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Whistleblower organization seeks to compel DOJ to disclose why it spied on congressional staff

Empower Oversight intervened in an ongoing court action seeking disclosure of the DOJ’s arguments for keeping subpoenas of congressional staff secret.

Published: May 2, 2024 4:32pm

Updated: May 2, 2024 5:41pm

A whistleblower organization has initiated a court action to force the Department of Justice to disclose why it spied on congressional staff, setting up a landmark legal battle on an issue that has rankled both Republicans and Democrats.

Last fall, several current and former congressional oversight staff were belatedly informed that the Justice Department seized phone and email records in 2017 in an internal investigation, raising concerns about separation of powers between two branches of government.

Jason Foster, who is now the founder and chair of Empower Oversight, the group which sued in court this week to unseal the court documents in which the DOJ explained why it wanted the subpoenas kept secret, was one of the former Senate staffers whose phone and email records were seized by the DOJ.

At the time of the subpoena, Foster was the chief investigative counsel for Sen. Chuck Grassley, who served on the Senate Judiciary Committee. The Senator and his committee were probing the department over its handling of the Crossfire Hurricane investigation into President Trump’s campaign.

“Ever since the botched Crossfire Hurricane investigation came to light, the FBI and Justice Department have gone to great lengths to cover up and distract from their own malfeasance. Their actions only serve to underscore the importance of Congress’ constitutional oversight responsibility. This attack on congressional investigators will not deter us from that duty, and the department must answer for this abuse,” Senator Grassley told Just the News last October.

Though the initial DOJ subpoena dates from 2017, the department asked the court ex parte—without notifying the other party—to keep its surveillance action secret six years, Just the News previously reported.

In the motion filed Thursday and reviewed by Just the News, Empower Oversight argued public scrutiny is necessary to determine whether the DOJ operated appropriately in securing non-disclosure orders to conceal the subpoenas from the affected parties, which included both Republican and Democratic congressional staff.

An internal DOJ memo dated October 19, 2017, also reviewed by Just the News, lays out the requirements for seeking an order to protect subpoenas from disclosure. According to the document, which was promulgated by then Deputy Attorney General Rod Rosenstein, prosecutors should “only seek an order when circumstances require.”

The policy also says prosecutors “may only seek to delay notice for one year or less” and that any “subsequent extensions” should be “supported with such additional, specific facts” as developed in the investigation.

Without unsealing of the DOJ’s requests for the non-disclosure orders, the public cannot determine if the DOJ followed its own policies in seeking them, Empower Oversight argues. "So the key question is—and asking the court to order that all these...the Justice Department's filings be unsealed will help us answer this question—the key question is, did they... mislead the court?" Foster said on the Thursday edition of the Just the News, No Noise TV show. 

“This motion presents a narrow question—whether the public should see the explanations DOJ provided when it asked the Court to prohibit Google from informing anyone, including Congressional leadership, Mr. Foster, or the other congressional staff targeted, about the underlying subpoena for more than six years after Google had already complied,” the motion reads.

At the time the subpoena was filed and concealed from its targets, the bipartisan congressional staff members were conducting the “constitutional oversight function” proper to the Legislative Branch, raising additional concerns about separation of powers.

Additionally, the targeted staff members were in communication with confidential sources and whistleblowers, according the filing. Much like journalists, congressional investigators operating under the authority of the Legislative Branch, have “a constitutional interest in protecting the identity” of its sources, Empower Oversight argued.

“The subpoena implicated weighty constitutional issues by targeting the communications records of a broad group of congressional oversight staff, and yet the Legislative Branch appears to have had no opportunity to challenge the intrusion or even receive notice that DOJ had followed through on the Deputy Attorney General’s threats,” the motion reads.

After the initial revelations, several current and former Senate and House staff—both Republican and Democrat—alerted Congress that they received similar belated notifications from a variety of tech firms, including Apple and Google, that their emails or phone records had be obtained by a subpoena.

Officials said the seizures were related, in part, to leak investigations stemming from the Crossfire Hurricane investigation into alleged Russian collusion.

A month after Foster received the notification, he confirmed to Just the News that he had obtained documentation from Google showing the DOJ had asked a magistrate judge for five consecutive years to delay notification about the subpoena for his data in the investigation.

After this discovery, Foster told Just the News he doubted the DOJ’s investigation was still ongoing six years after the initial subpoena and that his retirement from working for Congress made it so that he no longer had access to the information the DOJ was supposedly pursuing. Yet, the agency continued to ask the court to keep its subpoenas hidden year after year.

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, Just the News reported last fall.

The DOJ Inspector General opened an investigation into the matter in June 2021, according to a memo on its website. A source directly familiar with the investigation confirmed to Just the News last October that the investigation was ongoing but faced delays from DOJ.

“The DOJ OIG is reviewing the DOJ’s use of subpoenas and other legal authorities to obtain communication records of Members of Congress and affiliated persons, and the news media in connection with recent investigations of alleged unauthorized disclosures of information to the media by government officials," the memo stated.

"The review will examine the Department’s compliance with applicable DOJ policies and procedures, and whether any such uses, or the investigations, were based upon improper considerations," the memo states. "If circumstances warrant, the OIG will consider other issues that may arise during the review.  The review will not substitute the OIG’s judgment for the legal and investigative judgments made in the matters under OIG review.”

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