Beware of the Administration’s “Memory Holes”

For now, the Trump Administration can’t destroy all the CFPB records

In the novel 1984, George Orwell—to my mind the most relevant political philosopher of our current straits—describes a particularly sinister feature of totalitarian government: the “memory hole.” Protagonist Winston Smith and other workers at the Ministry of Truth are given documents that are in tension with the Party’s views. They revise them to conform to the Party’s views and to exalt Big Brother. Then they throw the originals into the “memory hole,” from where they are incinerated. As the Party slogan has it, “Who controls the past controls the future: who controls the present controls the past.”

There has been a fair bit of focus on the Trump Administration’s ruthless campaigns to dismiss career employees at federal agencies, particularly disfavored ones such as the U.S. Agency for International Development and the Consumer Financial Protection Bureau (CFPB). The Administration has bulldozed its way through the extensive system of regulatory protection for federal employees. Several of the 40+ lawsuits against the Administration were filed on behalf of employees or unions whose members were unlawfully fired. It’s likely that the Administration will eventually have to pay out millions of dollars in taxpayer funds to employees whose rights it ignored.

Thursday Night Massacre

But the Administration may be making war on disfavored agencies—and public accountability—in another way: by permanently deleting public records.

The possibility stems from a lawsuit brought on behalf of CFPB employees to halt a campaign that seemed aimed at taking the Bureau down to its studs. Both Trump and Elon Musk have called for the abolition of the Bureau, and several members of Musk’s DOGE team have been installed at the CFPB.

On February 7, after dismissing the Biden-era director, Trump appointed Russell Vought, the director of the Office of Management and Budget, as the acting director of the Bureau. (With his inimitable charm, Musk tweeted out that same day, “RIP CFPB.”)

For his part, Vought called the CFPB a "woke and weaponized agency against disfavored industries and individuals." He instituted a series of measures to essentially shutter the agency, shutting down investigations and directing employees to stop monitoring financial institutions. He also fired about 170 probationary and fixed-term employees, then ordered the remaining 1,500 or so employees to halt virtually all their work.

It was at this point, on February 9, that unions and consumer groups sought an emergency order in district court to keep Vought from implementing the mass firings of remaining employees that he appeared poised to implement. The plaintiffs argued that Vought’s efforts to "shut down" the Bureau violated the Constitution as well as the Dodd-Frank Act, the statute passed in the wake of the 2008 financial crisis that created the Bureau.

The lawsuit also included another less-noticed request, anchored in a declaration from Erie Meyer, who until last week was the CFPB’s Chief Technologist. Meyer cited internal reports indicating the Administration was planning to delete troves of agency records. The records included supervisory and examination records of financial institutions, enforcement action data, consumer complaints, personal consumer information, and market research records.

Meyer’s declaration stated that the deletions would lead to the "immediate and irrevocable loss of data essential to the agency’s core mission," crippling the Bureau’s ability to respond to emerging threats within the financial system.

Last Friday, the judge assigned to the case, Amy Berman Jackson, issued an order based upon an agreement between the parties to preserve the status quo pending a March 3 hearing on the plaintiffs’ request for a preliminary injunction.

Jackson’s order temporarily prevents the Administration from additional firings of CFPB employees. It also barred the CFPB from deleting records. More precisely, it orders the CFPB not to delete, destroy, remove, or impair any data or records covered by the Federal Records Act.

So, for now, the CFPB records are safe, assuming that the Administration complies with the court order. But the episode is unnerving: absent the lawsuit, would Vought simply have ordered the erasure of 12 years of essential Bureau data, in violation of the law, as Meyer warned?

Thursday Night Massacre II

There are a series of laws that require the Executive Branch to preserve records, such as the Federal Records Act—the primary provision at issue in the CFPB case—the Presidential Records Act, the Freedom of Information Act, and Executive Order 13526 governing national security information. However, the laws are an overall patchwork and contain gaps that may authorize or at least set up arguments in favor of certain deletions.

More ominously, the Trump Administration has already been brazen about simply violating the law and waiting for plaintiffs, Congress, and the courts to catch up with them—or not.

And, of course, the deletion of records, even where unlawful, can be particularly difficult to detect, much less prevent in advance. If Meyer’s declaration was sound, it was a matter of happenstance that the Administration’s plans for the wholesale destruction of CFPB records were averted.

It’s among the more terrifying prospects of Trump’s authoritarian ambitions—a frontal assault on the essential right of citizens in a democracy to be informed. Recall the allegations during the first impeachment that Trump altered documents related to the “perfect call” with Ukrainian President Volodymyr Zelensky. White House lawyers also improperly moved documentation related to that call to a highly classified national security server in an attempt to keep them from congressional and public view.

Concealing documents fits perfectly with Trump’s overall campaign to eliminate oversight and accountability, for example by firing a raft of Inspectors General in various agencies.

Just to raise one particularly plausible risk: does anyone doubt that Trump, who is obsessed with trying to erase his post-2020 election criminal conduct from the pages of history, would throw Jack Smith’s Volume 2 report down a “memory hole” if he thought he could get away with it?

History, the adage goes, is the propaganda of the victors. Trump has made clear that he believes his election is a vindication against his many criminal charges and a license to adopt his will as the law of the land. The implications for the preservation of essential public records—and in turn for society’s right to know—are ominous.

Talk to you later.