DHS lawyers evaluate whether to allow Secret Service to cooperate with Jan. 6 committee

Lawyers for the Department of Homeland Security are evaluating whether or not U.S. Secret Service officials may continue to cooperate with the House select committee investigating the Jan. 6, 2021, assault on the U.S. Capitol after the department’s top watchdog directed the agency to cease looking into what happened to apparently deleted text messages from that day, three U.S. officials tell CBS News.

In a July 20 letter addressed to U.S. Secret Service Director James Murray and reviewed by CBS News, DHS Deputy Inspector General Gladys Ayala instructed the agency to “not engage in any further investigative activities,” adding that the agency’s efforts to interview potential witnesses or take further action “would interfere with an ongoing criminal investigation.”

The letter has prompted a review of U.S. Secret Service’s cooperation by DHS’ Office of the General Counsel, amid concerns that any voluntary appearance by Secret Service officials before oversight officials on Capitol Hill could interfere with the potential criminal probe by Joseph Cuffari, the inspector general for the Department of Homeland Security.  

“The DHS Office of the General Counsel is reviewing the best legal course here,” a U.S. official told CBS News. “The question becomes, what does the department do first? If there is public testimony out there prior to a criminal case, that could have implications on the case.” 

While U.S. government watchdogs routinely investigate activity that is criminal, they lack the authority to initiate a criminal prosecution. Therefore, if the DHS inspector general uncovers evidence of criminal activity during his office’s ongoing probe of the U.S. Secret Service’s missing text messages, the OIG must refer the matter to the U.S. attorney general, who ultimately determines whether or not to bring charges. 

John Tien, DHS deputy secretary, told reporters Monday that the U.S. Secret Service continues to be “responsive” amid parallel oversight investigations. 

“I think the Secret Service has done the things that we’ve asked them to do. And they certainly have been very proactive in the response to all of the different events,” Tien said on the sidelines of an awards ceremony for DHS personnel.

No U.S. Secret Service officials have been placed on administrative leave as a result of the ongoing probe, two Secret Service officials confirm to CBS News.

The House select committee investigating the Jan. 6 assault could still compel Secret Service agents to appear before the panel by issuing a subpoena. Rep. Liz Cheney, the vice chair of the House committee investigating the Jan. 6 attack on the U.S. Capitol, said Sunday that the panel is looking into additional subpoenas and remains “fully prepared to contemplate a subpoena” for Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas.

Earlier this month, the January 6th committee subpoenaed text messages of two dozen Secret Service agents. Staff for the House panel said they only received one text resulting from the July 15 subpoena to the agency requesting its text messages from Jan. 5 and Jan. 6, 2021. The Secret Service said the messages had been erased due to an agency-wide migration, despite preservation requests from investigators and Congress. 

The select committee says the Secret Service may have violated the Federal Records Act by failing to properly preserve communications sent and received during the attack on the U.S. Capitol.

Scrutiny of U.S. Secret Service officials — including former White House deputy chief of staff for operations Tony Ornato and Robert Engel, the Secret Service special agent in charge on Jan. 6. – intensified after former Trump White House aide Cassidy Hutchinson testified at a House select committee hearing last month. Hutchinson told lawmakers that Ornato had revealed former President Donald Trump lunged at a member of his protective detail and reached for the steering wheel of his presidential SUV during a White House meeting on Jan. 6, following his address to supporters on the ellipse.

Sources close to Ornato and Engel pushed back on Hutchinson’s testimony in part, telling CBS News that both officials deny Trump had reached for the steering wheel or an agent.

Earlier this month, the National Archives pushed for more information from the U.S. Secret Service on “the potential unauthorized deletion” of agency text messages. The primary recordkeeper of the U.S. government asked the law enforcement agency to report back to the Archives within 30 days, describing the circumstances surrounding the seemingly purged government records.

Two key congressional leaders urged DHS Inspector General Joseph Cuffari to “step aside” amid the investigation of Secret Service communications on Jan. 6 after he had failed to notify the committees about the missing text messages for months after he was aware of them.

Rep. Bennie Thompson, head of both the committee investigating the attack and the House Homeland Security Committee, as well as Rep. Carolyn Maloney, head of the Oversight and Reform Committee, said the inspector general fell short of promptly notify Congress as required by law after learning about the deleted texts in December.

“The omission left Congress in the dark about key developments in this investigation and may have cost investigators precious time to capture relevant evidence,” the lawmakers said in a letter sent to Cuffari and Allison Lerner, chair of the Council of the Inspectors General on Integrity and Efficiency.

According to the letter, Cuffari previously refused to investigate the Secret Service for unnecessary use of force in clearing protesters near the White House and for its COVID-19 protocols.

“This is not the first time Inspector General Cuffari has shown an unwillingness to investigate the Secret Service,” the lawmakers wrote. “There is precedent for Inspectors General to step aside from an ongoing investigation in instances where there are concerns about their independence.”

The lawmakers called on Lerner to “appoint a different Inspector General to complete the investigation.”

CBS News has reached out to DHS’ Office of the Inspector General and the department for comment.