficient evidence to publicly identify the person. In an interview with Fox News, Alito described the leak as a “grave breach of trust” that made the five conservative justices in the majority “targets for assassination”, citing the attempted assassination of Justice Brett Kavanaugh in 2022. Alito did not name the suspected leaker in the interview.
The investigation has drawn attention to the separation of powers between the executive and judicial branches, as the DOJ probes a matter traditionally handled by the Supreme Court itself. Legal experts have noted that the DOJ’s involvement could set a precedent for future breaches of confidentiality at the court. The probe also coincides with renewed calls from conservative figures, including former President Donald Trump, for the leaker to be held accountable.
Key developments in the investigation
- Grand jury subpoenas have been issued to obtain testimony and records from court staff employed when the draft opinion was leaked.
- The U.S. Attorney’s Office for the District of Columbia, led by Pirro, is overseeing the investigation alongside career prosecutors.
- The Supreme Court’s internal review concluded in January 2023 that the leaker could not be identified under the standard of proof applied.
- Justice Alito has indicated he believes he knows the leaker’s identity but lacks sufficient evidence to make a public determination.
Background: The leak and its aftermath
The Politico publication of the draft opinion in Dobbs marked one of the most consequential breaches in Supreme Court history, upending the court’s usual secrecy around pending decisions. The leak prompted immediate security concerns, with justices in the majority—including Alito, Kavanaugh, and Neil Gorsuch—publicly expressing fears for their safety. Gorsuch later addressed violent threats against the judiciary in a separate interview, though he did not reference the Dobbs leak directly.
The Supreme Court’s internal investigation, led by its top security official, examined 97 personnel and reviewed security protocols but ultimately found insufficient evidence to identify the leaker. The report attributed the breach in part to outdated security measures and the proliferation of online speculation, which obscured potential leads.
The DOJ’s criminal probe represents a new phase in the search for accountability, with legal experts debating whether prosecutors can overcome the challenges that stymied the court’s own review. The investigation’s progress remains unclear, as the DOJ has not disclosed whether any individuals have been formally charged or whether additional subpoenas are expected.
What’s next?
The timeline for the investigation’s resolution is uncertain, particularly as some potential federal statutes approach their five-year limitations periods. The DOJ’s probe may also face legal and procedural hurdles, given the Supreme Court’s historical resistance to external scrutiny of its internal operations. Observers note that the outcome could influence future handling of leaks within the judiciary and set a precedent for inter-branch investigations.