EXCLUSIVE — Senate Judiciary Committee Republicans are investigating allegations the Justice Department spied on congressional staffers while they probed the agency, including during their handling of the Trump-Russia inquiry, the Washington Examiner has learned.
Virginia-based whistleblower firm Empower Oversight said in a late October Freedom of Information Act request to the DOJ that its founder, Jason Foster, former chief investigative counsel to ex-Judiciary Committee Chairman Chuck Grassley (R-IA), was notified on Oct. 19, 2023, that the agency in 2017 subpoenaed Google for records on Foster's telephone and email accounts, as well as those of other House and Senate staffers. Now, Sens. Ted Cruz (R-TX), Mike Lee (R-UT), and Grassley are demanding the DOJ turn over a trove of documents on these allegations, which they wrote in a Monday letter to Attorney General Merrick Garland demonstrate "executive branch overreach."
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"We write to express deep concern regarding recent revelations that the Department of Justice engaged in a campaign of covert surveillance of the personal communications of attorneys advising congressional oversight committees," the senators wrote to Garland in the letter, first obtained by the Washington Examiner. "The decision by unelected government bureaucrats to investigate the elected congressional representatives and congressional staff trying to hold them accountable is a true attack on our democracy."
The Justice Department did not return a request for comment. The letter from the senators comes over a week after House Judiciary Chairman Jim Jordan (R-OH) launched a similar investigation, requesting information on spying allegations from the DOJ, Google parent company Alphabet, Apple, AT&T, T-Mobile, and Verizon.
Empower Oversight said in its October records request that ex-Deputy Attorney General Rod Rosenstein in 2018 threatened to subpoena staffers on the House Intelligence Committee, including then-senior aide Kash Patel — later acting defense secretary under former President Donald Trump. The Cruz-led letter cited a story in the Federalist in mid-October in which the outlet said it "independently confirmed" a then-staffer on the House Intelligence Committee was notified of a subpoena previously issued in September 2017 by a Washington, D.C., grand jury.
The October request from Empower Oversight said Google handed over "a redacted copy" of the Foster subpoena, which "compelled Google to release customer or subscriber information, as well as subscribers’ names, addresses, local and long distance telephone connection records, text message logs, records of session times and durations, length of service and types of service utilized for the period from December 1, 2016 to May 1, 2017," according to the document.
Senate Republicans noted in their letter this week to Garland that the subpoena for Foster's "private phone and email logs" came as congressional investigators were reviewing material in connection to the FBI and DOJ's involvement in Crossfire Hurricane, the former inquiry into debunked allegations that Trump's 2016 presidential campaign coordinated with the Russian government. At the time, the FBI relied on the Steele Dossier, an unverified and discredited piece of opposition research in part funded by the failed Democratic presidential campaign for Hillary Clinton and the Democratic National Committee.
On Nov. 2, Grassley sent his own letter to DOJ Inspector General Michael Horowitz on the alleged spying, along with a list of questions on agency policies. On Wednesday, Horowitz told the senator in a letter that the inspector general "is conducting an ongoing Review of the Department of Justice’s Use of Subpoenas and Other Legal Authorities to Obtain Communication Records of Members of Congress and Affiliated Persons, and the News Media," according to documents reviewed by the Washington Examiner.
Horowitz said in the letter that the inspector general will eventually be issuing a public report on the issue. One day earlier, on Tuesday, the Justice Department itself issued a memo for federal prosecutors on "criminal investigations involving members of Congress and staff." The memo detailed policy changes for related inquiries, particularly requiring such investigations to be handled by the Criminal Division’s Public Integrity Section.
Cruz, Lee, and Grassley are asking the DOJ to provide the names of DOJ officials "that drafted, supervised, or approved the issuance of the grand jury subpoenas," and the identities of all staffers who received them.
According to Empower Oversight, some of the staffers targeted were also Democrats. Then-House Intelligence Committee Chairman Adam Schiff (D-CA) in 2021 notably called for the DOJ's inspector general to look into why the Trump administration subpoenaed Apple for data from himself and Rep. Eric Swalwell (D-CA).
The senators are also requesting Garland provide information on how the DOJ "searched for information relating to Members of Congress, congressional staff, or their families, including specific databases searched and use of FISA authorities or data previously collected under FISA authorities," the letter shows.
They were referring to the Foreign Intelligence Surveillance Act, which is up for reauthorization this year and has been heavily scrutinized in recent years following the DOJ spying on former Trump campaign adviser Carter Page without probable cause.
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"Please indicate whether the department is still in possession of the documents it received pursuant to the grand jury subpoenas," the senators wrote in the letter. "If not, please provide the date and method of disposal."
"This extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of congressional staffers and their families with little or no legitimate predicate is absolutely unacceptable," they added. "The executive branch overreach and gross violation of separation of powers apparent in this case no doubt shocks the conscience and shakes public confidence in our justice system to its core. The public deserves answers."