Two days after American Oversight’s call for an investigation, the Department of Defense publicly announced a new policy regarding the preservation of text messages and other information stored on mobile devices. Deputy Secretary of Defense Kathleen Hicks issued a memo reminding officials that text messages that are federal records need to be preserved, and directing that data on mobile devices be captured and preserved before phones are wiped. The Department of Homeland Security announced that it would adopt a similar policy on a temporary basis and would conduct a review of its handling of mobile device records policies.
In response to American Oversight’s litigation, the Department of Defense and the Army have confirmed in court filings that the phones of certain former senior Trump administration officials had been wiped, and that any text messages from Jan. 6, 2021, were not preserved.
On Tuesday, American Oversight asked Attorney General Merrick Garland to open an investigation into the Defense Department’s failure to preserve the communications, which include those of former acting Defense Secretary Chris Miller and former Army Secretary Ryan McCarthy, from Jan. 6.
The letter to Garland comes amid new revelations about the deletion of top Trump administration DHS leaders’ messages from the days leading up to the Jan. 6 insurrection. Reports of those missing records, and of the DHS inspector general’s failure to alert proper authorities in a timely manner, emerged after news that text messages of Secret Service agents from that same time period had been deleted last year and were likely unrecoverable. Last week, Sen. Richard Durbin wrote to Garland and asked him to take control of the investigation into the missing DHS and Secret Service messages.
The Department of Defense’s admission to American Oversight that it had also failed to preserve the messages of senior officials came in multiple joint status reports filed with the court in American Oversight’s ongoing Freedom of Information Act lawsuit. The lawsuit seeks the release of communications those officials had with former President Trump, former Vice President Pence, Trump White House Chief of Staff Mark Meadows, or anyone communicating on their behalf on Jan. 6.
American Oversight had submitted FOIA requests for the records on Jan. 12, 2021 — just 6 days after the attack on the Capitol and more than a week before the end of the Trump administration. In March 2022, a year after American Oversight filed suit in the U.S. District Court for the District of Columbia seeking the records’ release, the Defense Department and the Army stated in a court filing that “when an employee separates from DOD or Army he or she turns in the government issued phone, and the phone is wiped.” The filing also said that the text messages of officials no longer with the agency “were not preserved and therefore could not be searched” or produced.
In addition to Miller and McCarthy, other senior officials who left at or around the end of the Trump administration and whose Jan. 6 communications American Oversight also sought include Kash Patel, Miller’s chief of staff; Paul Ney, the Defense Department’s general counsel; and James E. McPherson, the Army’s general counsel.
American Oversight also requested the communications of Army Chief of Staff Gen. James McConville and Director of Army Staff Lt. Gen. Walter E. Piatt, both of whom remain in government. The Army said it has initiated a search for responsive records held by McConville and Piatt, and estimates that its search will be complete by the end of September.
In September 2021, the Defense Department produced to American Oversight three heavily redacted pages consisting of a single email exchange between Patel and White House Deputy Chief of Staff Tony Ornato, apparently regarding fence vendors. The documents did not include any text messages.
Tuesday’s letter is a part of American Oversight’s broader investigation into the Jan. 6 insurrection and ongoing attacks on democracy. In March 2021, the watchdog obtained copies of fake electoral certificates submitted by Trump supporters in seven states as part of Trump’s desperate bid to cling to power in his final months in office. The certificates drew significant scrutiny in the House’s investigation of the efforts to disrupt the congressional certification of President Joe Biden’s victory. More information on American Oversight’s investigation into the attack on Jan. 6 is available here.
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