As President Donald J. Trump hunted for people inside the government who were divulging details of an investigation into whether his 2016 election campaign colluded with Russia, the Justice Department turned to a covert tactic.
Beginning in 2017, department officials secretly collected the phone and email records of roughly a dozen people connected to Congress, including lawmakers and aides who routinely deal with anonymous whistle-blowers, in an effort to see who might be coming forward with confidential information.
Some of the aides, from both political parties, learned only recently that their communications were collected, because the government for years hid the existence of the subpoenas with nondisclosure orders.
Now, whistle-blower advocacy groups are trying to pry more information out of the Justice Department, through court filings and public records requests, in the hopes of shaming the agency into ending the practice of secretly collecting congressional communications records.
Critics say it is not just the privacy of the aides at stake, but also Congress’s ability to carry out its oversight role. In large part, that role depends on a confidential channel of communication with government whistle-blowers who report wrongdoing or internal failures.
“Blanket subpoenas for anybody who’s communicated with an office that may be conducting adversarial oversight — it’s a severe threat to institutional constitutional checks and balances,” said Tom Devine, the legal director of the nonprofit Government Accountability Project, a whistle-blower protection group. “It’s a severe threat to whistle-blowers who want to share their evidence in Congress, and is likely to have a chilling effect.”
The effort to end the practice is spearheaded by a group led by former Republican aides, Empower Oversight. The group’s founder, Jason Foster, learned only recently that his records were collected without his knowledge.
Mr. Foster and others say the subpoenas raise constitutional issues about whether Congress can conduct oversight of the Justice Department without the agency learning which of its employees are communicating with lawmakers.
Justice Department officials point out the records collection was ordered during the Trump administration, and say Attorney General Merrick B. Garland has taken steps to overhaul the practice, though the agency is fighting attempts to disclose records about the subpoenas. Mr. Garland referred the handling of the leak investigation to the agency’s inspector general for a “thorough and independent investigation.”
In a letter to Congress this year, the agency said it has made changes since the Trump administration to prevent abuses during leak investigations. The letter, which was obtained by The New York Times, described “the significant steps taken since 2021 to enhance its policies and procedures and to ensure compliance with them.”
Under Mr. Garland, the Justice Department is now requiring a member of its Public Integrity Section to sign off on any subpoena that goes to a technology company for a congressional aide’s communications.
“The new policies require additional consultations and approvals,” Carlos Felipe Uriarte, an assistant attorney general, wrote to the House Judiciary Committee in January.
But whistle-blower advocates are demanding more information from the government about the practice, including documents that would shed light on how federal officials have leaned on technology companies to keep secret their subpoenas of congressional aides’ records during leak investigations.
At issue are covert activities that began in 2017, when the Justice Department, under the Trump administration, carried out leak investigations into Congress. Officials issued subpoenas for the phone and email records of lawmakers and their staffs as they hunted for the sources behind news media reports about contacts between Mr. Trump’s associates and Russia.
The subpoenas, some of which have only been discovered years later, prompted outrage and accusations that the Trump administration was targeting Democratic politicians, their aides and their families.
Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members, one of whom was a minor. All told, the records of about a dozen people tied to the committee and several others were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat.
Ultimately, the data and other evidence did not tie the committee to the leaks, but did result in one prosecution. The leak investigation led to the prosecution of a former Senate Intelligence Committee aide, who pleaded guilty to lying to the F.B.I. about his contacts with a reporter.
“I hope every prosecutor who was involved in this is thrown out of the department,” Representative Eric Swalwell of California, a Democrat on the intelligence panel whose records were also seized, said at the time. “It crosses the line of what we do in this country.”
In the past year, more information has come to light as technology companies have disclosed to users that their records were collected, and it has become clear the practice of issuing subpoenas for congressional aides’ records and then blocking providers from disclosing that fact was more widespread than previously known and affected members of both parties.
Several former aides to Senator Chuck Grassley, Republican of Iowa, including Mr. Foster, have been informed that their records were among those collected. They said that raises constitutional concerns, given that they were conducting oversight of the Justice Department and receiving information from whistle-blowers.
One of those affected was Patrick Davis, who at the time was a top investigative counsel on the Judiciary Committee under Mr. Grassley.
Mr. Davis had worked for years at the Justice Department as a career trial attorney — and would leave Congress to work there again — but did not find out until late last year that investigators had quietly collected his phone and email records.
“It felt like a violation, not simply on a personal level, but more importantly of the separation of powers given the nature of our oversight work,” Mr. Davis said.
Advocates for whistle-blowers are now seeking sealed court motions for nondisclosure orders requested by the Justice Department regarding subpoenas to phone and email companies.
“There are multiple layers of secrecy standing between the public and important documents that the Department of Justice filed in this case,” wrote Brian J. Field, an attorney representing Empower Oversight. After obtaining a subpoena, the Justice Department requested and received nondisclosure orders that prohibited Google from notifying “any other person of the existence of the subpoena,” according to Mr. Field’s motion.
The Justice Department has opposed releasing additional information and documents, though its reasons for doing so are also under seal. Generally, the Justice Department opposes efforts to make more of the grand jury process public, arguing that doing so could harm sensitive investigations.
But whistle-blower advocates say more information must be released so the public can know exactly how the Justice Department pursued aides’ records and kept the practice quiet for years.
Tristan Leavitt, the president of Empower Oversight, criticized the government’s insistence that even its arguments against releasing the documents be kept secret.
“The government’s continued secrecy in a closed investigation that very well could cross lines of separation of powers confounds anyone we have spoken with,” Mr. Leavitt said.
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