It was this March when American Oversight first learned from the Defense Department and U.S. Army attorneys that officials who had received a government-issued phone had it wiped once they ended their employment.
The Pentagon billed this as standard policy.
“DOD and Army conveyed to plaintiff that when an employee separates from DOD or Army he or she turns in the government-issued phone, and the phone is wiped. For those custodians no longer with the agency, the text messages were not preserved and therefore could not be searched, although it is possible that particular text messages could have been saved into other records systems such as email,” court filings state.
Joint Status Report American Oversight_DoD by Daily Kos on Scribd
Heather Sawyer, who serves as the executive director at American Oversight, has now called on Attorney General Merrick Garland to conduct an investigation into the missing messages. This is particularly urgent, she argued, in light of the ongoing issue of missing Jan. 6 messages at the Secret Service and Department of Homeland Security.
“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,” Sawyer wrote.
American Oversight Letter to Garland by Daily Kos on Scribd
In addition to Miller, Patel, and McCarthy, Jan. 6 texts were also sought from former Defense Department General Counsel Paul Ney and former General Counsel James McPherson.
Ney’s phone was wiped on Jan. 20, 2021, his last day and the day former President Donald Trump was inaugurated. Patel’s phone was wiped on Jan. 22, and Miller’s phone was wiped on Feb. 2.
Former Army Secretary McCarthy and General Counsel McPherson’s phones were wiped too; McCarthy left his post on Jan. 19, 2021, and McPherson departed the next day.
Ney told CNN on Tuesday he did not personally wipe his phone before he turned it in, or ever, that he could recall.
“When I turned the phone in, I did not know what was going to be done with that device nor do I know what actually was done with that device after I turned it in. If DoD represented in litigation that the device was wiped after I left DoD on Inauguration Day, I believe that is very likely what happened and when it happened, but I do not know why,” Ney said.
RELATED STORY: There are now missing Jan. 6 texts from the Department of Homeland Security
Records have also been requested from the Director of Army Staff Lt. Gen. Walter Piatt and Army Chief of Staff James McConville. Both Piatt and McConville are currently working at the department, so the messages on their devices should still be in place. A review of their devices has been ongoing since September of last year and according to American Oversight, a response is anticipated next month.
“There’s no indication yet that either phone has been wiped and we’re hoping with an additional search we will be able to turn up more records,” Dara Silvestre, a spokesperson for American Oversight, told Daily Kos on Wednesday.
RELATED STORY: Let’s talk about what is going on with the deleted Secret Service texts and the Jan. 6 probe
Sen. Dick Durbin, an Illinois Democrat who chairs the powerful Senate Judiciary Committee, called on Garland to investigate the missing texts at the Department of Homeland Security and Secret Service last week.
On Monday, top Democrats in the House of Representatives Reps. Carolyn Maloney and Bennie Thompson called on Homeland Security Inspector General Joseph Cuffari to recuse himself from a current probe into missing Secret Service text messages from Jan. 6. If he recused, the investigation would go to the Department of Justice.
Cuffari told the committee last month the messages were erased as part of a pre-planned device reset. That reset went forward despite multiple requests from Congress that personnel retain information on their devices in the wake of the Capitol attack.
Widespread reporting has suggested that Cuffari, a Trump appointee, actually learned that the text messages were deleted in May 2021, a full seven months before the time he told members of the select committee he first learned of the “lost” messages.
Cuffari also appears to have delayed notifying members of Congress about missing messages belonging to Chad Wolf, the former acting secretary of the Department of Homeland Security, and his deputy, Ken Cuccinelli. Maloney and Thompson—who also chairs the Jan. 6 committee—have requested transcribed interviews with key Department of Homeland Security officials, including Thomas Kait, Cuffari’s deputy. Records obtained by Maloney and Thompson so far appear to indicate that Kait may have toned down language in an internal memo that originally stressed the importance of retaining records pursuant to Cuffari’s investigation of the Department of Homeland Security response to Jan. 6. Fellow Deputy Inspector General Kristen Fredricks has also been asked to meet with Maloney and Thompson. They chair the House Oversight and Reform Committee and House Homeland Security Committee, respectively.
The missing messages are important to sort out because they could offer significant insight into the security delays and lapses that played out on Jan. 6. This would be especially helpful when it comes to Miller.
RELATED STORY: Questions swirl after ex-Defense official says Trump never ordered Guard for Jan. 6
Miller told the select committee investigating the insurrection that Trump “never” gave a direct order to have 10,000 National Guard troops deployed for Jan. 6.
However, when he appeared on Fox News a month earlier and wasn’t under oath, he said Trump did order troops.
Miller’s tenure under Trump started just after Trump lost the 2020 election. Trump fired Miller’s predecessor, Mark Esper, by tweet on Nov. 9.
Esper and Trump’s relationship had soured, according to Esper, in the wake of the national racial justice protests for George Floyd. Esper told The Washington Post the final straw came when Trump “duped” him and Chairman of the Joint Chiefs of Staff Mark Milley into escorting him, with a bevy of other officials, to “examine” damage done to a church near Lafayette Park, just across the street from the White House.
Protesters were cleared from the park and were pepper sprayed and accosted by police minutes before Trump took the walk to the church, held up a Bible, took a photo, and left.
In a report published last June, Mark Greenblatt, the Trump-appointed inspector general for the Interior Department, said federal police did not clear the square of protesters so Trump could pose for a photo. The use of force on protesters was not addressed, but Greenblatt said there were already plans underway early that morning to cordon off the area with antiscale fencing.
Miller hadn’t been on the job long when Jan. 6 happened, but his role that day was important. A report by the Defense Department inspector general in November noted how Miller was apprehensive about having National Guard stationed at the Capitol in the runup to Jan. 6. With talk of military intervention in the transfer of power floating around in the press, he was concerned about the optics.
He ended up authorizing the Army to use a quick reaction force team made of National Guard on Jan. 4, but only as a last resort and under very restricted conditions.
Since Jan. 6, questions have steadily expanded around the chain of command on Jan. 6 and why there were such gross delays to provide backup to police officers who were outnumbered by the thousands. Many of the delays have been chalked up to confusion and bad communication.
But those details are murky and hotly contested by officials on and off the record.
The Pentagon was cleared of any wrongdoing in its response to Jan. 6 by its inspector general, Sean O’Donnell, in November 2021. O’Donnell was appointed by Trump and still currently serves in the role. The report’s conclusions were challenged by Col. Earl Matthews, a lawyer for the D.C. chapter of the National Guard.
Matthews singled out Piatt and Charles Flynn, then the deputy chief of staff for operations.
Piatt and Flynn—who is also the brother to Trump’s disgraced National Security Adviser Michael Flynn—refused requests for help from the Guard on Jan. 6, Matthews said, because they feared how troops around the Capitol might look.
“LTGs Piatt and Flynn stated that the optics of having uniformed military personnel deployed to the U.S. Capitol would not be good,” Matthews wrote in a scathing report.
He also called both Flynn and Piatt “unmitigated liars” in regard to their respective testimonies before Congress about Jan. 6.
Flynn, like Piatt, still serves in an official capacity. Flynn is commanding general of the U.S. Army Pacific.
Matthews Memo on Jan 6 Response by Daily Kos on Scribd
The Jan. 6 committee has been analyzing the National Guard response as a part of its greater investigation. During its public hearings, the committee presented a wealth of testimony from White House officials, including Milley, who said Trump never gave an order to deploy the Guard even as calls for help were pouring in.
It was Pence who told then-Defense Secretary Chris Miller, unequivocally, to “clear the Capitol” during an intense phone call on Jan. 6.
There is no record that Trump ever called anyone, at any agency, to ask for help on Jan. 6
“There were two or three calls with Vice President Pence,” Milley told the select committee last month. “It was very animated and he issued very explicit, very direct, unambiguous orders. There was no question about that [...] He was very animated, very direct, very firm, and to Secretary Miller, [he said] get the military down there, get the Guard down here, put down this situation, etc.”
Milley recalled speaking with Meadows on Jan. 6 as well. Meadows was anxious about Pence appearing to be in control.
Milley recalled Meadows telling him: “We have to kill the narrative that the vice president is making all the decisions. We need to establish the narrative that the president is still in charge and things are steady or stable or that sort of thing.
“I immediately interpreted that as politics, politics, politics. Red flag for me, but no action. But I remember it distinctly,” Milley said.
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