Text messages sent on a private telephone between Maureen McDonnell, wife of Bob McDonnell, and businessman Johnnie Williams are key evidence in the corruption trial of the former Virginia governor, according to the Washington Post.
New Jersey Gov. Chris Christie’s aides also produced text messages in the “Bridgegate” investigation, again using private telephones.
Just like email, text messages can be preserved and produced. Federal employees are required to preserve text messages concerning official business.
But it appears they often aren't. Will there be any consequences for this systematic lawbreaking?
As we recently learned in the IRS affair, federal agencies are destroying their text messages.
Coincidentally, political appointees and political activists in career civil service positions in the federal government are increasingly turning to texting just as the watchdogs using the Freedom of Information Act and congressional investigators are more frequently exposing improper activity against the taxpayer.
It was in this context that I recently received a Friday afternoon document production under a FOIA lawsuit I and colleagues at the Competitive Enterprise Institute filed seeking nothing but text messages.
Our first such suit was for Environmental Protection Agency Administrator Gina McCarthy’s texts generated while leading President Obama’s “war on coal.”
After EPA claimed none existed, McCarthy admitted through the Department of Justice that she had in fact deleted each and every one of her many thousands of texts on her EPA-provided phone.
She claimed they were all “personal,” even after we proved her correspondents indeed included multiple members of her EPA team.
So we sought the texts of senior EPA aides with whom McCarthy corresponded, according to metadata we obtained.
This led to Friday’s production of 76 pages of text messages. None that remained were to or from McCarthy. All that did remain were mundane. Their content isn’t the point. Their existence is.
From years of working with FOIA and inquiring of other watchdog attorneys and congressional investigators, it is my understanding that EPA has never before produced text or instant messages.
This is despite the fact that many, possibly even most, FOIA and congressional oversight requests cover them (e.g., seeking "records" or "electronic records" on particular subjects or to/from certain officials).
At least with Obama’s EPA and the IRS, it appears we now know why — they are destroying them, illegally. This isn't a "gaping open-records loophole," it is wanton lawbreaking because the law is quite clear.
The texts EPA produced on Friday prove that EPA's IT system does not automatically delete text messages; that is, for messages not to be there now, they had to be deleted from the system.
These texts also show that not everyone destroyed all of their messages, as McCarthy has admitted she did. Her behavior was deliberate, serial and flagrant.
That she permitted and even engaged in this behavior as the official designated with responsibility for ensuring her and her office’s texts were properly maintained should send her packing, as happened with her predecessor, Lisa Jackson, after exposure of Jackson’s false-identity email account in the name of “Richard Windsor.”
There is, however, an even more important aspect to this behavior, and it extends beyond EPA to every federal agency where we find such lawlessness.
The messages McCarthy admitted to destroying were all from her tenure leading President Obama’s “war on coal.”
As I and colleagues at another group, the Energy and Environment Legal Institute, have informed the EPA, the administrative record underlying its war on coal is inherently incomplete as a result of this behavior.
EPA’s rules should be suspended, or withdrawn, until it recreates the discussions it moved over to an alternative to email with no backup, then destroyed.
It is unimaginable that a court, presented with an agency admission of having destroyed each and every one of another class of legally identical records — email — would shrug and permit the regulators to continue unimpeded with radical regulatory changes.
There is therefore no reason why EPA should be permitted to continue with its “war on coal,” which each and every one of the officials we have now caught destroying records was materially involved in executing, unless and until it recreates the deleted correspondence which we know from agency documents number in the many thousands.
The Federal Records Act requires this. That this is the result not of incidental loss but serial and deliberate destruction only compounds the matter.
We have sued EPA seeking this. Their answer called it an “intrusive” attempt to make them comply with record-keeping laws that no one can make them obey.
Congress to date has been powerless or simply uninterested in offering the response that EPA’s regulatory assault demands.
While not a reassuring prospect, it is now up to the courts to do what obviously must be done, at least as far as making EPA try to reconstruct what its senior officials destroyed.
So far, EPA and Obama’s Department of Justice have fought us every step of the way.