CREW Sues Secret Service over Deleted Jan. 6 Texts

A presentation during hearings into the Jan. 6, 2021 attack on the U.S. Capitol

A text from former White House aide Cassidy Hutchinson to Assistant Director of the United States Secret Service Anthony Ornato appears above members of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol during a hearing on July 12, 2022 in Washington, D.C.

Various government agencies violated federal law by failing to retain communications regarding the Jan. 6, 2021 attack on the U.S. Capitol Complex by supporters of then-president Donald Trump, a lawsuit filed in Washington, D.C. on Wednesday alleges.

In a 27-page document, non-partisan government watchdog organization Citizens for Responsibility and Ethics in Washington (CREW) alleges the U.S. Department of Homeland Security, Secret Service, Department of Defense, the Army, and the National Archives all violated their “nondiscretionary duties” under the Federal Records Act to “initiate an enforcement action through the Attorney General to recover federal records unlawfully destroyed or alienated from government custody.”

The filing stems from a controversy over the summer in which the Secret Service informed the House committee investigating the pro-Trump riot that text messages from Jan. 5 and 5, 2021 had been erased as part of a so-called “device-replacement program.”

Those text messages were reportedly deleted after they were requested by the Department of Homeland Security Office of Inspector General. The Secret Service has disputed that account but confirmed that the messages were, in fact, deleted at some point.

The Secret Service says it deleted the relevant messages in late January 2021 as a part of a “system migration process.” Those deletions were reported to the DHS OIG in May 2021; however, the formal government watchdog did not reveal the loss of that government data until a letter to congress sent some 14 months later.

The lawsuit says – regardless of the dueling timelines provided by the Secret Service and the DHS OIG to account for the missing data – the text messages were deleted by the presidential protection agency “after receiving pertinent congressional and FOIA requests.”

In the lawsuit, CREW alleges that text messages were also deleted by “Trump administration officials at DHS, the Secret Service, DOD, and the Army” after Congress began investigating the Jan. 6, 2021 attack.

“Also missing are federal records from former acting DHS Deputy Secretary Ken Cuccinelli’s personal phone that remain, on information and belief, unlawfully outside of government custody,” the lawsuit says.

The missing DHS records, CREW explains, were similarly relayed to congress by the DHS OIG. In an August letter, NARA told the DHS records department that it had “been made aware of the potential loss of text messages” of “former acting Secretary Chad Wolf and former acting Deputy Secretary Ken Cuccinelli.”

As for the missing DOD and Army text messages, CREW learned about them through their own efforts to obtain them by way of a Freedom of Information Act request, the lawsuit says.

From the filing at length:

In a March 10, 2022 joint status report in a FOIA suit seeking January 6-related records, DOD and the Army revealed that for those “custodians no longer with the agency, the text messages were not preserved and therefore could not be searched” because “when an employee separates from DOD or Army he or she turns in the government-issued phone” the “phone is wiped.”

Congressional and NARA inquiries into the missing military text messages commenced in the months that followed.

The core of the complaint revolves around multiple agencies’ alleged failures to request an enforcement action from the U.S. Department of Justice against the parties responsible for wiping the data.

The lawsuit says the relevant federal law requires such a referral when an agency “knows or has reason to believe” of “any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction” of federal records within the agency’s control.

“Missing and destroyed federal records from top officials undermine government transparency and accountability, and it is imperative that agencies are complying with record-keeping laws,” CREW Senior Vice President and Chief Counsel Donald Sherman said in a press release announcing the litigation. “The loss of these particular federal records would leave a major gap in the factual record concerning the January 6th attack on the Capitol, impeding efforts to obtain answers and accountability for an unprecedented assault on American democracy.”

[image via Kevin Dietsch/Getty Images]

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