Empower Oversight has won a partial victory in its legal battle against the Department of Justice for covertly surveilling congressional staffers, but the watchdog group continues to fight for full transparency as the DOJ keeps crucial justification documents sealed.
At a Glance
- DOJ secretly collected phone and email records of congressional staffers involved in oversight committees through subpoenas to Google in 2017
- Secrecy was maintained for six years through gag orders that prevented service providers from notifying the targets
- A federal judge ruled in favor of partially unsealing documents but allowed DOJ to keep most of its justifications secret
- Empower Oversight is appealing this decision, arguing it violates separation of powers and threatens whistleblower confidentiality
- The surveillance was linked to a leak investigation involving Carter Page during the Trump administration
Covert Surveillance Operation Exposed
The Department of Justice secretly subpoenaed Google in 2017 for the email and phone records of approximately a dozen congressional staffers involved in oversight committees. This clandestine collection of sensitive information was accompanied by nondisclosure orders (NDOs) that prevented Google from informing the targets. These gag orders were continuously renewed annually for six years, even after the original investigation concluded. The practice came to light when Jason Foster, founder of Empower Oversight and former chief investigative counsel for the Senate Judiciary Committee, discovered the DOJ had obtained his records through Google.
The subpoenas were part of a federal leak investigation involving Carter Page, who was the subject of Foreign Intelligence Surveillance Act warrants during the Trump-Russia investigation. James Wolfe, a former security director for the Senate Intelligence Committee, was eventually convicted of lying to the FBI about his contacts with reporters. Despite this resolution, the DOJ continued renewing the gag orders annually against Google and other service providers, maintaining the surveillance’s secrecy.
Constitutional Concerns and Whistleblower Protections
Tristan Leavitt, president of Empower Oversight, has raised serious concerns about the constitutional implications of the DOJ’s actions. The surveillance potentially undermines the separation of powers between the executive and legislative branches by allowing the executive branch to monitor congressional oversight activities. Of particular concern is the threat to whistleblowers who communicate with Congress about government misconduct, as their identities could be compromised through these surveillance methods.
“This is a massive, massive separation of powers issue,” said Tristan Leavitt. “Congressional oversight is supposed to have safeguards. If the security apparatus allows the DOJ to see when a congressional committee is communicating with a whistleblower, that will out the whistleblower.”
Tom Devine, legal director for the Government Accountability Project, highlighted the broader implications for democratic governance. The practice of issuing blanket subpoenas for communications with congressional oversight offices poses a severe threat to constitutional checks and balances. It creates a chilling effect on potential whistleblowers who may now fear that their confidential communications with Congress could be intercepted by the very agencies they are reporting on.
Legal Battle for Transparency
Empower Oversight has filed two lawsuits seeking full disclosure about the DOJ’s surveillance practices. The first lawsuit resulted in a partial victory when U.S. District Judge James Boasberg ruled that some documents related to the nondisclosure orders should be unsealed. However, the judge allowed the DOJ to keep most of its applications and justifications for the gag orders secret, prompting Empower Oversight to file an appeal.
“In America, in a free society, normally, the public is allowed to view court filings, unless there is a good reason. The justifiable reason for the secrecy is long gone because the case was closed,” said Jason Foster.
A 2024 DOJ Inspector General report criticized the department for relying on general assertions to justify nondisclosure orders rather than providing specific facts for each case. Empower Oversight’s second lawsuit specifically targets the applications for these nondisclosure orders, seeking to understand how the DOJ justified the continued secrecy long after the original investigation concluded. The watchdog group emphasizes they are not seeking the actual data collected, but rather the legal justifications offered to the courts.
Looking Forward: Policy Changes and Appeals
While the Justice Department has declined to comment on the ongoing litigation, Assistant Attorney General for National Security Matthew Olsen indicated in a congressional hearing that policy changes may be forthcoming regarding surveillance of members of Congress and their staff. Google has expressed support for the NDO Fairness Act, which would regulate the government’s use of gag orders when accessing user data.
“I’m doing everything in my power to ensure that [DOJ] leadership is aware of the controversy and the issue. There is no reason the new Justice Department can’t make a change,” said Jason Foster.
As Empower Oversight continues its appeal against Judge Boasberg’s ruling, the outcome will have significant implications for congressional oversight, whistleblower protections, and the constitutional separation of powers. The case highlights the tension between national security interests and democratic accountability, as well as the challenges of maintaining transparency in government surveillance practices.
