DOJ asked court to hide surveillance of congressional investigators for five years, ex-aide says

Jason Foster says DOJ’s surveillance of Congress and its staff could have chilling effect on whistleblowers coming forward in future.

Published: November 14, 2023 10:12pm

Updated: November 14, 2023 10:15pm

One of the Senate investigators whose personal phone and emails records were seized by the Justice Department as he was conducting congressional oversight of the agency tells Just the News he has confirmed that the government successfully asked a federal court to hide its spying on Congress for five consecutive years.

Jason Foster is now the head of the Empower Oversight whistleblower center. In 2017 at the time of the secret surveillance, he was the chief investigative counsel for Sen. Chuck Grassley on the Senate Judiciary Committee.

Foster on Tuesday told Just the News that lawyers for Google have now provided him documents showing that DOJ asked a federal magistrate for five consecutive years to delay notifying him that his data had been subpoenaed in an apparent federal leaks investigation.

The seizure of his personal data occurred in 2017 while he worked for the Senate, and ordinarily under the original court order, Foster would have been notified a year later. But because the DOJ sought court approval ex parte to keep its surveillance secret, he wasn’t alerted until earlier this fall, six years after the initial subpoena. Ex parte actions are motions, hearings or orders granted on the request of and for the benefit of one party only, without notice to the other party, in this case, Foster.

This is an exception to the basic rule of court procedure that both parties must be present at any argument before a judge. 

At least a dozen Republican or Democrat members of Congress or their staff, including former House Intelligence Committee lawyer Kash Patel, also have been notified in recent months that DOJ spied on their activities.

The DOJ inspector general and the House Judiciary Committee have launched investigations into whether the surveillance of congressional staffer’s communications was lawful or violated the Constitution’s separation of powers clause. Patel has filed a federal lawsuit alleging his civil rights were violated.

“They (Google) provided me the notifications that they got from the from the court signed by magistrate judges showing that for five of the six years” there were non-disclosure orders requested by DOJ and approved by the court, Foster told the "Just the News, No Noise"  television show Tuesday night.

Foster said the court orders make clear the DOJ under both Presidents Donald Trump and Joe Biden kept making annual court requests after 2018 to keep the existence of the congressional subpoenas secret.

“These are orders from the court that says to Google, you're not allowed to tell Jason or anybody else, any of his Democrat and Republican colleagues whose information. whose phone records and text records you saw, you're not allowed to tell them that we subpoenaed those records or that you gave them up,” Foster added. “That that was in the initial request that was for a one year timeframe. And then they renewed it every year, in September or August of every year, for the next five years.”

Foster said he is dubious that DOJ would still have an ongoing investigation for six years and that he was no longer in a position to hide evidence from the probe for much of the time, because he had retired from working for Congress in 2019.

A spokesman for the Justice Department did not immediately return a message seeking comment Tuesday.

Foster said that he suspects based on information he has learned, that his and other congressional staffers’ records were likely seized in a probe into the leaks of FBI evidence in the now-discredited Russia collusion probe, including the FISA warrant targeting former Trump adviser Carter Page. That case was formally closed in 2019.

“Why after that occurred, would they still be trying to keep the order for my records, and my other Democrat and Republican colleagues’ records secret, after the case is already over?” he asked. “That's the question that I am urging authorities on the Hill and the Inspector General to look into now.”

The anger over this activity has been bipartisan, and House Judiciary Committee Chairman Jim Jordan has urged both parties to look into the matter. Late last month he demanded America's Big Tech companies turn over any records showing DOJ’s effort to surveil or spy on congressional lawmakers or their staffs.

Jordan's letters to the CEOs of Google's parent company AlphabetAppleAT&TT-Mobile, and Verizon, came a week after Just the News disclosed that as many as a dozen or more lawmakers and congressional investigators – both Republican and Democrat – had received long-delayed notifications that their personal email and phone records had been seized by grand subpoena as long as six years ago.

Jordan argued the intrusions into the privacy of targeted House and Senate investigators came as many of them were investigating wrongdoing by the DOJ and FBI related to the bungled, discredited Russia collusion investigation and were a clear infringement of Congress' right to conduct independent oversight of federal agencies and the Constitution's separation of powers.

"The Justice Department's efforts to obtain the private communications of congressional staffers, including staffers conducting oversight of the Department, is wholly unacceptable and offends fundamental separation of powers principles as well as Congress's constitutional authority to conduct oversight of the Department," Jordan wrote in the letters.

Foster said Tuesday one long lasting impact of the subpoenas is that confidential whistleblowers, whom he frequently engaged inside DOJ and FBI when he worked for the Senate Judiciary Committee, may be chilled from coming forward in the future, fearing DOJ could use its spying powers to unmask their identities.

“That's a huge concern beyond just the constitutional speech or debate privilege issues, and attorney client privilege issues. I mean, I was also an attorney representing the committee,” Foster explained. “But yeah, there area whistleblower issues as well. I mean, obviously, I had communications, you know, with lots of FBI whistleblowers, and other agencies, and sometimes the best protection for whistleblowers is anonymity.

“Well, if they're watching my phone records, and they know who I'm talking to, and they can guess or figure out who I'm talking to, that's going to kill whistleblowers from talking to me,” he warned.

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