In court filings submitted Thursday, Immigration and Customs Enforcement (ICE) admitted that, during the Trump administration, ICE instructed officials to wipe their own agency-issued cell phones once they departed the agency. ICE also asserted that multiple senior officials did, in fact, wipe their phones from 2019 to 2021, even after ICE received a public record request for text messages related to an ongoing federal criminal prosecution.
This revelation was included in filings that are part of an ongoing Freedom of Information Act (FOIA) lawsuit brought by nonpartisan watchdog group American Oversight and the American Civil Liberties Union (ACLU) of Massachusetts that seeks records concerning the federal criminal prosecution of Massachusetts state court Judge Shelley M. Richmond Joseph, including the emails and text messages of seven senior agency officials. ICE’s filings assert that not only did five of these senior officials wipe their ICE-issued devices, but that doing so was in compliance with instructions issued across the agency. Among the Trump-appointed officials who wiped their devices were former acting directors of ICE Thomas Homan, Ronald Vitiello, and Matthew Albence.
“We cannot stand by as agency after agency admits that it destroys public records,” said Heather Sawyer, executive director at American Oversight. “Text messages often contain crucial information on what federal employees are doing and why they are doing it. The obligation to retain these records is not optional — it is the law. ICE must change its practice of instructing employees to delete text messages and should issue guidance on that immediately.”
“ICE made an unprecedented decision to deploy federal criminal charges against a Massachusetts judge because it disagreed with her actions on the bench,” said Daniel McFadden, staff attorney at the ACLU of Massachusetts. “The public has a right to know how this prosecution arose, and whether it was part of a pressure campaign to force Massachusetts court officials to assist in federal immigration enforcement. ICE’s assertion that many of its most senior officials wiped their phones between 2019 to 2021 raises serious questions about whether ICE, under the Trump administration, violated public records retention laws and the separate requirements to preserve and disclose evidence relevant to ongoing criminal investigations and prosecutions.”
In 2019, federal authorities indicted Judge Joseph and Court Officer Wesley MacGregor for allegedly allowing a criminal defendant to exit using the rear door of a courtroom, while ICE expected him to depart via a different door. American Oversight and the ACLU of Massachusetts filed the FOIA request at the center of this lawsuit in November 2019 following a New York Times report in which Homan was quoted as saying he was informed about the incident resulting in Judge Joseph’s prosecution the same day it happened, and “immediately” initiated a response within ICE’s senior leadership team. After ICE failed to produce any records, American Oversight and the ACLU of Massachusetts filed this lawsuit in May 2021.
Thursday’s filing by ICE asserts that Homan’s government-issued mobile device was wiped in 2019, that the devices of former senior agency officials Albence, Vitiello, and Thomas Blank were wiped in 2020, and that legal adviser Tracy Short’s was wiped in 2021. All but one of these deletions occurred after American Oversight and the ACLU of Massachusetts specifically requested information from these devices. The filing also states that ICE does not have a policy or practice to implement litigation holds in FOIA cases, meaning that documents that are the subject of active lawsuits may be routinely deleted.
A February 2018 memo included in the filing shows that Clare Grady, at the time the Trump administration’s deputy secretary of homeland security, instructed all DHS employees to write memos — rather than saving original copies of messages — to capture electronic conversations they have had about agency business that need to be preserved. However, the filing also includes a November 2017 “Quick Reference Guide” that ICE sent to its employees instructing them to wipe Apple devices. Taken together, the newly disclosed documents suggest that departing ICE employees were responsible for wiping their own agency-issued devices, did not preserve copies of their text messages, and had unsupervised discretion to decide whether or not to write memos to memorialize certain text messages. In other words, during the height of the Trump administration’s most cruel and controversial immigration initiatives, ICE personnel were apparently not preserving their text messages, were on an “honor system” to write memos to summarize official communications on their devices, and knew that they would be permitted to erase their own devices upon departure.
The Trump administration’s apparent practice of deleting text messages — even after they had been requested under FOIA — has come under increased scrutiny in recent months. In a separate lawsuit brought by American Oversight seeking records from the day of the attack on the U.S. Capitol, the Department of Defense and the Army confirmed that the phones of certain former senior Trump administration officials had been wiped, and that any text messages from Jan. 6, 2021, were not preserved. More information on American Oversight’s ongoing Trump administration accountability efforts is available here.
Thursday’s filings are available here: https://www.aclum.org/en/cases/aclu-massachusetts-and-american-oversight...
