Frank Figliuzzi, the former FBI deputy assistant director for counter-intelligence, is calling out the in-house investigation conducted by the U.S. Supreme Court to find the source of the leak of the Dobbs decision from last summer.
MSNBC host Nicolle Wallace recalled that Justice Samuel Alito sounded the alarm that there would be assassination threats as a result of the leak. The Court was reportedly up in arms over the idea that the decision leaked a month prior to the actual release. The findings from the internal investigation were unsuccessful.
"The investigation focused on Court personnel — temporary (law clerks) and permanent employees — who had or may have had access to the draft opinion during the period from the initial circulation until the publication by Politico," the findings say.
Legal experts believe this means that the justices were not questioned or investigated and no investigation was done with personal information.
Figliuzzi said that this is by design.
"When is an investigation really not an investigation? When you're told what you can and can't do," he said, implying that the probe was a joke. "You can't do what you need to do or talk to the people you need to talk to solve the investigation and whether it's conducted by professional investigators. Let's level here. There have been some things said that I think we need to clarify. No one, the U.S. Marshal Service did not conduct this investigation. This investigation was conducted by someone called the Marshal of the Supreme Court. I'm sure she's a wonderful person, but she has no law enforcement training or experience. She's in charge of securing the building called the Supreme Court building and the justices. That's what she does. That's who they gave this to in this most egregious breach of security in the history of the Supreme Court."
The counter-intelligence expert explained that to do a serious investigation, one begins with talking to every person who may have had access to the information leaked. That didn't happen in this case.
"While they may have talked to 200 people, they didn't talk to X clerks, they didn't talk to the very universe of people who may have done the leaking and left the court to go onto some great legal job," he said. "They didn't talk to those people. They didn't call the FBI because you know what would happen, a real case would have happened. They would have actually had the criminal process. Someone stole government property. Someone mishandled government records, potentially a crime. They could have had subpoenas of former clerks and former employees, they would have had that leverage over them. They could have subpoenaed phone carriers and internet providers and they could have seen who was talking to whom and when at the media platform that obtained this information. All that could have been done."
He also noted that there's no evidence the justices themselves were interviewed. Another point is that the Marshal of the Court's boss is the Supreme Court. So, her findings could have implicated the people that pay her salary.
Wallace asked why then a sham probe would have been done to find a leak that they claimed they were taking seriously.
"Well, since we're not in the conjecture business, let's answer it generically. Why would you curtail an investigation?" Figliuzzi asked. "What I've read about this investigation is that within its parameters, and they were significant parameters I just described, it was a heck of an investigation, they tried to look at printers and forensics and IR and they conducted a hundred interviews. It's not a sham, but rather an extremely curtailed investigation that really wouldn't get to the truth. But why would you curtail and put those handcuffs on somebody investigating what happened? Because you don't really want to get to the outcome. That's why."
The press and legal analysts have discussed the ethics problems happening at the court over the course of the last few years and one of the things Figliuzzi suggested is that Chief Justice John Roberts could actually write some ethics rules for his court. Each chief does it and he has been overseeing the bench for nearly 20 years without any ethics requirements. What rules are in place are self-policed, meaning they're effectively ignored.
"You want to talk about public perceptions, draft an ethics code, that would go a long way," Figliuzzi recommended. "He's the one who decided this case would be handled by the chief of police, right? That's her job. I'm not making that phrase up or demeaning her role in any single way, the security at the Supreme Court is fantastic. But in writing, her job is chief of police. That's the marshal of the supreme court. And she literally answers to the court. They decide if she has a job tomorrow or not."
He explained that the FBI did offer to do an investigation but was rebuffed.
"So, they seem unwilling to do it," he concluded.
When Wallace compared it to corporate espionage and corporate theft, Figliuzzi said that sometimes someone doesn't want to get the answer because it would kill their stock or hurt the company. That's why quiet internal investigations happen instead of serious, professional ones.
"You're going to put band-aids over the holes and hope this goes away. If you want to use that analogy to the Supreme Court, maybe they really don't want the public to know the answer because the public perception is already at a low," he said, also adding that he suspects they know who it was already.
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