Controversy over missing Jan. 6 text messages continues to grow

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Key agencies have deleted text messages from Jan. 6. Are they gone for good?

Three federal agencies with major security responsibilities wiped phones of officials that may have contained data relevant to understanding events surrounding the insurrection of Jan. 6, 2021.


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The Defense and Homeland Security departments erased phones belonging to top officials, which may have removed messages from the time period of the Capitol attack; the Secret Service, a component of DHS, wiped phones belonging to agents working on Jan. 6.

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It is not an accident that people in power often do not want records to be preserved. That is why we have laws that mandate it.

Alex Howard, director, Digital Democracy Project

That’s not the way it’s supposed to work. “The procedure for preserving content prior to this purge appears to have been contrary to federal records retention requirements and may represent a possible violation of the Federal Records Act,” Reps. Bennie Thompson (D-Miss.) and Liz Cheney (R-Wyo.), the chair and co-chair of the House panel investigating the Jan. 6 attack, said in a statement last month, after news of the Secret Service’s message deletion broke. “Every effort must be made to retrieve the lost data.”

Grid spoke with Alex Howard, the director of the Digital Democracy Project and a longtime open government advocate in Washington, D.C., about the responsibilities government agencies and officials have to retain public records. This conversation has been edited for length and clarity.

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Grid: What laws are in place concerning how government agencies maintain public records? How is this supposed to work?

Alex Howard: There are two significant federal statutes: One is the Federal Records Act, which governs all federal agencies. The other is the Presidential Records Act, which governs the White House.

But any law is only as good as the ability of a state to enforce it and, frankly, only as effective as the people in power are willing to enforce it.

There’s no real question whether these text messages on government-issued phones are public records. I don’t think anyone’s disputing that.

It could be that someone really didn’t do their job in a way that led to what the National Archives calls “unauthorized disposition,” which is to say you destroyed stuff or threw it away without permission when it was supposed to be scheduled. [Note: “Scheduling” refers to maintaining public records for a set period of time under official records retention schedules that detail how long various types of public records should be kept in the custody of government agencies.]

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I would think that the senior agency officials, in these contexts, should have had their stuff scheduled. Their correspondence, their calendars — that stuff gets kept. The idea that an agency would have taken all of the memoranda, for instance, that someone sent and signed when they were in office and dumped it or burned it, and said, “That’s just what we do when people leave office” — that doesn’t pass any kind of smell test, right? It just doesn’t. If these messages are records, then these agencies are supposed to archive them. That’s what the law says.

What’s especially painful about this is that the timeline doesn’t look good at all. Some of these records appear to be subject to Freedom of Information requests but then subsequently were deleted.

I think there’s [also] a pretty good case that there might be a number of messages on personal devices that are relevant to the investigations that are being run by Congress and the Department of Justice. That doesn’t make them government records. But it does mean that if people were intentionally conducting government business on those systems, then they should have been [treated as government records].

What we expect is that when people — accidentally or because of convenience — use their personal devices or use messaging services or cloud-based email — that if they do that, they’ll memorialize that.

G: Both DHS and DOD say these text messages are gone and are irretrievable. Do you buy that?

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AH: I am skeptical of that. The question of whether things can be retrieved or not is nuanced, you know. Ask anybody who’s really looked into how wiped your phone should be when you give it back: Unless you reformat the disk, completely to factory settings, and replace the data with something else, it may still be sitting on there.

Are there people in government who have the right clearances and technical know-how to go back and get data out of these devices? The Department of Defense certainly does. But the Department of Defense is the one that got rid of it, right?

The Secret Service is also supposed to be good at this stuff. They’re the ones you might turn to for forensic expertise, to get into a device. Certainly DHS, and components of the Department of Justice, are fairly aggressive about wanting to get into the phones of people who mean the country harm.

The sad reality is that we might not get anything. This might be it, they might have effectively reformatted [the phones]. Maybe the agencies have such good inventory tracking, they can find the devices and try to recover something. [But] if the messages were end-to-end encrypted, if the agencies don’t have the devices, and the devices were not backed up in iCloud, that might be [the] ballgame.

If that’s the case, it means we won’t have contemporaneous records from the top officials at DHS and the DOD about the greatest national security failure on domestic soil since 1814, which seems to me to be starving us of the knowledge we need for self-governance.


G: Why is it important for the public that agencies follow these records retention laws?

AH: It is not an accident that people in power often do not want records to be preserved. That is why we have laws that mandate it. The challenge that we’ve had in the last umpteen years — but I would say exacerbated in the last five — is that if the people in power do not want records to be created, then there is an inherent conflict, because they are the ones responsible for ensuring those very records are preserved.

It creates the opportunity for, at minimum, the appearance of corruption — use of entrusted power for personal gain. This is why, in theory, transparency cuts across partisanship, it cuts across parties, it cuts across culture. Because in a democracy, we have an expectation that our representatives are working for us in a government of the people.

Thanks to Lillian Barkley for copy editing this article.

  • Steve Reilly
    Steve Reilly

    Investigative Reporter

    Steve Reilly is an investigative reporter for Grid focusing on threats to democracy.