DOJ wants to hide why it spied on congressional staff, whistleblower groups fight back

Several major whistleblower groups are fighting the Justice Department’s efforts in federal court to permanently hide why it spied on congressional investigators by obtaining their phone records during a leaks investigation years ago.

The whistleblower group, Empower Oversight, whose founder Jason Foster was one of the investigators whose phone records were taken when he was still in a top Senate staffer, had asked a federal judge to unseal the underlying documents that allowed DOJ to acquire the records in 2017. 

But the government responded recently by saying the records should be permanently sealed and kept from public disclosure, according to a new filing from Empower Oversight.

“Rather than cooperate with Empower Oversight to find a way that these records may be released with appropriate redactions, DOJ’s response to Empower Oversight’s motion was to insist on continued (and permanent) secrecy—nearly seven years after the underlying events,” the new filing said.

“The only conceivable purpose of this secrecy is to obscure key facts from Congress and the public, thereby undermining the typical presumption of good faith to which DOJ would otherwise be entitled,” it added. “Indeed, 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.”

Just the News first reported last year that multiple congressional investigators, Democrat and Republican, were notified years after the fact that their phone records were seized by subpoena in 2017.

The investigators included Kash Patel, lead investigator for the House Intelligence Committee, and Foster, a top investigator for the Senate Judiciary Committee, both of whom were investigating Justice Department and FBI abuses during the discredited Russia collusion investigation. 

The revelation outraged numerous members of Congress, who argued that the subpoenas had violated the Constitution‘s separation of powers between Congress and the executive branch. Several lawmakers demanded answers from DOJ, including Sen. Ted Cruz and House Judiciary Committee Chairman Jim Jordan, Republicans.

To date, the Justice Department has not publicly offered its rationale for why it’s subpoenaed the phone records either to Congress or the courts.

In a rare move, several other whistleblower groups, including the Government Accountability Project, joined Empower Oversight, filing an amicus brief demanding that the court unseal the documents showing why prosecutors intruded on congressional investigators privacy.

“For many whistleblowers, whether they can communicate confidentially is the key whether to challenge abuses of power,”  GAP legal director Tom Devine said. “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 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.”  

You can read Empower Oversight’s original May 2 motion to unseal here.

Empower Oversight’s July 15 reply motion is here. 

The amicus brief from the other whistleblower groups is  here.