America First Legal Sues HHS Secretary Becerra and National Archives Following Investigation Revealing the Biden Administration Illegally Deletes Former CDC Employees’ Email–Illustrating Two-Tiered System of Justice

WASHINGTON, D.C. – Today, America First Legal (AFL) sued Secretary Xavier Becerra, the U.S. Department of Health and Human Services, the Archivist of the United States Colleen Shogan, and the National Archives and Records Administration (NARA) for illegally destroying federal records from the Centers for Disease Control and Prevention (CDC) in violation of the Federal Records Act. 

On March 29, 2023, AFL sent a letter to the U.S. Department of Health and Human Services’ Office of Inspector General, requesting an investigation of the CDC’s unlawful policy of deleting employee emails. AFL requested records regarding the CDC’s support for teacher-led indoctrination of children with radical gender ideology. 

Federal law requires that each agency “make and preserve records containing adequate and proper documentation of the organization, functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish the information necessary to protect the legal and financial rights of the Government and of persons directly affected by the agency’s activities.”

Yet, in a routine email regarding the disclosure of these records, the CDC told AFL that the CDC routinely deletes the emails of nearly all of its employees thirty days after they leave the agency:

NARA investigated the allegations but determined that because the “CDC instructs individual email account holders to apply retention based on the email’s content value and its applicability to a NARA-approved records schedule,” NARA considered the matter closed. 

In short, NARA appears to entrust individual CDC employees to decide which emails can be automatically deleted.

This is patently inconsistent with the law. 

Moreover, if the federal government wants to unlawfully assert that anytime a government employee leaves an agency their records are no longer considered records of the United States, then the same assumption would apply to former Presidents of the United States. 

According to this logic, Special Counsel Jack Smith’s prosecution of President Trump over Presidential records would be voided null as the records in question would effectively no longer be considered records of the United States upon the end of the Trump presidency. It cannot be that a career bureaucrat at the CDC, or any government agency, has more say than a former President — and yet, under the Biden Administration, this appears to be the case. 

Notably, in one case involving the Federal Bureau of Investigation  (FBI), former FBI agent Scott Payne intentionally removed official records from the FBI’s custody. According to press reports cited by NARA, “Sitting in the crates [Mr. Payne] brought home when he retired are the field notes and transcripts of every case he’s worked.” NARA did not refer Mr. Payne to the Department of Justice (DOJ) for investigation. Instead, it permitted the FBI to “retriev[e] 99 discs from the former employee’s residence, documented that the former employee affirmed that he does not possess any hard copy documents and that the discs are the ‘totality of government records and information in his possession.’”

A former FBI agent who intentionally removed sensitive law enforcement records from a federal agency and held those records for several years is not referred for investigation nor prosecuted. Yet, President Trump — who transferred records he believed to be personal records or non-records to his home — was referred to the DOJ for investigation by NARA without authority. 

And, of course–aside from the illegality of systematically deleting these records–what is the CDC trying to hide? Why does it have a records deletion process that entrusts individual bureaucrats to decide what are official records and what aren’t? 

America First Legal will continue to relentlessly fight the government’s partisan two-tiered system of justice. 

Statement from America First Legal Vice President Dan Epstein: 

“The CDC destroyed records it determined were unimportant. However, as this lawsuit shows, the CDC, like any other person who destroys government records, may not evade the law. The Archives and the Department of Justice have a statutory responsibility to apply the law fairly to all persons. Unfortunately, as this lawsuit shows, the Biden Administration views the law differently. To illustrate: a former FBI agent kept all of his official investigative files at his home and simply faced a slap on the wrist from the Archives. However, a former president who sent personally designated records to his residence was subject to a criminal investigation and prosecution instigated by the Archives. The rule of law cannot mean one set of rules for unelected bureaucrats and another for democratically-elected officials who happen to be a political challenger to the sitting President,” said Dan Epstein.

Read the lawsuit here.

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