Washington, D.C. – Nearly eight years after the Justice Department first spied on members of Congress and staff, Empower Oversight is opposing the federal government’s latest move to keep hiding its supposed justifications for 5 years of non-disclosure orders (NDOs) following the initial subpoena for activity logs of the personal phone and email accounts of members of Congress and committee staff members.
In a new court filing, Empower Oversight opposed the government’s motion to hold in abeyance the organization’s appeal of Judge James Boasberg’s partial unsealing order. Empower Oversight argued that the government’s motion lacks a reasonable basis for delaying the current briefing schedule and misrepresents the similarities between this case and another “Sealed Case.” The organization asserts that the issues in the “Sealed Case” regarding omnibus NDOs and First Amendment rights of a service provider are significantly different from its case, which focuses on access to specific NDO applications and extension requests.
“There has never been any justification for keeping these gag orders in place for all these years, and now the government’s rationale to continue to keep hiding its claims to the court from the public is beyond ridiculous,” said Tristan Leavitt, President of Empower Oversight. “This delay will shield from the public important information about the Justice Department’s actions when seeking NDOs related to congressional oversight—actions that should require the highest scrutiny.”
Empower Oversight is urging the Court to deny the government’s motion and allow the case to proceed according to the current briefing schedule, emphasizing the public’s right to understand the DOJ’s actions in this matter.
Empower Oversight filed an appeal in early April in the U.S. Court of Appeals for the D.C. Circuit challenging Chief Judge James E. Boasberg’s decision to keep sealed the arguments used by the Department of Justice (DOJ) to obtain secret gag orders blocking notifications by Google to targeted members of Congress and congressional staff, including Empower Oversight’s founder, Jason Foster.
Foster was one of the targets of DOJ’s snooping, covertly collecting his phone and email records when he led the Senate Judiciary Committee’s Oversight and Investigations unit for then-Chairman Charles Grassley (R-IA). DOJ subpoenaed activity logs of the personal phone and email accounts of members of Congress and more than 40 staff members for congressional committees. Each year for five years, DOJ secretly obtained gag orders from the court to prevent Google and other service providers from notifying their Legislative Branch customers that the providers had disclosed their records to the Executive Branch.
Empower Oversight’s case is bolstered after the release of a December 2024 report from DOJ’s Office of the Inspector General (OIG). After reviewing the sealed NDO applications, the OIG found that the DOJ “relied on general assertions about the need for nondisclosure rather than on case-specific justifications” as required by law and DOJ policy (OIG Report, page 9). Even more troubling, the DOJ failed to inform the court that the subpoenas targeted members of Congress and their staff—key context that could have prompted a more meaningful review by the court.