Washington, D.C. – Empower Oversight has 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.
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.
“The Justice Department’s continued secrecy in this matter doesn’t meet the smell test. There is no logical explanation as to why the public shouldn’t know how the department justified keeping these subpoenas secret for so long, especially when they involved the communications of congressional attorneys engaged in oversight of the Justice Department itself,” Foster said.
As Chief Investigator for a congressional committee, Foster regularly communicated with whistleblowers, having conversations meant to remain confidential to protect those exposing government misconduct.
“The Justice Department’s intrusion into congressional communications and the confidentiality of legislative oversight is a major red flag for those even remotely concerned about the Constitution’s separation of powers,” Foster added. “Key information is still being hid from Congress and the public about the extent to which DOJ attorneys misled the court to hide their misconduct.”
In May 2024, Empower Oversight sued DOJ and in an initial ruling the U.S. District Court for the District of Columbia Chief Judge James E. Boasberg agreed that two of DOJ’s applications for nondisclosure orders (“NDOs” or “gag orders”) should be unsealed in part. However, the unsealed portion did not answer the key questions about whether DOJ was honest with the court in the applications and whether it flagged the serious constitutional separation of powers issues.
Empower Oversight’s appeal to the Circuit Court contends that Judge Boasberg wrongly denied its initial request to unseal the NDO applications. The group argues that these documents are judicial records, subject to the public’s common-law and First Amendment rights of access, not grand jury materials shielded by Federal Rule of Criminal Procedure 6(e).
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.
After the OIG report’s release, Foster said, “The OIG concluded that the DOJ gave the court nothing but boilerplate explanations, hiding the fact that these subpoenas implicated the constitutional rights of a co-equal branch of government,” said Foster. “This lack of candor prevented the court from fully evaluating the NDO requests, and the public deserves to see the evidence for themselves.”
There are several other related actions that are ongoing to force additional transparency:
- 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
For the full appeal document, click here.
For information on the initial filing, click here.
For Judge Boasberg’s September opinion, click here.
The partially unsealed, redacted documents as ordered by the judge can be found here and here.
For the OIG report, click here.
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