WASHINGTON, D.C. – Empower Oversight has filed an opposition brief to the Justice Department’s (DOJ) effort to submit secret arguments to an appeals court without disclosing them to Empower Oversight or the public. DOJ’s move underscores the problem that prompted the litigation in the first place, which seeks to unseal DOJ’s court filings that supposedly justified 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. The case is currently before the U.S. Court of Appeals for the District of Columbia.
The brief argues: “By submitting not only redacted exhibits, but also a redacted brief, the government seeks to further limit Empower Oversight’s ability to prosecute this appeal. Empower Oversight cannot fairly ‘test the government’s case’ because it doesn’t fully know what the government’s case is in this appeal.”
“Allowing the government to file additional sealed materials is contrary to the point of this lawsuit. Our premise is simple: ‘Was the Justice Department being truthful with the court in its applications to subpoena members of Congress and their staff, and then keep it sealed for 5 years?’” Empower Oversight President Tristan Leavitt said. “The inspector general has already raised questions about the Justice Department’s original filings, and the public—and those harmed—deserve a chance to know what really happened. The separation of powers is one of the fundamental foundations of our republic, and transparency is the only way to sufficiently understand how seriously the executive branch took that core tenet.”
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 (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.
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 non-disclosure orders.
On April 23, 2025, Empower Oversight opposed the government’s attempt to delay.
On April 4, 2025, Empower Oversight filed an appeal 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.
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 nondisclosure 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.
On May 2, 2024, 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.
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.
There are also several related items occurring to force additional transparency:
- a separate FOIA suit by Empower Oversight;
- a congressional subpoena from the House Judiciary Committee;
- congressional oversight inquiries by senators Mike Lee, Ted Cruz, Chuck Grassley.
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