The Department of Justice (DOJ) is facing significant backlash from major whistleblower groups as it seeks to permanently conceal the reasons behind its surveillance of congressional investigators. This effort has sparked concerns over constitutional protections and the separation of powers.
Empower Oversight, a whistleblower group led by Jason Foster—one of the investigators whose phone records were seized—has requested a federal judge to unseal the documents that justified the DOJ’s acquisition of the records in 2017. In response, the DOJ has argued that these records should remain sealed indefinitely.
In a recent court filing, Empower Oversight criticized the DOJ’s stance, stating, “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 further suggested that the DOJ’s insistence on secrecy aims to “obscure key facts from Congress and the public,” undermining the DOJ’s presumed good faith. The secrecy raises suspicions about the DOJ’s actions and their implications for whistleblower protections and the separation of powers.
The issue gained prominence after it was revealed that in 2017, the DOJ subpoenaed the phone records of several congressional investigators, including Kash Patel of the House Intelligence Committee and Foster of the Senate Judiciary Committee. Both were investigating DOJ and FBI misconduct during the Russia collusion probe.
This revelation outraged many lawmakers, who argued that the subpoenas violated the constitutional separation of powers between Congress and the executive branch. Notable figures like Sen. Ted Cruz (R-TX) and House Judiciary Committee Chairman Jim Jordan (R-OH) demanded explanations from the DOJ, which has yet to publicly justify its actions.
In an unusual move, 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 explaining the DOJ’s intrusion into congressional investigators’ privacy.
Tom Devine, GAP’s legal director, emphasized the gravity of the situation: “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 filing warns that if the DOJ’s decision stands, congressional offices will struggle to assure whistleblowers of their confidentiality, thereby jeopardizing their willingness to report abuses.
This ongoing battle underscores the critical importance of transparency and the protection of whistleblower rights in maintaining the constitutional balance of power and accountability within the government.
