A suit filed in federal court Wednesday seeks to compel the National Archives to seek assistance from the Department of Justice (DOJ) in recovering text messages from both the Secret Service and leadership of the Department of Homeland Security (DHS) that were apparently lost in days following the 2020 election.
The suit, filed on behalf of Ken Klippenstein, a reporter for The Intercept, turns to a provision of the Federal Records Act that requires the head of the Archives to request assistance from the attorney general if an agency does not act to recover the records.
Lawmakers were notified in July by DHS Inspector General Joseph Cuffari that the Secret Service had “erased” text messages from Jan. 6, 2021, something the agency said occurred as a result of a migration to a new phone software that took place just weeks after the attack on the Capitol.
Text messages from then-Acting Secretary of Homeland Security Chad Wolf and his deputy, Ken Cuccinelli, were also lost in a “reset” of government phones during the transmission to the Biden administration.
Together, the erasures represent a major loss for those reviewing the effort to block the transition of power after the 2020 election, both in terms of reviewing discussions around former President Trump’s movements that day, as well as his efforts to have DHS seize voting machines.
The National Archives, also known as NARA, did request the Secret Service look into the matter, but the suit alleges the agency stopped short of requesting any assistance from the Justice Department.
Kel McClanahan, the attorney in the case and the executive director of nonprofit law firm National Security Counselors, said the duty to do so under law would bring the technical resources of the FBI and DOJ to the matter.
“All NARA can really do is ask questions and wag their finger. The FBI and DOJ can subpoena and can compel answers,” he said.
“The goal of this entire regime is not just to punish people who break it, but to recover records and to recover information.”
In July, Klippenstein filed a request with the Archives, pushing the agency to seek DOJ assistance and saying the Secret Service had engaged in “obfuscation and obstruction” about the nature of the loss of records.
“Viewed through the lens most favorable to the agency, these claims demonstrate that [the Secret Service] is, at best, out of its depth, and that prompt action needs to be taken by a more competent forensic agency,” he wrote at the time.
McClanahan said it’s now been almost a year since Klippenstein filed the request, and “by any stretch of the imagination, that’s a reasonable amount of time. And now the archivist needs to do something.”
For its part, the Secret Service has denied there was anything nefarious about the loss of the messages, maintaining that for security reasons it advises agents against texting.
Cuffari had asked for the text messages of 24 agents for his own investigation into Jan. 6, but the Secret Service produced just one responsive text — a message from the then-chief of the Capitol Police asking for assistance.
The agency ultimately turned over thousands of documents to the House Committee investigating the attack on the Capitol, including other emails and communications from that day but did not provide any additional texts. It was a response members of the panel described as an overwhelming amount of information to sift through.
But the efforts to recover the messages are made all the more complex by a battle with Cuffari, who has faced numerous calls to step aside from the investigation into the missing texts.
Cuffari launched a criminal probe into the missing texts a few weeks after his letter to lawmakers.
But the inspector general may have violated protocol by failing to swiftly notify Congress that the records were lost, as there are multiple provisions in the Inspector General Act that require notifying agency heads or Congress about “particularly serious or flagrant problems,” in some cases within seven days.
Lawmakers complained the delay compounded the difficulty of recovering the messages and were confused why months passed before they were alerted. In an anonymous letter, employees of the DHS IG office also asked President Biden to remove Cuffari.
The Council of the Inspectors General on Integrity and Efficiency (CIGIE), a federal entity with oversight of inspectors general, has an ongoing investigation into Cuffari’s office.
Cuffari last week launched a suit against the CIGIE, noting that its Integrity Committee filed another request for information from Cuffari’s staff as recently as earlier this month.
Attorney General Merrick Garland has largely dodged questions about whether the Justice Department would get involved in the investigation into the texts.
“As a general matter, any allegations of wrongdoing about inspector generals are handled by what we call CIGIE,” he said at an August press conference, noting the review of Cuffari.
“That’s the way those kind of allegations are handled. And without commenting on this particular case, needless to say, the Justice Department’s job is to investigate allegations of violations of the criminal law, including allegations regarding matters involving the scope of inspector generals.”
Several lawmakers have made clear, however, their preference for DOJ involvement.
“I don’t know whether the failure to preserve these critical government texts from January 6 is the result of bad faith or stunning incompetence,” Senate Judiciary Chair Dick Durbin (D-Ill.) said last August.
“But I do know that the man who has overseen the investigation of this fiasco is not the right person to continue leading it. [Cuffari] has lost whatever credibility he may have once had on this matter. That is why I’ve asked Attorney General Merrick Garland to step in and take control of this investigation into the missing texts.”