DOJ Spied On Congressmen, Staffers, And Media In 4-Year Inquiry

A new report shows the creepy tactics the Department of Justice (DOJ) employed to secretly spy on certain members of Congress, media personnel, and congressional staffers who were investigating the DOJ.

The DOJ conducted four criminal investigations between 2017 and 2020 into unauthorized disclosure of classified information. The DOJ launched these investigations “while House and Senate oversight committees were investigating the Department of Justice and the FBI for their role in the Russia-collusion hoax,” as Margot Cleveland reported for The Federalist.

Despite unprecedented and indefensibly invasive investigations, the DOJ “did not charge anyone in these investigations with unauthorized disclosure of classified information,” according to a DOJ Office of Inspector General report. All four investigations are now closed.

The report, titled “A Review of the Department of Justice’s Issuance of Compulsory Process to Obtain Records of Members of Congress, Congressional Staffers, and Members of the News Media,” was released on Tuesday.

The DOJ investigated 43 congressional staffers — including 21 who worked for Democrat committees or members of Congress and 20 who worked for Republican committees or Congress members — their family members, and two Democrat members of Congress who are not named in the report, but who have been identified in other media as Rep. Eric Swalwell and then-Rep. Adam Schiff (who has now moved to the U.S. Senate).

The report makes clear that the DOJ did not choose whom to investigate based on probable cause, which is a reasonable belief that a crime has been committed by a specific person. Instead, it went spying to see what it could find. Those investigated were included in the “pool of possible leakers” after the members of the intelligence community determined that, through their jobs, the “possible leakers” had access to classified information near the time when news articles exposing the information were published, according to the report.

The FBI asked phone companies and email service providers to hand over phone numbers, text message logs, and email information. They looked at work numbers and privately owned phones, and in at least one case, the phone and email activity of the spouse of someone they investigated, the report shows. The DOJ gave these “third party communication service providers” such as Google, non-disclosure orders (NDOs), preventing them from telling customers their information was being investigated.

The FBI also used subpoenas to access phone and email records of reporters at CNN, The New York Times, and The Washington Post and sought to use NDOs and delayed notice to prevent reporters from finding out about the investigations.

According to an Empower Oversight press release, Jason Foster was among those investigated. Foster is the chairman and founder of Empower Oversight, a nonprofit that helps government insiders document and report corruption to the proper authorities.

The DOJ collected “his phone and email records when he led the Senate Judiciary Committee’s Oversight and Investigations unit for then-Chairman Charles Grassley.” “Each year for five years, DOJ secretly obtained gag orders from the court to prevent Google — the initial recipient of the subpoena for the congressional communications logs — from notifying its legislative branch customers that it had provided their records to the executive branch,” the release noted.   

Empower Oversight has made a records request asking for all records the inspector general has that reference Foster.

“The Office of Inspector General report confirms exactly what we alleged in our filing to Judge Boasberg that the Justice Department failed to inform the court that the targets of its subpoenas and gag orders were congressional attorneys. The inspector general makes clear that the department withheld key context from the court and relied on boilerplate, cut and paste language for its subpoenas and gag orders, just as we alleged in our lawsuit,” Empower Oversight President Tristan Leavitt said in a statement. 

“In order to collect the communications records of a co-equal branch of government, the Justice Department should meet the highest standard of review, but here the department did not have to even show probable cause. Congress’ ability to conduct oversight and communicate confidentially with whistleblowers is at risk as long as the department can engage in these kinds of fishing expeditions.” 

“Empower Oversight sued the Department of Justice and in an initial ruling the U.S. District Court for the District of Columbia Chief Judge James E. Boasberg agreed that two of DOJ’s applications for nondisclosure orders … should be unsealed in part,” according to the release.

“Empower Oversight had already filed a notice of appeal seeking a more expansive unsealing. The report underscores why additional unsealing is necessary.” 

Beth Brelje is an elections correspondent for The Federalist. She is an award-winning investigative journalist with decades of media experience.