August 2, 2022

VIA U.S. MAIL

The Honorable Merrick Garland

Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

Dear Attorney General Garland:

Through ongoing litigation brought pursuant to the Freedom of Information Act (FOIA),
American Oversight has learned that the Department of Defense (DOD) apparently failed to
preserve text messages and other communications from January 6th, the day of the attack on
the U.S. Capitol. We urge you to investigate DOD’s failure to preserve the text messages of
several high-ranking officials on or surrounding the day of the January 6th attack.

On July 29, 2022, Senator Dick Durbin, Chair of the U.S. Senate Judiciary Committee, asked
that you exercise your authority as our nation’s chief law enforcement officer to assume control
of the criminal investigation currently underway by the Department of Homeland Security
(DHS) Inspector General into the apparent deletion of text messages by DHS officials.1 These
deleted text messages were “sent and received by DHS and United States Secret Service
officials around the time of the January 6, 2021 attack on the Capitol.”2

DOD has admitted, in response to American Oversight’s FOIA lawsuit, that it similarly failed
to preserve text messages and other communications stored on phones from top DOD and
Army officials. The apparent deletion of records from January 6th by multiple agencies bolsters
the need for a cross-agency investigation into the possible destruction of federal records. We
therefore urge you to exercise your authority to take control of the investigation into DHS’s
alleged deletion of records, as requested by Senator Durbin, and to also investigate DOD for
the same conduct—deletion or destruction of records that previously had been stored on these
officials’ mobile devices, including any text messages (or messages on similar applications, such
as Signal or WhatsApp) regarding agency business on January 6, 2021.

As background, on January 12, 2021, American Oversight submitted four FOIA requests to
DOD and the Army on an expedited basis. Two requests sought all “records reflecting
communications,” including “text messages (or messages on similar applications such as Signal
or WhatsApp),” from January 6, 2021, between DOD and Army officials, on the one hand, and

1 Letter from Senator Dick Durbin to Attorney General Merrick Garland (July 29, 2022); see
Rebecca Beitsch & Alexander Bolton, Durbin Calls for DOJ Probe of Missing Jan. 6 Texts from
Secret Service, Trump-Era DHS Officials, The Hill (July 29, 2022, 3:31 PM),
https://thehill.com/policy/national-security/3579996-durbin-calls-for-doj-investigation-of-
trump-dhs-heads-missing-texts-prior-to-jan-6/.
2 Letter, supra note 1.

1030 15th Street NW, Suite B255, Washington, DC 20005 | AmericanOversight.org

President Trump, his Chief of Staff Mark Meadows, or anyone communicating on their behalf,
on the other. The DOD request sought records from Acting Secretary of Defense Chris Miller,
Chief of Staff Kash Patel, and General Counsel Paul Ney.3 The Army request sought records
from Secretary of the Army Ryan McCarthy, Chief of Staff Gen. James McConville, General
Counsel James E. McPherson, and Director of Army Staff Lt. Gen. Walter E. Piatt.4 The other
two requests sought the same types of communications from January 6, 2021, between almost
the same officials, and Vice President Pence, his Chief of Staff, or anyone communicating on
their behalf.5 Each request included the following language:

Please take appropriate steps to ensure that records responsive to this

request are not deleted by the agency before the completion of processing
for this request. If records potentially responsive to this request are likely
to be located on systems where they are subject to potential deletion,
including on a scheduled basis, please take steps to prevent that deletion,
including, as appropriate, by instituting a litigation hold on those records.

On March 12, 2021, after receiving no responsive records from either agency, American
Oversight filed suit to enforce its rights under FOIA. In January 2022, after DOD made one
production of three pages of records, and the Army identified no responsive records, American
Oversight contacted opposing counsel asking the agencies to confirm that the searches for
responsive records included text messages and messages on similar applications. In March
2022, DOD and the Army stated that “when an employee separates from DOD or Army he or
she turns in the government-issued phone, and the phone is wiped. For custodians no longer
with the agency, the text messages were not preserved and therefore could not be searched.”6

Opposing counsel confirmed to American Oversight by email that Paul Ney departed DOD and
his phone was wiped on January 20, 2021, and Kash Patel and Chris Miller’s phones were
wiped on January 22, 2021 and February 2, 2021, respectively. Opposing counsel also
confirmed that Army custodians Ryan McCarthy and James McPherson had departed the
agency and their phones were wiped but could not yet confirm their dates of departure.7 Of the

3 A copy of this request is available at https://www.americanoversight.org/wp-

content/uploads/2021/01/DOD-21-0050.pdf.
4 A copy of this request is available at https://www.americanoversight.org/wp-

content/uploads/2021/01/DOD-ARMY-21-0051.pdf.
5 A copy of these requests are available at https://www.americanoversight.org/wp-

content/uploads/2021/01/DOD-21-0048.pdf and https://www.americanoversight.org/wp-

content/uploads/2021/01/DOD-ARMY-21-0049.pdf. The request to the Army for
communications with the Office of the Vice President did not include Lt. General Piatt.
6 Joint Status Report at 2, American Oversight v. United States Dep’t of Defense, No. 21-cv-

637 (D.D.C. March 10, 2022), ECF No. 15.

7 Public reporting suggests that James McPherson left the Army on January 19, 2021, and

Ryan McCarthy left on January 20, 2021. See Thomas Brading, Army Undersecretary to Leave
Post, Reflects on Career, Army News Service, Jan. 19, 2021,
https://www.army.mil/article/242335/army_undersecretary_to_leave_post_reflects_on_caree
r; Alex Horton, Army Secretary Departs Amid Questions About the National Guard’s Capitol Riot
Response, Wash. Post (Jan. 20, 2021, 3:22 PM), https://www.washingtonpost.com/national-

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confirmed departure dates, each occurred after American Oversight had submitted FOIA
requests specifically seeking text messages and requesting that the agencies take steps to
prevent the deletion of potentially responsive records.

In short, DOD has apparently deleted messages from top DOD and Army officials responsive
to pending FOIA requests that could have shed light on the actions of top Trump
administration officials on the day of the failed insurrection. As Senator Durbin wrote of the
DHS records, these “text messages at issue may provide important insight into the actions of
senior Trump administration and White House officials on . . . January 6.”8 American Oversight
accordingly urges you to investigate DOD’s actions in allowing the destruction of records
potentially relevant to this significant matter of national attention and historical importance.

Sincerely,

Heather Sawyer
Executive Director
American Oversight

security/2021/01/20/army-secretary-departs-amid-questions-about-national-guards-capitol-
riot-response/.
8 See Letter, supra note 1. In addition, in relation to the conduct at issue in Senator Durbin’s

letter, American Oversight filed similar FOIA requests as those at issue in this letter on
January 11, 2021, for records, including text messages, of senior U.S. Secret Service officials
and is also currently litigating over those records. See Complaint, American Oversight v. U.S.
Department of Defense, No. 21-cv-624 (D.D.C. March 9, 2021). These requests included the
same language asking officials to preserve potentially responsive records that may be deleted.
However, no admissions or explanations have yet been given for the absence of any text
records to date in response to those requests, though rolling production in that matter is not
yet complete.

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CC:

Caroline Krass Sean O’Donnell

General Counsel Acting Inspector General
U.S. Department of Defense U.S. Department of Defense
1600 Pentagon 3E788 4800 Mark Center Drive
Washington, DC 20301-1600 Alexandria, VA 22350

Senator Dick Durbin Senator Chuck Grassley

Chairman Ranking Member
Committee on the Judiciary Committee on the Judiciary
U.S. Senate U.S. Senate
224 Dirksen Senate Office Building 224 Dirksen Senate Office Building
Washington, DC 20510 Washington, DC 20510

Senator Gary Peters Senator Rob Portman

Chairman Ranking Member
Committee on Homeland Security and Committee on Homeland Security and
Governmental Affairs Governmental Affairs
U.S. Senate U.S. Senate
340 Dirksen Senate Office Building 340 Dirksen Senate Office Building
Washington, DC 20510 Washington, DC 20510

Representative Carolyn Maloney Representative James Comer

Chairwoman
Committee on Oversight and Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, DC 20515
Ranking Member
Committee on Oversight and Reform
U.S. House of Representatives
2157 Rayburn House Office Building
Washington, DC 20515

Senator Jack Reid Senator James Inhofe

Chairman Ranking Member
Senate Armed Services Committee Senate Armed Services Committee
U.S. Senate U.S. Senate
228 Russell Senate Office Building 228 Russell Senate Office Building
Washington, DC 20510 Washington, DC 20510

Representative Adam Smith Representative Mike Rogers

Chairman Ranking Member
House Armed Services Committee House Armed Services Committee
2216 Rayburn House Office Building 2216 Rayburn House Office Building
Washington, DC 20515 Washington, DC 20515

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Representative Bennie Thompson
Chairperson
Select Committee to Investigate the January
6th Attack on the United States Capitol
Longworth House Office Building
Washington, DC 20515
Debra Steidel Wall
Acting Archivist of the United States
National Archives and Records
Administration
700 Pennsylvania Avenue NW
Washington, DC 20480

Lisa Newman Lee Reeves

Trial Attorney Trial Attorney
U.S. Department of Justice U.S. Department of Justice
Civil Division, Federal Programs Branch Civil Division, Federal Programs Branch
1100 L Street NW 1100 L Street NW
Washington, DC 20005 Washington, DC 20005