“I don’t know whether the failure to preserve these critical government texts from Jan. 6 is the result of bad faith, stunning incompetence, or outdated records management policies, but we must get to the bottom of it,” said Sen. Dick Durbin, D-Ill.
A top Senate Democrat is asking a federal watchdog to look into the missing text messages from President Trump’s top defense officials in the lead-up to the Capitol insurrection, the latest in a slew of missing texts around the event.
The Defense Department cleared the phones of former acting Defense Secretary Chris Miller, former Defense Chief of Staff Kash Patel, and former Army Secretary Ryan McCarthy, among others, at the end of the Trump administration. They were critical witnesses to the lead up and duration of the attack on the U.S. Capitol on Jan. 6, 2021, which is under investigation by a House committee and the Justice Department. DoD and Army officials made the admission in a court filing in response to a Freedom of Information Act lawsuit filed by American Oversight, a nonprofit oversight group, which was first reported by CNN.
“The disappearance of this critical information could jeopardize efforts to learn the full truth about Jan. 6,” said Sen. Dick Durbin, D-Ill., chair of the Senate Judiciary Committee, in a statement on Wednesday. “I don’t know whether the failure to preserve these critical government texts from Jan. 6 is the result of bad faith, stunning incompetence, or outdated records management policies, but we must get to the bottom of it.”
Durbin has asked Sean O’Donnell, acting inspector general for the Defense Department, to open an investigation into the matter.
“The DoD OIG is aware of Sen. Durbin’s press release and is awaiting his letter to Acting DoD Inspector General Sean O’Donnell,” Megan Reed, DoD IG spokesperson, told Government Executive. “We will review the letter once we receive it.”
The Defense Department referred to the IG office regarding the letter.
A joint status report filed in March says that, “DoD and Army conveyed to [the] plaintiff that when an employee separates from DoD or Army he or she turns in the government-issued phone, and the phone is wiped. For those custodians no longer with the agency, the text messages were not preserved and therefore could not be searched, although it is possible that particular text messages could have been saved into other records systems such as email.” Then for those still at the agency, “the agencies have initiated a search for text messages responsive to the FOIA requests.”
American Oversight submitted the FOIA requests on Jan. 12, 2021, seeking senior Defense and Army officials’ communications with President Trump, Vice President Mike Pence and top staff and then went to court in March 2021 when they didn’t receive any records.
During a White House briefing on Wednesday, Press Secretary Karine Jean-Pierre referred reporters to the Defense Department since the emails are part of ongoing litigation. but said the Biden administration had been “very clear that we strongly believe in following public record rules. That is important. And the president has also been very clear that everyone should cooperate with the Jan. 6 committee, so they can get to the bottom of what happened on that day. But I’m not going to speak to any specific details.” When pressed if the president has confidence in the Defense Department and Secret Service, she said yes.
“This news is especially troubling because DoD is not the only government agency to have wiped text messages from the day of the deadly insurrection,” American Oversight stated in a press release on Wednesday, as texts from Secret Service agents and Trump’s top Homeland Security officials in the leadup to the Capitol attack are also reportedly missing.
Homeland Security Department Inspector General Joseph Cuffari has been under fire for his handling of investigations into the messages. Durbin, recently asked the attorney general to take over the investigations.
However, in an email to staff on Monday obtained by Politico, Cuffari pushed back on what he called “this onslaught of meritless criticism,” adding that “because of the U.S. Attorney General guidelines and quality standards, we cannot always publicly respond to untruths and false information about our work.”
Update: This article has been updated with the Defense Department's response.