DHS subpoena to Kowalski excerpt

ICE subpoenas law journal editor who published copy of leaked ICE memo

October 16, 2018

The Department of Homeland Security subpoenaed the editor of an immigration law journal in an attempt to identify the source of a leaked internal memo from Immigration and Customs Enforcement.

Daniel Kowalski is Colorado-based immigration attorney and the editor of “Bender’s Immigration Bulletin,” an immigration law journal published on LexisNexis. In July 2018, Kowalski published a leaked copy of an internal ICE memo about changes to the government's approach toward asylum claims.

On Oct. 16, 2018, Kowalski received a subpoena from the Department of Homeland Security ordering him to produce:

all information related to the Immigration and Customs Enforcement (ICE) memorandum with the subject title of “Litigating Domestic Violence-Based Persecution Claims Following Matter of a A-B-“ dated July 11, 2018; including, but not limited to: (1) date of receipt, (2) method of receipt, (3) source of document, and (4) contact information for the source of the document.

DHS summons to Daniel Kowalski

The subpoena also includes a gag provision, which states: “You are requested not to disclose the existence of this summons for an indefinite period of time. Any such disclosure will impede this investigation and thereby interfere with the enforcement of federal law.

The subpoena orders Kowalski to produce the requested material by Oct. 30, 2018, to a special agent in ICE’s Office of Professional Responsibility, suggesting that there is an active internal investigation into the source of the leaked memo. 

Kowalski told Freedom of the Press Foundation that he intends to ignore the subpoena, which he believes was not properly served on him.

“I’m planning on ignoring it,” he said. “They also haven’t served me in person; they just faxed and emailed it, so technically they’d need to physically find me.”

If Kowalski does not comply with the subpoena, ICE can try to get a federal judge to compel him to provide information about the source of the memo. But Kowalski is confident that no judge would compel him to comply with the subpoena.

Unlike subpoenas issued by federal courts, the subpoena to Kowalski was a summons issued directly by DHS, in accordance with a federal law (19 U.S.C.§ 1509) that allows DHS to issue summons in connection with investigations concerning the importation of merchandise.

ICE’s sister agency, Customs & Border Protection, previously cited the same law to issue a summons to Twitter last year. The summons, which demanded that Twitter reveal the user behind an alt-government account, was later withdrawn, and the DHS Office of Inspector General chastised CBP for misusing the statute.

The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected]

February 20, 2020 Update

Daniel Kowalski, editor of the immigration law journal Bender’s Immigration Bulletin, tweeted on Feb. 20, 2020 that a Department of Homeland Security subpoena demanding he produce records related to a leaked internal memo had been dropped.

Kowalski, who did not respond to the U.S. Press Freedom Tracker’s request for confirmation, first published a copy of a leaked internal U.S. Immigration and Customs Enforcement memo in 2018. The ICE memo detailed the Trump administration’s decision to restrict asylum for victims of domestic and gang violence. Kowalski was subpoenaed on Oct. 16, 2018 by DHS which demanded that he turn over all information on how he received the memo, including “contact information of the source of the document.”

When asked on Twitter what happened to the subpoena, Kowalski wrote, “Nothing. I ignored it, and they dropped it.”

Kowalski told the Freedom of the Press Foundation, where the Tracker is housed, in 2018 that he planned to ignore the subpoena and did not intend to comply with its orders, which were issued directly by DHS and not a federal court. The Tracker is updating the status of the subpoena from “ignored” to “dropped”.