WASHINGTON – Empower Oversight today filed an action with the U.S. District Court for the District of Columbia to compel the Department of Justice to comply with its Freedom of Information Act (FOIA) requests about the department’s secretly collecting communications records belonging to members of Congress and their attorneys, disregarding serious constitutional separation of powers, privilege, and whistleblower protection issues.
Empower Oversight wrote in its filing, “The requested records are likely to show a startling failure by DOJ to respect the long-established separation of powers in the United States Constitution. These records will show the lengths to which DOJ went starting in 2016 to secretly surveil various congressional staff members (of both political parties) who were actively engaged in oversight of DOJ pursuant to their constitutional authorities.”
Empower Oversight submitted five FOIA requests (on Oct. 24, 2023; Oct. 30, 2023; Nov. 30, 2023; and June 20, 2024) to the Justice Department to shed light on the department’s use of grand jury subpoenas as a pretext to obtain personal and official communications records of attorneys for congressional oversight committees investigating the department. The Justice Department has failed to respond, beyond merely confirming receipt, and has refused to produce even a single page of records in the ten months since the first request.
The FOIA requests followed a notice from Google on Oct. 17, 2023, to Jason Foster, a 22-year veteran of Capitol Hill and former chief investigator for U.S. Senator Chuck Grassley and the U.S. Senate Judiciary Committee. The notice alerted Foster that six years earlier, DOJ had subpoenaed Google in 2017 for extensive records associated with his Google email address and two Google Voice telephone numbers. Empower Oversight’s further inquiries confirmed that multiple Republican and Democratic members of Congress and attorneys for congressional oversight committees also had their records subpoenaed, which DOJ had kept secret for six years through a series of gag orders it obtained in D.C. federal court to stop providers like Google from informing their customers.
The subpoenas appear to be related to a probe into the leak of confidential information about the then-secret Carter Page FISA warrant. The leak probe led to the prosecution and guilty plea of former Senate Intelligence Committee Security Director James Wolfe for lying to the FBI about his relationship with a reporter. However, even after that conviction, the Justice Department kept obtaining annual renewals of the secret gag orders from the court.
Empower Oversight previously filed a motion with the U.S. District Court for the District of Columbia to unseal documents regarding DOJ’s subpoenas and related court filings that supposedly justified the years of secrecy imposed on providers like Google. The motion argued that the public’s presumptive right of access to court filings under the First Amendment had been improperly thwarted by keeping court filings related to the gag orders sealed. It also argued for the public’s interest in transparency about the circumstances that led tech companies to provide the executive branch access to the communications records of legislative branch attorneys who were performing constitutional oversight of the FBI’s abuse of the FISA process surrounding the 2016 election.
In a subsequent filing, responding to the government’s opposition to unsealing, Empower Oversight argued it would be improper and contrary to the law to allow DOJ to permanently hide its sealed claims to a federal court that supposedly justified imposing years of secrecy given the constitutional guardrails that appear to have been ignored. Other whistleblower groups also filed an amicus, or “friend of the court” brief, raising alarms about the chilling effect on legally protected disclosures to Congress if the court allows DOJ to secretly track who communicates with legislative branch officials. The judge has not yet ruled in the case.
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