In light of a comment from Supreme Court Justice Samuel Alito that he thinks he knows the identity of the leaker of the draft opinion in the Dobbs V. Jackson Women's Health Organization case, but can't prove it, Sen. Ted Cruz (R-TX) called for the FBI to step in and complete the investigation so that the leaker can be brought to justice. 

“The chief justice should call in the FBI to assist with the investigation,” he said. “The marshals’ office conducted the investigation. The marshals’ office are very good people, but they don’t have the equipment. They don’t have the experience in forensic investigations. The FBI does.”

He suggested having the bureau work cooperatively with the marshal of the Supreme Court to solve the case, which has remained a mystery.

“Given the severity here, what I would encourage the chief justice to do is to invite the FBI to work cooperatively with the marshals — get the evidence because the individual who leaked the draft opinion should be prosecuted, should go to jail,” Mr. Cruz said.

Alito knows leaker's identity

Cruz's comments were precipitated by comments from Alito to the Wall Street Journal about the leaker's identity.

“I personally have a pretty good idea who is responsible, but that’s different from the level of proof that is needed to name somebody,” Justice Alito said. “It was a part of an effort to prevent the Dobbs draft … from becoming the decision of the court. And that’s how it was used for those six weeks by people on the outside — as part of the campaign to try to intimidate the court.”

Alito pushed back at the idea that a conservative justice or clerk leaked the opinion.

“That’s infuriating to me,” Justice Alito said. “Look, this made us targets of assassination. Would I do that to myself? Would the five of us have done that to ourselves? It’s quite implausible.”

Investigation unsuccessful

After eight months of investigation, the court said in January that it was unable to identify the leaker.

“The team has to date been unable to identify a person responsible by a preponderance of the evidence,” wrote Marshal Gail Curley.

Her report found that a few court employees had told their spouses about the draft opinion, which some had thought was permissible under court rules.

Other employees had violated document handling rules, but were determined not to have been the source of the leak.

Work-from-home policies in place at the time and incomplete tracking systems made it impossible to tell exactly how many employees had access to printed copies of the draft, she said.

The leak of a draft opinion had never happened before in the history of the court, and it subjected the court's five most conservative justices to threats and an assassination attempt against Brett Kavanaugh that was foiled by authorities.