WASHINGTON – In a new court filing, Empower Oversight is pushing back on the government’s attempt to permanently hide its sealed claims to a federal court that supposedly justified secretly collecting the communications records of a bipartisan group attorneys for congressional committees conducting oversight of the executive branch.
This week, Empower Oversight filed a reply in support of its motion to intervene and unseal court filings in a long-closed leak probe where DOJ obtained nondisclosure orders (“NDO’s” or “gag orders”) to prevent the notification of congressional oversight attorneys that the executive branch had obtained, via subpoena to service providers like Google, records of their communications.
In its reply to DOJ filed with the court, Empower Oversight wrote:
“DOJ’s demand for total secrecy raises serious suspicions that DOJ opposed Empower Oversight’s request merely to continue concealing its previous disregard for the separation of powers and for the whistleblower protection policy implications of its subpoenas and NDOs. However, avoiding public controversy or hard questions from oversight authorities is not a legitimate reason to keep court filings secret.”
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—which DOJ did not file on a public docket and said that Empower Oversight may not distribute—insisted that the secrecy imposed nearly seven years after the underlying events should continue in perpetuity.
Throughout Empower Oversight’s July 16, response, the whistleblower organization exposes the government’s weak attempts to rationalize secret court filings in the long-closed leak probe. Key to Empower Oversight’s concerns is whether the government, in seeking multiple nondisclosure orders, told the court the full story about what it was seeking, particularly that the subpoenas were directed toward members of Congress and their staff who had oversight authority over the Justice Department.
“Empower Oversight’s motion seeks records critically important to allowing the public to see the extent to which DOJ was candid with the Court in seeking NDOs to block the disclosure of its efforts to investigate those in Congress performing oversight of the Department. In particular, the public has an important interest in understanding how DOJ characterized its requests for NDOs here, where DOJ was seeking the communications records of congressional attorneys and Members of Congress. That public interest is only heightened by the failure of DOJ in its opposition here to acknowledge and engage the serious constitutional and policy implications of its actions.”
Amicus Brief
In an unusual move at the district court level, a coalition of whistleblower advocates also filed an amicus, or “friend of the court,” brief supporting Empower Oversight’s motion due to the threat that secretly collecting data on congressional attorney communications could expose confidential whistleblower identities. Government Accountability Project (GAP) Legal Director Tom Devine said in a press release:
“For many whistleblowers, whether they can communicate confidentially is the key whether to challenge abuses of power. Secret subpoenas of congressional offices are a clear and present danger both to whistleblowers and Congress as a constitutional check and balance. If this decision stands, no congressional office can honestly reassure confidential whistleblowers that they have not become part of a Justice Department dossier.”
Joining GAP in signing the amicus was Whistleblowers of America (WOA) and FBI Whistleblower Michael German—who since leaving the FBI has worked with, “members of Congress and their staffs, to assist other FBI employees seeking to report abuse, and to craft stronger protections for all national security whistleblowers.”
It is unknown when the court may rule on Empower Oversight’s motion.
To see Empower Oversight’s original May 2, motion to intervene and unseal, click here.
To see Empower Oversight’s July 15, reply in support of the motion to intervene and unseal, click here.
To see the amicus brief filed by GAP, WOA, and Michael German, click here,
Inspector General and Congressional Probes
The subpoena at issue is one of several being investigated by the Justice Department Inspector General according to its list of ongoing work.
The controversy is also the subject of a November 8, 2023 inquiry by Senators Ted Cruz, Mike Lee, and Charles Grassley—as well as a subpoena from the House Judiciary Committee.