Legal experts lash out at Secret Service in scathing op-ed: Your explanations won't wash

The U.S. Secret Service motto is "Worthy of Trust and Confidence." Recent events, including the apparent deletion of Jan. 6 evidence, have put a large question mark after that phrase, and the House select committee investigating the Jan. 6 insurrection is moving to answer the question. Producing a complete inventory of the agency's texts around Jan. 5 and 6, 2021, is vital to the committee's search for truth.

The Secret Service was already embroiled in controversy about whether former agents may have been involved in witness intimidation targeting star committee witness Cassidy Hutchinson for her testimony about Trump's violent intent on Jan. 6. Then, on July 13, it emerged that the agency had deleted text messages relating to what happened on Jan. 5 and 6, and apparently did so after Inspector General Joseph Cuffaris requested them. Next, Secret Service spokesman Anthony Guglielmi said that some of the agency's phone data had been lost due to a "pre-planned, three-month system migration" requiring agents to reset their mobile phones. The committee subpoenaed the texts. According to committee member Rep. Zoe Lofgren, a California Democrat, the Secret Service said "they, in fact, had "pertinent texts." But on July 19, the Service announced it had nothing further to produce, apparently contradicting the statement that "none of the texts . . . had been lost."

The Service has vigorously denied the IG's charges that it obfuscated or "maliciously" deleted texts. But when an agency cannot seem to keep its story straight, it is Congress' oversight responsibility to penetrate the fog of facts.

That the agency has offered shifting explanations about the disappearing texts is alarming — their relevance would have been obvious to any law enforcement agency. Without question, any scheduled data deletion or device-replacement program should have been immediately suspended due to the paramount importance of preserving evidence regarding the historically unprecedented events of Jan. 6.

One of us (Eisen) worked regularly with the Secret Service, including on records-handling issues, as a former White House special counsel. The other two (Baron and Aftergut) are former federal prosecutors and experienced civil lawyers. We can say without hesitation that multiple Secret Service leaders and their attorneys would have known on Jan. 6 that an investigation of the Capitol insurrection was inevitable and that the Service would be asked for all pertinent communications, including its texts.

We can say without hesitation that Secret Service leaders and their attorneys would have known immediately that an investigation of the Capitol insurrection was inevitable.

Any litigator, including those at Secret Service, would also know that once the agency received a specific document preservation request, they were obligated to issue instructions throughout the agency regarding actions required to preserve data with potential evidentiary value. Lawyers who fail in that duty are subject to professional disciplinary action.

Companies changing information systems and migrating data routinely back up the data with multiple safeguards to ensure it is saved. Tools for such backups are widely available.

Even without backup, in the modern world deleted text messages are rarely irretrievable. Computer forensic recovery capabilities are so robust that data seldom truly disappears. Data security experts can usually show whether someone tried to scrub information — and those experts can often reconstruct the deleted data.

Because deletions of Jan. 5 and 6, 2021, texts apparently occurred after requests by Inspector General Cuffari, the Secret Service has some uncomfortable explaining to do for its failure to create adequate backup. Should the missing texts be forensically retrieved, they may help call Donald Trump to account, along with his tight circle of advisers who assisted in fomenting the Jan. 6 violence.

If the committee finds intentional deletion at the Secret Service after an IG information request, then another piece in an emerging obstruction of justice mosaic may fall into place. Destroying evidence with the intent to influence or obstruct a federal investigation is a federal offense. Multiple other potential offenses are cited by Citizens for Responsibility and Ethics in a July 18 complaint letter to the attorney general and FBI regarding the text deletions.

Recovered text messages could shed bright light on multiple central issues:

  • Advance information, if any, the Secret Service possessed about firearms, bear spray and other weapons in the hands of pro-Trump demonstrators marching on the Capitol – or any coordinated planning to interfere with the Electoral College process.
  • The extent to which Trump had been briefed on intelligence about potential violence and electoral disruption.
  • Further corroboration of Cassidy Hutchinson's testimony that after Trump's Jan. 6 Ellipse speech, he directed his Secret Service detail to take him to Capitol Hill to lead marchers whom he knew were armed and attempting to interfere with the constitution's electoral certification process.
  • Whether Trump or the Secret Service had planned to remove Vice President Mike Pence from the Capitol to prevent him from presiding over the electoral vote count. Pence reportedly told the Secret Service detail on Jan. 6, when agents asked to evacuate him: "I'm not getting in the car. If I get in that vehicle, you guys are taking off." Had Pence entered the vice presidential limo, he might have never certified the presidential election results, plunging the nation into uncharted waters.

In fairness, the Secret Service says it has already turned over phone data from 20 agents, 790,000 unredacted emails and other documents, as well as providing hours of formal testimony from its agents. Perhaps more is coming.

In any case, one question committee investigators cannot avoid is whether the Secret Service deviated from standard procedures at the behest of people the Trump administration placed in command there.

During Trump's administration, unprecedented coziness appears to have existed between the Secret Service and the White House. For example, Anthony Ornato was the Service's deputy assistant director who headed Trump's security detail until Trump made him White House deputy chief of staff for operations in December 2019.

While on Trump's staff, Ornato helped coordinate the infamous June 2020 Trump photo-op across from Lafayette Park, when police and military forcefully attacked peaceable political demonstrators. Following Hutchinson's June 2022 testimony, other former Trump administration aides have said that Ornato has a history of changing his story to protect Trump. Ornato is now back at Secret Service as an assistant director, and should be available to return to testify before the committee.

Given the reasonable probability of the House select committee recovering missing texts, Secret Service witnesses must bear in mind the danger of getting caught in a lie under oath. The committee has shown time and again that there is no substitute for the truth that is emerging from many of those closest to the events of Jan. 6.

The Secret Service deserves an opportunity to fully explain the process by which the texts came to be deleted. But it is clear that this most important chapter in the history of our republic can only be fully and accurately written with access to those missing texts or truthful testimony about what they would have revealed.