The subpoena that was used by the US justice department to obtain details of a Guardian reporter's phone account, as part of a leak inquiry, was issued by the Biden administration within the opening weeks of Joe Biden's presidency.
In a statement to the Guardian, the inspector general's office of the justice department confirmed that the subpoena was issued in February 2021 - shortly after Biden entered the White House. The action was taken in an effort to divine the identity of an alleged leaker, who was suspected of divulging to news outlets details of an inquiry into the previous Trump administration's policy of separating children from their parents at the southern US border.
On Thursday, it emerged that the DoJ had secretly used a subpoena to confirm the phone number of Stephanie Kirchgaessner, the Guardian's investigations correspondent. She had been the author of two reports in 2020 that revealed sensitive aspects of the child separation policy, including that Donald Trump's then deputy attorney general Rod Rosenstein had given the green light for children of any age to be removed from their parents.
It was unclear at that point which administration had been responsible for issuing the subpoena, as the leak inquiry had straddled both the Trump and Biden administrations. Now the inspector general's office of the DoJ has clarified that the move was made under the Biden administration.
Stephanie Logan, spokesperson for the inspector general's office which acts as the DoJ's internal watchdog and which was conducting the child separation inquiry, told the Guardian that the subpoena had been issued in February 2021 in compliance with "the requirements of the Justice Manual".
The subpoena, she said, had been issued to a telecommunications company to confirm that "one specific telephone number already known to investigators … in fact belonged to a specific media outlet". Investigators knew the phone number - Kirchgaessner's, though Logan did not refer to the reporter by name - from their previous review of the phone records of an official in the inspector general's office suspected of being the source of the leak.
Logan stressed that "the subpoena did not request, and investigators did not receive, the content of communications to or from the account holder's phone number" or any other other details of the phone account.
The disclosure of the use of a subpoena to confirm a Guardian reporter's phone number in a case that involved no national security concerns or classified information provoked strong criticism. The Guardian's editor-in-chief Katharine Viner called the DoJ's action "an egregious example of infringement on press freedom and public interest journalism".
In July 2021, the DoJ under Biden's newly-appointed attorney general Merrick Garland announced a new policy that promised to restrict the use of "compulsory process to obtain information from, or records of, members of the news media acting within the scope of news gathering activities". Advocates for increased federal protections for the press have complained however that there has been lackluster support from the Biden administration for stronger shield laws.
Last summer Ron Wyden, the US senator from Oregon, introduced new legislation to protect reporters from unnecessary government surveillance as a response to revelations about the Trump administration's heavy-handed surveillance of journalists at CNN, the New York Times and other outlets. Wyden told the Freedom of the Press Foundation at the time that he had tried to enlist the support of the justice department for his new Press Act, but officials within the Biden administration had failed to engage.