Jeanine Pirro wrote a book called Liars, Leakers, and Liberals: The Case Against the Anti-Trump Conspiracy. It’s mostly empty conspiracy mongering for her then-Fox News audience to lap up. But fast forward eight years and she’s the U.S. Attorney for the District of Columbia, and has opened a criminal investigation into the 2022 leak of the Dobbs draft. Finally, someone will attempt to get to the bottom of this non-scandal that’s already been investigated and dropped by the Supreme Court itself.
Kash Patel’s FBI already announced a renewed investigation into the Dobbs leak back in May 2025 as part of a laundry list of probes into right-wing conspiracy fodder like “who left cocaine in the White House?” Now, according to the New York Times, Pirro’s prosecutors have picked a peck of people who worked at the Court in 2022 and issued grand jury subpoenas or otherwise sought information from them. Carlton Davis heads up this probe, having last been seen trying to indict six Democratic lawmakers for a video reminding service members that they can refuse illegal orders. A D.C. grand jury unanimously said no and Pirro subsequently dropped the matter.
This is an office that literally failed to indict a ham sandwich… thrower. It then took a stab at a misdemeanor against the man and lost that too. It’s also the office that charged a 67-year-old former Olympic canoeist with vandalizing the Reflecting Pool, in a case that sank in roughly 30 inches of water.
Despite a growing list of abject failures, the Justice Department’s Inspector Clouseau has been yet again handed a magnifying glass and pointed at the Supreme Court.
Is there even a crime here? Not really. There’s no criminal statute against releasing a draft Supreme Court opinion. The justices like their drafts secret so they can unveil the final product with maximum June theatrics, but it’s an institutional preferences that doesn’t translate into the penal code.
I get it. The Court wants to zealously guard its deliberative power over early drafts. That’s a very sensitive period in the development of a decision where the justices are allowed to change their minds before being locked into standing by an opinion forever. From the perspective of the justices, it should be their prerogative to control what happens with their work before it’s finally unveiled to the world. Their draft, their choice if you will.
Conservative media likes to cast the Dobbs leaker as the next Reality Winner or Edward Snowden, but leaking national defense intelligence is not in the same ballpark as Sam Alito’s rough drafts.
The lack of a specific statute doesn’t leave prosecutors empty-handed, of course, because federal law can make just about everything a crime if you squint hard enough. Theft of government property under 18 U.S.C. § 641 is a common approach to going after leakers. Likewise, if the leaker so much as breathed on a keyboard they weren’t authorized to use, there’s always the Computer Fraud and Abuse Act. The Court also made employees sign sworn affidavits denying responsibility, which sets up a false statements case.
Speaking with the Times, Cornell’s Michael Dorf warned that an investigation without a viable criminal basis could amount to the executive branch harassing the judiciary. Given that the executive branch has a docket full of cases sitting in front of the Court, handing out subpoenas throughout the building isn’t an ideal development.
The leak happened in May 2022, and some of those arguably applicable statutes will see their five-year limitations periods run out in a few months. The FBI began its “re-examining” of the leak back in May 2025. Now, 18 months later, there’s sudden urgency and Pirro has about six months to find a crime, a suspect, and a D.C. grand jury willing to go along. Historically, she’s been largely incapable of completing that list.
For what it’s worth, the Court’s own investigation interviewed 97 employees, ran forensics, and came up empty. That said, the investigation never talked to the justices themselves, who were merely “consulted” about the probe. As bold investigative techniques go, refusing to talk to the people with the most motive and opportunity ranks high.
Joan Biskupic’s Nine Black Robes, describes the Dobbs deliberation process, noting that compromise efforts toward a narrower ruling died once the draft went public, with conversation freezing the votes behind the maximalist approach taken in Alito’s draft. Any Supreme Court employee with access to a draft is ancillary to the justices. They’re the ones circulating the drafts for review, and have unfettered opportunity to leak if they wish.
Could a justice actually do that? Well, a former anti-abortion activist alleged that a justice disclosed the Hobby Lobby outcome in advance after a dinner with movement donors. That justice denied it, and the Court abruptly announced him cleared in about a week. That was Samuel Alito, by the way.
A competent investigator staring at the board would have Alito’s portrait with all the red string in the office pointing at it.
Alito, for his part, insists the Dobbs leak was a grave assault on the institution, echoing the party line from all the justices. He even offers performative outrage that the leak led to threats against conservative justices as though anyone unstable enough to be violent about the draft instantly calmed down once the opinion got published. But he can’t stop coyly hinting that, “I personally have a pretty good idea who is responsible.”
WINK WINK!
Just because Alito had the most motive, opportunity, and a history of allegations about this behavior doesn’t mean he did it. But it doesn’t take Sherlock to put him atop the list of suspects.
Could this be the reason for this sudden urgency? Could we be witnessing the Trump White House galaxy brain in action? Sam Alito has reiterated that he’s not retiring during the lame duck session just to give Trump an opportunity to extend more deadhand control over the Supreme Court. Without something forcing Alito out in the next few weeks, the conservatives won’t be in a position to confirm anyone for years… while Thomas, Alito, and Roberts keep getting older. If someone did suspect Alito, turning up the heat with a criminal inquiry might just give him the nudge to raise the upside-down white flag.
No. If this White House could muster that level of strategic thinking, they wouldn’t have lost the midterms like this. And they definitely wouldn’t be hanging their hopes on Jeanine Pirro.
Earlier: The FBI Decides What We Really Need Right Now Is Another Investigation Into The Dobbs Leak
Everything You Need To Know About The Supreme Court Leak Report But The Justices Were Afraid To Ask
All That And The Supreme Court Still Has No Idea Who Leaked The Dobbs Decision
Samuel Alito Only Thinks Supreme Court Leaks Are The Worst When He’s Not The One Doing The Leaking
After VERY THOROUGH 10-Second Investigation, Supreme Court Declares Justice Alito Didn’t Commit Ethical Breach
Samuel Alito’s Self-Serving Dobbs Leak Theory Is Back In The News
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
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