Podcast host and legal expert Katie Phang called the Justice Department’s criminal investigation into the 2022 leak of the Supreme Court’s Dobbs v. Jackson draft opinion “farcical,” suggesting investigators may be looking for someone to blame.
In a Thursday episode of her podcast, Phang cited a New York Times report that a grand jury has subpoenaed testimony from people who worked at the Supreme Court when the draft was leaked to Politico. She said Jeanine Pirro, the U.S. attorney in Washington, is overseeing the probe, which was not previously public. Politico published the draft by Justice Samuel Alito on May 2, 2022, and Chief Justice John Roberts confirmed its authenticity the next day.
Phang said it’s unclear what law the leak broke, and she suspects any charges might involve false statements to investigators. She asked “why now?” and said she doubts justices would welcome DOJ access to court records.
She noted that the court’s own inquiry interviewed 97 staff members and clerks but couldn’t identify the leaker, according to a January 2023 report. She said the justices themselves got only light questioning and no formal interviews, and she noted Alito later told the Wall Street Journal he had “a pretty good idea” who was responsible.
Justices Elena Kagan and Amy Coney Barrett have said they want the culprit found, Phang said.
Phang also said Elliot Gaiser, an Alito clerk during the leak, now heads the Office of Legal Counsel. “This whole thing is farcical,” she said, adding that investigators may try to pin it on a clerk for a liberal justice.
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