Roberts should simply have the FBI ask each clerk if they leaked the document.
If the clerk says yes, fire them.
If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker?
If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.
Maybe I haven’t made it clear from this comment chain, but I view Sarah’s proposal as a last resort if investigatory measures fail, as I think Sarah did too when she presented it. Right now the Court is conducting its own investigation and while Roberts could bring the FBI in, he can’t control how they conduct an investigation and it would present its own dangers to the Court itself.
Let’s just grant the point for the purposes of this conversation (which is not to say I agree, this has not ever actually happened before but could be considered theft of government property, but just for this conversation we’ll set that aside): would you want to keep someone on staff that violates your trust for politically motivated reasons?
It’s not just the current Justices and staff that want to know either. There has never been a before-the-fact wholesale leak of a draft opinion, but there have been months after-the-fact leaks that saw the leaker completely shunned by the community around SCOTUS independent of political affiliation or judicial philosophy from former and current clerks to the Justices themselves. They keep it tight, and clerkships, SCOTUS or otherwise, are usually the ultimate networking opportunity. Simply put, it was unprofessional and everyone involved has an interest in determining who it was no matter what the political motivations were or the hoped for outcome.
If the clerk says yes, fire them.
If the clerk says no, they are either telling the truth or committing a felony. Would the real leaker risk catching a felony charge if they don't know whether the FBI actually knows the identity of the leaker?
If the clerk refuses to answer, apply "adverse inference" and fire them, because they are either the leaker or are hindering an investigation.