A Freedom of Information Act request by a reporter revealed that the U.S. Department of Justice secretly issued a subpoena in February 2021 to gain information on Guardian reporter Stephanie Kirchgaessner’s phone records as part of a leak investigation initiated during the Trump administration.
According to the Guardian, the Department of Justice Office of the Inspector General secretly issued the subpoena without notifying Kirchgaessner or the Guardian. News of the subpoena came following the release of a redacted report obtained by investigative reporter Jason Leopold detailing the investigations undertaken to identify the DOJ OIG employee responsible for leaking information about the Trump administration’s child separation policy.
Kirchgaessner told the U.S. Press Freedom Tracker that news of the subpoena caught her off-guard, and it was particularly concerning that the move came from the OIG, the internal watchdog ensuring ethical practices and whistleblower protections across the department.
“This is a tool that is only supposed to be used in extraordinary circumstances,” Kirchgaessner said. “And in this case they were not investigating a breach of classified information or anything involving national security. But they were investigating a leak that led to some career-damaging stories about senior DOJ officials. And I find that highly worrisome.”
The DOJ investigation took place during the time Kirchgaessner, the outlet’s investigations correspondent in Washington, D.C., was reporting on the “zero-tolerance” immigration policy in July 2020 and September 2020. In her reporting, Kirchgaessner revealed that a Justice Department official had advised that migrant parents crossing the southern border in the U.S. with children regardless of their age, be prosecuted, effectively separating them. She also reported on private memos and emails that revealed how a federal judge nominee participated in removing a Texas prosecutor after he objected to the separation of migrant children from their families.
DOJ OIG spokesperson Stephanie Logan confirmed to the Tracker that the subpoena was issued in February 2021, a few weeks after President Joe Biden took office. According to the redacted report, officials identified more than 250 phone calls between the suspected leaker and two phone numbers used by Kirchgaessner.
“DOJ OIG issued this subpoena in February 2021 to a telecommunications company to confirm that one specific telephone number already known to investigators from their prior review of the DOJ OIG employee’s phone records in fact belonged to a specific media outlet,” Logan said in a statement. “The subpoena therefore requested, and investigators received, only the information necessary to this purpose, specifically the account holder’s name and address, and the dates of service associated with the number.”
Neither Logan nor the redacted report identified the telecommunications company subpoenaed.
The Guardian’s Editor-in-Chief Katharine Viner condemned the subpoena in a statement to the outlet, calling it “an egregious example of infringement on press freedom and public interest journalism.”
“We will be asking the DoJ urgently for an explanation for why and how this could have occurred, and for an apology,” Viner said. “We will also be seeking assurances that our reporter’s details will be erased from DoJ systems and will not be used for any further infringements of press freedom.”
In the wake of disclosures of multiple secretive subpoenas under Trump’s DOJ, Attorney General Merrick Garland announced on July 19, 2021, that he was changing the department’s policies to prevent such seizures of journalists’ records during leak investigations.
Editor’s Note: This article has been updated to include comment from the U.S. Department of Justice Office of the Investigator General.