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A suit filed in federal court Wednesday seeks to compel the National Archives to seek assistance from the Department of Justice (DOJ) in recovering text messages from both the Secret Service and leadership of the Department of Homeland Security (DHS) that were apparently lost in days following the 2020 election.

The suit, filed on behalf of Ken Klippenstein, a reporter for The Intercept, turns to a provision of the Federal Records Act that requires the head of the Archives to request assistance from the attorney general if an agency does not act to recover the records.

Lawmakers were notified in July by DHS Inspector General Joseph Cuffari that the Secret Service had “erased” text messages from Jan. 6, 2021, something the agency said occurred as a result of a migration to a new phone software that took place just weeks after the attack on the Capitol.

Text messages from then-Acting Secretary of Homeland Security Chad Wolf and his deputy, Ken Cuccinelli, were also lost in a “reset” of government phones during the transmission to the Biden administration.

Together, the erasures represent a major loss for those reviewing the effort to block the transition of power after the 2020 election, both in terms of reviewing discussions around former President Trump’s movements that day, as well as his efforts to have DHS seize voting machines.

The National Archives, also known as NARA, did request the Secret Service look into the matter, but the suit alleges the agency stopped short of requesting any assistance from the Justice Department.

Kel McClanahan, the attorney in the case and the executive director of nonprofit law firm National Security Counselors, said the duty to do so under law would bring the technical resources of the FBI and DOJ to the matter.

“All NARA can really do is ask questions and wag their finger. The FBI and DOJ can subpoena and can compel answers,” he said.

“The goal of this entire regime is not just to punish people who break it, but to recover records and to recover information.”

In July, Klippenstein filed a request with the Archives, pushing the agency to seek DOJ assistance and saying the Secret Service had engaged in “obfuscation and obstruction” about the nature of the loss of records.

“Viewed through the lens most favorable to the agency, these claims demonstrate that [the Secret Service] is, at best, out of its depth, and that prompt action needs to be taken by a more competent forensic agency,” he wrote at the time. 

McClanahan said it’s now been almost a year since Klippenstein filed the request, and “by any stretch of the imagination, that’s a reasonable amount of time. And now the archivist needs to do something.”

For its part, the Secret Service has denied there was anything nefarious about the loss of the messages, maintaining that for security reasons it advises agents against texting.

Cuffari had asked for the text messages of 24 agents for his own investigation into Jan. 6, but the Secret Service produced just one responsive text — a message from the then-chief of the Capitol Police asking for assistance.

The agency ultimately turned over thousands of documents to the House Committee investigating the attack on the Capitol, including other emails and communications from that day but did not provide any additional texts. It was a response members of the panel described as an overwhelming amount of information to sift through.

But the efforts to recover the messages are made all the more complex by a battle with Cuffari, who has faced numerous calls to step aside from the investigation into the missing texts.

Cuffari launched a criminal probe into the missing texts a few weeks after his letter to lawmakers. 

But the inspector general may have violated protocol by failing to swiftly notify Congress that the records were lost, as there are multiple provisions in the Inspector General Act that require notifying agency heads or Congress about “particularly serious or flagrant problems,” in some cases within seven days.

Lawmakers complained the delay compounded the difficulty of recovering the messages and were confused why months passed before they were alerted. In an anonymous letter, employees of the DHS IG office also asked President Biden to remove Cuffari.

The Council of the Inspectors General on Integrity and Efficiency (CIGIE), a federal entity with oversight of inspectors general, has an ongoing investigation into Cuffari’s office.

Cuffari last week launched a suit against the CIGIE, noting that its Integrity Committee filed another request for information from Cuffari’s staff as recently as earlier this month.

Attorney General Merrick Garland has largely dodged questions about whether the Justice Department would get involved in the investigation into the texts.

“As a general matter, any allegations of wrongdoing about inspector generals are handled by what we call CIGIE,” he said at an August press conference, noting the review of Cuffari.

“That’s the way those kind of allegations are handled. And without commenting on this particular case, needless to say, the Justice Department’s job is to investigate allegations of violations of the criminal law, including allegations regarding matters involving the scope of inspector generals.” McConnell defends Supreme Court after Clarence Thomas revelations US citizens, Russian nationals charged in influence campaign probe

Several lawmakers have made clear, however, their preference for DOJ involvement.

“I don’t know whether the failure to preserve these critical government texts from January 6 is the result of bad faith or stunning incompetence,” Senate Judiciary Chair Dick Durbin (D-Ill.) said last August.  

“But I do know that the man who has overseen the investigation of this fiasco is not the right person to continue leading it. [Cuffari] has lost whatever credibility he may have once had on this matter.  That is why I’ve asked Attorney General Merrick Garland to step in and take control of this investigation into the missing texts.”

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Starmer and Reeves hint at tax rises to come ahead of unusual pre-budget speech today

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Starmer and Reeves hint at tax rises to come ahead of unusual pre-budget speech today

Sir Keir Starmer and Rachel Reeves have hinted at tax rises to come when the chancellor delivers the budget later this month.

In a Downing Street speech this morning, Ms Reeves will address “speculation” that an increase in income tax will be announced during the highly-anticipated statement on 26 November.

Politics Hub: Follow chancellor’s speech live

Sky News political editor Beth Rigby said it was “highly unusual” for the chancellor to make such a speech, but the Treasury believes she must “try to prepare the ground and make the argument for another big tax-raising budget”.

“I will make the choices necessary to deliver strong foundations for our economy – for this year, and years to come,” Ms Reeves will say.

Last night, Sir Keir gave Labour MPs a taste of what’s to come by warning of the need for “tough but fair” decisions.

Speaking at a party meeting in Westminster, he said the budget “takes place against a difficult economic backdrop”.

“It’s becoming clearer the long-term impact of Tory austerity, their botched Brexit deal and the pandemic on Britain’s productivity is worse than even we feared,” the prime minister said.

“Faced with that, we will make the tough but fair decisions to renew our country and build it for the long term.”

Starmer and Reeves know how hard this is going to be

I don’t need to tell you how difficult and contested this is going to be.

Only a year ago, the chancellor unveiled the biggest tax-raising budget since 1993 and said it was a “once in a parliament event”.

MPs will be fearing a massive backlash should manifesto promises on not raising income tax (and VAT and national insurance) for working people be broken.

Government figures know how hard it’s going to be but argue the chancellor has to level with the public about the hard choices ahead and what is driving her decision-making.

It comes after Sir Keir refused to confirm at Prime Minister’s Questions last week that the budget would honour his party’s manifesto pledge not to raise income tax, national insurance or VAT.

Having raised taxes in last year’s budget, notably national insurance on employers, Ms Reeves has also previously promised not to “come back for more” during this parliament.

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Will Labour raise taxes?

The PM and chancellor’s warnings come after reports suggested the Office for Budget Responsibility is expected to downgrade its productivity growth forecast for the UK by about 0.3 percentage points.

That would leave Ms Reeves with a larger than expected fiscal black hole to fill, possibly up to £30bn.

She is said to be considering a proposal from The Resolution Foundation, a left-leaning thinktank close to the government, to raise income tax by 2p but cut national insurance by the same amount.

The thinktank, which used to be headed by Torsten Bell, a Labour MP who is now a key aide to Ms Reeves and a pensions minister, said the move would raise vital cash while protecting working people.

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A promise-breaking budget?

Reeves to prioritise NHS and cost of living

Giving a further flavour of what to expect, Ms Reeves will this morning vow to make “important choices that will shape our economy for years to come”.

“It is important that people understand the circumstances we are facing, the principles guiding my choices – and why I believe they will be the right choices for the country,” she will add.

Ms Reeves will say her priorities are cutting national debt, easing the cost of living and protecting the NHS.

“It will be a budget led by this government’s values,” she’s set to say.

“Of fairness and opportunity and focused squarely on the priorities of the British people: protecting our NHS, reducing our national debt and improving the cost of living.”

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Starmer and Reeves hint at tax rises to come ahead of unusual pre-budget speech today

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Starmer and Reeves hint at tax rises to come ahead of unusual pre-budget speech today

Sir Keir Starmer and Rachel Reeves have hinted at tax rises to come when the chancellor delivers the budget later this month.

In a Downing Street speech this morning, Ms Reeves will address “speculation” that an increase in income tax will be announced during the highly-anticipated statement on 26 November.

Politics Hub: Follow chancellor’s speech live

Sky News political editor Beth Rigby said it was “highly unusual” for the chancellor to make such a speech, but the Treasury believes she must “try to prepare the ground and make the argument for another big tax-raising budget”.

“I will make the choices necessary to deliver strong foundations for our economy – for this year, and years to come,” Ms Reeves will say.

Last night, Sir Keir gave Labour MPs a taste of what’s to come by warning of the need for “tough but fair” decisions.

Speaking at a party meeting in Westminster, he said the budget “takes place against a difficult economic backdrop”.

“It’s becoming clearer the long-term impact of Tory austerity, their botched Brexit deal and the pandemic on Britain’s productivity is worse than even we feared,” the prime minister said.

“Faced with that, we will make the tough but fair decisions to renew our country and build it for the long term.”

Starmer and Reeves know how hard this is going to be

I don’t need to tell you how difficult and contested this is going to be.

Only a year ago, the chancellor unveiled the biggest tax-raising budget since 1993 and said it was a “once in a parliament event”.

MPs will be fearing a massive backlash should manifesto promises on not raising income tax (and VAT and national insurance) for working people be broken.

Government figures know how hard it’s going to be but argue the chancellor has to level with the public about the hard choices ahead and what is driving her decision-making.

It comes after Sir Keir refused to confirm at Prime Minister’s Questions last week that the budget would honour his party’s manifesto pledge not to raise income tax, national insurance or VAT.

Having raised taxes in last year’s budget, notably national insurance on employers, Ms Reeves has also previously promised not to “come back for more” during this parliament.

Please use Chrome browser for a more accessible video player

Will Labour raise taxes?

The PM and chancellor’s warnings come after reports suggested the Office for Budget Responsibility is expected to downgrade its productivity growth forecast for the UK by about 0.3 percentage points.

That would leave Ms Reeves with a larger than expected fiscal black hole to fill, possibly up to £30bn.

She is said to be considering a proposal from The Resolution Foundation, a left-leaning thinktank close to the government, to raise income tax by 2p but cut national insurance by the same amount.

The thinktank, which used to be headed by Torsten Bell, a Labour MP who is now a key aide to Ms Reeves and a pensions minister, said the move would raise vital cash while protecting working people.

Please use Chrome browser for a more accessible video player

A promise-breaking budget?

Reeves to prioritise NHS and cost of living

Giving a further flavour of what to expect, Ms Reeves will this morning vow to make “important choices that will shape our economy for years to come”.

“It is important that people understand the circumstances we are facing, the principles guiding my choices – and why I believe they will be the right choices for the country,” she will add.

Ms Reeves will say her priorities are cutting national debt, easing the cost of living and protecting the NHS.

“It will be a budget led by this government’s values,” she’s set to say.

“Of fairness and opportunity and focused squarely on the priorities of the British people: protecting our NHS, reducing our national debt and improving the cost of living.”

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‘Vile and dangerous’ strangulation pornography to be banned

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'Vile and dangerous' strangulation pornography to be banned

Strangulation pornography will be banned following a review which found such images have helped to establish it as a sexual norm.

The possession and publication of images depicting strangulation and suffocation will be criminalised under the Crime and Policing Bill, which is currently making its way through parliament.

Non-fatal strangulation is already an offence in its own right, but it is not currently illegal to show it online.

Conservative peer Baroness Bertin warned earlier this year that there has been a “total absence of government scrutiny” of the pornography industry.

Baroness Gabby Bertin carried out a review of the online pornography industry
Image:
Baroness Gabby Bertin carried out a review of the online pornography industry

Her independent review, published in February, referred to worrying anecdotal evidence from teachers about students asking how to choke girls during sex.

People acting out choking in their sex lives “may face devastating consequences”, she said in the review.

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On Monday, the government confirmed it was putting forward amendments to the Crime and Policing Bill, which is due to come back before peers in the House of Lords for further scrutiny next week.

As well as making strangulation or suffocation in pornography illegal, duties will be placed on online platforms to stop the spread of such images, the Ministry of Justice (MoJ) said.

Another amendment will extend the time limit for victims of intimate image abuse, which can include so-called “revenge porn”, to come forward to report such crimes.

Currently, victims have six months to do so, but this will be extended to three years.

Victims minister Alex Davies-Jones said the government “will not stand by while women are violated online and victimised by violent pornography which is allowed to normalise harm”.

She added: “We are sending a strong message that dangerous and sexist behaviour will not be tolerated.”

Of strangulation pornography, Technology Secretary Liz Kendall said: “Viewing and sharing this kind of material online is not only deeply distressing, it is vile and dangerous. Those who post or promote such content are contributing to a culture of violence and abuse that has no place in our society.

“We’re also holding tech companies to account and making sure they stop this content before it can spread. We are determined to make sure women and girls can go online without fear of violence or exploitation.”

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From June: ‘He was going to kill me’

The government said if the amendments were accepted, possession or publication of strangulation or suffocation in pornography would become a priority offence under the Online Safety Act.

Technology firms would be legally required to take steps to stop such violent content reaching internet users, rather than simply waiting for it to be reported.

The government suggested this could be done through moderation tools, stricter content policies or automated systems being used to detect and hide images.

The British Board of Film Classification (BBFC) welcomed the planned changes, but said they must “mark the beginning of broader reform to ensure parity between online and offline content standards”.

Its chief executive David Austin said: “Harmful depictions of non-consensual, violent and abusive activity continue to be readily accessible to UK users.”

The BBFC said it stands ready to take on “the formal role of auditing online pornography”, which would be “a natural extension of the role we have carried out offline for decades”.

Bernie Ryan, chief executive of the Institute For Addressing Strangulation, welcomed the proposed ban, saying the “serious risks posed by unregulated online content, especially to children and young people” must be recognised.

She added: “Strangulation is a serious form of violence, often used in domestic abuse to control, silence or terrify.

“When it’s portrayed in pornography, particularly without context, it can send confusing and harmful messages to young people about what is normal or acceptable in intimate relationships. Our research shows there is no safe way to strangle.”

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