USAID order to delete classified records sparks flurry of litigation

Yahoo

12-03-2025

U.S. Agency for International Development (USAID) employees and outside groups are fighting an order from the agency's leadership to shred and burn its classified documents as well as personnel records.
An email obtained by The Hill sent by USAID's acting executive secretary instructs remaining employees at the dismantled agencies to 'shred as many documents as possible first, and reserve the burn bags for when the shredder becomes unavailable or needs a break.'
The move alarmed those fighting to restore the agency — who stressed the destruction could run afoul of public records laws and hinder any efforts to rehire employees.
It has also raised questions over whether it will impact the ability of the public to scrutinize the role the Department of Government Efficiency (DOGE) played at USAID.
In two different suits, an organization representing USAID employees along with one representing contractors asked judges for a restraining order to block the agency from destroying the documents — arguing it could impact ongoing litigation and violate their obligation to retain relevant evidence.
'This directive suggests a rapid destruction of agency records on a large scale that could not plausibly involve a reasoned assessment of the records retention obligations for the relevant documents under the [Federal Records Act] or in relation to this ongoing litigation,' the American Foreign Service Association (AFSA) said in its suit.
The Personal Services Contractor Association in its suit said Department of Justice (DOJ) attorneys have 'not confirmed or denied or explained' the order.
They also asked 'how and why burning and shredding is consistent with preservation obligations in litigation, which documents are being destroyed and why, who authorized it and what DOJ is doing to stop it.'
In its suit with AFSA, the Justice Department agreed to pause the shredding, saying they would file a motion later Wednesday including information on 'which documents were destroyed and not destroyed.'
The White House has said USAID's move out of the Ronald Reagan Building spurred the need to destroy the records, saying all physical records have still been maintained electronically.
USAID employees last month were given 15 minutes to clear out their offices.
But Kel McClanahan — a national security law expert who has since filed a complaint with the National Archives — compared the process to how U.S. embassies handle records when they are facing an imminent attack.
'I think it's very telling that the protocols that they are employing are the protocols that embassies use where they're about to be overrun. And it's really kind of hilariously macabre that even the DOGE people are treating themselves as an invading army into a U.S. facility,' he said.
Anna Kelly, a White House spokesperson, stressed that the documents in question have all been retained electronically.
'The USAID building will soon be occupied by CBP,' she wrote on the social platform X, referencing U.S. Customs and Border Protection.
'This was sent to roughly three dozen employees. The documents involved were old, mostly courtesy content (content from other agencies), and the originals still exist on classified computer systems.'
An administration official also told The Hill that the small group of remaining employees at USAID who handled the information all had proper clearances and that all documents were reviewed by those at relevant bureaus within USAID. Bureaus without a proper representative to review them were set aside.
McClanahan noted several complexities of public records laws, however, including that multiple versions of a document must be maintained, giving the example of a document that is separately signed by multiple individuals. While physical copies can be destroyed if electronically retained, multiple versions of a document would need to be stored.
He also faulted the White House for failing to comment on the destruction of personnel records.
'They were destroying classified and personnel records. So why were the personnel records in a classified system? Well, they weren't. … So that's why I think they were not doing what the law would allow them to do,' he said.
'I am entirely comfortable saying I might be wrong. This may have just been a very poorly worded memo and a very poorly informed deputy press secretary, and it was actually above board. But until they prove that, I'm not going to give them the benefit of the doubt.'
McClanahan has also filed a public records request on behalf of podcast host Allison Gill noting that any records with 'detailed biographical data' must be considered 'sensitive but unclassified,' thus requiring agencies to maintain records with details about what was destroyed.
AFSA also raised concerns about the deletion of personnel records, relaying hope that some USAID employees could eventually be returned to their jobs.
'If the agency is required as a result of this litigation to rehire terminated employees, personnel records that identify USAID employees and contain personal contact information will be essential to rehiring those employees. If USAID lacks records containing contact information for terminated employees, it will be severely constrained in its ability to rehire them,' the association wrote.
The filing noted the National Nuclear Security Administration had the same struggle just last month when it sought to rehire some of its own staff swiftly dismissed by DOGE.
American Oversight, an outside watchdog group, also sued over the matter late Tuesday, arguing the document destruction would violate the Federal Records Act and the Freedom of Information Act.
But the group also stressed that deleting the records could obscure DOGE's unusual role in the dismantling of USAID.
'While the Trump Administration may wish that it could simply, with the blink of an eye and an implementation of an executive order, erase an independent agency established by Congress and its attendant obligations as a federal agency, it may not,' the group said.
'And federal records at USAID — relating not just to the important work done by the agency over the past 60 years but to the gutting of the agency itself — are in danger of being lost to history by Defendants' failure to comply with federal recordkeeping and disclosure laws.'
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