WASHINGTON – A federal judge has granted Empower Oversight’s motion to intervene in a case where the Department of Justice (DOJ) subpoenaed the activity logs of the personal phone and email accounts of members of Congress and a dozen or more attorneys of both political parties for congressional committees.
In an opinion, the Chief Judge of U.S. District Court for the District of Columbia, James E. Boasberg, agreed that two of DOJ’s applications for nondisclosure orders (“NDOs” or “gag orders”) should be unsealed in part. However, after privately reviewing all of the DOJ applications and renewals that forced Google to keep the subpoenas secret for six years, Judge Boasberg allowed DOJ to keep the majority of them secret without explaining why. He also allowed DOJ to entirely redact the government’s factual claims in the applications that supposedly justified the need for secrecy, revealing only a generic discussion of the legal standards that govern nondisclosure orders in the two documents partially unsealed.
“While we appreciate the opportunity to intervene and the partial unsealing, it doesn’t answer the key questions we are asking—in particular whether the Justice Department was honest with the court in the applications and whether it flagged the serious constitutional separation of powers issues involved here. The key information is still being hid from Congress and the public,” Empower Oversight president Tristan Leavitt said.
Empower Oversight is considering its options moving forward, including an appeal of the ruling. Currently, there are several related options to force additional transparency:
- a separate FOIA suit by Empower Oversight;
- a congressional subpoena from the House Judiciary Committee;
- an oversight letter from senators Mike Lee, Ted Cruz, Chuck Grassley; and
- an upcoming public report by the Justice Department Inspector General that will likely require unsealing additional documents (“Review of the Department of Justice’s Use of Subpoenas and Other Legal Authorities to Obtain Communication Records of Members of Congress and Affiliated Persons, and the News Media”).
While the judge’s opinion referenced Empower Oversight’s “concern[] with [DOJ’s] possible misuse of its subpoena power to identify confidential whistleblowers providing information to Congress about governmental misconduct,” it made no reference to the other constitutional separation of powers issues posed by DOJ’s subpoenas and gag orders.
In May, Empower Oversight filed a motion with the U.S. District Court for the District of Columbia to unseal documents regarding the Department of Justice’s subpoenas for activity logs of the personal phone and email accounts of members of Congress and a dozen or more attorneys for congressional committees. The request targeted both Republican and Democrat attorneys, including Empower Oversight’s founder, Jason Foster, who worked on Capitol Hill in 2017.
For six years, DOJ secretly obtained gag orders each year from the court to prevent Google—the initial recipient of the subpoena—from notifying the congressional oversight attorneys that it had provided their records to the executive branch. In its response to Empower Oversight’s motion, DOJ did not dispute that it renewed the gag orders even after the underlying case had been closed.
The government’s response is not public. DOJ has not filed it on a public docket and still claims that Empower Oversight may not distribute DOJ’s opposition brief, even though Judge Boasberg has now posted his opinion and the partially unsealed applications publicly. The government’s opposition brief insisted that the secrecy imposed nearly seven years after the underlying events should continue in perpetuity.
In July, Empower Oversight filed its reply to the government’s opposition brief. Key to Empower Oversight’s concerns is whether the government, in seeking multiple gag orders, told the court the full story about what it was seeking. According to attorneys for Google, it did not know that in complying with the subpoenas that it was giving the Executive Branch access to communications records of Legislative Branch oversight attorneys.
“The key questions remain open,” said Foster. “Congress needs to learn whether the Court knew and considered in approving the gag orders that the subpoenas targeted Members and Committee attorneys while they conducted constitutional oversight of the Justice Department,” Foster said.
The court exercised its discretion in releasing a small subset of the gag order applications, which it deemed “ancillary grand jury materials” that are typically secret under Rule 6(e) of the Federal Rules of Criminal Procedure. However, the requirements to obtain communications records and related gag orders are defined in statute at 18 USC § 2703(d) and § 2705.
“This case is not about grand jury secrecy,” Foster said. “It is about whether DOJ and the Court respected core principles of separation of powers and whether they adhered to the requirements set forth in law for gag orders like these. Without more information being unsealed, Congress and the public has no basis to confirm whether the law was followed, and ‘trust us’ is simply not a good enough answer from the other two branches of government on an issue this important,” he said.
The judge’s opinion can be found on the public docket here.
The unsealed, redacted documents as ordered by the judge can be found here and here.
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