Subpoena emails, phone records, polygraph law clerks to nab Dobbs leaker, urges ex-Gorsuch clerk

"I don't think it's very hard to figure out who did this," Mike Davis said.

Updated: January 21, 2023 - 11:14pm

The marshal of the Supreme Court should subpoena email and phone records and polygraph former law clerks to find the leaker of the Dobbs v. Jackson Women's Health Organization draft decision, suggests a former law clerk for Supreme Court Justice Neil Gorsuch.

After a months-long investigation, the Supreme Court announced on Thursday it had been unable to identify who leaked the draft opinion in May 2022 tipping the court's intention to overturn the 1973 Roe v. Wade decision. News of the impending ruling sparked outrage among pro-choice groups and even led to an alleged plan to assassinate Associate Justice Brett Kavanaugh.

Mike Davis, Article III Project Founder and former Gorsuch law clerk, told "Just the News, No Noise" TV show Friday that while he believes the investigation into the leaker was "very serious," further investigative steps could be taken to find the culprit.

"I want to commend the Chief Justice, the marshal of the Supreme Court, and the Supreme Court more generally, for making this report available publicly," Davis said. "And it was a pretty detailed report. It was a 20-page report, so I think the American people should have an assurance that nothing was swept under the rug here.

"There was actually a very serious investigation that they performed. They interviewed everyone who had access to the draft Dobbs decision, sometimes even multiple times. They had them sign affidavits, subject to perjury ... [and] requested emails and text messages from people."

Davis believes it was likely there were people who didn't want to turn over their personal cellphones and emails.

Based on the report on the investigation, it appears the marshal of the Supreme Court didn't subpoena "phone records and emails from the former law clerks and the permanent Supreme Court staff" or have "people who were more of suspects" sit down "for polygraph examinations," he said.

"I think that that probably would have helped them come to the person who actually leaked this draft Dobbs decision," he added. "I don't think it's very hard to figure out who did this."

Based on his experience as a law clerk, Davis suspects that the draft was leaked by a law clerk.

"The fact that the draft decision leaked ... along with a separate leak of the internal deliberations shows me it was probably a law clerk," he said. "It was probably one of the 12 law clerks to the three liberal justices who were upset that they were gonna overturn Roe v. Wade, and they were trying to change votes. And I don't think they understood that it was going to lead to a 1 a.m. assassination attempt of Justice Kavanaugh, his wife and two daughters."

The investigation is ongoing, and "someone's going to crack," Davis stressed. "And when they crack, they're going to be in a world of trouble because not only did they lie to federal investigators, which is a crime, they also signed that affidavit subject to perjury, which is another crime, and then they're going to be facing disbarment. They're going to be facing not being able to get jobs, they're going to lose their $450,000 Supreme Court clerkship bonus."

Earlier Friday, Sen. John Kennedy (R-La.) said he was "disappointed" in the report on the leak investigation.

"I don't mean any disrespect to the chief justice," Kennedy told Fox News. "I was disappointed in his report. I think this is the chief justice's way of saying, 'We're not going to find out who the leaker is. And if we do know, we're not going to tell you. We wanna move on.'"

That would be "a mistake," because "what you allow is what will continue," Kennedy said. "And I think we can find the leaker. Maybe the Supreme Court needs to bring in help, but we need to find that leaker, make an example of him or her, and hit them so hard they'll cough up bones — not literally, of course. But I don't think the chief justice is gonna do that, and I think he's missing an opportunity here."

Former President Trump expressed his frustration with the failure to find the leaker in a post Thursday to his Truth Social account, calling on investigators to turn up the heat.

"The Supreme Court has just announced it is not able to find out, even with the help of our 'crack' FBI, who the leaker was on the R v Wade scandal," he wrote. "They'll never find out, & it's important that they do. So, go to the reporter & ask him/her who it was. If not given the answer, put whoever in jail until the answer is given.

"You might add the publisher and editor to the list. Stop playing games, this leaking cannot be allowed to happen. It won't take long before the name of this slime is revealed!"

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