Freedom

By Thomas Catenacci , Andrew Mark Miller 

A nonprofit legal organization filed a lawsuit against the Biden administration on Wednesday, alleging it has deleted federal employees’ emails in violation of existing statute.

In a sweeping complaint filed in the U.S. District Court for the District of Columbia, the America First Legal Foundation (AFL), the group headed by former Trump adviser Stephen Miller, accused the Department of Health and Human Services of regularly deleting official emails and violating the Federal Records Act. The group also named the National Archives and Records Administration (NARA), which is tasked with overseeing the unlawful destruction of federal records, as a defendant. 

“If the National Archives decides not to use the legal authorities it has regarding federal records, it certainly shouldn’t make up legal authority that it doesn’t have when it comes to presidential records,” America First Legal Vice President Dan Epstein said in an interview.

“We expect our government to act in a transparent and accountable way and exercise equanimity when it decides to investigate certain allegations. We clearly haven’t seen that in this case.”

According to Epstein, the lawsuit will have deep ramifications in Special Counsel Jack Smith’s ongoing case against former President Donald Trump. 

Smith is prosecuting Trump in connection to the former president’s handling of classified documents and other presidential records after leaving the White House in early 2021. In June 2023, the Department of Justice unsealed a federal indictment accusing Trump of 37 felony counts in connection with obstruction of justice and mishandling government records.

Epstein, though, argued that Trump is being held to a different standard than federal employees who regularly delete emails and records without any repercussions. He said potentially tens of thousands of records are deleted every year without authority.

The AFL’s case is tied to a February 2023 records request the group filed under the Freedom of Information Act with the Centers for Disease Control and Prevention (CDC). The group particularly requested records related to the CDC’s support for “teacher-led indoctrination of children with radical gender ideology.”

However, shortly thereafter, a CDC officer told the AFL in an email that the agency, which is housed at HHS, deletes most employee files 30 days after said employee departs the agency.

“That is correct,” the officer said in an email to the AFL. “Unless they were a capstone director/manager etc., it is my understanding all other employees’ emails are deleted 30 days after they leave the agency.”

When the matter was brought to NARA, the AFL said the agency 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,” the matter was considered closed.

“In effect, it appears that NARA entrusts individual CDC employees to decide which emails can be automatically deleted,” the group said in a statement.

Federal law states that government agencies must “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.”

The AFL argued that NARA’s conclusion is “patently inconsistent with the law.”

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“You have maybe tens of thousands of government records every year that are destroyed without authority,” Epstein told Fox News Digital. “But when it comes to Donald Trump, he gets prosecuted. Everyone else who doesn’t have to stand for election gets a free pass.”

HHS Secretary Xavier Becerra and Archivist of the United States Colleen Shogan were also named in the group’s lawsuit filed Wednesday.

Fox News Digital reached out to HHS and NARA for comment but did not immediately receive a response.