WASHINGTON – Empower Oversight has filed a reply brief in the U.S. Court of Appeals for the D.C. Circuit, calling on the court to require the Department of Justice (DOJ) to fully disclose the government’s applications for non-disclosure orders (NDOs) that kept secret subpoenas for the communications of Empower Oversight’s founder, Jason Foster, and dozens of other Republican and Democratic congressional staff and members of Congress. Foster was the chief oversight counsel on the Senate Judiciary Committee at the time.
DOJ’s continued opposition and secrecy to Empower Oversight’s request for transparency underscores the problem that prompted the litigation in the first place, which seeks to unseal DOJ’s court filings that supposedly justified five years of NDOs following the initial subpoena for activity logs of the personal phone and email accounts of members of Congress and committee staff members.
In the brief, Empower Oversight wrote, “DOJ’s continued attempt to avoid public accountability for its troubling actions should be rejected. NDO applications are creatures of the Stored Communications Act, not Rule 6(e). And since—unlike Rule 6(e)—the Act provides a standard for sealing, which no longer applies after DOJ allowed the NDOs to expire, Empower Oversight has a common-law and a First Amendment right of access to any judicial records sought under the Act.”
Foster and other congressional staff were engaged in oversight of DOJ and were communicating with DOJ whistleblowers when DOJ secretly sought personal communications from Google and barred the company from notifying the congressional staff. DOJ’s move raised serious constitutional concerns over the targeting of legislative branch officials by the executive branch they were overseeing.
Background
Empower Oversight Founder Jason 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. 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 NDOs 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.
On May 2, 2024, 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.
On Sept. 6, 2024, the Chief Judge of U.S. District Court for the District of Columbia, James E. Boasberg, agreed that two of DOJ’s applications for NDOs 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 the NDOs secret without explaining why.
Empower Oversight’s case was bolstered by 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.
On April 4, 2025, Empower Oversight filed an appeal in the U.S. Court of Appeals for the D.C. Circuit challenging Chief Judge Boasberg’s decision to keep sealed the arguments used by DOJ to obtain the NDOs.
On April 23, 2025, Empower Oversight opposed the government’s attempt to delay.
On May 12, 2025, Empower Oversight was notified that the U.S. Court of Appeals for the District of Columbia had denied the federal government’s attempt to further delay its justification for five years of NDOs.
On July 2, 2025, Empower Oversight filed an opposition brief to the DOJ effort to submit secret arguments to the U.S. Court of Appeals for the District of Columbia without disclosing them to Empower Oversight or the public.
In addition to the most recent reply brief filed August 8, 2025, there are also several other efforts to force transparency:
- a separate FOIA suit by Empower Oversight;
- a congressional subpoena from the House Judiciary Committee; and
- congressional oversight inquiries by Senators Mike Lee, Ted Cruz, Chuck Grassley.
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