Watchdog Group Sues Federal Agencies Over Missing Jan. 6 Text Messages

WASHINGTON, DC - OCTOBER 13: The U.S. House Select Committee to Investigate the January 6 Attack on the U.S. Capitol displays the text of a memo from former U.S. President Donald Trump to the U.S. Secretary of Defen... WASHINGTON, DC - OCTOBER 13: The U.S. House Select Committee to Investigate the January 6 Attack on the U.S. Capitol displays the text of a memo from former U.S. President Donald Trump to the U.S. Secretary of Defense, ordering that all U.S. troops be immediately pulled out of Somalia and Afghanistan, during a hearing on the January 6th investigation in the Cannon House Office Building on October 13, 2022 in Washington, DC. The bipartisan committee, in possibly its final hearing, has been gathering evidence for almost a year related to the January 6 attack at the U.S. Capitol.  On January 6, 2021, supporters of former President Donald Trump attacked the U.S. Capitol Building during an attempt to disrupt a congressional vote to confirm the electoral college win for President Joe Biden. (Photo by Jonathan Ernst-Pool/Getty Images) MORE LESS

An independent watchdog group is suing several federal agencies after they deleted text messages from top officials from the time period surrounding the January 6th insurrection.

Citizens for Responsibility and Ethics in Washington (CREW) filed the suit on Tuesday against the Department of Homeland Security, the Secret Service, the Department of Defense, the Army, and the National Archives and Records Administration, alleging they violated federal law by deleting the texts and failing to quickly take action to retrieve them.

Though Congress requested all written communications following the attack, it gradually came to light that the text messages of officials and key staffers in the Secret Service, Defense Department, DHS and Army had all been deleted, some in what was described as a routine protocol for outgoing employees and some in a pre-planned system migration process that took place after Biden was inaugurated.

CREW argues that the investigations that took place after the January 6th attack revealed an “alarming pattern” in which the deletions of material that should have been preserved occurred even after they were requested by Congress and independent investigators. “And federal records from at least one former top DHS official’s personal phone remain, on information and belief, outside of government custody,” CREW alleges.

Texts from former Trump-appointed DHS officials Ken Cuccinelli and Chad Wolf were among those deleted. Wolf later said on a podcast that he simply turned in his tech equipment on his way out of the agency and didn’t even know his text messages were missing. “They have all of it,” he said.

“The records could shed light on the reasons for the government’s lack of preparedness for the January 6 attack, the government’s day-of response, the actions or inaction of key White House and Trump administration officials on and around January 6,” the complaint says.

CREW is suing the agencies under the Administrative Procedure Act, the Federal Records Act, and the Declaratory Judgment Act. The group argues that the agencies violated the Federal Records Act’s “mandatory enforcement provisions,” which require agency heads to request that the Department of Justice take enforcement actions when they realize federal records have been illegally removed or destroyed.

“Defendants have known for months of the records’ unlawful deletion or alienation, yet they have failed to initiative an FRA [Federal Records Act] enforcement action through the Department of Justice,” the complaint says. 

The plaintiffs also questioned DHS Inspector General Joseph Cuffari’s motives regarding what he told Congress about the missing texts and when. The inspector general had claimed that the Secret Service erased their texts after his office requested their records, and that DHS held up the process of granting his office access to the records. But watchdog groups have also documented how staff within his department removed language about the texts in memos from documents that would have alerted Congress to the problem months earlier.

This summer, the Democratic committee heads sent Cuffari letters asking him to clear up discrepancies in his timeline, as well as recuse himself from the ongoing investigation. He refused.

“Instead, he has opened his own criminal investigation into the matter,” the lawsuit explains. “This prevents other agencies from investigating, unless DOJ decides to assume control of the investigation.”

CREW is asking a federal judge to force agencies to initiate an enforcement action through the DOJ to “recover, retrieve, restore, salvage, or reconstruct” the missing texts.

“These missing records are the property of the American public, and the government has a legal duty to recover them,” CREW senior vice president and chief counsel Donald Sherman said in a statement. “Government records must be preserved or retrieved when removed from federal custody.”

Read the lawsuit below:

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