Judge Orders ICE to Preserve Former Trump Officials’ Mobile Devices in American Oversight Records Lawsuit

Immigration and Customs Enforcement (ICE) must preserve in their present condition the mobile devices of seven former Trump administration officials, a federal judge ruled Thursday in the ongoing suit brought by American Oversight and the American Civil Liberties Union of Massachusetts seeking the release of records related to the federal criminal prosecution of a state court judge. 

The court order comes after ICE had admitted in court filings that it had instructed employees in 2017 to wipe their agency-issued phones upon departure — a practice that occurred even after the agency received public records requests for text messages regarding an ongoing federal criminal investigation, and one that has in recent weeks drawn heightened scrutiny following similar admissions by the Departments of Defense and Homeland Security.

With the order, the judge granted an emergency motion filed by American Oversight and the ACLU of Massachusetts on Aug. 22 that asked the U.S. District Court in Massachusetts to compel ICE to preserve any government-issued mobile devices belonging to seven former high-level ICE officials, including three former acting directors — Thomas Homan, Matthew Albence, and Ronald Vitiello — as well as former legal adviser Tracy Short and former Chief of Staff Thomas Blank. The motion also asked the judge to order ICE to continue its efforts to access the cell phone of former ICE Senior Adviser Jon Feere.  

In declarations filed Aug. 18, ICE had suggested that five of the senior officials’ phones had already been wiped, but did not say if anyone had checked the data on those devices to confirm whether it were true. In addition, devices belonging to Feere and Natalie Asher, the former executive associate director of Enforcement and Removal Operations, have apparently been recovered. 

The court order requires all of the devices to be preserved in their current state — without modification or deletion of any data they may contain — while the lawsuit is still pending, including any appeals. ICE must also submit a status report by Sept. 19 about efforts to access Feere’s device, which the agency reported it was working to unlock. 

In last month’s filings, ICE suggested that it had no policy of preserving data on agency-issued cell phones that had been wiped. The declarations stated that Homan’s phone was deactivated in 2019, and that those of Albence, Vitiello, Short, and Blank were deactivated in 2020 and 2021 — suggesting the latter four were wiped after American Oversight and the ACLU of Massachusetts submitted a Freedom of Information Act request in late 2019 for information on those devices regarding the investigation of a Massachusetts state court judge who allegedly had allowed a defendant to avoid ICE detention in 2018. The groups sued in May 2021 after the agency failed to release any responsive documents.

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