Empower Oversight has filed a lawsuit in the U.S. District Court for the District of Columbia, pushing the Department of Justice to comply with Freedom of Information Act (FOIA) requests aiming to uncover details surrounding the DOJ's secret collection of communication records from members of Congress and their attorneys. This practice raises serious concerns about constitutional separation of powers, privilege, and whistleblower protection issues.
In its filing, Empower Oversight stated:
“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.”
The organization filed five FOIA requests between October 2023 and June 2024, seeking clarity on the DOJ’s use of grand jury subpoenas to access personal and official communications of attorneys working for congressional oversight committees investigating the department. However, the DOJ has yet to provide any of the requested records, offering only acknowledgment of the requests.
The FOIA requests followed an October 2023 notice from Google to Jason Foster, a former Capitol Hill veteran and former chief investigator for Senator Chuck Grassley. The notice revealed that in 2017, the DOJ had secretly subpoenaed Google for Foster’s records, including his email and Google Voice accounts. Further investigations by Empower Oversight revealed that other Republican and Democratic congressional members and attorneys had also been subjected to these secret subpoenas, which were hidden by gag orders that prevented providers like Google from notifying their customers.
The subpoenas appear connected to an investigation into the leak of information about the Carter Page FISA warrant. This investigation eventually led to the conviction of James Wolfe, the former Senate Intelligence Committee Security Director, for lying to the FBI. Despite Wolfe’s conviction, the DOJ continued to renew the gag orders annually.
Empower Oversight had previously filed a motion to unseal the documents related to these subpoenas, arguing for the public’s right to access court filings. The organization stressed the need for transparency, especially regarding how the DOJ accessed communications records from legislative branch attorneys involved in constitutional oversight of the FBI.
The DOJ opposes the unsealing of these documents. Empower Oversight, alongside other whistleblower groups, has expressed concern about the potential chilling effect on legally protected disclosures if the court allows the DOJ’s secret tracking to continue. The case remains undecided.
