DHS watchdog says department's lawyers are slowing down Secret Service Jan. 6 text probe

The Department of Homeland Security's internal watchdog and its general counsel have some disagreements about who is to blame for delays in providing Congress with Secret Service records related to Jan. 6, 2021, the day of the Capitol riots. 

The inspector general for Homeland Security (DHS) has notified Congress that the department's Office of General Counsel has inserted itself into the independent review of missing Secret Service text messages from Jan. 6, according to congressional correspondence reviewed by CBS News, and this is slowing down the department's efforts to provide material Congress has requested.

"The Inspector General notified Congress that the Department's General Counsel has directed DHS components — at least in this matter — not to provide the [Office of the Inspector General (OIG)] requested documents and information directly," according to an Aug. 2 letter sent to DHS Secretary Alejandro Mayorkas from Ohio Sen. Rob Portman, the top Republican on the Homeland Security and Governmental Affairs Committee.

His letter continues, "According to the Inspector General, the General Counsel has directed Department components and offices to first provide responsive records to the Office of the General Counsel for review before producing them to the [Office of the Inspector General]."

Portman also reminded Mayorkas that the Inspector General Act of 1978, which grants department watchdogs the authority to investigate violations of law, fraud, waste, abuse and mismanagement, states that watchdog investigators are "authorized to have timely access to all records, reports, audits, reviews, documents, papers, recommendations, or other materials..." unless a statute specifically restricts access. 

And in this case, Portman said, the inspector general advised Congress that there was no statutory exception that applied.  

But DHS, through a spokesperson, denied that the general counsel requires legal review of documents prior to submission to the inspector general.

"The Office of the General Counsel has worked hard to accommodate and assist the OIG in obtaining timely access to the materials it seeks," DHS spokesperson Marsha Catron Espinosa told CBS News in a statement. "It has ensured that DHS complies with the Inspector General Act and other relevant statutes, at all times."

In a separate letter reviewed by CBS News, Portman said the DHS inspector general had also "indicated the (DHS) Department deleted records that had been requested by OIG inspectors," but didn't say which documents had been erased.

The DHS inspector general's office first requested cell phone records from the Secret Service officials on Feb. 27, 2021, according to two sources with knowledge of the matter. 

Secret Service officials said the texts were lost during a cloud security migration on agents' cell phones that began on January 27, 2021, three weeks after the insurrection at the Capitol, and continued into April. Mayorkas was sworn into office as homeland security secretary on Feb. 2.

In a subsequent letter to Mayorkas dated Aug. 10, Senate Homeland Security and Governmental Affairs Committee Chairman Sen. Gary Peters of Michigan wrote that messages "deleted during a presidential transition, makes their loss all the more concerning." He pressed DHS on what steps were taken to "fully explore options with Apple to recover backups" from deleted text messages and asked if the department had ever considered backing up text messages through its phone provider. 

"Does DHS use, or has DHS considered using, any service to back up text messages through the telecommunications carrier, such as Verizon's Message Archive?" he asked Mayorkas.

The U.S. Secret Service made the decision not to use Verizon's text message backup system after determining the service was "too expensive," two sources briefed on the matter tell CBS News. 

More than a year after the initial records request, in July 2022, Cuffari wrote to House and Senate Homeland Security Committees that DHS had notified his office that "many US Secret Service text messages from January 5 and 6, 2021, were erased as part of a device replacement program." 

In his recent letter, Cuffari complained to Congress of "ongoing records access issues" during his review of "events leading up to and during the Capitol attack on January 6."

The Secret Service began conducting its own internal review into the erased messages, but on July 21, the DHS inspector general directed the Secret Service to stop its probe of the texts, alleging it could impede the inspector general's investigation into the agency's Jan. 6 response.

On Aug. 4, Mayorkas directed the department's top lawyer and chief information officer to create a working group "to conduct a 30-day review of the policies and practices for electronic message retention" by the department, according to an internal memo obtained by CBS News. 

The working group has been tasked with assessing the best methods of automating text message and other communication backups used by federal or private sector organizations and providing recommendations to the department for DHS policies.

"Each DHS agency or office's information technology, records management, and legal team will participate in the working group," the memo read. According to the internal notice, senior career staff will lead the department's newest working group. 

Moving forward, whenever a senior DHS employee or political appointee departs the department, agencies and offices within DHS have been directed to preserve physical mobile devices (and accompanying passwords) or complete "fully accessible backups of all device content for all members," a DHS official confirmed to CBS News. 

"Earlier this month, the Secretary directed the General Counsel and the Chief Information Officer to lead a review of Department policies and practices to determine whether the Department can go beyond legal requirements to better manage electronic records," Catron Espinosa added. 

A spokesperson for the DHS inspector general declined to comment, noting that as a policy, the OIG does not "confirm the existence of, or comment about, criminal investigations."