Whistleblower Groups Fight DOJ’s Bid To Conceal Surveillance Of Congressional Staff

In a significant legal battle, several prominent whistleblower groups are challenging the Department of Justice’s (DOJ) efforts to keep secret its reasons for surveilling congressional investigators. This dispute centers on the DOJ’s attempt to permanently seal documents related to its acquisition of phone records during a leaks investigation in 2017.

Empower Oversight, founded by Jason Foster, a former top Senate staffer whose phone records were taken, has filed a request with a federal judge to unseal these documents. The DOJ, however, has argued that the records should remain sealed indefinitely, prompting a strong response from Empower Oversight.

In a recent court filing, Empower Oversight stated, “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 filing suggests that the DOJ’s insistence on secrecy aims to “obscure key facts from Congress and the public,” thereby undermining trust in the agency. This stance has raised serious concerns about the DOJ’s respect for the separation of powers and its commitment to protecting whistleblower rights.

This issue came to light when it was revealed that multiple congressional investigators, including Kash Patel of the House Intelligence Committee and Jason Foster of the Senate Judiciary Committee, had their phone records subpoenaed by the DOJ in 2017. These investigators were looking into DOJ and FBI actions during the now-discredited Russia collusion probe.

The subpoenas sparked outrage among lawmakers, who argued that the DOJ’s actions violated the constitutional separation of powers between Congress and the executive branch. Sen. Ted Cruz (R-TX) and House Judiciary Committee Chairman Jim Jordan (R-OH) are among those who have demanded answers from the DOJ, which has yet to provide a public explanation.

Several other whistleblower groups, including the Government Accountability Project (GAP), have joined Empower Oversight in filing an amicus brief. They urge the court to unseal the documents to ensure transparency and accountability.

Tom Devine, GAP’s legal director, emphasized the critical importance of confidentiality for whistleblowers: “For many whistleblowers, whether they can communicate confidentially is the key to whether to challenge abuses of power. Secret subpoenas of congressional offices are a clear and present danger both to whistleblowers and Congress as a constitutional check and balance.”

The brief warns that if the DOJ’s secrecy is upheld, it would undermine the ability of congressional offices to assure whistleblowers of their confidentiality, potentially deterring them from reporting abuses.

This ongoing legal fight highlights the tension between the need for government transparency and the protection of sensitive information. The court’s decision on whether to unseal these documents will have far-reaching implications for whistleblower protections and the preservation of constitutional checks and balances.