WASHINGTON – Empower Oversight has filed a motion with the U.S. District Court for the District of Columbia to unseal documents regarding the Department of Justice’s subpoenas of the personal phone and email records of members of Congress and a dozen or more attorneys for congressional committees, including Empower Oversight’s founder, Jason Foster, while they worked on Capitol Hill in 2017. A gag order on Google—the initial recipient of the subpoena targeting staff and members of Congress from both political parties—was renewed three times after the underlying case appears to have been closed.
“The implications of the Justice Department’s subpoena are broad and could have long-lasting consequences for the constitutionally-protected separation of powers and whistleblower protection. The Department’s demands for secrecy hid the serious constitutional issues, implicated by its subpoenas, from Congress and the public for years,” said Tristan Leavitt, president of Empower Oversight. “There is no way to ensure DOJ followed its legal obligations and was above board with the court about these subpoenas while everything remains sealed. Unfortunately, the evidence that we’ve seen thus far shows numerous reasons to doubt the Justice Department treated statutory and constitutional guardrails with the respect that they deserve.”
One of the most important questions of the filing is the Justice Department’s use of subpoenas to surveil the very people who are constitutionally obligated with overseeing the executive branch. Empower Oversight raises questions about the basis for the intrusion into the personal and official communications of attorneys advising members of Congress. The multiple renewals of the gag orders raise doubts about whether there was a compelling reason to keep the department’s congressional surveillance secret for nearly six years.
In the filing, Empower writes:
“The American people have a strong and legitimate interest in learning about DOJ’s collection of communications records belonging to attorneys for elected representatives in Congress, who, pursuant to their authority under the Constitution, were performing oversight of the department…Indeed, in this case, DOJ’s use of subpoenas to collect the communications records of its overseers raises serious public interest questions about the legitimacy of secretly intruding into both the personal and official activities of attorneys advising congressional committees overseeing of the Department. It implicates serious issues of public interest including separation of powers, Legislative Branch privilege, and the protection of the identity of confidential whistleblowers whose assistance to the American people’s elected representatives is essential to the constitutional oversight of the Executive Branch.”
As noted in the filing, after further discussions with various officials, Empower has learned that the subpoena that compelled Google to release Foster’s records did not include the critical information that these subpoenas were directed to congressional staff, raising the all-important question of whether that information was shared with the court.
In addition, attorney-client communications records like those targeted with these subpoenas should have triggered requirements for enhanced procedural protections and approvals. It’s unclear if any proper approvals were received in this case, or whether there was an adequate justification for such an overly broad effort to gather records of attorneys advising Congress on oversight of the Justice Department. It’s also unclear whether executive branch employees with access to the leaked information were subject to the same amount of surveillance and scrutiny.
Empower’s filing says:
“There are ample reasons to doubt that DOJ had a legitimate predicate to exclusively target these Legislative Branch oversight attorneys’ communications without also subjecting its own attorneys and senior Executive Branch officials who accessed the same restricted information to the same zealous scrutiny. Those doubts are only reinforced by DOJ’s unusual demands for secrecy over many years. It sought and received NDOs under 18 U.S.C. § 2705, barring Google and other telecommunications companies from informing Congress, or anyone else, that it collected the communications records of Members of Congress and their staff, even after the investigation that they were supposedly in furtherance of had ended. DOJ’s investigation led to the prosecution and guilty plea of Former Senate Intelligence Committee Security Director James Wolfe in 2018. But even after Wolfe’s conviction, DOJ requested three additional one-year renewals of the NDOs. It was not until 2023 that DOJ finally relented and allowed the NDOs to expire. And it was only then that Google could inform Mr. Foster and his former colleagues on Capitol Hill that DOJ had collected extensive, detailed records of their communications six years earlier.”
The details requested in the subpoena could easily enable the Justice Department to identify confidential whistleblowers providing congress with information about government misconduct, one of Congress’s most sacred responsibilities.
In the filing, Empower writes:
“At the time DOJ began collecting their communications records, Mr. Foster and his fellow colleagues on both sides of the aisle were communicating with confidential sources and whistleblowers whose willingness to share information with Congress is essential to its oversight function. The Legislative Branch has a constitutional interest in protecting the identity of those confidential sources and whistleblower just as journalists do under the First Amendment. Yet due to the secrecy demanded by DOJ, and granted ex parte by the Court, the nondisclosure orders deprived Congress of an opportunity to object at the time or even to know until years later that telecommunications providers had complied. Providers like Google, and perhaps even the Court, yielded to DOJ demands for secrecy without knowing the full context and constitutional implications of the subpoenas.”
Background
Foster, a 25-year veteran of Capitol Hill and former chief investigator for U.S. Senator Chuck Grassley and the U.S. Senate Judiciary Committee, received notice from Google on Oct. 17, 2023, that DOJ had obtained and served notice to Google in 2017 for extensive records associated with his Google email address and two Google Voice telephone numbers. Further communications with other officials confirmed that multiple Republican and Democratic congressional staff were among those whose records were subpoenaed.
The subpoenas appear to be the result of a leak of confidential information about the Carter Page FISA. The leak resulted in the prosecution and guilty plea of former Senate Intelligence Committee Security Director James Wolfe. However, even after that conviction, the Justice Department requested three additional one-year renewals of the non-disclosure order with the court.
For the complete filing, click here.
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