Secret surveillance of congressional staff by DOJ in focus after whistleblower advocates notch court win

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A federal judge last week ruled in favor of a whistleblower advocacy group that sued the Justice Department to unseal documents related to its secretly obtaining communications about congressional staffers who were investigating the DOJ.

Empower Oversight Whistleblowers & Research won a partial victory in a lawsuit it filed in May, when a federal court ordered the DOJ to release documents. The victory on Friday came days after the group filed a second lawsuit to force the Justice Department to unseal additional records.

"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," the recent Empower Oversight complaint said. "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 the DOJ pursuant to their constitutional authorities."

The Justice Department subpoenaed Google in 2017 for records of Google email addresses and Google Voice phone numbers. Empower Oversight found that the DOJ scooped up records of multiple Republican and Democratic attorneys for the Senate Judiciary Committee, the House Intelligence Committee and the Senate Intelligence Committee, panels that were engaged in oversight of the department.

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Empower Oversight is suing the U.S. Department of Justice for secret surveillance of congressional staffers who were at work investigating the DOJ. The case is before the U.S. District Court for the District of Columbia. (Sha Hanting/China News Service/VCG via Getty Images)

The Justice Department kept this secret for six years through gag orders it obtained in Washington, D.C., federal court against providers such as Google, according to Empower Oversight.

"This is a massive, massive separation of powers issue," Tristan Leavitt, president of Empower Oversight, told Fox News Digital.

He questioned whether the Justice Department properly informed the court that subpoenas were for congressional lawyers conducting oversight of the department.

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Google was forbidden by a court-issued gag order from disclosing that it had released communications from congressional staffers to DOJ investigators. (Photo by Justin Sullivan/Getty Images)

"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," Leavitt added.

Empower Oversight founder Jason Foster, a former senior staffer for Sen. Chuck Grassley, R-Iowa., learned earlier this year that the Justice Department obtained his records through Google.

A Justice Department spokesperson told Fox News Digital in an email, "The department will decline to comment on on-going litigation."

However, the New York Times reported that Carlos Felipe Uriarte, an assistant attorney general, wrote to the House Judiciary Committee in January to say the department would change its subpoena policies and largely blamed the Trump administration. "The new policies require additional consultations and approvals," the letter said.

The subpoenas of the Google email and phone records appear to be related to a federal leak investigation of confidential information about the surveillance warrant of Carter Page, a 2016 Trump campaign aide. The leak probe led to the eventual guilty plea of James Wolfe, former security director for the Senate Intelligence Committee, for lying to the FBI about his relationship with a New York Times journalist.

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A Department of Justice inscription is seen at its headquarters building in Washington, D.C., on Oct. 20, 2022. (Beata Zawrzel/NurPhoto via Getty Images)

Still, after the Wolfe conviction, the Justice Department continued getting annual renewals of the secret gag orders from the federal court.

This is the second lawsuit, as Empower Oversight filed an earlier public records lawsuit in May for documents about the department’s subpoenas related to court filings that justified the years of secrecy the DOJ imposed on providers like Google.

Under the recent judgment, Empower Oversight will obtain the underlying documents it was seeking in the Freedom of Information Act lawsuit filed in the U.S. District Court for the District of Columbia.

The group submitted public record requests to the Justice Department in October, November and June about the department’s use of grand jury subpoenas to get personal and official communications records of attorneys for congressional oversight committees investigating the department. The department did not provide the initial records.

A spokesperson for Google did not respond to an inquiry for this story.

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However, in a May statement to Fox News Digital, a Google spokesperson said, "We’re seeing non-disclosure orders issued for an increasing number of court orders, warrants, and subpoenas from U.S. authorities. Delayed notice results in users not having the opportunity to assert their rights in court to contest demands for their data. For these reasons, we support the bipartisan NDO Fairness Act, which would ensure that gag orders are issued only when warranted and for reasonable periods."

A non-disclosure order (NDO) is commonly referred to as a gag order. The NDO Fairness Act —sponsored by Sens. Chris Coons, D-Del., and Mike Lee, R-Utah —would require the federal government to adhere to established legal norms for electronic searches that apply to physical searches, such as notifying individuals unless a higher standard to delay such notice is met.