A conservative legal nonprofit sued the Department of Health and Human Services and the National Archives and Records Administration for failing to preserve the email records of former Centers for Disease Control and Prevention employees, arguing the policy is an attempt to evade transparency efforts.
The lawsuit, filed by America First Legal on Wednesday, argues the email deletions are in violation of the Federal Records Act, which ensures the preservation of federal documents, including email records. AFL said destroying or mishandling such records is illegal under the act.
“The CDC destroyed records it determined were unimportant,” said AFL vice president Dan Epstein in a statement. “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.”
In the 55-page lawsuit, AFL asserts that the CDC’s email deletions could directly impact the ongoing criminal case against former president Donald Trump regarding his mishandling of classified documents following his 2021 exit from the White House.
The legal group cites one case, in which former FBI agent Scott Payne intentionally removed sensitive law-enforcements records from the FBI’s custody, as an example of the Biden administration’s double standard between federal bureaucrats and the former president.
“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,” Epstein said. “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.”
Last year, Department of Justice special counsel Jack Smith indicted Trump of 40 counts related to his allegedly willful retention of national-defense information, obstruction of justice, and false statements. Trump initially faced 37 charges until a superseding indictment added three more.
AFL’s litigation comes a year after the CDC, which falls under HHS, said it routinely deletes emails of nearly all former employees, excluding capstone directors or managers, 30 days after they leave the public-health agency. After the CDC disclosed this upon AFL’s request in March 2023, the National Archives investigated the allegations and concluded that the “CDC does not require the preservation of all emails but rather preserves all records from email accounts.”
Moreover, the National Archives determined that individual CDC employees are able to decide which emails can be automatically deleted. “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 agency said.
AFL argued this is “patently inconsistent with the law.” In addition to HHS and the National Archives, HHS secretary Xavier Becerra and U.S. archivist Colleen Shogan are listed as defendants in the federal complaint.
A spokesperson for the National Archives said it doesn’t comment on litigation matters, and HHS did not respond to National Review’s request for comment.