Oppenheimer Investigations Group’s Jack Morse and Neil Bautista say it may have been more beneficial for the U.S. Supreme Court to have utilized a third-party investigator after the Dobbs draft opinion leak to avoid bias, or the appearance of it.
By Jack Morse and Neil Bautista
Chief Justice John G. Roberts Jr. on May 3 directed the U.S. Supreme Court’s marshal, Gail Curley, to internally investigate the May 2 leak of the draft opinion of Dobbs v. Jackson Women’s Health Organization—which struck down Roe v. Wade and Planned Parenthood v. Casey—to the political newspaper Politico.
On Jan. 19, the Supreme Court published Curley’s 20-page report of findings and recommendations on its website. A statement of the court that accompanied the report stressed Curley’s thoroughness, noting that her team had spent months analyzing forensic evidence and had interviewed nearly 100 witnesses. However, members of the public and the media perceived the investigation as biased, self-serving and unfair, as Curley’s team treated justices gingerly but subjected other witnesses to more intense scrutiny. While Roberts may have had good reasons for keeping the investigation in-house, the Supreme Court—like any entity tasked with investigating one of its own—may have benefitted from utilizing an external investigator.
Background: Architectural Underpinnings of Curley’s Investigation
The scope of Curley’s investigation centered around two questions: (1) Who disclosed the draft majority opinion and (2) How was it provided to Politico? Curley and her investigators conducted 126 formal interviews of 97 personnel and employees who had or may have had access to the draft. Curley’s investigators formally questioned each employee, some more than once; requested access to their personal cellphones; and asked each employee to sign and notarize an affidavit affirming, among other things, that they did not disclose the draft opinion.
Employees signed the affidavits under penalty of perjury, so even though Curley was conducting an administrative investigation, employees could be criminally prosecuted for lying to federal investigators. Crucially, and perhaps inimically, Curley’s team spoke with the justices but did not formally interview them, did not ask them to sign affidavits, and did not request that they swear under penalty of perjury that they had not leaked the draft Dobbs opinion. Rather than an interrogation, interviews with justices were more akin to a conversation, as Curley permitted the justices to ask questions, as well. Her divergent investigative practices, as they pertained to the justices, have been widely scrutinized.
Curley’s report concluded, based on a preponderance of the evidence, that it was not possible to determine who disclosed the draft opinion or how it ended up with Politico.
Benefits of Internal Investigations
While Curley’s internal investigation fell short of assuring the public that she had taken an even-handed and fair approach to her process, in-house inquiries nonetheless have benefits, some more applicable to the Supreme Court than others.
Familiarity with applicable processes.
Internal investigators may be more familiar with applicable policies, procedures and systems, and they may have a better understanding of how an institution has applied those policies in the past. Therefore, the internal investigator may ensure consistency among similar investigations and their outcomes. Additionally, with more institutional knowledge of internal policies and procedures, an internal investigator may be better poised to make certain recommendations to ameliorate identified vulnerabilities as to internal conventions and protocols. An internal investigator may also have established greater credibility and trust with an entity than an outside source, and thus may be better positioned to make recommendations an organization will consider implementing.
Insulation from outside influence.
Internal investigators may insulate an entity from outside influence, which can take the form of inappropriate bias or political pressure. Indeed, such considerations may have been a primary motivator regarding why Roberts relied on an internal process. In a federal judiciary year-end report published in December 2021, Roberts stressed the importance of “safeguarding and fortifying” the judiciary’s independence, writing, “the Judiciary’s power to manage its internal affairs insulates courts from inappropriate political influence and is crucial to preserving public trust in its work as a separate and co-equal branch of government.”
Limits of Internal Investigations
Bias and appearance of bias.
One of the main drawbacks of internal investigations is that they are more subject to bias or the appearance of bias, which may in turn affect the trust and confidence in the integrity of an investigation, particularly with the public. Internal investigators may be more closely aligned with and protective of the entity than their external counterparts, and therefore, they may be more inclined to safeguard that entity and its administrators—including their supervisors—from any type of attack.
An analogous situation occurs in the law enforcement context, as members of the public and the media have consistently criticized the police for investigating their own officers for wrongdoing. Instead of the proverbial “fox guarding the henhouse,” it is the hen investigating her fellow hen for allegedly violating henhouse rules.
Even if an internal investigation is not influenced by bias, it can still appear to be. Regarding the Supreme Court investigation, it is an open question as to whether Curley’s investigation was, in fact, biased in favor of the Justices—but it certainly appears so. By many accounts, investigators handled the justices with kid gloves when compared to the 97 other Supreme Court employees investigators questioned. Additionally, Curley’s ties to the court are inherently protective in nature, as she oversees the Supreme Court Police and protects the justices. She is also subject to removal by the court.
Indeed, multiple sources criticized the court for not outsourcing the investigation to parties that were less connected to the subjects of the investigation. External investigators bring to the table what their internal counterparts inherently cannot: an outsider’s perspective, and a freedom from internal pressures that may burden internal inquiries. Again, an analogy to the law enforcement context sheds some light on applicable best practices, as law enforcement agencies that outsource investigations of their officers to external entities tend to have more legitimacy with the public.
Had Roberts opted to import an external investigative entity that could have avoided Curley’s pitfalls in light of her role, he may have avoided some of the fallout from Curley’s investigation.
Bandwidth.
While Curley’s investigation was conducted and completed within a reasonable time, another typical drawback of internal investigations is that in-house investigators may not have the same capacity or bandwidth to conduct a thorough and prompt investigation as external ones. Internal investigators often have demanding and high caseloads that may vary in severity and recency. As a result, it can be challenging to prioritize and reconcile new investigations with internal investigators’ already burdened schedules.
Therefore, some internal investigations may take longer to complete, creating backlogs. Such delays may be unavoidable—unless, for instance, the agency at issue outsources some of those complaints. External firms that specialize in workplace investigations are better positioned to manage caseloads, as they have the ability to take on the amount of cases its staff can efficiently accommodate.
The Supreme Court investigation was handled internally, which has some benefits, as discussed above. However, given the questions that can arise with internal investigations, particularly given the significant public scrutiny in this case, it may have been more beneficial to have utilized a third-party investigator to avoid bias (or the appearance of it) through a more impartial process, thus potentially bolstering more trust and confidence in the investigative process.
Reprinted with permission from the March 23, 2023 edition of The Recorder © 2023 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or reprints@alm.com. This article can be found on The Recorder website.
