DHS and Cybersecurity Agency Cannot Search for Text Messages with Election Deniers Because of Prior Practice of Wiping Government Phones

The American public may never fully learn whether and to what extent the effort to overturn the 2020 election reached into the upper ranks of the Department of Homeland Security during the final months of the Trump administration — including the critical weeks before and after the Jan. 6, 2021, attack on the Capitol.

In an ongoing lawsuit against DHS for top Trump administration officials’ communications with proponents of election conspiracies, the department and its Cybersecurity and Infrastructure Security Agency (CISA) told American Oversight that they cannot search for certain records because of a prior practice of routinely collecting and wiping the cell phones of departing agency personnel.

Among the records American Oversight requested were copies of text messages between former DHS officials — including acting Secretary Chad Wolf — and a broad range of activists and politicians who supported the effort to overturn the 2020 election.

Unfortunately, it appears that those records may simply be gone. The congressional Jan. 6 investigation led to revelations last summer that Secret Service texts and data from the days around the attack on the Capitol had been deleted, as had those of top Trump administration DHS officials including Wolf and Ken Cuccinelli. Their government-issued phones had been wiped during a “reset” when officials left their jobs, despite the potential presence of public records on those devices.

In November 2021, American Oversight submitted several Freedom of Information Act (FOIA) requests to DHS and the Department of Justice for certain communications agency officials may have had with activists and groups who backed efforts to illegally reverse the 2020 results, filing suit against both agencies the next month to force the release of those records.

During litigation, DHS and CISA released portions of the requested records, and in late November 2022 provided American Oversight with additional details about the search for records. In an email, DHS cited the prior practice of collecting and clearing the data from the mobile devices of departing agency personnel as reason for why the agency could not search for the requested text messages of several top officials.

In former President Trump’s quest to overturn his election loss, he pressured top officials like Wolf, Cuccinelli, and then CISA Director Chris Krebs to assist his efforts, even firing Krebs after Krebs publicly pushed back against Trump’s baseless assertions that the election had been marred by widespread fraud. American Oversight’s requests sought the release of any potential communications that could shed light on the extent that external election deniers — like Sidney Powell, MyPillow CEO Mike Lindell, and former National Security Adviser Mike Flynn, who each played a role in Trump’s anti-democratic schemes — were in touch with officials within DHS. Earlier this month, Wolf was interviewed as part of a Justice Department special counsel’s investigation into efforts by former President Donald Trump and his allies to overturn the results of the 2020 election. 

Erasing mobile devices — and the records that they may have contained — is a practice that American Oversight has encountered and exposed in the past. Last year, in a separate FOIA lawsuit against the Defense Department and the Army for the release of top officials’ texts from Jan. 6, the department admitted that the phones of certain former Trump administration officials had been wiped and that any messages from that day had not been preserved. 

Following public outcry, American Oversight asked Attorney General Merrick Garland to open an investigation into the Pentagon’s failure to preserve the communications. Within days, Deputy Defense Secretary Kathleen Hicks publicly reminded officials that text messages that are federal records must be preserved, and directed that data on mobile devices be preserved before phones are wiped. DHS also announced that it would adopt a similar policy on a temporary basis and would conduct a review of its handling of mobile device records policies.

In another lawsuit filed by American Oversight in 2022, Immigrations and Customs Enforcement (ICE) admitted that it had instructed Trump administration personnel to wipe their agency-issued cell phones when leaving their posts — a practice that persisted even after the agency received public records requests for senior ICE officials’ text messages regarding an ongoing federal criminal investigation.

American Oversight’s requests at issue in the current lawsuit against DHS were submitted after the relevant officials had left the agency and after DHS said the phones had been reprovisioned. The agency added that a search for any copies of the potential texts that were forwarded to official email accounts — as required under the Federal Records Act — did not turn up any records. 

The lawsuit is ongoing, and American Oversight will continue working to uncover the full record of the effort to overturn the 2020 election.