WASHINGTON – Empower Oversight is appealing a U.S. District Court decision that kept hidden any factual basis for Justice Department (DOJ) subpoenas for the activity logs of the personal phone and email accounts of members of Congress and attorneys for congressional committees. The attorneys and members of Congress were from both major political parties.
“Unfortunately, the findings by the District Court failed to answer our key questions about the Justice Department’s truthfulness in its filings, such as whether they explained to the court that these subpoenas were for members of Congress and their attorneys. Only transparency can reveal how DOJ got these subpoenas approved by the court—and then kept at bay any legitimate oversight of the serious constitutional separation of powers issues by keeping the subpoenas secret for six years,” Empower Oversight president Tristan Leavitt said.
On Aug. 23, Chief Judge James E. Boasberg of U.S. District Court for the District of Columbia granted Empower Oversight’s motion to intervene in the case. In his opinion, 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 DOJ’s applications and renewals that forced Google to keep the subpoenas secret for six years, 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 in the two documents partially unsealed only a generic discussion of the legal standards that govern NDOs.
In addition to this lawsuit, there are several other efforts to obtain transparency in this serious separation of powers issue:
- 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 DOJ’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.
Each year for six years, DOJ secretly obtained gag orders from the court to prevent Google—the initial recipient of the subpoena for Foster’s communications—from notifying him that it had provided his 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 had been 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.
“Until the Justice Department comes clean on its rationale for six years of secret gag orders, there will always be questions if the department followed the law and respected the core principles of the separation of powers. And, if recent history is any indication, there are legitimate concerns and real reasons to demand transparency about the department’s actions,” 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.
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.
Empower Oversight’s notice to appeal can be found here.
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