Filing seeks to force National Archives to tap DOJ to recover lost Secret Service, DHS texts around Jan. 6

A federal lawsuit filed Wednesday is seeking to force the National Archives to employ the assistance of the Department of Justice if necessary to recover text messages from the Secret Service and Department of Homeland Security (DHS) leadership following the 2020 election. 

The 12-page filing in the U.S. District Court for the District of Columbia was made on behalf of Kenneth Klippenstein, an investigative reporter for The Intercept. 

It names the National Archives and Records Administration (NARA), the primary agency responsible for assisting federal agencies in maintaining adequate and proper documentation of policies and transactions of the federal government, and Debra Steidel Wall, in her official capacity as the acting archivist of the United States, as defendants.

The suit cites a provision of the Federal Records Act that implores the archivist to seek action from the U.S. attorney general upon the discovery of actual or impending destruction of federal records. 

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On Jan. 16, 2021, the House Permanent Select Committee on Intelligence, the House Committee on Homeland Security, the House Committee on Oversight and Reform, and the House Committee on the Judiciary jointly sent a letter to the FBI, the National Counterterrorism Center, DHS and the Office of the Director of National Intelligence instructing them to preserve records related to Jan. 6, the lawsuit says. 

On Jan. 27 of that year, the Secret Service commenced a pre-planned Microsoft Intune phone migration program, which would wipe all affected phones.

Also in January 2021, text messages were lost in a "reset" of the government phones used by acting Secretary of Homeland Security Chad Wolf and acting Deputy Secretary of Homeland Security Ken Cuccinelli during the transition to the Biden administration, the lawsuit notes. 

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On Feb. 26, 2021, DHS Inspector General Joseph Cuffari requested electronic communications from the Secret Service related to the Jan. 6 riot at the U.S. Capitol, according to the lawsuit. The "Intune migration" was completed on April 1, 2021. Last July, Cuffari notified members of Congress that the Secret Service had "erased" text messages from Jan. 6, 2021. 

In July 2022, Klippenstein sent letters to NARA, asking it to "with the assistance of the United States Attorney General if necessary," both work to recover text messages from Jan. 5-6, 2021, which were allegedly deleted or otherwise destroyed or removed from government control by the Secret Service, as well to investigate the apparent widespread deletion of text messages from phones maintained by various DHS components between November 2020-April 2021.

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The lawsuit notes that the National Archives did ask Secret Service to look into the matter but stopped short of asking Attorney General Merrick Garland to step in. 

Fox News Digital sent an emailed request for comment to the National Archives but did not hear back in time for publication.