Jan. 6 panel says Secret Service may have violated law with ‘erased’ text messages

The Secret Service may have violated federal records laws by failing to preserve data — including information related to the Jan. 6 Capitol attack — after it had been requested by investigators, the House committee investigating the riot said Wednesday.

The condemnation came after the panel subpoenaed the agency following an allegation from the inspector general at the Department of Homeland Security (DHS), which oversees the Secret Service, that it had “erased” the texts during a device replacement program.

“We have concerns about a system migration that we have been told resulted in the erasure of Secret Service cell phone data,” Chair Bennie Thompson (D-Miss.) and Vice Chair Liz Cheney (R-Wyo.) said in a joint statement.

“The U.S. Secret Service system migration process went forward on January 27, 2021, just three weeks after the attack on the Capitol in which the Vice President of the United States while under the protection of the Secret Service, was steps from a violent mob hunting for him. Four House committees had already sought these critical records from the Department of Homeland Security before the records were apparently lost,” they added.

“Additionally, 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.”

Lawmakers confirmed Wednesday that the Secret Service turned over just one text sent on Jan. 6, a plea from then-Capitol Police chief Steven Sund to the Secret Service for help.

It was the only text included in more than 10,000 pages sent in response to the committee’s Friday subpoena.

The agency has said it did not intentionally delete any messages, but did lose some data as part of what it has called a system migration.

But the Secret Service’s letter to the committee sent alongside its documents, shared by the panel Wednesday, offers its most thorough explanation to date.

The agency underwent a migration to Microsoft starting Jan. 27, ordering agents to install Intune on their phones, a software that allows remote management of mobile devices and protects data.

“We are currently unaware of any text messages issued by Secret Service employees between Dec. 7, 2020 and Jan. 8, 2021 requested by OIG that were not retained as part of the Intune migration,” Secret Service wrote in the letter.

However, it appears it was left almost entirely to agents to determine what records on their phones needed to be preserved in accordance with the law.

Agents were directed to self-install Intune and follow a guide for preserving any data.

“All Secret Service employees are responsible for appropriately preserving any government records, including electronic messages that may be created during text messages,” the agency wrote in the letter, noting that employees are required to “certify that they understand this policy when they enter duty.” 

The Secret Service has previously claimed that none of the 24 agents whose information was requested by DHS OIG had phones impacted by the migration.

But in the letter the agency notes that “Secret Service is further researching whether any relevant messages sent or received by the 24 individuals were lost due to the Intune migration and, if so, whether such texts are recoverable.”

Lawmakers are perturbed the Secret Service even went through with the migration given that the data had already been requested by numerous committees.

“They received four requests from congressional committees on Jan. 16 to preserve records, and they had this planned migration for the 25th, I believe, of January, and nobody along the way stopped and thought, ‘Well, maybe we shouldn’t do the migration of data and of the devices until we are able to fulfill these four requests from Congress,’” Rep. Stephanie Murphy (D-Fla.) said during an interview on MSNBC on Tuesday.

Lawmakers have been hesitant to prescribe a motive to the Secret Service’s handing of the data.

“We were just updated and it remains a big mystery to me,” Rep. Jamie Raskin (D-Md.) told reporters Wednesday.

He added that the Secret Service’s explanation stretches the outer limits of plausibility. 

“I smell a rat,” he said. “That seems like an awfully strange coincidence for those text messages to be banished into oblivion on two days where there was also the most violent insurrection against the union in our history, after the Civil War.”

The Secret Service did not respond to request for comment on the statement from the committee.

Updated: 6:04 p.m.