CREW sues over missing Jan. 6 texts

Multiple government agencies violated the Federal Records Act by failing to preserve text messages from January 2021 that are now missing, according to a new lawsuit filed today by Citizens for Responsibility and Ethics in Washington. The Secret Service, DHS, DOD, Army and National Archives have all failed to take enforcement action to recover missing texts and restore deleted texts from multiple Trump administration officials, and retrieve government records from former acting DHS Deputy Secretary Ken Cuccinelli’s personal phone.

The missing records include text messages from top Trump administration officials at DHS, the Secret Service, DOD and the Army that were improperly deleted after being requested as part of investigations into the January 6, 2021 attack on the United States Capitol. They also include government records from Cuccinelli’s personal phone that currently remain, unlawfully, outside of the government’s custody. The agencies have known for months about the records being unlawfully deleted, but have failed to enforce the FRA through the Attorney General, as the law requires.

“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,” said CREW Senior Vice President and Chief Counsel Donald Sherman. “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.”

The FRA has mandatory enforcement provisions which “require[] an agency head and [the] Archivist to take enforcement action through the Attorney General whenever they become aware of records being unlawfully removed or destroyed” and “leave no discretion to determine which cases to pursue.” The missing records may contain critical evidence concerning the January 6th attack on the Capitol and could shed light on the reasons for the government’s lack of preparedness for the attack, the government’s day-of response, and the actions or inaction of key White House and Trump administration officials on and around the insurrection.

“These missing records are the property of the American public, and the government has a legal duty to recover them,” said Sherman. “Government records must be preserved or retrieved when removed from federal custody, especially when they are critical to issues of public concern.”