Biden Admin Hit With Lawsuit for Deleting Emails of Former CDC Employees

A finger poised over the delete key on a computer keyboard in this undated file photo. (Patricia Tolson/The Epoch Times).

A lawsuit has been filed against President Joe Biden’s administration over the practice by the Centers for Disease Control and Prevention (CDC) of deleting employees’ emails after they leave the agency.

America First Legal (AFL), a Washington-based non-profit that describes itself as “the long-awaited answer to the ACLU,” filed a lawsuit due to the destruction of federal records by the CDC in violation of the Federal Records Act.

The complaint, filed in the United States District Court for the District of Columbia on April 17, specifically names U.S. Department of Health and Human Services Secretary Xavier Becerra, United States archivist Colleen Shogan, and the National Archives and Records Administration (NARA). The lawsuit alleges that the agencies “have a pattern and practice of removing the emails of employees who separate from employment within as little as thirty days from the date of separation.”

AFL sent a letter to the Department of Health and Human Services’ inspector general, Christi Grimm, on March 29, requesting an investigation into the CDC’s practice.

The NARA’s general records schedule states that the emails of non-capstone officials must be preserved for at least seven years and cannot be deleted any sooner than three years. The emails of capstone officials become part of the country’s permanent historical records at the National Archives.

Capstone officials are employees who are high on an organizational chart and are responsible for the program policies and mission-related actions of an agency, according to NARA.

Non-Capstone officials include members of general staff and contractors.

In an interview with The Epoch Times, Dan Epstein, vice President of AFL and a professor of law at Saint Thomas University in Miami, Florida, explained that the lawsuit was born following a Freedom of Information Act (FOIA) request regarding the CDC’s guidance on public health and transgender issues.

The FOIA, filed with the CDC on Feb. 2, 2023, related to the agency’s “LGBTQ Inclusivity in Schools: A Self-Assessment Tool,” which AFL contends “openly embraces“ transgender ideology.

While citing liberal organizations like the Southern Poverty Law Center and the Human Rights Campaign, the CDC’s guidance encourages educators to display “visual labels” such as rainbow flags, and pink triangles, and to have unisex bathrooms so students will know their classroom is “a safe space for LGBTQ students.”

The document also provides teachers and administrators with a “self-assessment tool” to determine their personal inclusivity score.

AFL specifically requested “all records or communications” with any employee of the CDC’s Division of Adolescent and School Health and any employee with the Southern Poverty Law Center, the Human Rights Campaign, the Gay and Lesbian Alliance Against Defamation, Parents and Friends of Lesbians and Gays, and Trans Student Educational Resources, related to the CDC’s transgender guidance.

“The timeframes for this item are July 1, 2020 – November 1, 2020, and November 1, 2022 – to the date this item is fully processed,” the FOIA stated.

In response, the CDC told AFL in a March 20, 2023, email that “unless they were a capstone director or manager,” the emails of all other employees “are deleted 30 days after they leave the agency.”

Mr. Epstein said they copied the National Archives in on their communications with the CDC “because they have a role in ensuring that there is never any unauthorized disposition of records.”

The unauthorized disposition of records is the legal term for the destruction, removal, or alienation of government records from federal government control, Mr. Epstein explained.

Federal law requires that each government 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.”

Federal law also requires government agencies to “notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records in the custody of the agency.”

After completing the requested investigation, NARA told AFL 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 agency considered the matter closed.

Mr. Epstein told The Epoch Times, “Even if you defer to an individual bureaucrat as to what is an official federal record and what is not, you can easily imagine a scenario where that individual is not going to apply the law.”

Most employees of the federal government “are not lawyers and that’s why we have a failsafe in the law,” Mr. Epstein said. “The failsafe is that there is a general presumption that no records should be destroyed before three years. That clearly was not followed in the case of the CDC.”

Case Against Trump

AFL contends that, if it’s the federal government’s position that a government employee’s records are no longer part of U.S. records when they separate from a government agency, then the same applies to presidents of the United States after they leave office.

Considering this, AFL argues that the case brought against former President Donald Trump by Special Counsel Jack Smith regarding the documents confiscated by the FBI during the August 8, 2022, raid on his Mar-A-Lago residence should be declared null and void because they ceased to be part of U.S. records on the day he left the White House.

Mr. Epstein said the law is applied differently when the case doesn’t involve President Trump.

NARA contacted the FBI on Feb. 10, 2022, inquiring about revelations in a Rolling Stone article alleging that former FBI agent Scott Payne intentionally removed official records from the FBI’s custody. The records were related to cases he had worked on before he retired. NARA requested that the FBI “look into this allegation and respond within 30 calendar days with a report.”

The March 30, 2022, follow-up email acknowledged that the FBI’s report admitted that 99 discs were retrieved from Mr. Payne’s residence.

Again, NARA considered the allegation to be “resolved.”

In the case of President Biden, Special Counsel Rober Hur acknowledged in his February 2024 report that the FBI recovered classified documents “from the garage, offices, and basement den in Mr. Biden’s Wilmington, Delaware home.” Those documents, which “spanned Mr. Biden’s career in national public life” had been taken during his time as a senator and as vice president.

Even though the investigation “uncovered evidence that President Biden willfully retained and disclosed classified materials after his vice presidency when he was a private citizen,” Mr. Hur predicted that a jury would likely see him “as a sympathetic, well-meaning, elderly man with a poor memory.”

Mr. Hur decided that “no criminal charges were warranted in this matter.”

Similarly, the Department of Justice released a report in June 2018 regarding the 2016 investigation into allegations that then-presidential candidate Hillary Clinton exclusively used a private email account hosted on a private email server at her family’s home in Westchester, New York, during her time as Secretary of State.

At least 100 of the 30,000 emails Mrs. Clinton turned over to the State Department contained classified information at the time they were sent or received. Seven of the email chains were designated as “top secret.”

However, while then-FBI director James Comey determined that there was evidence that Mrs. Clinton and her team “were extremely careless in their handling of very sensitive, highly classified information,” she was cleared of any wrongdoing because he couldn’t prove she knowingly exchanged classified information on her private server.

Mr. Comey said in his July 5, 2016, statement that “no charges are appropriate in this case.”

“Although there is evidence of potential violations regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case,” he said.

“Hillary Clinton took federal records and preserved them on her private servers,” Mr. Epstein said. “Nothing happened to her.”

Mr. Epstein also noted how President Biden took classified documents during his time as a senator and vice president. Nothing happened to him either, yet his administration has seen fit to indict President Trump on 37 counts for similar actions, he said.

As for the lawsuit against the Biden administration for the deleted CDC emails, “We’re going to aggressively pursue this litigation. We want the Biden administration to recover these records,” Mr. Epstein said.

“Who knows what’s on these email accounts?” he added.