Lawsuit seeks to compel National Archives to enlist help from DOJ to find missing Jan. 6 texts

A journalist based in Washington, D.C., is suing the National Archives and Records Administration and the acting archivist of the United States to compel the agency to enlist help from the Department of Justice to recover missing Secret Service texts that were sent ahead of the Jan. 6 riot.

Kenneth Klippenstein, an investigative reporter for the Intercept, filed the lawsuit with the U.S. District Court for the District of Columbia on Wednesday, seeking to compel both parties to request action from the attorney general to help recover the deleted records. Klippenstein pointed to a provision in the Federal Records Act that requires the archivist to request assistance from the attorney general if a federal agency does not comply with efforts to recover records.

INVESTIGATORS EXPAND INQUIRY INTO MISSING SECRET SERVICE TEXTS TO FILL GAPS FROM JAN. 6 

“Klippenstein has a direct interest in ensuring that the deleted text messages are maintained, preserved, and made accessible to the public in accordance with federal law,” the lawsuit states. “By failing to restore any relevant deleted text messages, the Archivist is violating her clearly mandated ministerial duty … thereby harming Klippenstein by denying him — and through him, the public — access to this information of vital and time-sensitive public interest.”

The lawsuit marked the latest development in the yearslong investigations into the Jan. 6 riot. House Democrats initially sought access to all text messages sent between Secret Service agents leading up to the Jan. 6 attack, but they were later told that the office no longer had communications from that day.

Investigators demanded access to records related to the missing texts from the office of Inspector General Joseph Cuffari earlier this month, suggesting a new sense of urgency in the nearly two-year investigation. The request was revealed in a federal lawsuit filed by Cuffari on April 4 accusing the Council of the Inspectors General on Integrity and Efficiency of government overreach.

Cuffari issued a request in June 2021 for text messages sent between Secret Service members between Dec. 7, 2020, and Jan. 8, 2021. That request came after lawmakers issued a subpoena in March 2021, seeking similar messages — but only for those “received, prepared, or sent” between Jan. 5, 2021, and Jan. 7, 2021.

Officials later concluded the agency no longer possessed the text messages, which lawmakers hoped would shed light on the days leading up to the riot. That revelation sparked widespread concerns, prompting an investigation from the CIGIE into allegations of misconduct, biased decision-making, and retaliation against whistleblowers. Cuffari has repeatedly denied any misconduct.

The National Archives sent a letter to the Secret Service in July 2022 to investigate the matter, but the agency stopped short of requesting assistance from the DOJ despite multiple requests from Klippenstein to do so, according to the lawsuit.

“The [Secret Service] has lost the benefit of the doubt in this matter through its obfuscation and obstruction, and each day that passes without aggressive measures being taken to recover these critical messages makes it more likely that they cannot be recovered,” Klippenstein wrote in a letter to the NARA in July 2022. “Viewed through the lens most favorable to the agency, these claims demonstrate that [the Secret Service] is, at best, out of its depth, and that prompt action needs to be taken by a more competent forensic agency.”

The Secret Service has repeatedly maintained the agency did not maliciously delete the communications, noting some were lost due to a “device-replacement program” that began about a month before the inspector general’s request. The agency later provided “thousands” of records to the Jan. 6 committee in September that included other communications made by Secret Service agents around the same time. However, it did not include the missing text messages.

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It’s not clear whether Attorney General Merrick Garland would agree to get involved with the matter, and the DOJ head has largely avoided questions on the subject.

“As a general matter, any allegations of wrongdoing about inspector generals are handled by what we call CIGIE,” he said at an August press conference. “That’s the way those kind of allegations are handled. And without commenting on this particular case, needless to say, the Justice Department’s job is to investigate allegations of violations of the criminal law, including allegations regarding matters involving the scope of inspector generals.”