[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
UNITED STATES DEPARTMENT OF JUSTICE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
DECEMBER 8, 2011
__________
Serial No. 112-123
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TIM GRIFFIN, Arkansas LINDA T. SANCHEZ, California
TOM MARINO, Pennsylvania JARED POLIS, Colorado
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona
MARK AMODEI, Nevada
Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
C O N T E N T S
----------
DECEMBER 8, 2011
Page
OPENING STATEMENTS
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
The Honorable Darrell E. Issa, a Representative in Congress from
the State of California, and Member, Committee on the Judiciary 4
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Member, Committee on
the Judiciary.................................................. 9
WITNESSES
The Honorable Eric H. Holder, Jr., Attorney General, U.S.
Department of Justice
Oral Testimony................................................. 11
Prepared Statement............................................. 15
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Material submitted by the Honorable Darrell E. Issa, a
Representative in Congress from the State of California, and
Member, Committee on the Judiciary............................. 5
Material submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas, and Member,
Committee on the Judiciary
List of opposition to H.R. 822, the ``National Right-to-Carry
Reciprocity Act of 2011''.................................... 34
Articles from the Washington Examiner and the Los Angeles Times 54
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Lamar Smith, a Representative
in Congress from the State of Texas, and Chairman, Committee on
the Judiciary.................................................. 101
Response to Post-Hearing Questions from Judith C. Appelbaum,
Acting Assistant Attorney, General, Office of Legislative
Affairs, U.S. Department of Justice............................ 103
UNITED STATES DEPARTMENT OF JUSTICE
----------
THURSDAY, DECEMBER 8, 2011
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to call, at 9:37 a.m., in room
2141, Rayburn House Office Building, the Honorable Lamar Smith
(Chairman of the Committee) presiding.
Present: Representatives Smith, Sensenbrenner, Coble,
Gallegly, Goodlatte, Lungren, Chabot, Issa, Pence, King,
Franks, Gohmert, Jordan, Poe, Chaffetz, Griffin, Marino, Gowdy,
Ross, Adams, Quayle, Amodei, Conyers, Berman, Scott, Watt,
Lofgren, Jackson Lee, Waters, Cohen, Johnson, Pierluisi,
Quigley, Chu, Deutch, Sanchez and Polis.
Also present: Representatives Schiff and Farenthold.
Staff Present: (Majority) Crystal Jezierski, Counsel;
Travis Norton, Counsel; Dave Lazar, Clerk; (Minority) Perry H.
Apelbaum, Minority Staff Director and Chief Counsel; and Joe
Graupensperger, Counsel.
Mr. Smith. The Judiciary Committee will come to order.
Without objection, the Chair is authorized to declare recesses
of the Committee at any time.
I am going to recognize myself for an opening statement;
and then the Ranking Member, the gentleman from Michigan; then
the gentleman from California Mr. Issa; then the gentleman from
Virginia Mr. Scott, and we will proceed to hearing from the
Attorney General.
Attorney General Eric Holder appeared before the House
Judiciary Committee last May, and we appreciate his willingness
to appear today to address many issues, including questions
about his previous testimony.
While I am pleased to welcome back Attorney General Holder,
I am disappointed in the Department's repeated refusal to
cooperate with this Committee's oversight request. This lack of
cooperation is evident in the Department's handling of
inquiries related to the Bureau of Alcohol, Tobacco, Firearms
and Explosives; Operation Fast and Furious; and the death of
Border Patrol agent Brian Terry in December 2010. And
inconsistent statements from the Department officials about who
knew what and when have only raised more concerns.
I am also disappointed in how the Department has responded
to my oversight request regarding Justice Kagan's involvement
in health care legislation and related litigation while she
served as United States Solicitor General. Despite claims from
Obama administration officials that then-Solicitor General
Kagan was walled off from discussions regarding the President's
health care law, recently released e-mails indicate there may
be more to the story.
On March 21, 2010, an e-mail from the Deputy Solicitor
General forwarded to Solicitor General Kagan contained
information about a meeting at the White House on the health
care law and asked, ``I think you should go, No. I will
regardless, but feel this is litigation of singular
importance.'' Solicitor General Kagan responded by asking him
for his phone number.
We also know from the e-mails that she personally supported
the legislation's passage. In a March 21, 2010, exchange with a
Justice Department colleague discussing the health care
legislation, Ms. Kagan exclaims, ``I hear they have the votes,
Larry. Simply amazing.'' These e-mails reveal inconsistencies
with the Administration's claims that then-Solicitor General
Kagan was walled off from the issue.
To help clear up any confusion, I wrote the Justice
Department to get additional documents and conduct staff
interviews. It took nearly 4 months before the Department sent
a one-page response that denied my request. The Department did
not assert any legal privilege over the requested information,
but simply refused to comply with the request. That is not a
sufficient answer.
Health care legislation was passed by the Senate on
December 24, 2009. On January 8, 2010, Ms. Kagan told the
Deputy Solicitor General that she definitely would like the
Office of the Solicitor General to be involved in preparations
to defend against challenges to the pending health care
proposals. Ms. Kagan found out she was being considered for a
potential Supreme Court vacancy on March 5, 2010. So the issue
is how involved was she in health care discussions between
January 8 and March 5. Just as President Nixon had an 18 and a
half minute gap, does Ms. Kagan have a 2-month gap?
The Office of the Solicitor General is responsible for
defending the positions of the Federal Government in litigation
before the Supreme Court. So it was the duty of then-Solicitor
General Kagan to participate in meetings and discussions
regarding the legal defense strategy for the President's health
care proposal. It would have been a surprising departure from
her responsibilities for Solicitor General Kagan not to advise
the Administration on the health care bill. The law clearly
states that Justices must recuse themselves if they
``participated as counsel, advisor or material witness
concerning the proceeding, or expressed an opinion concerning
the merits of the particular case'' while they worked in a
government capacity.
The public has a right to know the extent of Justice
Kagan's involvement with the legislation as well as any
previously stated legal opinions about the legislation while
she served as Solicitor General. The NFL would not allow a team
to officiate its own game. If Justice Kagan was part of the
Administration's team that put the health care mandate into
play, she should not officiate when it comes before the Supreme
Court.
If the Department has nothing to hide, why not provide
Congress with the requested information? The continued refusal
to cooperate with legitimate oversight inquiries only heightens
concerns that she may, in fact, have a conflict of interest.
President Obama has promised an open and transparent
government. Unfortunately we often see a closed and secretive
Justice Department.
I know all Members of the Committee look forward to asking
questions on these and other issues.
I now recognize the gentleman from Michigan, the Ranking
Member of the Judiciary Committee, Mr. Conyers.
Mr. Conyers. Thank you, Chairman Smith, and a hearty
welcome to not only the Attorney General of the United States
Eric Holder, but as well to a--well, this is the most numerous
number of police chiefs and Department of Justice officials
that I have seen in this room at one time in quite awhile. All
of them, but particularly to the Detroit police chief Ralph
Godbee who is here, I send a special welcome.
Now, Chairman Smith, would it be appropriate that our
colleague, a former Member of the Committee, Adam Schiff of
California sit on the dais with us?
Mr. Smith. Mr. Conyers, we normally don't do that, but in
this case we would be very pleased to have the gentleman from
California Mr. Schiff sit up at the dais with us. We do have a
policy that non-Members of the Committee will not be able to
ask questions, but we certainly welcome his presence up here.
Mr. Conyers. I thank you for that courtesy.
Adam, come on up.
Mr. Smith. If he can find room.
Mr. Conyers. There are two parts to my comments this
morning, Members of the Committee. The first deals with what
are the problems underlying the reason for the hearing, and the
second deals more specifically with the career and
contributions of the Attorney General of the United States. And
I have the privilege of putting these solutions that I would
like to you consider in my opening statement. We can go over
the details ad nauseam if you would like, but I would refer
everyone to the November 8, 2011, hearings in the United States
Senate Committee on the Judiciary in which Chairman Pat Leahy
with more than a dozen Senators on that Committee have plowed
through this. And I have been going over and over it for the
last couple days, but I think you want to have that as a basis
for anybody that is particularly interested.
Now, the problem of gun trafficking in the Southwest is a
serious problem, and I recommend to my Judiciary Committee
colleagues, with whom this whole subject matter is the
jurisdiction of this Committee, that we commit to maintaining
the new rule requiring the reporting of multiple sales of
semiautomatic weapons and shotguns, rifles by individuals in
the Southwest Border States. There have been a number of
programs that have dealt with this subject, but I think that
that is probably number one on my recommended list.
Secondly, we must see to it that we confirm a Director of
Alcohol, Tobacco & Firearms. It has been operating under Acting
Directors for the last 5\1/2\ years. The Senate has failed to
act on the nominations not only of the current President, but
of President Bush as well. So if we are going to criticize ATF,
I think we must work to revitalize it, not to tear it down,
because it is too important a source of protection and a way of
ending violence in this important part of our country.
And last, we must enact some legislation to prohibit gun
trafficking. The transfer of multiple guns when we know they
will be transferred to those who are legally prohibited from
carrying a gun or people who intend to use guns illegally must
be further prohibited by legislative and congressional action.
I commend our New York colleague Carolyn Maloney, who has
sponsored a very good idea in this regard.
And so I conclude, Mr. Chairman and Members, by telling you
I have never encountered an Attorney General more dedicated and
more professionally effective than the current occupant of that
chair, Eric Holder, who has achieved impressive results across
the full range of his mission, especially what has happened in
the Civil Rights Division. And I think that the questions today
here are appropriate. I think the hearing is fair. I think we
have a Chairman that will make sure we proceed in a manner that
will make us all proud that we attended and participated in
this hearing today.
But we also know that letting guns roam around this country
is something that all of us have a great responsibility to make
sure that that is diminished or comes to an end as soon as
possible. And I thank you, Mr. Chairman, for this opportunity.
Mr. Smith. Thank you, Mr. Conyers, for those comments.
The gentleman from California, Chairman of the Oversight
and Government Reform Committee, is recognized for an opening
statement.
Mr. Issa. Thank you, Mr. Chairman. And I would first like
to ask unanimous consent that the following document be placed
in the record. December 7, an article by Sharyl Attkisson
entitled ``Documents: ATF used `Fast and Furious' to make the
case for gun regulations.''
Mr. Smith. Without objection, it will be made a part of the
record.
[The information referred to follows:]
__________
Mr. Issa. Thank you, Mr. Chairman. I thank you for holding
this hearing. It is deja vu all over again. We are beginning
the process of getting to the bottom, to the truth of Fast and
Furious.
I take exception to my colleague on the other side of the
aisle Mr. Conyers. What is too important is the Second
Amendment. The idea that regulations without any approval of
Congress had been added to create databases in the Southern
Southwestern States, including California, Arizona, Mexico--New
Mexico--Texas and New Mexico, clearly shows, in fact, this
Administration is more interested in building databases, more
interested in talking about gun control than actually
controlling the drugs and guns that they had control over.
Whether it is money laundering, or, in fact, it is the flow of
guns knowingly, just one individual was allowed to buy, under
the auspices of the Justice Department, 700 weapons, knowing
exactly who they were going to before they ever went.
Our discovery, with the help of Senator Grassley, has shown
that this was not an accident, and that this project was failed
and flawed from the beginning. It is not just ATF, it is not
just DEA; in fact, it includes the Department of Homeland
Security in a task force that obviously did not respect the
safeguards of the American people.
Brian Terry is dead today, in my opinion, because of this
failed program. But even today we will not hear Justice taking
responsibility. They will instead talk about the two guns that
were recovered. Yes, they were from Fast and Furious, but
ballistics are inconclusive. And yet this Justice Department is
not looking for a third weapon. They are not looking for who
killed Brian Terry while they try to have the plausible
deniability that Fast and Furious may not have been
responsible. That is reprehensible to the family suffering
under Brian Terry's needless murder.
Mr. Chairman, Fast and Furious began in November 2009. It
was a new operation building on a failed operation under the
previous Administration. The difference in the previous
Administration is there was coordination with the Mexican
Government. They made a real effort under Wide Receiver to pass
off a small amount of weapons and track them. This program,
just the opposite; even knowing the drug cartels are going to
receive them, they simply allowed them to go to the stash
house.
Mr. Attorney General, today I hope you will not point
fingers and say that somehow this is not organic. There is
nothing more organic that a law enforcement officer being
gunned down because of a failure to protect within the
Department of Justice. There is nothing more organic in
Congress's responsibility than, in fact, following up on
Congress being lied to. My Committee just next door was
systematically lied to by your own representatives. There is a
highly likelihood an individual was deliberately duped, but he
was duped by people who still work for you today, still work
for you today.
The President has said he has full confidence in this
Attorney General. I have no confidence in a President who has
full confidence in an Attorney General who has, in fact, not
terminated or dealt with the individuals, including key
lieutenants, who from the very beginning had some knowledge and
long before Brian Terry was gunned down knew enough to stop
this program.
There has been recrimination. There has been an attempt to
find scapegoats. Many of the people who have been pointed to do
share in the blame. But, Mr. Attorney General, the blame must
go to your desk, and you must today take the real
responsibility. Why haven't you terminated the many people
involved? Why is it that we are still hearing about
inconsistencies that don't even take the correct responsibility
for Border Patrol agent Brian Terry's death? Those are the
things we want to hear today.
Mr. Attorney General, I respect the fact that you said in
the Senate that you gave truthful testimony, but I would like
to hear what--when a few days becomes a few weeks, or a few
weeks becomes a few months, are we to have the confidence that
the President says he has in you and the many people up and
down the chain of command at Justice who saw this program, this
operation and let it happen? And the many people who called
your legislative affairs representative, who is sitting right
behind you, caused him to bring false testimony to the
Committee. It is unheard of for testimony--or for letters or
testimony to be taken back. They have had to be taken back
because of people who still worked for Justice.
Mr. Chairman, I thank you for your indulgence, and I
appreciate the opportunity to speak here and would ask that
Blake Farenthold, a member of my Committee who has been
intimately involved in the investigation, also be allowed to
sit on the dais under the same terms as Mr. Schiff.
Mr. Conyers. Is he a Member of Congress?
Mr. Issa. He is a Member of Congress.
Mr. Smith. Mr. Issa, thank you.
Mr. Issa. He is a freshman from Texas. He is impacted by
these gun control regulations. He is an attorney.
Mr. Smith. I understand there is no room right now, but we
will consider that request in just a minute. As much as I would
like to have a Texas colleague up at the podium----
Mr. Issa. You got a few, but he is a good one.
Mr. Smith. He is not a former Member of the Judiciary
Committee, though. We certainly appreciate his expertise on
this subject. So let us wait until we have room, and we will
take it up at that point.
Mr. Issa. I thank the gentleman.
Mr. Smith. The gentleman from Virginia Mr. Scott, the
Ranking Member of the Crime Subcommittee, is recognized for an
opening statement.
Mr. Scott. Thank you, Mr. Chairman. And I join my
colleagues in welcoming the Attorney General this morning. I
understand that the invitation to the Attorney General to
appear this morning specifically referenced gun trafficking in
the southwest border, so today we have an opportunity to
discuss with him the positive steps we must take to protect our
citizens from illegal firearms.
I am heartened that this Attorney General recognizes that
the smartest and most effective way to protect ourselves from
crime is to prevent it from occurring in the first place. With
respect to preventing firearm violence, there are steps that we
can take to reduce the toll of the injured and murdered. And
there are steps that we must take in order to enhance the
ability of law enforcement to effectively investigate gun
crimes that have already occurred.
I note, as it is often said around here, that the best
strategy to use when you are in a hole is to stop digging.
Unfortunately this Committee approved and the House passed a
dangerous bill that would override the laws of almost every
State by requiring each State to accept concealed handgun carry
permits--concealed handgun carry permits from other States,
even if the permit holder would not be allowed to carry or even
posses a handgun in his home State or the State where he is
traveling. Actions like this make the hole deeper and do not
make us safer. We in Congress can best take the steps to help
law enforcement prevent and investigate gun violence.
Specifically with reference to the problem of gun
trafficking on the southwest border, we know that the rule that
went into effect in August requiring the reporting of multiple
sales of certain assault weapons is an important tool to help
law enforcement fight the straw purchasing that fuels gun
trafficking. Unfortunately, while that rule was under
consideration, 21 members of this Committee voted last February
to prevent funds from being used to implement this important
reporting requirement. If that measure had been included in the
final version, the prohibition against that reporting
requirement had been included in the final version of the bill,
the ATF would not be receiving these reports today, and they
would be denied information which is helping them investigate
suspected straw purchasing.
The ATF has an important role in protecting us from the
dangers of illegal use and trafficking of firearms, the illegal
use and storing of explosives, and acts of arson and bombing.
We must make sure this agency is capable of fulfilling its
important mission, and it needs strong leadership. In that
light we need to encourage our Senate colleagues to confirm the
President's nominee to be Director of the ATF.
Finally, we have learned that we need to give prosecutors a
critical additional tool to fight gun trafficking. For example,
we need a statute that specifically prohibits the transfer of
multiple firearms into the hands of those legally ineligible to
possess them and to those who intend to use them to commit
crimes. I hope this Committee will take action on legislation
in this area in the near future.
These are things we need to do to address the real problem,
and those who want to focus on Operation Fast and Furious and
gun-walking tactics that it employed, I will just note that
these tactics originated in the ATF investigations under the
Bush administration. And a November 16, 2007, memo refers to
the fact that so-called gun walking was already occurring in
the Bush administration. In contrast, there is no evidence that
Attorney General Holder knew of these tactics while they were
being used, and he should be praised for consistently saying
that they were unacceptable and referring this matter to the
inspector general soon after he learned about them.
So I thank the Attorney General for appearing here today,
and I look forward to his testimony.
I yield back.
Mr. Smith. Thank you, Mr. Scott.
We are pleased to welcome today's witness, United States
Attorney General Eric H. Holder, Jr. On February 3, 2009,
Attorney General Holder was sworn in as the 82nd Attorney
General of the United States.
Attorney General Holder has enjoyed a long and
distinguished career in public service. First joining the
Department through the Attorney General's Honors Program in
1976, he became one the Department's first attorneys to serve
in the newly formed Public Integrity Section. He went on to
serve as a judge of the Superior Court of the District of
Columbia and a U.S. attorney for the District of Columbia.
In 1997, Mr. Holder was named by President Clinton to be
the Deputy Attorney General. Prior to becoming Attorney
General, Mr. Holder was a litigation partner at Covington &
Burling, LLP, in Washington, D.C.
Mr. Holder, a native of New York City, is a graduate of
Columbia University and Columbia Law School.
Again, we welcome you and look forward to your testimony.
Mr. Issa. Mr. Chairman? Mr. Chairman? I would move that the
witness be sworn.
Mr. Smith. I am going to ask that the gentleman withdraw
that for two reasons. First of all, the Attorney General did
receive a letter from the Committee reminding him of the need
and, in effect, that he is testifying under oath. And two, we
don't need to go through that necessarily because that is
assumed by anybody who does testify before the Committee.
Mr. Issa. Point of inquiry, Mr. Chairman. Isn't it true
that a false statement to Congress bears a different criminal
violation than a sworn statement?
Mr. Smith. I believe the answer to that is yes.
Mr. Issa. Then I would once again ask, since this Committee
has at times sworn witnesses, as have all the Committees, that
in light of----
Mr. Smith. If the gentleman would yield.
Mr. Issa. Of course.
Mr. Smith. I misunderstood the question, and the answer was
no. So it is deemed as if he is under oath right now, any
witness.
Mr. Issa. So he is exactly the same as if he swears under
our rules.
Mr. Smith. That is correct.
Mr. Issa. Then I withdraw.
Mr. Smith. Okay. I thank the gentleman.
If the Attorney General will proceed.
TESTIMONY OF THE HONORABLE ERIC H. HOLDER, JR., ATTORNEY
GENERAL, U.S. DEPARTMENT OF JUSTICE
Attorney General Holder. Thank you, Mr. Chairman.
Chairman Smith, Ranking Member Conyers and Members of the
Committee, I appreciate the opportunity to appear before you
today to describe the decisive action that we have taken to
ensure that the flawed tactics used in Operation Fast and
Furious and in earlier operations under the prior
Administration are never repeated.
For nearly 3 years I have been privileged to work with this
Committee to strengthen national security and to strengthen law
enforcement, and I am extremely proud of our record of
achievement. In offices around the world, the Department's
117,000 employees have made historic progress in protecting the
American people from a range of unprecedented threats, from
global terrorism and violent crime to financial fraud, human
trafficking and more. We have disrupted numerous, potentially
devastating terrorist plots and successfully prosecuted scores
of dangerous terrorists.
The Department's efforts on behalf of the most vulnerable
among us, including victims of civil rights abuses and hate
crimes, have never been more effective. The partnerships that
we have built with State, local and tribal law enforcement
officials have never been stronger.
Today it is a privilege to be joined by several of our key
public safety partners. These five police executives, Chief
Fred Bealefeld of Baltimore, Commissioner Ed Davis of Boston,
Chief Rodney Monroe of Charlotte, Chief Ralph Godbee of
Detroit, and Commissioner Charles Ramsey of Philadelphia, have
been leaders in developing and implementing innovative and
effective crime-prevention strategies. They have also worked
closely with the Department in advancing critical efforts to
reverse the alarming rise in law enforcement fatalities in
recent years.
The work that we do along the southwest border is
influenced by the efforts that they have undertaken in their
own cities. In the cities that they serve and in communities
across the country, this work is a priority. And in our ongoing
efforts to protect the American people and our brave law
enforcement personnel, a critical area of focus will continue
to be our battle against gun violence on the southwest border.
Now, in recent years the Department has devoted significant
resources to this fight, and specifically to addressing the
unacceptable rate of illegal firearms trafficking from the
United States to Mexico. Unfortunately, in the pursuit of that
laudable goal, unacceptable tactics were adopted as part of
Operation Fast and Furious.
Now, as I have repeatedly stated, allowing guns to walk,
whether in this Administration or the prior one, is wholly
unacceptable. The use of this misguided tactic is inexcusable,
and it must never happen again.
Soon after learning about the allegations raised by ATF
agents involved with Fast and Furious, I took action designed
to ensure accountability. In February, I asked the Department's
acting inspector general to investigate the matter, and in
early March I ordered that a directive be sent to law
enforcement agents and prosecutors prohibiting such tactics.
More recently the new Acting Director of ATF Todd Jones
implemented reforms to prevent these tactics from being used in
the future, including training and stricter oversight
procedures for all significant investigations.
Now, although the Department has taken steps to ensure that
such tactics are never used again, it is an unfortunate reality
that we will continue to feel the effects of this flawed
operation for years to come. Guns lost during this operation
will continue to show up at crime scenes on both sides of the
border.
As we work to identify where errors occurred and to ensure
that these mistakes never happen again, we must not lose sight
of the critical challenge that this flawed operation has
highlighted, and that is the battle to stop the flow of guns to
Mexico. Of the nearly 94,000 guns that have been recovered and
traced in Mexico in the last 5 years, more than 64,000 were
sourced to the United States. During this time the trafficking
of firearms across our southwest border has contributed to
approximately 40,00 deaths in Mexico.
Now, the reforms that we have undertaken do not make any of
the losses of life more bearable for grieving families. These
tragedies do, however, portray in very stark terms the
exceptionally difficult challenges that law enforcement
agencies confront every day in working to disrupt illegal
firearms transfers. Operation Fast and Furious appears to have
been a deeply flawed effort to respond to these very
challenges.
As we work to avoid future losses and further mistakes, it
is unfortunate that some have used inflammatory and
inappropriate rhetoric about one particular tragedy that
occurred near the southwest border in an effort to score
political points. Nearly 1 year ago, while working to protect
his fellow citizens, U.S. Customs and Border Protection agent
Brian Terry was violently murdered in Arizona. We all should
feel outrage about his death. And as I have communicated
directly to Agent Terry's family, we are dedicated to pursuing
justice on his behalf.
The Department is also working to answer questions that the
Terry family has raised, including whether and how firearms
connected to Fast and Furious end up with Mexican drug cartels.
In her independent review I expect the Department's acting
inspector general to answer these questions.
I understand that Congress also wants answers. Justice
Department employees have been working tirelessly to identify,
to locate and to provide relevant information to this Committee
and to the two other Committees that are investigating Fast and
Furious, all while preserving the integrity of our ongoing
criminal investigations and prosecutions.
The Department has been fully cooperative and responsive in
its dealings with this Congress. I have answered questions in
the House and the Senate on four occasions concerning this
matter. To date we have provided almost 5,000 pages of
documents for congressional investigators to review. We have
scheduled numerous witness interviews and testified at public
hearings. Just last week we provided an unprecedented access to
internal deliberative documents to explain how inaccurate
information was initially conveyed to Congress.
Now, these documents demonstrate Justice Department
personnel relied on information provided by supervisors from
the components in the best position to know the relevant facts.
We now know that some information provided by those supervisors
was inaccurate. I understand that in subsequent interviews with
congressional investigators, these supervisors have stated that
they did not know at the time that information provided in the
letter to congressional leaders earlier this year was
inaccurate.
The documents produced to date also belie the remarkable
notion that this operation was conceived by Department leaders,
as some have claimed. It is my understanding that Department
leaders were not informed about the in appropriate tactics
employed in this operation until those tactics were made public
and, as is customary, turned to those with supervisory
responsibility over the operation in an effort to learn facts.
But what is clear is that disrupting the dangerous flow of
firearms along the southwest border and putting an end to the
violence that has claimed far too many lives is, and will
continue to be, a top priority for this Department of Justice.
This year alone we have led successful investigation into the
murders of United States citizens in Mexico, created new
cartel-targeting prosecutorial units, and secured the
extradition of more than 100 defendants wanted by the United
States law enforcement, including the former head of the
Tijuana cartel.
We have also built crime-fighting capacity on both sides of
the border by developing new procedures. We are using evidence
gathered in Mexico to prosecute gun traffickers in U.S. courts
by training thousands of Mexican prosecutors and investigators,
by successfully fighting to enhancing sentencing guidelines for
convicted traffickers and straw purchasers, and by pursuing
coordinated multidistrict investigations of gun-trafficking
rings.
Now, despite this progress we have more to do. Each of us
has a duty to act and to rise above partisan divisions and
politically motivated ``gotcha'' games. The American people
deserve better. It is time for a new dialog about these
important issues, one that is respectful, responsible and
factual. This will require us to apply the lessons that we have
learned from law enforcement officers like the ones who sit
behind me today, who protect public safety and our national
security every day.
In that regard not only did ATF agents bring the
inappropriate and misguided tactics of Operation Fast and
Furious to light, they also sounded the alarm for more
effective laws to combat gun trafficking and improve public
safety. The ATF agents who testified before the House Committee
on Oversight and Government Reform this summer explained that
the agency's ability to stem the flow of guns from the United
States into Mexico suffers from a lack of effective enforcement
tools.
One critical first step should be for Congress to provide
ATF with the tools and the authorities that it needs.
Unfortunately, earlier this year the majority of House Members
voted to keep law enforcement in the dark when individuals
purchase multiple semiautomatic rifles, shotguns and long guns
like AK-47s in gun shops in four Southwest Border States.
Going forward, I hope that we can work together to provide
law enforcement agents with the tools that they desperately
need to protect the country and to ensure their own safety. And
for their sake we cannot afford to allow the tragic mistakes of
Operation Fast and Furious to become a political sideshow or a
series of media opportunities. Instead we must move forward and
recommit ourselves to shared public safety obligations. I am
willing to work with you in this effort.
I look forward to your questions.
Mr. Smith. Thank you, Mr. Attorney General.
[The prepared statement of Mr. Holder follows:]
__________
Mr. Smith. Other Members are going to ask you about Fast
and Furious, so I am going to pick a different subject and ask
you about the extent of Justice Kagan's involvement with the
health care legislation.
My first question is this: To your knowledge, did then-
Solicitor General Kagan ever give advice or express an opinion
on legal or constitutional issues involving the health care
legislation?
Attorney General Holder. I do not believe so. In fact, as I
testified in the Senate last month, I guess, we took steps to
physically exclude or have her remove what conversations----
Mr. Smith. What month did that take place? When did you
start excluding her from those types of meetings?
Attorney General Holder. I am not sure when that started,
but my memory is that whenever we had conversations about the
health care bill, then-Solicitor General Kagan was not present.
Mr. Smith. And the reason for excluding her was because of
her possible consideration for the Supreme Court?
Attorney General Holder. Yeah, I think that is right. We
understood that that was a possibility.
Mr. Smith. She testified that she first became aware of
that possibility that she might be considered in early March,
so you would not have excluded her prior to early March.
Attorney General Holder. Again, I don't know exactly when
these events occurred, but I do feel comfortable in saying that
in terms of conversations that occurred in my conference room
about the health care legislation----
Mr. Smith. Right, right. But would you have had any reason
to exclude her, any reason to wall her off in the words that
you were told by a deputy prior to the time that she was
considered for the Supreme Court?
Attorney General Holder. Well, I can tell you that with
regard to, as I said, the conversations that occurred in my
conference room about the health care bill, I do not remember
her being present for any of them.
Mr. Smith. Okay. Would you be able to check your records to
find out what the date would have been when you started telling
her that she should either excuse or recuse herself from those
discussions?
Attorney General Holder. We will attempt to do that. I am
not sure that that information exists anyplace, but to the
extent that it does, I will provide it to you.
Mr. Smith. Okay. And would you have a record of any
meetings, because of your schedule, that she attended?
Attorney General Holder. Would I have a record?
Mr. Smith. Right, of any meeting that she attended. Because
if you went back and looked at your schedule, I assume that
that would be on your schedule.
Attorney General Holder. Yeah. The schedule for what is our
9/15 meeting lists the people who are expected to be there. I
am not sure if we actually keep track of who actually does
come.
Mr. Smith. If you will give me the dates when you started
telling her that. Again, I don't believe you would have any
reason to exclude her before she was being considered for the
Supreme Court vacancy. And as I mentioned in my opening
statement, she would actually have a duty to be involved in
conversations regarding the health care bill.
Let me go to another question. This goes to some of the
correspondence that I had written you asking for documents and
to be allowed to interview both present and former staff
members. But is the Department asserting a legal privilege in
refusing to comply with my request for those documents and
those interviews about then-Solicitor General Kagan's
involvement with the health care legislation?
Attorney General Holder. Well----
Mr. Smith. You know your letter to me did not assert any
legal privilege.
Attorney General Holder. Yeah. The Department has released
documents under FOIA relating to this matter, and those
documents are certainly available to Members of the Committee.
The documents that we have released are consistent with----
Mr. Smith. I am not asking about the documents. Are you
asserting a legal privilege; is that why you are refusing to
give me those documents?
Attorney General Holder. Well, it is our view that in terms
of trying to determine the answers to the questions that you
have, that with regard to recusal questions, those are requests
best brought by those who were involved in the context of the
litigation.
Mr. Smith. Right. So you are not asserting any legal
privilege.
Attorney General Holder. Well, there are, it seems to me,
separation of powers concerns given the fact that Members of
Congress are amici--amicus, amici in the ongoing legislation,
and so I would have concerns there with regard to separation of
powers.
Mr. Smith. What would be the legal privilege you are
asserting if you assert one then?
Attorney General Holder. Well, all I am saying is that with
regard to the information that is requested, it has been
provided.
Mr. Smith. Okay. So again, you are not asserting a legal
privilege. Is there any reason, therefore, I should not get the
documents or be able to interview the individuals that I
requested to interview?
Attorney General Holder. Well, as I have said, that the
Federal law provides for the resolution of these recusal
questions, and each Justice has to make those kinds of----
Mr. Smith. Right. I am not taking about recusal questions
or what a Supreme Court Justice might or might not do. I am
talking about my request for documents. I can't imagine any
good reason why you would withhold them, unless you were to
assert a legal privilege, and then we could discuss a legal
privilege. But I haven't heard you say you are asserting any
legal privilege.
Attorney General Holder. Well, the documents I think that
you have requested have essentially been released under a FOIA
that has been filed, and those documents are available.
Mr. Smith. No, the documents that I requested may or may
not have been released. That is what we are trying to find out
is what other documents might exist. We also requested to
interview two individuals, and you have not agreed to let us
interview those individuals. But if you are not asserting a
legal privilege, then I will move forward with scheduling those
interviews and look forward to the documents.
Attorney General Holder. Well, we have not expressed, I
guess, at this point a legal privilege. What we have expressed,
as I indicated before, are constitutional concerns about the
nature of the request.
Mr. Smith. I know, but concerns don't rise to the level of
a legal privilege. We all have concerns about a lot of
subjects. I have expressed some of my concerns today. But if
you are not going to assert a legal privilege, then I don't see
any reason why I shouldn't get those documents and conduct
those interviews. Thank you for that.
The gentleman from Michigan Mr. Conyers is recognized for
his questions.
Mr. Conyers. Thank you, Mr. Chairman.
You have got here Chief Ralph Godbee, lots of other police
chiefs and law enforcement people behind you. Would you tell us
how you partner with them to fight violent crime and
particularly gun running with State and local police officers
who are on the front lines, sir?
Attorney General Holder. Well, the gentlemen who sit behind
me and the people who they represent are essential partners in
our fight against violent crime generally and against gun
violence in particular.
The Federal Government relies on our State and local
partners, who are obviously in the front lines in this fight.
We try to support them in ways that we can, we try to come up
with programs that protect their lives, but the reality is that
in coming up with--and that is why I think these five gentlemen
are so good to have here today. They are the ones who have come
up with really innovative programs that we have tried to
support and then tried to expand across the Nation. They are,
first and foremost, great partners in this fight, and what they
are doing in their cities are things that we are trying to
replicate not only in other cities, but in the work that we are
doing along the southwest border as well.
Mr. Conyers. Thank you.
Tell me where is the Mexican Government in all of this gun
running, and violence, and drug epidemics that goes on that
usually starts in Mexico, but eventually gets to the U.S. and
Southwest area? What is the Mexican Government's role and
attitude? How do you work with them?
Attorney General Holder. They have also been good partners.
President Calderon has, I think very courageously, committed
his government to fight the cartels. He has done so in a way
that has done, I think, at great political cost. It has
certainly cost the lives of many Mexican law enforcement
officials who have been a part of this battle. Forty thousand
people in Mexico have lost their lives over the course of the
last 5 years in connection with this fight.
The Mexican Government is committed to eradicating the
cartels. We have worked with them in unprecedented ways in
terms of extraditing people to the United States in
cooperation, in sharing intelligence, and working with vetted
units in Mexico. We have moved resources to the southwest
border and have linked up with task forces with our Mexican
partners.
So our interaction with the Mexican Government in dealing
with these cartels is really unprecedented.
Mr. Conyers. Well, I mentioned several things that we
really ought to do in terms of getting on top of not just the
drug--the gun smuggling and gun walking, but the drug problem
as well. And you are our chief law enforcement officer in the
Nation. I know you are relying on State and local law
enforcement as well, but what are the big issues? What is the
big picture in terms of what it is we might want to consider in
the Congress to help get on top of this and to help you and the
Department of Justice get on top of not only the drugs, but the
guns as well?
Attorney General Holder. Well, I think there are certain
things that would be very helpful. There is no gun-trafficking
statute now or even an express prohibition on straw purchasing.
If Congress would consider legislation in that regard, I think
that would be--that would be good. We have to rely now on
paperwork violations to try to get at gun traffickers, and the
sentences that are typically given for those kinds of technical
violations are far too low for the serious nature of the
crimes.
It is far too easy for criminals to get their hands on
weapons. Congressional support for the regulation that we put
in place along those--in those four Border States to deal with
the long guns, the long guns that can be purchased there, a
regulation that is consistent with what we already do with
regard to handguns is something that congressional support
would be important for.
So the possibility of having ways in which we could have a
good dialogue about effective measures that would reduce the
flow of guns to Mexico, make this Nation more safe, protect the
lives of people in law enforcement in this country, and respect
the Second Amendment at the same time is something that I think
a meaningful good dialogue with Members of the Committee would
be very productive.
Mr. Conyers. I am glad you mentioned the Second Amendment
so that my friend and colleague Darrell Issa won't be nervous
about the other strategies that you will be using.
Mr. Issa. I will still be nervous.
Mr. Conyers. I thank you very much, General Holder, and I
return the balance of my time.
Mr. Smith. Thank you, Mr. Conyers.
The gentleman from Wisconsin Mr. Sensenbrenner is
recognized for his questions.
Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
Mr. Holder, I deeply appreciate your coming here to talk
largely about Fast and Furious, and the way this has been
handled within the Justice Department, I think, has put the
Justice Department as an institution under a cloud that has not
been exceeded since the infamous COINTELPRO scandal of the
1970's.
You are at the top of the Justice Department. Do you think
the buck stops with you?
Attorney General Holder. I am ultimately responsible for
all of the actions that occur within the Department, but I
think as you look at what happened with regard to Fast and
Furious and try to decide what kind of performance I have done
in this regard, I think you have to look at what happened, what
I did once I learned of these matters.
Mr. Sensenbrenner. Well, that is a question of when you
learned it, because there have been inconsistent submissions to
Congress. You know, you yourself testified that you had only
heard about it a few weeks earlier, and then in November you
said it probably was a few months. As late as October 7, in
response to allegations that you lied on May 3, you wrote to
Congress your statements on Fast and Furious have been, quote,
``truthful and consistent.'' And then your underlings on
February 4, Assistant AG Ronald Weich, responded to Senator
Grassley denying that the ATF had walked guns, and that letter
ended up being withdrawn.
As Mr. Issa has said, lying to Congress is a Federal
felony. You know, I don't want to say that you have committed a
felony, Mr. Attorney General, but obviously there have been
statements so misleading that a letter had to be withdrawn.
You know, I think that some heads should roll. And I do
agree with Senator Grassley that Assistant Attorney General for
the Criminal Division Lanny Breuer should be fired. And I know
that that decision is not yours, but it is the President's, but
I think that merely getting the head of the ATF Director at the
time is not sufficient since it is obvious that there was
knowledge within the Justice Department.
What are you going to do to clean up this mess?
Attorney General Holder. Well, first let me make something
very clear, and in response to an assertion that you made, or
hinted at, nobody in the Justice Department has lied.
Mr. Sensenbrenner. Then why was the letter withdrawn?
Attorney General Holder. The letter was withdrawn because
there is information in there that was inaccurate. The Justice
Department letter of February 4----
Mr. Sensenbrenner. Okay. Well, tell me what is the
difference between lying and misleading Congress in this
context.
Attorney General Holder. Well, if you want to have this
legal conversation, it all has to do with your state of mind
and whether or not you had the requisite intent to come up with
something that can be considered perjury or a lie.
The information that was provided in that February 4 letter
was gleaned by the people who drafted the letter after they
interacted with people who they thought were in the best
position to have the information.
Mr. Sensenbrenner. Well, okay. The wagons down the street
are in a pretty tight circle, you know, Mr. Attorney General.
The American people need the truth. They haven't gotten the
truth from what has been coming out of the Justice Department
in the last year, and they were relying on Congress to get the
truth. Now, you are here today, and, again, I appreciate your
being here today as a way to get the truth, but the answers
that you have given so far are basically saying, well, gee,
somebody else did it, and, you know, there is really no
responsibility within the Justice Department.
You know, the thing is is that if we don't get to the
bottom of this, and that requires your assistance on that,
there is only one alternative that Congress has, and it is
called impeachment, where our subpoena powers are plenary, and
there can't be any type of legal immunity or privilege that can
be asserted on that. Now, you know, I have done more
impeachments than anybody else in the history of the country.
It is an expensive and messy affair, and I don't want to go
this far, but if we keep getting pushed down the road, and the
can keeps on getting kicked, and we don't get closure to this,
what is Congress to do so that we don't spend all of our time
in court arguing privilege, which is not a way to get at the
truth?
Attorney General Holder. Well, the Justice Department has
released facts, and I think that is what we need to focus on,
facts. As part of the creation of the February 4 letter, I made
the determination that we would release things that a Justice
Department has never, ever released before, deliberative--core
deliberative material about how that letter was put together,
information that clearly could have been withheld and has
always been withheld by my predecessors, and I expect by my
successors as well.
Getting to the bottom of this is something that we all want
to do. The inspector general, pursuant to my request, is
conducting an investigation of this matter, and I suspect we
will have a great many more answers than we presently do. I
don't have the ability to do a top-to-bottom investigation at
this point out of deference to the investigation that is being
done by the inspector general. That does not, however, preclude
me from taking action that I think appropriate based on
information that comes to my attention in spite of the fact
that the inspector general has an ongoing investigation.
Mr. Sensenbrenner. Well, you won't have an independent
counsel, and we end up having the Justice Department
investigating itself in the absence of an independent counsel.
And, you know, having gone through interminable hearings on
COINTELPRO, with all due respect, Mr. Attorney General, you
have got to get this done much more quickly than plugging the
holes that COINTELPRO ended up showing existed in the
Department at that time.
I yield back.
Ms. Jackson Lee. Mr. Chairman, I have a parliamentary
inquiry.
Mr. Smith. For what reason what does the gentlewoman from
Texas seek to be----
Ms. Jackson Lee. I seek clarification. The gentleman in his
questioning indicated impeachment. I was not sure which
official or which person he was speaking of in terms of
impeachment.
Mr. Smith. The gentleman from Wisconsin was referring to
the fact that while he was Chairman of this Committee, he
oversaw the impeachment process.
Ms. Jackson Lee. Continuing my inquiry. The statement that
the only one alternative is impeachment, I am trying to----
Mr. Smith. That is not a parliamentary inquiry.
The gentleman from California Mr. Berman is recognized.
Ms. Jackson Lee. Clarification.
Mr. Berman. Thank you, Mr. Chairman. I would like to yield
a little time to the Ranking Member on this issue.
Mr. Conyers. Thank you, Howard Berman.
I merely wanted to clear the record with Jim Sensenbrenner.
I have had far more impeachment experience than he has.
Mr. Sensenbrenner. Would the gentleman yield?
Mr. Berman. The answer is only if the Chairman allows my
time to be extended.
Mr. Smith. The gentleman from California recognized for a
full 5 minutes, that is correct.
Mr. Berman. Thank you, Mr. Chairman.
We have heard a lot, some of it quite unbelievably
overblown. I would like to give you some of the truth as I see
it.
You are on record as admitting that the Fast and Furious
program was a fundamentally flawed program. Fast and Furious is
only one program in many undertaken by the U.S. law enforcement
authorities not only to limit the harm of illegal gun
trafficking, but also, most importantly, achieve the broader
goal of protecting U.S. and Mexican citizens.
There has got to be a little perspective on what is going
on in the U.S.-Mexico relationship on this issue. Once
President Calderon made the historic decision to take the fight
directly to the drug cartels, law enforcement both in Mexico
and the United States became more complicated and more
dangerous. And the fact is--and I see it from a Foreign Affairs
Committee perspective as well as from this perspective--that
U.S.-Mexico law enforcement cooperation and general cooperation
is wider and deeper today than it has ever been in the history
of our two nations.
The Department of Justice has apprehended and extradited an
unprecedented number of criminals, including some of the most
dangerous cartel leaders. They have successfully investigated
violent crimes committed against American nationals in Mexico
and along the border. They have trained hundreds of Mexican
prosecutors and police officers, many of whom work side by side
with U.S. counterparts on these shared goals. The level of
intelligence sharing and cooperation is unprecedented at this
particular time.
We also have to acknowledge the negative impact caused by
the significant stream of guns going into Mexico from the
United States. Every day thousands of guns are smuggled across
the United States border into Mexico, making citizens of Mexico
and the United States less safe. The U.S. Southwest Border
States, Texas, New Mexico, Arizona and California, are the top
four source locations for firearms received and traced in
Mexico back to the United States.
General Holder, I am wondering if you could develop--I
think you got into this a little bit with Ranking Member
Conyers--what could the Congress be doing in terms of funding,
in terms of passing laws to help make this a successful
endeavor? I would like you to just expand on some of those
specific issues. Are we giving you the resources you need to
make this cooperation produce the goal that both countries'
governments share?
Attorney General Holder. Well, frankly, no.
We have sought additional legislative enhancements to our
abilities to deal with the gun trafficking problem, as I
indicated to the Ranking Member. We have also sought funds to
increase the number of ATF agents who operate in these teams
along the Southwest border. I think we requested funds so that
we would have 14 of these teams. That number was reduced, based
on the funding level that we got, to about seven or eight, I
believe, which decreased our ability to act or interact
effectively or as effectively as we might with our Mexican
counterparts.
So there are funding issues, there are issues with regard
to the confirmation of an ATF Director, a permanent ATF
Director. There are legislative statutory tools that we could
use from Congress and that we have proposed. All of these
things would help us in our fight against the gun trafficking
problem that you have I think so rightfully identified.
Mr. Berman. The only thing I guess I would just close with
the simple statement that as we pursue responsibly our
oversight responsibilities on a program that you have stated
was fundamentally flawed, that we keep in mind our obligations
as a Congress to help something that I think there is a broad
consensus must continue, must expand, and must achieve the
goals that our two governments are committed to, and to have
some perspective on what is going on. That perspective seems to
have been lost in some of the rhetoric that has come in recent
months.
Mr. Issa. Would the gentleman yield?
Mr. Berman. I yield back.
Mr. Issa. Would the gentleman yield?
Mr. Berman. Do I have time to yield?
Mr. Issa. You do.
Mr. Smith. The gentleman has 5 seconds left.
Mr. Berman. I yield.
Mr. Issa. I would just make the point that Fast and Furious
is not a program. We have been repeatedly told it is less than
a program; it is just an operation, just an operation.
Mr. Smith. The gentleman is recognized for an additional 30
seconds.
Mr. Berman. I take your point. I just don't quite
understand it.
Mr. Issa. Just that when we try to----
Mr. Smith. The gentleman from California has the time.
Mr. Issa. Would the gentleman continue to yield?
I thank the gentleman. The point that I am making is there
is a wide question of a lot of things that go on at Justice.
And I agree with the gentleman that we need to look at the
overall management of Justice. But this small operation and the
refusal to give us the truth early on has caused it to be a
bigger----
Mr. Berman. I appreciate the time. I also would love to
hear about Congress' agenda to make this cooperation truly as
effective as it could be, funding, the legislation regarding
the paper trail on guns and all the other things that the
General mentioned that we should be doing.
Mr. Smith. Thank you, Mr. Berman.
The Judiciary Committee will stand in recess until
immediately after this series of four votes. I do not expect to
take a lunch break. So when we return, we will proceed until
the next series of votes, about 1:15. We stand in recess until
after these votes.
[Recess.]
Mr. Smith. The Judiciary Committee will come to order. And
the gentleman from North Carolina, Mr. Coble, is recognized for
his questions.
Mr. Coble. Thank you, Mr. Chairman.
Good morning, General.
Attorney General Holder. Good morning.
Mr. Coble. General, the FBI, as you know, operates under
Attorney General guidelines for most or all of their
investigative activities. The objective of these guidelines is
the full utilization of all authorities in investigative
matters consistent with the Constitution and the laws of the
United States. It furthermore ensures that activities must be
lawful and reasonable, and respect liberty and privacy, and
avoid unnecessary intrusion into the lives of law-abiding
citizens. They enable the FBI to perform its duties with
effectiveness, certainty, and confidence. The purpose of these
guidelines, though it appears apparent, is to establish
consistent policies in such matters. General, does the ATF and/
or other Department of Justice law enforcement components
operate under these guidelines?
Attorney General Holder. There are general guidelines that
exist within the Department and that control the activities of
the various investigative agencies that are part of the
Department, the Marshals Service the DEA, the ATF, and the FBI.
There might be some that apply specifically to the FBI given
its unique mission with regard to counterterrorism and
intelligence that might not apply to the other components.
Mr. Coble. I think you may have already answered this one,
but are the guidelines identical investigative activities, or
may one agency do something that another cannot do under
similar circumstances? And if they differ, how do they differ
from the guidelines under which the FBI operates?
Attorney General Holder. There are general guidelines that
handle or control the way in which investigations are to occur.
For instance, if we are looking at Fast and Furious, those were
outside the guidelines certainly that apply to ATF, but they
would also be outside the guidelines that would apply to the
Drug Enforcement Administration, to the FBI as well. One of the
things that we have tried to do in this reform of ATF, and
under the leadership of Todd Jones, is come up with a whole set
of new policy changes and recommendation--and rules with
regards to how ATF itself can handle and conduct certain
investigations.
Mr. Coble. General, if I would have had two words to
describe Fast and Furious, it would be reckless at best, and a
disaster at worst. But firearms, I am told, sold under the Fast
and Furious program were included in ATF statistics on the
retail sale of firearms and related regulations. Now that we
know that ATF apparently skewed the statistics, particularly
about long gun sales, will these statistics be scrapped or
abandoned?
Attorney General Holder. I don't if that in fact is true,
but the 2,000 weapons or so that were involved in Fast and
Furious should not be counted as part of that overall number.
And to the extent that that is true, we would pull--I don't
know if that is true or not.
Mr. Coble. General, have you implemented any policy to end
programs such as Fast and Furious? And these changes, are they
permanent or temporary?
Attorney General Holder. Well, as I said, in addition to
the things that Todd Jones has put in place that deals with
certainly the problems that are I think most egregious about
ATF, he talks about the way in which surveillance has to occur
when you are monitoring trafficking, gun trafficking
operations, I released in March of this year a field directive
through the Deputy Attorney General that indicated that gun
walking, as we have come to call that practice, is prohibited,
and made sure that every agent in the Justice Department, every
prosecutor in the Justice Department understands that. So it is
clear that gun walking is not acceptable, was never acceptable,
but is certainly not acceptable after my policy pronouncement
in March of this year.
Mr. Coble. General Holder, earlier this year, August, I
believe, you named Todd Jones as the new director of ATF. This
appears irregular because he currently continues to serve as
U.S. Attorney for that area in Minnesota, while at the same
time--he is wearing two hats, in other words. Am I missing the
mark, or is this irregular?
Attorney General Holder. It is irregular. I mean, we have a
nominee, a very qualified person who could be the head of ATF.
I thought a management change was necessary at ATF. And in the
absence of a confirmed head, I had to go with who I thought was
best for the organization. Todd is a very experienced
prosecutor. He is a great U.S. Attorney.
But you are right; he is in fact wearing two hats. He is
working extremely hard. But I think he has made meaningful
changes at ATF. He has lifted morale. He has put in place a set
of regulations that would prevent the mistakes from the flawed
Fast and Furious operation I think from ever occurring again.
But you are right, it is irregular. And given my druthers, I
would rather have a confirmed, permanent head at ATF.
Mr. Coble. Thank you, General.
I see my red light has illuminated, so I will yield back.
Mr. Smith. Thank you, Mr. Coble.
Another gentleman from North Carolina, Mr. Watt, is
recognized for his questions.
Mr. Watt. Thank you, Mr. Chairman.
And Mr. Chairman, I had hoped the way my colleague from
North Carolina started his questioning, that we were going to
treat this as a general oversight hearing, which is the way my
memo said it was going to be, rather than an inquiry into one
single subject. So I want to spend my time asking about some
other things unrelated to Fast and Furious, because there are a
number of other important things going on in life.
And some of those things the Attorney General and his staff
have made tremendously good decisions about. One of those is to
have all these police chiefs sitting behind you today, one of
whom is from my hometown of Charlotte, North Carolina. And for
the Members on the Democratic side at least, they will
certainly get to know Chief Rodney Monroe when they come to
Charlotte for the Democratic National Convention. So I want to
applaud the work that he is doing to prepare us for that
significant national event.
Perhaps the police chief from Tampa is behind you also--I
don't know him--he will be doing that counterpart work for the
Republicans at the Republican National Convention. But that is
a massive, massive undertaking.
And I know that the Attorney General's Office, the
Department of Justice, Secret Service, all of the Federal
authorities are working well, based on everything I have heard,
to prepare for those big security events. And I want to say
publicly how much I applaud that.
Second, there are a number of things going on on an issue
that we are dealing with or trying to deal with in this
Committee dealing with online piracy. And we have some proposed
legislation. I won't ask you to comment on that. But I would
ask you to comment briefly on the extent of the problem and
briefly on what the Department of Justice is doing to try to
combat online privacy until we can get the bill passed. And I
say comment briefly, because I have got one other subject that
I want to get to related to redistricting, and voter
suppression, and the preclearance process under the Voting
Rights Act. Perhaps those issues, voter suppression in
particular, may not be as important to some of my colleagues on
this Committee as Fast and Furious and guns, but for a number
of people in this country who would like to have the
opportunity to vote, they are very serious issues.
So why don't I just ask you to comment on what is happening
in both of those areas, online piracy and the voter
suppression, redistricting, and preclearance process.
Attorney General Holder. We have been, I think, very
aggressive with regard to our law enforcement efforts
concerning intellectual property concerns. In February 2010, I
established the Department's task force on intellectual
property. I traveled to China I guess sometime last year, was
at the White House I think 2 weeks or so ago to announce a
program where I cut some radio spots, in addition to television
spots that were done by others to talk about the whole question
of piracy. And I think we have to understand the significance
of it. It is a moral and legal problem there, but it is also a
job killer. When things like intellectual property are stolen
by other countries, by other people in this country,
inappropriately, it costs jobs. It inhibits creativity. And so
we have looked at it in a variety of ways.
I work with Victoria Espinel, who heads up the White House
effort in this regard. And this is a priority item for us. I
would certainly like to work with you with regard to the bill
that you mentioned and see if we can come up with a way in
which we put more teeth into our enforcement efforts. With
regard to the whole question of voter suppression and
challenges, we have filed a number of lawsuits with regard to
changes under covered districts covered by the Voting Rights
Act. I actually will be giving a speech at the LBJ Library on
Monday and talking about this in a more fulsome way.
The Justice Department has the responsibility under the
Voting Rights Act to look at proposed changes in voting schemes
that are in areas covered by the Voting Rights Act. And there
is only so much I can say there because we have to act in a
neutral way or almost act as judges in that regard. I can tell
you, though, that I am concerned about some of the things that
I have seen, without getting into specifics about any one. I
was a prosecutor in the public integrity section, and I
actually investigated and prosecuted voter fraud cases when I
was a young prosecutor. And I am concerned that some of these
changes go far beyond that which exists in terms of vote fraud.
I think we need to have some kind of notion of proportionality.
And the arc that we have seen over the course of this country
has always been to increase the number of people who have the
ability to vote, whether it is, you know, after the Civil War,
the enfranchisement of women, we have always tried to make it
easier. And I am concerned that these recent efforts are going
to have a negative impact. And I think ultimately that is not
good for our democracy. We want as many people as we can to
have their voices heard in the most important way, and that is
by casting votes.
Mr. Watt. Thank you, Mr. Chairman.
I yield back.
Mr. Smith. Thank you, Mr. Watt.
The gentleman from California, Mr. Gallegly, is recognized.
Mr. Gallegly. Thank you very much, Mr. Chairman.
Good morning, General Holder. You know, General, I continue
to hear from ICE agents, from many ICE agents, that they are
frustrated that they have had significant difficulty with U.S.
Attorneys prosecuting work site enforcement cases. Can you give
us specific, and I want to emphasize the word specific, data
regarding the number of prosecutions DOJ have accepted and how
many they have declined?
Attorney General Holder. Well, if you allow me to respond
to that after the hearing in a written fashion, I am sure I can
come up with some numbers. But I don't have those numbers.
Mr. Gallegly. I can completely understand that. But I
would, for the sake of the record of this hearing, appreciate
that information as soon as you can get it to us.
As everyone clearly understands, welfare fraud is playing a
major role in our ability to continue providing service, the
level of service that is necessary in Medicare, and the fact
that fraud is playing a significant threat as it relates to the
solvency of that fund. There have been several estimates that
exceed well in excess of $60 billion annually in fraud. And I
am sure you are aware of that.
There is also evidence that organized crime, including
gangs from Russia and other Eastern European countries and
other places as well, that they are finding that filing
fraudulent claims is a fast and quick way to make a lot of
money. And most of that money is going offshore. Can you give
us any detail as to what DOJ is doing in prosecuting these
offenders and working with local law enforcement? I have met
with my local people in the Los Angeles area. They are very
frustrated. How much effort is really being put into it, and
what success are you having with dealing with the issue of
Medicare fraud?
Attorney General Holder. Congressman, you are right to
point that out as an issue that is of great concern. It is one
that we have tried to focus our attention on. We work with our
partners at HHS. Secretary of HHS Sebelius and I have been to a
number of places to raise the consciousness of local officials,
work with our Federal partners to deal with this problem. It is
a multibillion dollar issue. And given the problems that we
have with the solvency of those programs, this is a problem
that we have to get a handle on. We have put together what we
call the HEAT task forces around the country. I think we are in
about 13 cities now. I think that is about right. And that is
the way in which we identify the places where we see the
greatest amount of fraud. We then deploy these task forces to
those places. Interestingly, they proved to be pretty
effective. But the problem is the fraudsters tend to move from
that site and go to another city.
But the concern you raise is a very real one. And it is
something that we have to pay attention to and for which I hope
we will receive adequate funding, both at HHS and at DOJ.
Mr. Gallegly. I appreciate the assessment that many of
these are moving onto other cities. But I am sure it won't come
as any news flash that that isn't necessarily the case in areas
like Los Angeles. They may move, but it may be across the
street or into another pigeon hole where millions and millions
of prescriptions are filled, or never filled, in storefronts
that have maybe 150 square feet in them that is providing so-
called Medicare benefit or Medicare recipients in the
thousands. So how would you describe the level of success you
feel that you are having with resolutions to these folks that
you are after? How many are you really--for instance, in Los
Angeles how many major rings have you been able to shut down
and put in jail?
Attorney General Holder. Again, I would have to maybe
provide you with some specific information after the hearing
with regard to how successful we have been in Los Angeles. But
I think the way in which you have described the issue, and as
these intracity moves, moving from one place in Los Angeles to
another place, this notion of storefronts exactly describes the
problem, where people come in for--allegedly come in for
services that aren't rendered, and the government is billed for
them, everything from blood transfusions to the use of
prosthetics. There are a whole variety of scams that are used.
And the way in which you have described it, especially with
regard to storefronts in these strip malls, I mean, those are
the kinds of things that we are trying to confront. I will get
you the information about----
Mr. Gallegly. If you would be kind enough to get us
information. I would like some specificity as it relates to
durables, prescriptions, and things such as mammograms to
people that are repeatedly received as many as three and four
mammograms in 1 week. I see my time has expired. Yield back.
Attorney General Holder. I would just say you identified
something that really has to be a priority for the Justice
Department. And I hope that Congress will support our funding
request and HHS's funding request. The money that we spend in
these enforcement efforts, we save huge amounts of money down
the road by just investing relatively small amounts of money in
prevention and enforcement. It makes the programs that much
more financially stable.
Mr. Gallegly. I look forward to seeing the data.
And I yield back, Mr. Chairman.
Mr. Smith. Thank you, Mr. Gallegly.
Mr. Issa. Mr. Chairman?
Mr. Smith. For what purpose does the gentleman from
California seek recognition?
Mr. Issa. Thank you, Mr. Chairman.
I would like to renew my request that Mr. Farenthold be
able to sit on the dais. Apparently, Mr. Schiff has left--Mr.
Schiff is there, but we have a number of seats that are vacant
on this side. And since he won't be asking questions, any
position would normally be fine.
Mr. Smith. Mr. Issa, I talked to the gentleman from Texas,
and actually, I was just getting ready to recognize him. And he
has requested, and I want to recognize the gentleman from
Texas, my colleague, Blake Farenthold, who is an active member
of the Oversight and Government Reform Committee. And he is
sitting on the front row.
Blake, give us a wave.
And appreciate his being here. And he is, I think, happy to
observe the Committee from where he is sitting.
Mr. Issa. He looks better on the dais, though, Mr.
Chairman.
Mr. Smith. Thank you.
Mr. Issa. I thank the gentleman.
Mr. Smith. Okay.
The gentlewoman from Texas, Ms. Jackson Lee, is recognized
for her questions.
Ms. Jackson Lee. Thank you very much, Mr. Chairman, and to
the Ranking Member, for the opportunity.
Mr. Attorney General, let me first of all thank you for
your service and thank those who are sitting so prominently
behind you. I work with chiefs of police as a former judge in
my community. I think my former mayor, Mayor Lee P. Brown was a
drug czar, but he was also the head of the Major Chiefs
Association. He had the uncanny ability of being mayor and
chiefs of police in New York, Houston, and Atlanta. And I
notice our good friend that was formerly the police chief here
in the city--the District of Columbia has now moved onto
Philadelphia. But I was looking at the timeline, and this will
not be my total lineage of questioning, but I was looking at
the timeline of operation Fast and Furious. Could you tell me
when you were sworn in as the Attorney General of the United
States of America?
Attorney General Holder. In February of 2009.
Ms. Jackson Lee. And I noticed that the ATF launched
Project Gunrunner in 2005. Were you in the Justice Department
in 2005? I don't recollect that you were.
Attorney General Holder. No, I wasn't.
Ms. Jackson Lee. So this is an ongoing program that started
in essence under the Bush administration?
Attorney General Holder. Well, Gunrunner started under the
Bush administration, and Wide Receiver started under the Bush
administration. Fast and Furious started under--during the
Obama administration.
Ms. Jackson Lee. And then there was some morphing. It is
sort of a continuity of sorts, because I think they had sort of
the same intent, if I am not mistaken.
Attorney General Holder. Right. Operations with the same
aim, which was designed to stop the flow of guns from the
United States to Mexico.
Ms. Jackson Lee. I am looking at some news articles. And I
am reading some numbers that are absolutely overwhelming. And
one number says that nearly 40,000 have been killed in gangland
drug warfare. Is that a crisis from your perspective?
Attorney General Holder. It is a crisis of immense
proportions. These are 40,000 people killed in Mexico over the
last 5 years. But it is a national security concern for the
United States of America.
Ms. Jackson Lee. And I think you made it very clear that
the horrific infractions, failings of Fast and Furious, you are
doggedly, along with the IG, on the process, doggedly pointing
and looking to investigate what the flaws may have been.
Attorney General Holder. That is correct. I have described
it as a flawed investigation, flawed in concept, flawed in
execution.
Ms. Jackson Lee. You made the record very clear.
Attorney General Holder. It is something that--where
mistakes were made. And we have to find out where those
mistakes were made. And then I am going to hold people
accountable in that regard.
Ms. Jackson Lee. And likewise, we have offered our sympathy
to any fallen officer, but in particular to our fallen officer
that was murdered in Arizona.
Attorney General Holder. Officer Terry.
Ms. Jackson Lee. And I offer, as well as we did when we
lost an officer that suffered in the Customs and Border, in the
incident in Mexico that happened as well, that was an issue
that we confronted on the Homeland Security Committee.
I just want to make sure I offer into the record, you
mentioned what we can do in terms of no national gun
trafficking law, and I would ask the Chairman that our
Committee begin hearings on that because we need to be a
partner with you. But I would like to put into the record that
we recently passed, Mr. Secretary, H.R. 82, which allows anyone
to carry a gun into another State where they have a permit. I
see uniformed officers behind you. My argument was that this
might jeopardize our uniformed officers and also violate
States' rights. I have here a list of opponents that include 56
major chiefs of police. This bill was passed on the floor of
the House. I would ask the Chairman to allow me to put this
list again in the record regarding opposing H.R. 822.
Mr. Smith. Without objection, the document will be made a
part of the record.
[The information referred to follows:]
__________
Ms. Jackson Lee. Let me ask you how that compounds,
potentially, the idea, having gone to the other body,
potentially the damage and the devastation that may impact
local chiefs and law departments who are on the streets every
day.
Attorney General Holder. Well, the concern that we
certainly have with regard to officer safety, something that we
have focused on a lot at the Justice Department in the last
couple of years, we have seen historic drops in the crime rate.
Over the last 2 years, however, we have seen, unfortunately, a
tragic rise in the number of officers who have been killed in
the line of duty. And we have seen a spike in that rise over
the course of this year.
Ms. Jackson Lee. And I am not going to cut you off. My time
is short. I just want to put this comment to my good friend
from Wisconsin who compared this, the most major devastating
incident in the Department of Justice since COINTELPRO--I
happened to be a person that was on the select committee on
assassinations for King and Kennedy, as a staffer, and I know
full well what COINTELPRO was, and also dealing with the
incident in terms of gun running in the Reagan administration.
But the point I want to make is when an Attorney General covers
up a torture memo, I believe that we should not so lightly
point to an incident happening in your department where you are
fully investigating it. I questioned Secretary--excuse me,
Attorney General Gonzales, with great respect for him, over and
over again about the happenings in the hospital with then-
Attorney General Ashcroft--and this was when Gonzales became
Attorney General--regarding the torture memo, which was an
enormous international, if you will, incident. And I could
never get the truth on that particular set of circumstances.
So let us not compare the full investigation that you are
engaged in with something worse than we could have ever
expected. And I still don't understand who the gentleman was
trying to impeach, for this has no basis in the law for any
impeachment proceedings, whether he is intending to speak to
you or to the President of the United States.
And I just wanted to be very clear that we are not in the
grandstanding position today; we are in the getting truth
position today, Mr. Chairman.
And Mr. Attorney General, you are in the business of
getting the truth.
Thank you very much. I yield back.
Mr. Smith. The gentleman from Virginia, Mr. Goodlatte, is
recognized for questions.
Mr. Goodlatte. Thank you, Mr. Chairman.
General Holder, before turning to Fast and Furious, I would
like to ask you a question regarding an investigation that is
taking place in another Committee, the Energy and Commerce
Committee. And that relates to the Solyndra Corporation and
their default and bankruptcy and the investigation related to
that. The law that set up the incentives for innovative
technologies provides for the Secretary of Energy to notify the
Attorney General when there is a default on an obligation. This
is 22 U.S.C., Section 16512, Subsection 4(a). If the borrower
defaults on an obligation, the Secretary shall notify the
Attorney General of the default. Did Secretary Chu ever notify
you of that default prior to this becoming the public furor
that it has become?
Attorney General Holder. I don't know if something like
that has been transmitted to the Justice Department or not.
Mr. Goodlatte. It requires that it be transmitted to you.
Are you familiar with such a transmission being relayed to you?
Attorney General Holder. This is not something that I have
seen. It doesn't mean, however, it might not exist someplace in
the Department. I just don't know.
Mr. Goodlatte. The reason it is important is that the next
section, Subsection B, says that on notification, the Attorney
General shall take such action as is appropriate to recover the
unpaid principal and interest due from, one, such assets from
the defaulting borrower as are associated with the obligation;
or two, any other security pledged to secure the obligation.
Obviously, if you are not notified, you are not able to take
that action.
In addition, that same public law provides in another
section that the obligation shall be the subject to condition
that the obligation is not subordinate to any other financing.
Obviously, the fact has been determined that Solyndra did
subordinate its obligation to the U.S. to other private
financiers. And I am wondering if, given the fact that it
appears the law was violated in that regard, if the Attorney
General's Office is going to investigate what happened there,
how it was the Department of Energy allowed that subordination
to take place, which required their approval, and if that
investigation of who was responsible for that is taking place.
Attorney General Holder. Well, I guess on September the
eighth of this year, agents from the FBI and from the
Department of Energy's Inspector General's office executed
search warrants on Sylindra's offices. There is an ongoing
investigation which kind of precludes my ability to speak too
much about this matter, other than to say that this is
something that we have under active investigation.
Mr. Goodlatte. Let me just follow up on my first question.
Would you take a look and determine whether that notification
from Secretary Chu was sent to the Attorney General's Office?
And if so, when that took place? And would you let the
Committee know the answer to that question?
Attorney General Holder. Yes. I can get you that answer,
Congressman.
Mr. Goodlatte. Thank you very much.
Now, with regard to the Fast and Furious investigation,
although the Department has taken steps to ensure that these
tactics are never used again, it is certainly an unfortunate
reality that we will continue to feel the effects of this
flawed operation for years to come because thousands of
firearms were transferred as a part of this program. The guns
lost during this operation will continue to show up at crime
scenes on both sides of the border. What are you doing to track
them down?
Attorney General Holder. Well, I agree with you. And that
is what I said in my opening statement, and what I said before
in the Senate last month, that we are going to be feeling the
repercussions of those mistakes and the flawed operation for
years to come. And you are right, that we will be seeing these
weapons in the United States I fear, certainly in Mexico as
well. We are in the process of trying to determine, you know,
to the extent we can, where they are, trying to use the tools
that we have to seize these weapons.
Mr. Goodlatte. You know who purchased them. You know when
and where they were purchased. And are you aggressively
following those leads? Even if some of those people may have
been informants and so on, are you attempting to recover
through those individuals these weapons?
Attorney General Holder. We are certainly trying to follow
those leads. But one of the flaws in the program----
Mr. Goodlatte. How many have you recovered?
Attorney General Holder. Of the 2,000 guns, some several
hundred have been recovered. I don't know what the number is
now precisely. That is another number that we can get you.
But one of the problems is that once these guns are
purchased and they get into the stream of commerce, they become
difficult to follow. And one of the problems with the operation
is that we don't have all of the information, all of the
information that you would want to have.
But we are trying. I think several hundred weapons have
been recovered. I don't know how many are still out there. But
your observation is a correct one, and one that I agree with,
that this is an issue that is going to be with us for many
years to come.
Mr. Goodlatte. And begs the question if they are difficult
to follow, why were they ever allowed to get into this pipeline
in the first place?
Attorney General Holder. That is the flaw of Operation Fast
and Furious. There is no question about that.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Goodlatte.
The gentlewoman from California, Ms. Waters, is recognized.
Ms. Waters. Thank you very much, Mr. Chairman.
Mr. Holder, Attorney General Holder, I am trying to sort
out some contradictions that are very obvious in this whole
discussion about walking guns. And I am concerned about U.S.
Congressman Dan Boren of Oklahoma and Denny Rehberg of Montana,
who amended H.R. 1, the fiscal year continuing appropriations
act of funding year 2011, to prohibit the use of Federal funds
for a new regulation currently being proposed by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives. From what I can
understand, the AFT proposal would require licensed Federal
firearms dealers to file reports with ATF on all sales of two
or more semi-automatic rifles within 5 consecutive business
days if the rifles are larger than 22-caliber and use
detachable magazines.
I don't know whether or not this would apply to all of the
States, or whether or not this would apply to California,
Arizona, New Mexico, and Texas. But my real question is, given
all of your actions and your opposition to gun walking that
started in the previous Administration, and the way in which
you are trying to make sure that this doesn't happen again, all
the actions that you have taken, why would anyone propose that
your hands be tied and that you not be able to have a proposal
that would certainly make all of us safer?
I live in California. And we are constantly bombarded with
the reports of drug lords and the killings that go on there on
the border and the creeping into San Diego and other parts of
California. So I am very supportive of what you have identified
by way of containing guns being easily accessible to these drug
lords and not allowing gun walking to ever happen again. So can
you discuss with me why your proposal should be adopted by AFT,
and what would happen if in fact this amendment is--this Boren
of Oklahoma and Denny Rehberg of Montana, their amendment would
successfully get, you know, passed and to the President's desk?
How would this hamper your efforts?
Attorney General Holder. Well, I share your concerns. That
is one of the things I talked about in my opening statement. It
is a very reasonable, I think, and limited measure. It only
applies to the four States that border Mexico. It would provide
the ATF with real-time lead information. And it is consistent
with what the rule that now exists with regard to the purchase
of handguns.
Just to give you a dramatic example, if somebody walked
into one of these licensed dealers in one of those four States
without this provision and wanted to buy 100 AK-47s, that
information would not be reported to the ATF. The ATF, if that
information was reported to them, would have the ability to
start making initial determinations as to whether or not there
is something we need to be concerned about.
But in the absence of that provision, somebody can walk in,
and over the course of 5 days, whatever number of days, buy as
many of these dangerous weapons, so many of which have been
used in----
Ms. Waters. Excuse me, Mr. Attorney General, that was a
dramatic statement that you just made. Someone could legally
purchase 100 weapons of the sort that you just described, and
it wouldn't have to be reported?
Attorney General Holder. Not--if this provision were in
place, that information would have to be reported----
Ms. Waters. Yes.
Attorney General Holder [continuing]. By the dealer to the
ATF.
Ms. Waters. Yes.
Attorney General Holder. But in the absence of that, in
those four States, that would not occur. As long as there was
not--as long as the guns were not--they would not have to do
that.
Ms. Waters. And you are talking about AK-47s, for example?
Attorney General Holder. Yeah. I am using a dramatic
example, but that would be accurate.
Ms. Waters. Well, that is alarming. Are you sure that you
have made Mr. Boren and Mr. Rehberg aware of how they could
potentially hamper the ability to get that kind of information
that would be so important for ATF?
Attorney General Holder. It is something that we have
certainly tried to share information with Members of Congress
about. We are in litigation now here in the District Court in
Washington with people who are opposed to the implementation of
this, I think, very reasonable regulation. It is something that
we are prepared to fight for.
Ms. Waters. Well, thank you very much. And I am hopeful
that there is some way that you can make this absolutely clear
to all of the Members of Congress. Because I suspect there are
many Members who do not understand what would happen with the
Boren amendment. And I think it is important that at least we
have the facts as you have described them. Thank you.
And I yield back the balance of my time.
Mr. Smith. Thank you, Ms. Waters.
The gentleman from California, Mr. Lungren, is recognized.
Mr. Lungren. Thank you very much.
Thank you for being here, Mr. Attorney General.
Mr. Attorney General, just for some facts on the table.
With respect to the previous quote-unquote Gunrunner programs,
including Wide Receiver, in those programs, are you aware of
whether or not the agents involved were instructed to break off
surveillance once the weapons were delivered?
Attorney General Holder. No, they were not. But both of----
Mr. Lungren. Isn't that one of----
Attorney General Holder [continuing]. The programs were
different in terms of the instructions that were given, the
reality is that guns nevertheless made their way, in Wide
Receiver, to Mexico.
Mr. Lungren. I understand that. I understand that. I am not
talking about that. Were you aware of that, the Wide Receiver
program? Were you aware of the failure of the Wide Receiver
program before you were aware of the Fast and Furious?
Attorney General Holder. No, I became aware of Wide
Receiver I guess during the course of our examination of Fast
and Furious.
Mr. Lungren. Anybody under your overall supervision aware
of the failure of Wide Receiver, either prior to the time that
Fast and Furious started or during its operation?
Attorney General Holder. Well, we now know that people in
the Criminal Division of the Justice Department were aware of
Wide Receiver, the problems that were associated with Wide
Receiver.
Mr. Lungren. Can you give me any reason why anybody would
believe that a program like this would be contemplated with the
idea that the agents would be instructed to break off
surveillance once the weapons were delivered? Isn't that asking
for disaster?
Attorney General Holder. Yeah. And again, I don't disagree
with you that that is a flawed concept. And exactly who did it,
why they did it is something that the Inspector General, I
hope, will help us resolve.
Mr. Lungren. I understand you have got the Inspector
General, but you are running a Department. And frankly, if you
passed everything off to the Inspector General before making
management decisions about whether people who were responsible
for previous decisions should remain in power, frankly, you
would be giving the Inspector General the job to do.
Attorney General Holder. I understand that I have----
Mr. Lungren. No, no. Here is the only reason that I bring
this up. You are the one who brought up the question of the
previous Administration. And okay, you want to do that. But
let's talk about the distinction between those programs. That
was not gun walking in the terminology that most people think.
When you talk about a controlled delivery, even though you can
go to the dictionary and say controlled delivery means you just
control it to delivery. The parlance of controlled delivery in
previous programs meant that you followed it afterwards.
Now, they screwed up because they found that those
indicators that they had that were supposed to let them know
where the weapons were, the bad guys figured that out. But I
would hope that--I mean, here is my problem. I mean, when I
became a Congressman this time around, people said what is the
difference between being Attorney General of California and
being a Congressman? I said, well, after I finish a meeting, I
don't have to go out and face reporters who ask me about
something one of my 5,000 employees has done that I don't know
anything about. And I know you have more than 5,000 employees.
But that was my internal thought. The fact of the matter is I
am responsible. I was responsible for what they did. And you
are responsible for what these folks did.
And the frustration I have is this, and maybe it is unfair,
so maybe you can help me with this. After all this time, we
still don't know, because the Inspector General is looking at
it, we still don't know who knew what when and who made the
decisions. And that doesn't give much confidence to the
American people, particularly when CBS reports that there is a
memo from AFT Field Operations Assistant Director Mark Chait e-
mailed Bill Newell, I guess Newell, with this, quote, Bill, can
you see if these guns were all purchased from the same licensed
gun dealer and at one time? We are looking at anecdotal cases
to support a demand letter on long gun municipal sales, thanks.
I have got to deal with people in my district who are law-
abiding citizens who believe in the Second Amendment who say to
me look, the Feds are overreaching all over the place, and here
you got a situation where they screwed up. They are the ones
responsible for hundreds, if not thousands of weapons going to
Mexico. People are dying, including some of our law enforcement
agents. And yet they are using that as an excuse to extend
their reach in the law. Now, either this memo--are you aware of
this memo, July 14, 2010, from Mark Chait to Bill Newell?
Attorney General Holder. No, I am not aware of it.
Mr. Lungren. Would you think that would be appropriate?
Attorney General Holder. Well, I think what you--you are
taking a memo and taking it I think out of context.
Mr. Lungren. Sir, I will give you a chance to answer, but I
will tell you why I don't think I am taking it out of context.
This is in direct reference to the guns that were involved in
Fast and Furious. And then you have someone under your
direction--not saying you directed them to do it, but someone
who is under your authority saying, let's use this stuff. Maybe
it is going to help us. I don't know if it is going to help us
at a hearing, but it is going to help us try and get our new
policy through. And then I am trying to respond to law-abiding
citizens who believe in the Second Amendment who say, you got
the Federal Government who screws up sending thousands of
weapons south; they are using that as an excuse why they should
put more restrictions on us. So how do I respond to that in a
way that is fair based on the facts when so far I have heard, I
am sorry, Mr. Congressman, I can't tell you because the
Inspector General is looking at it?
Attorney General Holder. Let me deal with both of those
things. First, that the Inspector General has a responsibility
that I have asked her to assume, and that is to do an
independent investigation of that. That will take time.
That does not, however, lessen the responsibility that I
have as the head manager of the Justice Department to take
steps where that is appropriate. And I have taken steps. I have
made personnel decisions. I am prepared--those were initial
determinations that I have made. And I am prepared to take
other steps before the Inspector General reports back. I think
that will be--her conclusions, her findings will be useful for
me in trying to make ultimate determinations. But I don't need
the Inspector General to make certain determinations that I
will make.
With regard to the question of that memo and the long gun
rule, the ATF reached out to the field to obtain examples of
cases or operations where that kind of a rule would have been
helpful. Now, the operation known as Fast and Furious was one
of seven cases that were already underway, already underway,
that ATF later cited as an example to illustrate the potential
benefit of collecting information about the multiple sales of
certain types of rifles. So this was already underway when that
question was----
Mr. Lungren. I understand, but you would see how some
people might reasonably come to the conclusion that it was sort
of self-dealing. The Department creates a situation in weapons
go south across the border in the hundreds, if not the
thousands, and then uses evidence of the fact that that
occurred to support their effort to try and extend the reach of
the law. That is my question.
Attorney General Holder. But Congressman, with all due
respect----
Mr. Smith. The gentleman from California is recognized for
an additional 30 seconds so the Attorney General can answer the
last question.
Attorney General Holder. I say this with all due respect.
Take a step back and think about the implications of what you
are saying is that the Justice Department came up with a flawed
program in order to justify a regulation. And given all that
has flown----
Mr. Lungren. I am talking about after the fact, after the
fact. You screwed up, you ought to admit you screwed up, but
you ought not to use your screw-up as a basis for trying to
extend your authority. That is my point. I am not trying to
talk about a conspiracy. I am talking about a responsible
action after the fact. When you screw up, you ought to say you
screw up. The people involved ought to say they screwed up. And
then don't allow your screw-up to be the basis for trying to
extend your legislative agenda. That is all I am saying.
Attorney General Holder. And all I am saying is, as I said,
there were seven cases. These things were already underway when
that information was sought.
Mr. Smith. Thank you, Mr. Lungren.
The gentleman from Georgia, Mr. Johnson, is recognized.
Mr. Johnson. Thank you, Mr. Chairman.
Thank you, Attorney General Holder, for being here today.
There is a hole in our gun control laws that is so large
that you could drive or fly a space shuttle through it. And it
is called the gun show loophole. And what that gun show
loophole enables unlicensed firearms sellers to do is to sell
an unlimited amount of firearms per year, or per gun show, to
anybody, without having to perform a background check as a
licensed gun dealer must. And so we have got gun shows,
thousands of gun shows per year being held throughout America,
and we have got untold numbers of licensed gun dealers who are
selling their wares at those gun shows, and you have untold
thousands of unlicensed private weapons dealers who are selling
firearms, including automatic assault rifles of the type that
walked away in Operation Fast and Furious.
How many automatic assault rifles walked away during Fast
and Furious?
Attorney General Holder. I think the number that has
generally been reported is about 2,000.
Mr. Johnson. It is about 2,000.
Now, how many firearms are sold to al-Qaeda terrorists, to
other convicted felons, to domestic violence perpetrators, to
convicted felons, to White supremacists, how many unlicensed
gun dealers--or let's say how many weapons, how many assault
rifles let's just say in a given year are sold to such
individuals by unlicensed gun dealers at these gun shows that
are unregulated? And how many of those end up walking away to
Mexico? Can you give us a number on that?
Attorney General Holder. I don't have a number on that. I
can certainly endeavor----
Mr. Johnson. Would it be more than a couple of hundred?
Attorney General Holder. Sir, I am pretty certain it would
be more than 2,000. But in terms of getting those numbers for
you, I can try to do that and provide you with those numbers
after the hearing.
Mr. Johnson. It would seem to me that with the thousands of
gun shows and unknown numbers of private gun owners selling an
unknown number of weapons, including assault rifles, to unknown
people, it would seem to me that there is a fair possibility
that a whole lot more than 2,000 weapons would walk out of the
gun show and find their way into the hands of a Mexican drug
cartel. Would you agree with me on that?
Attorney General Holder. Again, without knowing the
numbers, I wouldn't want to guess. But I think that one of the
things we need to focus on is to know who actually is buying
weapons.
Mr. Johnson. And we don't have that ability right now with
that gun show loophole. Correct?
Attorney General Holder. We don't have it across the board.
Mr. Johnson. Okay. Now, let me ask you this question. Over
the last 5 and a half years, we have had five acting directors
of the ATF. How does the Senate's failure and refusal to
confirm a nominee for that important agency, what effect does
that have on the ability of that agency to be guided in a way
so as to avoid the kind of situations like Fast and Furious?
Attorney General Holder. I think that is actually a very
good point. When you have a confirmed head, there is a certain
prestige that goes with that demarcation. But beyond that, it
allows a person to have a longer term, to have a certain
consistency to put in place programs, to put in place controls
that did not exist and that allowed Fast and Furious to happen.
What Todd Jones has done as the acting head of ATF in a
relatively short period of time I think is fairly remarkable.
It would be a better thing if we had somebody in his place who
had a confirmed--was a confirmed person, and could extend the
time that he would spend or she would spend running the
organization. Todd is still the head of the U.S. Attorney's
Office in Minnesota. And I can't expect him to devote, you
know, 4 years, for instance, as somebody might if they were a
confirmed head and serve a full term, a full Presidential term,
to do the same thing. And that consistency, that presence for
an extended period of time has I think a huge positive impact
on an organization.
Mr. Johnson. You think the NRA and other Second Amendment
rights radicals have confidence that the U.S. will not have a
competent ATF head if the Senate continues to deny a leader for
that organization, thus rendering it rudderless? Is politics
causing that, you think?
Attorney General Holder. I mean, it certainly has a
negative impact on the organization. There are certain groups
that I think have actively opposed nominees, both put up by
President Bush as well as President Obama, who I think were
amply qualified to lead the organization and who, for whatever
reason, were not confirmed.
Mr. Smith. Thank you, Mr. Johnson.
The gentleman from California, Mr. Issa, is recognized.
Mr. Issa. Thank you, Mr. Chairman.
And I would be remiss if I didn't take exception to calling
the NRA members, the millions of them, radicals. I think that
is an offensive statement beneath contempt in this Committee.
Mr. Attorney General, will you agree to come before the
Oversight Committee without the need for a subpoena in the
January time frame?
Mr. Johnson. Will the gentleman yield?
Mr. Issa. I will not.
Mr. Attorney General, will you agree to come before the
Committee I Chair, the Oversight Committee, the one you
produced these documents to, in the January time frame without
the need for a subpoena?
Attorney General Holder. I will consider it, but I will
note I have testified on four occasions with regard to this
matter. I have appeared before you on at least two occasions.
Mr. Issa. You have appeared before this Committee. Your
organization pushed back on the request for a joint hearing
here today. Not will you consider it, but do I need to serve a
subpoena on yourself, and Lanny Breuer, and the other people
under direct investigation of my Committee, or will you agree
to come voluntarily in the January time frame before the
Committee?
Attorney General Holder. I will consider any request that
you make.
Mr. Issa. I thank you, Mr. Attorney General.
I now would go to the questions of e-mails. This is the
document you refer to. Most of these documents, 5,000 or so,
are, in fact, e-mails. Mr. Attorney General, I have a question
for you. Not one of these e-mails, in fact, is yours. Aren't
you an a prolific e-mailer?
Attorney General Holder. No.
Mr. Issa. Don't you e-mail?
Attorney General Holder. Yes.
Mr. Issa. Do you have a personal e-mail account and as well
as an Attorney General's e-mail account?
Attorney General Holder. I have an e-mail account at the
Justice Department, yes.
Mr. Issa. Do you have a personal e-mail?
Attorney General Holder. Yes.
Mr. Issa. Do you regularly e-mail to Lanny Breuer, your
former partner and your head of the Criminal Division?
Attorney General Holder. No, I wouldn't say regularly.
There are only a limited number of people who know my e-mail
address in the Justice Department.
Mr. Issa. Let me cut to the chase. Don't you think it is a
little conspicuous in his absence that there is not one e-mail
to or from you related to Fast and Furious in any way, shape or
form?
Attorney General Holder. There are a variety of reasons why
the e-mails that we have shared with you are there. We have
shared in an unprecedented way e-mail information that no
Justice Department, no Attorney General has ever authorized
before. You have deliberative information contained, I guess,
in----
Mr. Issa. But isn't it true that executive privilege does
not flow to the Attorney General, only to the office of the
President? So deliberative process within your Department
running law enforcement, in fact, doesn't serve executive
privilege. As the Chairman said going on, you haven't cited any
reason that these would not have been delivered.
Attorney General Holder. In making production
determinations, we have followed what Attorneys General in the
past have always used in applicable standards, and these are
Republican as well as Democratic Attorneys General. And the
information that we have provided to you has been responsive,
has been, I think, fulsome, and also unprecedented.
Mr. Issa. Well, unprecedented would be an Attorney General
who knew nothing about something where his own DAG, now his
present chief of staff, was intimately familiar.
Gary Grindler was well aware, according to documents
provided of Fast and Furious, on March 12, 2010. Are you aware
of that, that he with an aware of Fast and Furious and what its
procedures were on March of 2010?
Attorney General Holder. It was certainly brought to his
attention as a part of a regular briefing he got from ATF, but
he did not hear during that briefing anything about the
tactics.
Mr. Issa. Really? Is that why in his own handwriting when
he talks about going to stash houses, he clearly understood in
a document you have delivered--he clearly understood in his own
handwriting what the tactic was.
Attorney General Holder. No, that is not----
Mr. Issa. I am sorry, but I am going to ask you a different
question----
Attorney General Holder. Well----
Mr. Issa. Because he understood. No, no.
Attorney General Holder. Could I answer that question?
Mr. Issa. You have answered it less than truthfully.
Ms. Jackson Lee. Could the questioner allow the witness to
answer the question?
Mr. Issa. Madam, this is my time. I am not yielding.
Ms. Jackson Lee. I am not asking you to yield.
Mr. Smith. The gentleman from California Mr. Issa has the
time.
Ms. Jackson Lee. I would appreciate it if you would allow
the witness to answer the question.
Mr. Smith. The gentleman from California Mr. Issa has the
time.
Ms. Jackson Lee. I understand that.
Mr. Smith. The gentlewoman from Texas----
Ms. Jackson Lee. I would appreciate it if the witness could
be allowed to answer the question, Mr. Chairman.
Mr. Smith. The gentlewoman from Texas has not been
recognized.
Ms. Jackson Lee. I ask for a sense of protocol here.
Mr. Smith. The gentleman from California has the time.
Mr. Issa. Mr. Attorney General, as I was saying, Mr.
Grindler--you can't answer on his behalf, and so it makes no
sense to. This is evidence that was delivered.
Do you regularly talk to your chief of staff? And do you
regularly receive oral briefings from Mr. Grindler? And, in
fact, when you made the decision to have him be the DAG and
then the chief of staff, wouldn't it be reasonable to assume
that if he knew on March 10th, as this document indicates, that
you would also know, March 10th, March of 2010, March 12 of
2010?
Attorney General Holder. Well, first, he was not
intimately--made intimately familiar with the program as a
result of that briefing. The briefing that he received from
then-Acting Director Nelson did not go into the tactics. Nelson
indicated----
Mr. Issa. Of course it didn't go into the tactics.
Mr. Chairman, I would ask that I have the time restored
that I lost with the lady's interruption.
Mr. Smith. The gentleman is recognized for an additional
minute and also to give the opportunity to the Attorney General
to respond to the question.
Mr. Issa. I certainly look forward to that.
Mr. Attorney General----
Attorney General Holder. I was in the middle of an answer,
I think.
Mr. Issa. You know, you are in the middle of filibustering,
so I will let you answer. I have two more things to quickly go
over, and then you can have all the time the Chairman will give
you.
Does it surprise you that these boxes, five boxes,
represent just what one gun dealer gave us voluntarily, while,
in fact, this seems to be all the information you have
responsive to our subpoena; does it cause you to think that, in
fact, we believe you were withholding documents? We believe
that, in fact, there is more production. So my final question--
and you can answer all of them for as long as the Chairman
wants--is do you today have documents responsive to the lawful
request of the Oversight Committee that have not yet been
granted?
Attorney General Holder. All right. Well, Let me go back to
my first answer that I was not----
Mr. Issa. Well, mine is pretty easy. Mine is a yes or no,
and then the others you are going to go on for a while.
Attorney General Holder. I will get to that.
Mr. Issa. Would you please get to it first?
Attorney General Holder. With regard to Gary Grindler, he
was not provided with a detailed analysis of Fast and Furious.
He was given information about----
Mr. Issa. Mr. Chairman, I asked earlier that the Attorney
General be placed under oath. I was denied that. But what I
will make the point is that it is not productive for anyone to
come before this Committee and tell us what somebody else
didn't know. That is exactly how the legislative liaison behind
the Attorney General Mr. Weich came and gave false testimony to
my Committee, false because people who are still working for
the Attorney General knowingly gave him misleading information
in addition to the U.S. attorney, and no action has been taken.
Ms. Jackson Lee. Is the gentleman's time extended, or is
there regular order?
Mr. Issa. I might note for the record that the IG----
Ms. Jackson Lee. I have a parliamentary inquiry, Mr.
Chairman.
Mr. Smith. The gentleman----
Ms. Jackson Lee. I have a parliamentary inquiry, Mr.
Chairman.
Mr. Smith. The gentleman from California continues to be
recognized. And let me make a point in the record that he is
not over time near as much as the gentlewoman from Texas was a
few minutes ago.
Ms. Jackson Lee. I thank you for your courtesies, but I
would like to understand whether the gentleman has extended
time.
Mr. Smith. And he was recognized for that purpose, as the
Attorney General will be recognized for the purpose of
responding----
Ms. Jackson Lee. And will he allow the Attorney General to
answer the question?
Mr. Issa. I look forward to it.
Ms. Jackson Lee. Thank you very much.
Mr. Issa. Mr. Chairman, I use only 5 more seconds.
The fact is the inspector general has released information
that was secret to the object of our investigation with the
knowledge of the Justice Department. She is not currently, in
our opinion, qualified to investigate and, in fact, has
overstepped the line by delivering secret tapes to the object
of our investigation while the Justice Department was slow-
rolling that discovery. And this is the ATF agent that was
intimately involved with this.
So I want you to understand I have treated this Attorney
General as a hostile witness because ultimately when he comes
before us saying he is going to clean house, no house has been
cleaned. And I would love to hear his answers.
Mr. Smith. The gentleman's time has expired. The Attorney
General will be given the opportunity to respond.
Attorney General Holder. I will try again. Gary Grindler
was not provided with information as you have described,
intimate information, about Operation Fast and Furious. He was
not told about the tactics that were used there. The person who
did the briefing was the acting head of ATF, and he has, I
understand, testified before your Committee that he did not, in
fact, share that tactical information with Mr. Grindler.
I note that Mr. Nelson also briefed you, Congressman, about
a month or so later or before, I forget which, and he said at
that time he did not share with you information about those
tactics. So the notion for your contention that Gary Grindler
was familiar with this or intimately familiar with this is
inconsistent with what I think the facts are.
And you take me to task for trying to assume what I know
Grindler to have said. You have not interviewed him as well,
and nevertheless you feel comfortable doing the same thing.
With regard to the documents that you talked about, we have
not withheld any documents that are responsive to the matters
that you have--that you have asked us about. We have withheld
information that pertains to ongoing investigations; that is
the thing that might have limited our document production. But
again, what we produced on February the 4th is unlike anything
that any Committee in any part of this Congress, Senate or
House, has ever seen before. And I want to make clear, as we
said in that letter, that is not precedential, not holding, and
I don't think any future Attorney General should be expected to
do that, but given the nature of what we did in withdrawing
that February 4 letter, it seemed to me to make sense to make
an exception to what has been a long-recognized rule.
Mr. Issa. Mr. Chairman, could the AG be allowed to fully
answer, since it was pursuant to a subpoena whether or not his
answer about did he provide----
Mr. Smith. The gentleman's time has expired.
Mr. Issa. It means he was withholding or not withholding.
He did not answer that.
Ms. Waters. Mr. Chairman, that requires unanimous consent.
I withhold----
Mr. Smith. The gentlewoman has now been recognized.
I was asking the Attorney General a question. Does the
Attorney General wish to respond any further to the questions?
Attorney General Holder. I am fine.
Mr. Smith. The gentleman from Virginia Mr. Scott is
recognized for his question.
Mr. Scott. Thank you, Mr. Chairman.
General Holder, a lot has been made about the letter
written by your Assistant Attorney General Mr. Ron Weich.
Nobody expected him or believes that he has any personal
knowledge of the information, but expected him to get the
information and relay it. The information has, I think, been
subsequently determined to be false. Do you know where he got
the false information?
Attorney General Holder. The information that was contained
in that letter, the incorrect information that was contained in
that letter, was derived from people in the field who had the
operational responsibility for Operation Fast and Furious, both
from the ATF in Phoenix as well as the U.S. Attorney's Office
in Phoenix. That information, I think logically, was presumed
to be accurate. That information was transmitted to people in
Washington, who put the letter together. And if you look at the
February 4 document production that we made, you can see how
this went back and forth and how the letter was actually put
together.
It turned out that the people in Phoenix had information
that was not, in fact, accurate, and that is the stuff that
found itself into the February the 4th letter.
Mr. Scott. Now, what did you do when you found out that the
information was not accurate?
Attorney General Holder. I couldn't hear you.
Mr. Scott. What did you do when you found out that the
information was not accurate?
Attorney General Holder. One of the things that I did early
on was to ask the inspector general to look into this. I was
hearing from inside the Justice Department one set of facts. I
was hearing from Members of Congress and members of the media
something else. An it seemed to me that given this disparate
information that I was receiving, that an investigation needed
to be had. And on February the 28th, I asked the inspector
general to begin an investigation.
Mr. Scott. An article in USA Today says, ``The program,''
referring to Fast and Furious, ``was fundamental"--"which
Holder has finally acknowledged is fundamentally flawed
occurred with the knowledge and approval of Justice.''
Do you want to respond to that statement?
Attorney General Holder. That is not true. I mean, the
notion that people in Washington, the leadership of the
Department, approved the use of those tactics in Fast and
Furious is simply incorrect. This was not a top-to-bottom
operation; this was a regional operation that was controlled by
ATF and by the U.S. Attorney's Office in Phoenix.
Mr. Scott. There is a memo dated November 16, 2007, about a
meeting of the Attorney General in 2007 with the Mexican
Attorney General that says, Of particular importance ATF has
recently worked jointly with Mexico on the first-ever attempt
to have a controlled delivery of weapons being smuggled into
Mexico by a major arms trafficker. While the first attempts at
this controlled delivery have not been successful, the
investigation is ongoing.
Does that suggest to you that guns were so-called walking
in 2007?
Attorney General Holder. Well, certainly not walking in the
same way that they were allowed to walk in Fast and Furious,
but the reality was guns did find their way into Mexico in an
inappropriate way.
And one thing that I want people to understand is that I
don't know what Attorneys General did back then and how they
reacted to it, but I can tell you what this Attorney General
did. I asked for an inspector general investigation. I sent out
a directive to the field that this kind of activity was
inappropriate. I made personnel changes. And I am overseeing
with the help of Todd Jones substantial reforms at ATF. I was
very active in dealing with this issue. You can look at what
other Attorneys General did.
Mr. Scott. Thank you.
Switching subjects, the last Administration was cited for
political hiring within the Civil Rights Division. Have you
continued that political hiring in violation of the law?
Attorney General Holder. We hire people within the Civil
Rights Division on the basis of their experience, their
commitment to that which the Civil Rights Division has
historically stood for, people who are going to be good
litigators, people who are going to work hard. We don't hire
people on the basis of political or ideological affiliation.
Mr. Scott. Thank you, Mr. Chairman. I have a number of
other questions that I will be submitting----
Ms. Jackson Lee. Would the gentleman yield for a moment?
Would the gentleman yield?
Mr. Scott. For the record I yield the balance of the time.
Ms. Jackson Lee. Thank you.
Very quickly, Mr. Chairman, I would like to put into the
record the Examiner: Mexico Losing Its War on Drug Cartels; and
the Los Angeles Times that says how many have died in Mexico's
drug war. Mr. Chairman?
Mr. Smith. I am sorry.
Mr. Scott. She asked unanimous consent.
Mr. Smith. Without objection.
[The information referred to follows:]
__________
__________
Mr. Scott. I yield back.
Mr. Smith. The gentleman yields back his time.
The gentleman from Iowa Mr. King is recognized.
Mr. King. Thank you, Mr. Chairman, and thank you, Attorney
General Holder, for coming here to testify. I had a number of
questions that come to mind as I listened to the responses that
are here. They sort down to this: As near as I can determine,
have you identified the weapon that actually killed Agent
Terry?
Attorney General Holder. That would go into a ballistics
report determination, and I am not prepared to talk about that
given that it is still a pending case.
Mr. King. It is still under investigation, but there is
some data there that is being examined by Justice?
Attorney General Holder. As I said, there is an ongoing
investigation. There is a case that has been indicted, and
obviously a part of that trial will be the ballistics report.
Mr. King. Have you identified a suspect or a person of
interest?
Attorney General Holder. Somebody has been indicted in
connection with that case.
Mr. King. Somebody has been. And that is not information
that you can speak to today?
Attorney General Holder. There are some rules there that
don't allow me to--apparently this is a matter that is under
seal.
Mr. King. But there has been an indictment.
Attorney General Holder. Yes, there has been an indictment.
Mr. King. Thank you.
And if you were to tell us who that was, you couldn't did
so in this setting?
Attorney General Holder. That is correct.
Mr. King. If we were in executive session, could you do
that?
Attorney General Holder. I don't think so. I think it is a
court-ordered seal.
Mr. King. Okay. That is satisfactory to me.
Attorney General Holder. We have to seek leave of the court
in order to do that.
Mr. King. That is satisfactory. Thank you.
Do you have a sense, or an estimate, or data on the numbers
of Mexicans that have been killed or homicide investigations
that have brought about deaths where there have been weapons
used that are from Fast and Furious in Mexico? We lost Agent
Terry. How many Mexicans do you estimate have died because of
the weapons that have been sent to Mexico?
Attorney General Holder. I don't know that figure,
Congressman King, but I fear that the number of people on the
Mexican side of the border, frankly as well on the United
States border, will be negatively impacted by the mistakes of
Fast and Furious are going to--there are going to be people who
are going to be harmed. I don't have any numbers, but I fear
that that is what is going to happen, has probably already
happened, and is likely to happen in the future.
Mr. King. Do you have, though, reports or data that would
give you some sense of that? Is it a report that is delivered
to you in your briefing that when we know all about Agent--we
know about Agent Terry, but I am thinking about this from a
public relations standpoint, and I am thinking that if this
happened in the United States--and I am going to guess that
there are multiple deaths in Mexico--if there is anything
proportional to the distribution of the weapons, are there any
reports that give you a sense of this happening as a
communication going back and forth across the border and
identifying Fast and Furious weapons that may have been used in
crimes and homicides in Mexico so that you have a sense of that
number?
Attorney General Holder. I don't have a sense of that as
yet. I mean, we certainly work with our Mexican partners to try
to trace guns that are seized in connection with crimes. That
is why I said that, you know, we have traced 64,000 of those
guns over the last 5 years. My guess will be that we will trace
some guns over the coming years and months back to Fast and
Furious, and then we will be able to connect those traced
weapons to crimes that have occurred in Mexico. But to date I
have not received that information.
Thank you. I would like to shift a little bit. I know the
last time you were before this Committee May 3 of this year as
I recall we had a discussion about the Pigford farms issue, and
I submitted a series of questions about that, and you have
answered most of those questions in writing as of, date, I
think it was October of this year. So I would like to narrow in
on that a little bit, because the Pigford farms issue you cite
as the authority for Justice and presumably USDA to negotiate
with Black farmers the authority that is in the Farm Bill,
commonly known as a farm bill, and you cite the sections of the
bill.
And I will just tell you in this Committee that I had a
conversation with the then-chairman of the AG Committee, Collin
Peterson on the way over to the floor to vote on this farm
bill, and I said to him the authorization that you granted in
the farm bill, which you cite in your response, will open up
the door to $1.3 billion in additional Pigford claims. His
response to me was no, that $100 million caps the spending on
the settling all outstanding Pigford claims, you will be
satisfied with the results of that. That was our disagreement.
I have had the Secretary of Agriculture cite the same section
that you have cited. I have the section before me, and I will
ask unanimous consent to introduce it into the record at the
conclusion, but it says here that ``shall not exceed $100
million and it shall be construed to effectuate its remedial
purpose of giving a full determination on the merits of each
Pigford claim previously denied that determination,'' which is
the language that opened up Pigford 2.
So I will submit that authority only exists to resolve all
outstanding Pigford claims and cap them within $100 million. We
have a claim coming back to Congress for an additional 1.15
billion. I have no information in my letter that tells me how
many claims you have from Pigford. And I don't have any
information that tells me what was spent on attorney fees in
settlements of Pigford 1. So I would appreciate if you could
respond to that.
Attorney General Holder. Sure, we will get you that
information.
Mr. King. And including the value, the cost of attorney
fees in Pigford 1?
Attorney General Holder. Sure.
Mr. King. And anything that is current.
Attorney General Holder. Whatever information we have with
regard to the questions you have asked, I will make sure it
gets passed on to you.
Mr. King. And I will just ask for follow-up.
Mr. Smith. The gentleman's time has expired.
Mr. King. I ask unanimous consent to complete my question.
Mr. Smith. The gentleman continues to be recognized for a
final question and then the AG to respond.
Mr. King. Thank you, Mr. Chairman. I would just ask that we
know that there are negotiations according to your letter that
took place between the Department of Justice, the USDA, and
representatives of the Black farmers, which sounds to me in
their response to be multiple organizations, multiple entities.
So I would ask you if you personally had a conversation with
Secretary Vilsack with regard to Pigford and who are those
entities that were negotiated with to come to this settlement
that I contend goes beyond $100 million cap that was
authorized.
Attorney General Holder. Well, I certainly talked about
this matter with Secretary Vilsack, the person who is primarily
responsible for the settlement of the case, from the Justice
Department side is the associate Attorney General Tom Perrelli.
There were a variety of organizations, entities, individuals
who were engaged. We were trying to work out a settlement short
of litigation so people who were potential plaintiffs were part
of these conversations to reach this agreement.
Mr. Smith. Thank you, Mr. King.
Mr. King. Thank you.
Mr. Smith. The gentleman from Tennessee, Mr. Cohen, is
recognized.
Mr. Cohen. Thank you, Mr. Chairman. General Holder, I am
understanding this issue some, but it is a great tragedy this
agent was killed and it will be a year next week, as I
understand it. And it was a Fast and Furious weapon that he was
killed by, as I understand it. Is there any great difficulty in
Mexico for folks who are part of these drug cartels or, you
know, folks to get guns? Are guns rather plentiful in Mexico in
general?
Attorney General Holder. I think we can safely say that
they are readily available, and the part of the problem with
their ready availability is the fact that so many guns flow
from the United States to Mexico. As I said over the last 5
years, at least 64,000 weapons traced to the United States that
were found in Mexico, and those were only the ones that were
traced. There are undoubtedly additional guns in Mexico that
have not been traced back to the United States.
Mr. Cohen. So while it is a supposition I would presume
that if Fast and Furious didn't occur, that the individuals
that committed this act, this violent act and resulted in the
death of the agent, they would have probably had weapons
anyway?
Attorney General Holder. You know, we can never--you can
never suppose, but for is always hard to determine, but I don't
think that is an illogical conclusion that the people who were
involved in that senseless, tragic, awful murder probably could
have had access to other weapons.
Mr. Cohen. I kind of remember the president of Mexico
saying something about most of the guns that come there come
from the United States. I think he also said something about
most of the market he has from marijuana comes from the United
States too. So we supply him with guns and a market. We could
certainly dry the market up, but that is the job of the
Judiciary Committee, I realize.
What are we doing to try to stop guns from going into
Mexico? Are there efforts at the border to stop guns from
traveling this country there?
Attorney General Holder. We have moved people to the
border. We work with our partners--the Justice Department works
with our partners at DHS to try to come up with ways in which
we inspect cars that are going from United States to Mexico. We
have teams of agents that work together to try to determine
ways in which we can stop the flow of guns. We use a variety of
intelligence methods that I can't really get into to try to
determine if cartels are trying to bring into Mexico huge
stashes of guns.
We also need to use things on this side of the border, and
that is one of the reasons why that long gun rule, I think, is
so important. If we see substantial numbers of these long guns
being purchased, it gives the ATF real-time leads that they can
follow to see if, in fact, these are legitimate purchases or if
they are purchases by people intending to have those guns
shipped to Mexico.
Mr. Cohen. Coming home which is where I think the real
issues are, not to say that they are not important about the
border and all, but in our cities, we have a lot of youth
violence and gangs. I want to commend you for having a national
forum on youth violence prevention and including Memphis in the
forum. Can you give the Committee some information about what
you have done to help inner cities fight youth violence and
gang activities?
Attorney General Holder. One the things I want to say is
the five police chiefs behind me from Charlotte, Detroit,
Philadelphia, Baltimore and Boston, have all embraced, and we
learned from them, the way in which we deal with this issue of
youth violence. It is not simply a question of doing what is
traditional law enforcement, that we have to come up with ways
in which we deal with the underlying problems that involve our
young people in these antisocial behaviors.
Congressman Scott has been, I think, very forward leaning
in this regard with legislation that he has proposed and that
we support. We have tried to deal with these underlying causes,
and it has been particularly useful to have our partners in law
enforcement identify with and be participants in these
preventive activities in addition to all the great things that
they do on the enforcement side. The thing you have talked
about what we are doing in Memphis is an example of the kinds
of things we are trying to do in the Obama administration.
Mr. Cohen. I would like, Mr. Chairman, to comment that the
gentleman from Philadelphia, the chief, I recognize you and I
kept thinking where do I know you from. And where I know you
from is when you testified before this Committee on the bill to
allow folks who had gun permits to travel from State to State
based on Federal edict rather than state cooperative
agreements. And at the time, I was a sponsor of the bill that
ended up passing, but because of your testimony and law
enforcement's objections, as well as my belief in States'
rights, I changed my position, came off as a sponsor and voted
against the bill. Your testimony was effective and it is nice
to see you again, and I thank you for that.
I yield back the remainder of my time, Mr. Chairman.
Mr. Smith. Thank you, Mr. Cohen. The gentleman from Texas,
Mr. Gohmert, is recognized.
Mr. Gohmert. Thank you, Mr. Chairman, and thank you,
Attorney General for being here. We do appreciate the law
enforcement being here. We have had multiple of our Democratic
friends point out their presence and we do appreciate the job
you do. I thought, and everybody needs friends, and I am glad
you are supporting the Attorney General. I thought about
inviting the law enforcement that is furious over Fast and
Furious, but there is just not room in the room or building so
I didn't do so.
Let me ask you, Attorney General, have you read the opinion
from the 5th Circuit Court of appeals on Holy Land Foundation
trial that came out yesterday?
Attorney General Holder. I have not seen that.
Mr. Gohmert. Well, we know from prior documentation that
there has been relationship with CAIR and the Justice
Department; is there any ongoing relationship, any reach-out at
this time still to CAIR?
Attorney General Holder. Well, we certainly reach out to a
variety of Muslim groups as we try to----
Mr. Gohmert. I am talking specifically about CAIR.
Attorney General Holder. I was getting there. But I don't
think that we have any particular outreach efforts at this
point with CAIR.
Mr. Gohmert. You know there was a partnership between the
FBI and CAIR, in 2009 it was temporarily suspended. I didn't
know if there was informal outreach to CAIR.
Attorney General Holder. I----
Mr. Gohmert. We do know from this opinion yesterday, we
know from the prior Fifth Circuit opinion when CAIR and ISNA
and others tried to have their names struck as named
coconspirators, that it was unsuccessful that the circuit
basically saying there is a case there to prove. And then as we
know, you decided not to pursue those, or your Department did
as we talked about before.
In the decision yesterday, the court said that the
Palestine Committee created not only the Holy Land Foundation,
but a number of other Islamist entities in the U.S., leaders of
one of those entities the Islamic Association of Palestine
subsequently created CAIR, Council on American Islamic
Relations which are cited as coconspirators, so it does create
some concerns.
We know there was massive document, a massive number of
documents being furnished to the defendants in that case. A lot
of production of documents, but I would like to ask that we get
copies of the documents that were provided to the five
defendants who are now convicted and affirmed by the Fifth
Circuit. Would the Justice Department make those documents
available?
Attorney General Holder. I am not sure I know what
documents you are talking about. If they were provided in
litigation?
Mr. Gohmert. Correct.
Attorney General Holder. And if we can provide them, I am
sure that we would. I don't know if there are documents that
have been provided in discovery that we don't have the ability
to provide. I just don't know the answer to that.
Mr. Gohmert. Well, they have been furnished to your
Department to the defendants in the case. Those defendants have
now been found guilty of providing support to terrorism. There
is no question in my mind that those documents are now in the
possession of terrorists. And so we have had trouble getting
production of all the documents that we have desired and
requested. And I didn't think that there should be any problem
with privilege or anything of that nature since the defendants
are convicted of supporting terrorism have them, the terrorists
have them. And I just felt like it would be a good idea for
Congress to have them.
Attorney General Holder. I will take that request under
advisement and to the extent we can provide documents----
Mr. Gohmert. I hope we will have as good a standing as the
terrorist supporters that have been convicted.
I am familiar as a judge handling massive litigation, been
an MDL with a document dump. About 100 of these are Grassley's
letters. But I want to ask you, since you had said before in
your statement that you asked the Department Inspector General
to investigate this Fast and Furious matter in March, you
ordered a directive be sent to law enforcement prosecutor
prohibiting such tactics, and in this entire stack is not an e-
mail, not a letter, not a transcript of a speech, nothing from
you. I would ask where they are. If you did those things in
February or March, where are they? And not only that, you
testified May 3 in here as we recall that you had just learned
about Fast and Furious a few weeks before. And now you say
actually in February, March you made these orders. When was the
first time after May the 3rd you began to suspect that you may
have actually taken actions in this case?
Attorney General Holder. Well, actually took actions well
before May the 3rd, on February 28.
Mr. Gohmert. Well, unless you were intentionally
misrepresenting the facts on May 3, which I am not contending
at all no.
Attorney General Holder. No.
Mr. Gohmert. Then at some point you began to wonder gee, I
believe I issued some orders in this matter. We haven't seen
the orders, all we have is the transcript here. We know you are
capable of mistakes as you have verified. Where are the e-
mails, letters, orders, where are they from February and March?
Attorney General Holder. There are a couple of things going
on here. I didn't play any role in the drafting of the February
4 letter. With regard to the notion----
Mr. Gohmert. So you were not the one who ordered the----
Mr. Smith. The gentleman's time has expired. The AG will be
allowed to answer the last question.
Attorney General Holder. With regard to the question of
what I said on May 3 about a few weeks, I said a few weeks
about when I first learned about Fast and Furious, I learned
about Fast and Furious when this became a matter of
controversy. I think some time in the beginning of the year. My
guess is probably the middle of February, which would have been
10 or 12 weeks before I said a few weeks. Now, I could have
said a couple of months, maybe I should have been more precise.
But a few weeks, from my perspective, was accurate then and it
still seems to be accurate now, when I say a few weeks, 10 or
12 weeks that I think be encompassed in that description.
Mr. Gohmert. Mr. Chairman, I would ask that he be allowed
to actually answer the question of whether or not he is the one
that actually ordered the inspector general to investigate
that. And if so, where the documentation of it is. That was my
question.
Mr. Smith. Has the AG answered?
Attorney General Holder. I will answer. I was, in fact, the
person who requested, ordered the inspector general to begin
this investigation. I don't think I did that in any written
form. I think that was transmitted from me either through my
chief of staff, the Deputy Attorney General, to the IG. There
might be a writing that exists in that regard. I don't think I
signed off on anything actually. I have a good relationship
with the inspector general, the inspector general's office had
looked at this whole question of gun trafficking before, and it
seemed logical to ask them to expand their inquiry and look
into Fast and Furious. As I said, I don't think it is any
writing from me, but I can check that. I don't think there is
any writing from me that exists with regard to.
Mr. Gohmert. We should ask for a copy if any such exists.
Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Gohmert.
The gentlewoman from California, Ms. Lofgren, is
recognized.
Mr. Lofgren. Thank you, Mr. Chairman. There has been a lot
of discussion on a lot of topics today. I noted the Chairman
took the opportunity to discuss health care. And since we don't
get you in front of us that often, I am going raise an issue
that is not Fast and Furious. That is the Second Amendment;
there is an amendment that comes before that and that is the
First Amendment, and that is the subject of my inquiry.
As you know, for over a year, ICE and the Department of
Justice have been seizing domain names as hundreds of Web sites
on allegations of criminal copyright and trademark
infringement. One particular domain name was seized a year ago,
November 2010, Dajaz1.com a very popular blog that was
dedicated to hip-hop music. Just today, the news is with the
details that the seizure, which I thought raised troubling
questions at the time about the government's conduct in the
case, and really raises questions about constitutional rights
of due process and free speech as they apply to Web sites.
After the government seized the domain name, its owner filed a
quest for the government to return it to them. And under the
law, the government has 90 days to initiate a full forfeiture
proceeding against the domain, or else it has to return the
property.
However, in this case, the deadline passed with no action.
And when the Web site's lawyer asked with your Department's
lawyers, he was told the government had filed an extension with
the court, entirely under seal without notice to him. They had
no notice, they had no opportunity to respond. And when the
lawyer, of course, this was according to the news reports,
asked for any sort of proof that the extension had actually
existed, your Department's lawyers reportedly said he would
just have to trust them.
The government then claimed to have received two additional
extensions under the same process without notice, without a
hearing, and they refused to release the court order according
to the press reports. And then as of today, the last extension
was filed and the government finally admitted that it did not
have probable cause for the forfeiture, and the domain name was
returned to the Web site owners today.
In short, a blog site which is identical in terms of First
Amendment protection to a newspaper or a magazine has the same
First Amendment rights was shutdown for an entire year by the
government, by our government, with no due process, no
contested hearings, no written orders. I just think--if these
reports are--that is just an outrageous violation of the First
Amendment.
So my question is, I assume that you believe that the First
Amendment doesn't allow the government to go in and shut down
the press for a year prior to restraint on speech without any
kind of due process. I don't--I guess this is a question, do
you think that is consistent with the First, Fourth and Fifth
amendments to the Constitution. And if the fact--I will give
you the article that I just read today. If the facts are as
reported in this article what will you do to make sure that the
wrongdoers in your Department are no longer in your Department?
I mean this is--there has to be a sanction for someone to do
such a thing. If we did this to a magazine if we went and
locked the doors and put a sign and said ``closed'' and refused
to deal with them for a year, people would be outraged, but
since it is a blog, and since it is hip-hop artists. It seems
to me, the hip-hop artists have as much right to due process
and the First Amendment as any other American, so could you
comment on that, Attorney General.
Attorney General Holder. I am not familiar with the reason
why that domain name was seized or the facts of this case. I
will certainly look into that and we will get back to you with
whatever information we can. You are right, I mean--what the
subject matter is of a particular blog is obviously entitled to
First Amendment protections. There maybe other reasons this was
received. I just don't know. I can tell you my daughters are
watching this hearing, having heard about this hip-hop issue
now, I will hear about this from them when I get home.
Mr. Lofgren. Very good.
Attorney General Holder. And if nothing else, I will make
sure that I stay in touch with these folks to get you an
answer. My daughters will be on me about this one.
Mr. Lofgren. Well, I wonder if you could give a commitment
that if the facts are as we have outlined that you will take
appropriate action within your Department to make sure that
those who violated the law in the DOJ are dealt with and that
this becomes a well-known sanctionable type of activity in your
Department.
Attorney General Holder. We will certainly look at it, my
hope would be that there is a reason, an acceptable reason why
these actions have occurred, if they have been accurately
described. But to the extent that somebody has acted
inappropriately in the Department I will make sure they are
held accountable.
Mr. Lofgren. Thank you, Mr. Chairman.
Mr. Smith. The gentleman from Arizona, Mr. Franks, is
recognized.
Mr. Franks. Well, thank you, Mr. Chairman. Thank you,
General, for being here. I guess to lay the groundwork here,
you understand that perhaps reason that this issue has gotten
so much attention is that in the simplicity of the overall
project here, it appears that the American government, the
American Justice Department--Department of Justice, through
their Department subsidiaries, have orchestrated a program to
get American gun dealers to sell guns to straw buyers, to then
run those guns to Mexico and give them to drug cartels, around
2,000 high powered weapons, with the understanding that that
takes grave risk for innocent human life.
I mean at this point, we know at least one of our own
agents was killed, and probably 150 or more Mexican citizens
were killed. Now that is a pretty scary scenario by itself. But
I think the thing that would really concern the American people
is why this was all done. On the one hand, if it was just
something that was sincere effort that went wrong or just gross
incompetence, that is one thing. But Mr. Issa mentioned some
internal e-mails that I think were pretty significant, because
if the American people learned that the motivations for all of
this was somehow to make a case to deprive them of their second
amendment rights, to make a case to further the Department's
ability to further regulate gun rights within the United
States, that would make them very angry, General. So let me
just read a couple of e-mails again. I know Mr. Issa has
already done this, but I just want to be clear on this so that
you understand why some of us are so concerned.
On July 14, 2010 the ATF headquarters received an update on
Fast and Furious. And the assistant director Mark Chait e-
mailed Bill Newell, the head of ATF's Phoenix office. ``Bill,
can you see if these if guns were all purchased from the same
license gun dealer and at one time? We are looking at antidotal
cases to support a demand letter on long gun multiple sales.
Thanks.''
In other words they were trying to use this tragedy to
build a case for the demand letters. Well done, yesterday, Bill
in light of our request for demand letter 3, this case could be
a strong supporting factor if we determine how many multiple
sales of long guns occurred during the course of this case. It
appears that the ATF was trying to rely on walked guns
orchestrated by the Department to justify its new long gun
reporting requirement known as demand letter 3. The people
would be very upset if that was true. Now you have already
testified that you haven't read these e-mails; is that correct?
Attorney General Holder. I am sorry, that I haven't read?
Mr. Franks. You already told Mr. Issa that you hadn't
actually read these e-mails.
Attorney General Holder. That is correct.
Mr. Franks. Well, you know, the thing that is difficult for
me, General, is that you then told him that it was out of
context. And how would you have known that it was out of
context if you hadn't read them. What would give you the first
indication that they were out of context?
Attorney General Holder. Because he read part of the e-mail
to me, and I was able to listen to that and understanding what
he said or what he read from the e-mail and knowing what
happened here as I----
Mr. Franks. I will accept that. But do you read, I know you
said that you don't oftentimes read letters from your own
staff. Do you read major letters from oversight chairmen like
Mr. Issa and Mr. Grassley that come to your office, do you
personally read these letters?
Attorney General Holder. I can certainly say that over the
last few months, everything that Mr. Issa has sent and Senator
Grassley has sent, I have read.
Mr. Franks. Let me say then to you, on July 12, 2011, which
was a letter that they both sent to you, the e-mails I just
read to you were attached to the letter.
Attorney General Holder. I might not have read the
attachments. Understanding something. These things come in, I
read these things from Mr. Issa, from Congressman Issa and
Senator Grassley, because I take seriously----
Mr. Franks. It is hard for me to--anyway, let me skip, ask
you one more question here. Mr. Issa also asked if you had
given all the pertinent e-mails here and that he noted that
none of them had your name on this, none of them. And you said
this is--this obviously is probably one of the most significant
scandals facing your tenure over at the Justice Department, and
not one e-mail, General, was from you? Not one of them?
Attorney General Holder. Well, we have produced a really
substantial amount of stuff around the February 4 letter, but I
just--let me be very clear, that with regard to documents that
go beyond that from February 5 on, those materials have not
been produced and it is not our intention to produce them
following that----
Mr. Franks. So the answer to his question would have been
no, that you haven't given him all the pertinent e-mails. I
guess it is very simple in my mind that either if there are no
e-mails from you that have been given to Mr. Issa, if there are
none regarding this Committee, then we are left with three
options here: Either this is not that big a deal to you, and I
know that it is; or somehow you, for particular reasons, don't
write e-mails so that there can't be any record; or that you
haven't given us those e-mails, that is the only three things I
can come up with, there may be other possibilities, I am open
to hear it.
Attorney General Holder. I made an exception to the way in
which the Justice Department has always conducted itself with
the provision of these materials around that February 4th
letter and acted in a way with regard to all other e-mail
material in a way that all other Attorneys General before me
have. And on that basis, there are e-mails, materials that we
have not and will not produce.
Mr. Franks. I understand. Mr. Chairman, my time is up, but
I understand, Mr. General, and I appreciate--but that answers
the question. And I appreciate that, because without insulting
you, that is one of the first clear answers I have gotten today
is that you have agreed that you haven't given the Chairman all
of the pertinent e-mails, and you are saying you are not going
to, at least that is a clear answer for all of us, and with
that, I yield back.
Mr. Smith. Thank you, Mr. Franks. The gentleman from
Illinois, Mr. Quigley, is recognized.
Mr. Quigley. Thank you, Mr. Chairman. For those keeping
score at home, one side is using this horrible screw-up to
justify a policy. The other side is using this horrible screw-
up to justify not funding ATF, not giving the ATF a leader,
continuing to make tracing difficult of guns, continuing to
make releasing statistics difficult, and for allowing continued
extraordinarily lax policies for the violators and the
purchasers of straw weapons that will be used long, long after
this hearing today to purchase weapons to endanger Mexicans and
Americans and our DEA agents. Penalties that were described in
hearings before this Congress as nothing more than a moving
violation.
So Mr. Attorney General, now that I have got the score card
up to date. Let me just congratulate you, I can't forget that I
am from Chicago, and yet again, yesterday there was a
sentencing of an Illinois governor. So we will have two in jail
at the same time, four of the last eight governors, two of my
last four predecessors in this office went to jail or are going
to jail. So I want to commend your office for its work. I just
wish we didn't give you so much work to do.
But toward that end, Mr. Sensenbrenner and I did manage to
get a bill out of this Committee dealing with repairing honest
services, I would like your reaction on where we need to go
with that. As you know, the Supreme Court struck down that Act,
many provisions of it, and they are a necessary tool. Given
where we are in Chicago but across the country, where in your
mind do we need to go to deal with official corruption?
Attorney General Holder. Well, I thank you for the
compliment, it is not something that I should be complimented
for, but the men and women in U.S. Attorneys office in Chicago
deserve all the credit. Pat Fitzgerald is a great U.S.
Attorney, a friend, he has done a wonderful job over a great
number of years there and he has a great staff. I also
appreciate the efforts that you and Congressman Sensenbrenner
have--the efforts that you have made in trying to help us deal
with that Supreme Court decision.
The honest services provision in Title XVIII is a vital
tool for us to have as we try to fight official corruption
cases. A number of cases over the years have been made on the
basis of the use of that provision, and to the extent that we
can work with Congress to have that provision formed in a way
that it can withstand constitutional muster that will help us;
it will give us another tool in our arsenal against official
corruption, which is a priority for this Administration.
Mr. Quigley. And obviously, the bill has not passed the
full House and/or Senate. To the extent that your agency can or
will participate in making sure that we do this right as with--
we would like this one to stand up for some time, we certainly
appreciate your help in that manner.
Attorney General Holder. We would be glad to work with you
in that regard.
Mr. Quigley. Thank you, Mr. Chairman. And I yield back.
Mr. Issa [presiding]. The gentleman yields back. We now
recognize the gentleman from Texas, Mr. Poe, for 5 minutes.
Mr. Poe. Thank you, Mr. Chairman. Mr. General, the way I
see the Fast and Furious operation based on all of the
information that I have received, is that United States
Government, Justice Department, ATF, we are aware of a
situation where guns could be bought in the United States,
serious weapons, automatic, semi-automatic, sniper rifles,
bought by straw purchasers and were observed by Federal
authorities, wanted to watch the guns go to Mexico, go to the
drug cartels and see where they ended up.
Here is how it ended up. Two thousand weapons, based upon
the information that we have received from your Department, 600
of those weapons are accounted for, the vast majority are not
accounted for. We don't know what country they are in and who
has got them. But this operation is serious to me because
people died with this ill-founded decision. We talk about the
two Americans, the two agents, one Brian Terry, Jaimie Zapata
in Mexico, the two agents. But at least 200 Mexican nationals
died too because of the United States watching these weapons,
knowing where they were going and lose those weapons. Mexican
government hasn't said a whole lot about this other than at
least 200 Mexican nationals. Those Mexicans nationals that were
murdered because of our watching this illegal conduct are just
as important as the two Americans that were murdered as well.
And that is why this is a serious discussion.
You are the Attorney General, you are a lawyer, former
judge, prosecutor, you are the head guy in the United States
when it comes to the Justice Department and law enforcement. My
understanding is you didn't really know about the operation,
the memos, you might have gotten the memo, didn't read the memo
or didn't read all of the memo, not sure about that. But you
are the person in charge of this, and believing that you were
unaware of Operation Fast and Furious requires to coin a
phrase, a willing suspension of disbelief. It is hard for me to
believe that you were unaware of this operation that went to
Mexico.
Now my question is very simple, who is the person in the
United States Government that made the decision on Operation
Fast and Furious to facilitate the guns going to Mexico? Who is
that one person?
Attorney General Holder. We don't know yet.
Mr. Poe. So you don't know who was responsible for the
conduct of these thousands of guns going to Mexico? We don't
know who that is?
Attorney General Holder. We know that the case was opened
in the ATF office in Phoenix a month or so before it was opened
in the U.S. Attorney's Office in Phoenix. We know that it was
given OCDETF status sometime after that, but we do not know as
yet who the particular people, person was, to the extent it is
a person, in either of those offices that said this is the way
in which this operation, this flawed operation should be
conducted.
Mr. Poe. So we don't know the person that signed off--I
mean, I don't know how the Federal Government works, everybody
has got to sign off on something, especially something like
this. We don't know who that person is yet. Is that what you
are telling me?
Attorney General Holder. With all due respect, I would be
surprised if we are going to see a document that somebody
signed off on that said you can let guns walk. I would be
surprised if we see something like that.
Mr. Poe. Would you agree----
Attorney General Holder. I don't know.
Mr. Poe. We don't know who was in charge of making that
final, it is time to send the guns to the enemy of Mexico, the
drug dealers, which is phenomenal to me. It is a violation, I
understand, of international law to allow gun trafficking to go
between two countries. Do you agree with that?
Attorney General Holder. Well, I don't--it would depend. If
you look at----
Mr. Poe. People in one country are smuggling guns to
another country, isn't that a violation of international law?
Attorney General Holder. Well, I don't know about
international law, but I was going to say if you look at
Operation Wide Receiver, if the governments agree that weapons
can go from one country to another, I would not think that
violates international law.
Mr. Poe. If they agree, that is the key.
Attorney General Holder. Right.
Mr. Poe. Did the Mexican government agree to Operation Fast
and Furious?
Attorney General Holder. Not the way--not the way--not the
way which it was actually carried out.
Mr. Poe. The way it turned out?
Attorney General Holder. The way it turned out.
Mr. Poe. Would you agree it was a reckless? It was a
reckless operation on the part of the United States?
Attorney General Holder. I think the way it was carried
out, I would certainly say it was flawed, reckless, I probably
would agree with that. It was done inappropriately and had
tragic consequences and is going--as I said in my opening
statement, it is going to continue to have tragic consequences.
Mr. Poe. More people are going to die probably.
Attorney General Holder. Unfortunately, I think that is
probably true.
Mr. Poe. The person recklessly causes the death of another
person under many State laws, including Texas, where some of
these guns were bought, it is manslaughter, it is a crime. It
is my belief that if the United States government helped
facilitate reckless homicide, reckless killing of other people,
this is a serious matter. And there may be people in our
government, Justice Department, the ATF, that if they helped
facilitate reckless conduct that caused the death of an
individual in the United States or in Mexico by sending these
guns down there, they should be held criminally responsible for
that conduct.
Are you going, as far as the Attorney General, to make sure
that if criminal violations were committed by anyone in our
government, that you are going prosecute those people?
Attorney General Holder. Sir, if we find there were
criminal violations connected to the conduct of the Fast and
Furious, I will commit that those--that we will take those
findings seriously and that people will be prosecuted. Now when
I said reckless before, I was talking about the way in which
the operation itself was conducted. I don't want to cast too
wide a net here and say that on the basis of what we know now
that there is a basis to conclude that people connected to Fast
and Furious either at the ATF in Phoenix or in the U.S.
Attorney's Office in Phoenix would necessarily have the
requisite state of mind or done things that would bring them
under the ambit.
Mr. Poe. Reclaiming my time, that is not what you are
saying, that is what I was saying. I was saying----
Mr. Smith [presiding]. The gentleman's time has expired.
Mr. Poe. Thank you very much. And I request unanimous
consent to submit further questions to the Attorney General and
have answers in writing.
Mr. Smith. Without objection. Thank you, Mr. Poe.
The gentlewoman from California, Ms. Chu, is recognized.
Ms. Chu. Mr. Attorney General, before I begin with my
questions, I would like to thank you for the anti-crime
accomplishments in my district of Los Angeles. Earlier this
year, the Department took down in 1 day more than 100 members
and associates of transnational organization crime groups that
were involved in widespread criminal conduct in Los Angeles,
Miami and Denver. These were violent and fraud-related crimes,
including kidnapping and drug distribution. And also, in recent
years, the Department has gone after a San Gabriel Valley-based
organization linked to a major ecstasy ring leading to the
seizure of over 1.1 million ecstasy tablets.
Your office has also engaged in a massive take down of
major methamphetamine and cocaine suppliers in some of the most
violent street gangs in Los Angeles and La Puente. So I thank
you for all of those efforts. It has truly helped our area.
And I would also like to commend you for the work your
department has done in regards to voter rights. Your office has
handled 27 new cases this year and opened up 172 investigations
in this area. We all know there has been a large number of
unprecedented legislation suppressing voter rights. And I am
happy to hear that your office is vigilant about not letting
that happen.
Can you provide some examples of what the department is
doing to ensure that newly enacted State legislative efforts on
voter identification are implemented in accordance with the
Voter--Voting Rights Act?
Attorney General Holder. Well, we have a special role to
play under the Voting Rights Act. Our Civil Rights Division,
which is ably led by Tom Perez, has been very active in this
regard. And to the extent that changes are made in covered
jurisdictions, we review those proposed changes. And where we
think something runs afoul of the Voting Rights Act, we note
that and do not pass on them. Where we think that they are
consistent with the Voting Rights Act, we approve them. We have
taken, in a number of places, lodged objections to proposals
that have been made with regard to changes in voting schemes.
Ms. Chu. And what steps are being taken to ensure that
jurisdictions and the public are aware of what is permissible
and not permissible with these types of laws?
Attorney General Holder. Well, you know, we have tried to--
Assistant Attorney General Perez in particular has spent a lot
of time on the road, trying to educate people, especially in
those areas covered by the Voting Rights Act, about--and we
have interacted with State officials as well, to let them know
about ways in which things can be changed consistent with the
Voting Rights Act, warned jurisdictions about ways in which
changes might be made that might run afoul of the Voting Rights
Act.
And then, more generally, to talk to members of the public,
as I have tried do, when I have been out there to talk about
the Voting Rights Act. As I said, I am going to be talking
about this in a speech in the LBJ library next week, I think on
Monday or Tuesday.
Ms. Chu. Very good.
Well, I also want to thank you for something else, which is
that there is an issue about offensive materials about Muslims
that was used in some FBI training. And I know that in the
Senate Judiciary meeting last month, you acknowledged that this
has stopped. It was when the FBI was conducting
counterterrorism training, using materials that included
inflammatory statements about Islamic beliefs and offensive
stereotypes about Muslims. So, at that Senate Judiciary
meeting, you acknowledged that it stopped. And I would like to
know what the status is of the situation and the steps that
have been taken or any investigation that has been opened up
about the use of these biased trainers and materials.
Attorney General Holder. Well, the person who was
responsible for the use of--I guess using that material is no
longer going to be used by the FBI. We have also enhanced our
efforts to make sure that we review all the materials that are
used in the training of agents, lawyers, personnel within the
Department of Justice to make sure that that kind of mistake
doesn't happen again. This is something that the FBI Director,
the heads of the other law enforcement agencies within the
Department, as well as I and the leadership in the Department,
are committed to making sure does not happen again. I mean,
that was totally inappropriate, and it is a mistake that we
will not allow to happen again.
Ms. Chu. Thank you.
I yield back.
Mr. Smith. Thank you, Ms. Chu.
The gentleman from Utah, Mr. Chaffetz, is recognized.
Mr. Chaffetz. Thank you.
And thank you, Mr. Attorney General, for being here. Have
you spoken to Secretary Napolitano about Fast and Furious?
Attorney General Holder. No.
Mr. Chaffetz. Have you spoken with Secretary Clinton about
Fast and Furious?
Attorney General Holder. No.
Mr. Chaffetz. Have you spoken to President Obama about Fast
and Furious?
Attorney General Holder. I don't think that I have. I see
the President----
Mr. Chaffetz. That is okay. If you haven't, you haven't.
Have you spoken to the President of Mexico about Fast and
Furious?
Attorney General Holder. No.
Mr. Chaffetz. Have you spoken to the attorney general of
Mexico about Fast and Furious?
Attorney General Holder. I don't believe so.
Mr. Chaffetz. You have routinely argued that you have been
oblivious and disengaged in this operation. And I buy that to a
large extent.
Attorney General Holder. I am not sure I would
characterize----
Mr. Chaffetz. But we have a dead Border Patrol agent in
Agent Terry. We have 2,000 missing guns. We have 200 deaths in
Mexico. We had dead government officials in Mexico. We have a
Mexican helicopter with troops in it that was shot, three of
which are wounded back in May of this year. We have 50-plus
Members of Congress calling for your resignation over this, and
you have never spoken to any one of these people about this
operation?
Attorney General Holder. Well, first off, the notion that I
am somehow oblivious to this matter is totally belied by these
inconvenient things called the facts.
Mr. Chaffetz. You took 5 days to go to the Caribbean. You
didn't have 15 minutes to call Secretary Clinton, Napolitano,
talk to the President, or your counterparts in Mexico?
Attorney General Holder. Understand something with regard
to Secretary Napolitano, we, our agencies have been in constant
touch with each other about this issue because we are engaged,
both of us, in the prosecution of the killer of----
Mr. Chaffetz. So if you were intimately involved and
engaged in this, remember Agent Terry was killed in December,
mid-December, and then we had Jaime Zapata, who was killed in
Mexico, two officers shot, February 15. On February 16, you and
Secretary Napolitano issued a press release that is titled,
``Secretary Napolitano and Attorney General Holder form a joint
task force to assist Mexico's investigation into yesterday's
shooting of two ICE agents in Mexico.''
At the very beginning of this press release, Secretary of
Homeland Security Janet Napolitano and Attorney General Eric
Holder today met to discuss this issue. And how is it that you
and Secretary Napolitano said you never even talked or
discussed, even brought up or had any discussion about Fast and
Furious?
Attorney General Holder. The press release that you talk
about is not a Fast and Furious matter.
Mr. Chaffetz. But----
Attorney General Holder. Understand--you have to understand
something of the way Washington works here, okay? The reality
is that when it comes to matters that are under investigation--
--
Mr. Chaffetz. But the death of Jaime Zapata was highly
likely, it was highly likely that that came from Fast and
Furious. In fact, from testimony that we took from Agent
Forcelli, and I am going to read from this, is from January 8
of 2011, quote, And there was the sense like every other time,
even with Ms. Giffords' shooting, there was a state of panic
like, oh, my God, let's hope this is not a weapon from that
case. And the shooting of Mr. Zapata down in Mexico, I know
that again, that state of panic that they had like, please, let
this not come back.
So the agents on the ground were so concerned that this is
going to happen. You and Secretary Napolitano have a
discussion, and there is no discussion about even the
possibility of Fast and Furious?
Attorney General Holder. There is--the meaningful
conversations that happen between DHS and DOJ happen at lower
levels, between investigators.
Mr. Chaffetz. But when you and--what did you and Secretary
Napolitano talk about if you didn't talk about Fast and
Furious, and it is the day after Jaime Zapata, and you were
very quick to issue press releases?
Attorney General Holder. You are making an assumption that
that in fact is a Fast and Furious case. I am not sure that----
Mr. Chaffetz. We didn't know at the time. You didn't know
at the time. I didn't know. Nobody knew at the time. Isn't it a
reasonable assumption to suggest that it may have been guns
from Fast and Furious that happened, that caused that death?
Attorney General Holder. Given the fact that there are over
the course of the last 5 years 64,000 weapons that have gone
from the United States to Mexico----
Mr. Chaffetz. I have a hard time believing, Mr. Attorney
General, with all due respect, my time is short, twice the
President of the United States has gone before the American
people and said that you had nothing to do with this, you
weren't involved in it, you weren't engaged in it. Yet you said
you have never spoken to the President. How is it that he would
know you haven't been--weren't involved in this, and he can
make such a claim if you have never even spoken to him about
it?
Attorney General Holder. Well, the President gets
information from the Justice Department in a variety of ways.
We interact with the White House Counsel's Office very
frequently. I don't know exactly what the flow of information
is within the White House, but he can find out about my state
of involvement in matters connected to the Justice Department
without speaking directly to me.
Mr. Chaffetz. Let me move onto--you have access to,
obviously, the e-mails of Dennis Burke. On Wednesday, November
24, 2010, he sent an e-mail that said, ``Some of the weapons
bought by these clowns in Arizona have been directly traced to
murders of elected officials in Mexico by the cartels. So Katie
bar the door when we unveil this baby.'' How is it that you
have never had a discussion with your counterpart in Mexico
about this?
In fact, in a Los Angeles Times article, dated September 19
of this year, quote, At no time did we know or were we made
aware that there might have been arms trafficking permitted. In
no way would we have allowed it because it is an attack on the
safety of Mexicans. It goes on in the article, actually the
paragraph before, And to this date she said U.S. officials have
not briefed her on the operation gone awry, nor have they
apologized.
What is unacceptable is that you and everybody in your
organization, according to you the higher-ups, know about this
investigation. You don't have 15 minutes to pick up the phone.
And we have still never talked to these people in order to
solve this problem because, as you say, it is going to go on
for some time.
Attorney General Holder. We have taken steps, I have taken
steps to solve this problem in that I ordered an examination of
this to determine exactly what happened. I have issued
directives that this should never happen again. We have put in
place measures at ATF so that this kind of thing won't happen
again.
What Todd Jones has done with regard to the reforms that he
has put in place I think are going to be extremely effective.
And I have made personnel changes with regard to----
Mr. Chaffetz. You haven't fired anybody. Nobody has been
fired.
Mr. Smith. The gentleman's time has expired.
Does the gentleman want to respond to the last question?
Attorney General Holder. I just was trying to say that I
have made personnel changes with regard to the agencies that
have been involved. And these are initial determinations that I
have made. It is not all that I am possibly going to do. There
is an impatience here, and in some ways, I understand it, but
the reality is that you have to do these things on the basis of
evidence, on the basis of findings that are factually grounded.
And when I am in that position, I will take the appropriate
actions. But I want to assure you and the American people that
people will be held accountable for the mistakes that were made
in Fast and Furious.
Mr. Issa. Mr. Chairman, point of inquiry.
Mr. Smith. Thank you, Mr. Chaffetz.
Who seeks to be recognized?
The gentleman from California.
Mr. Issa. A point of inquiry. Do political appointees of
the Presidents and the Attorney General serve at the pleasure
of the President or the Attorney General, or do they need to
have to be fired for cause?
Mr. Smith. That is not actually a parliamentary inquiry----
Mr. Issa. But I am sure inquiring.
Mr. Smith [continuing]. Though it may be a legitimate
question. The Judiciary Committee will recess until immediately
after this series of votes. We expect that to be about 2:30.
[Recess.]
Mr. Smith. The Judiciary Committee will come to order.
Before we resume our questioning, I would like to welcome
the newest Member of the Committee, Jared Polis, from the
Second District of Colorado. Congressman Polis was just
appointed yesterday to fill a vacancy on the Committee. And we
are happy to welcome him back. He was on the Committee for
several years and is back on now.
He also serves on the Rules Committee and the House
Democratic Steering and Policy Committee. And at our next
meeting, we will go into even more details about Mr. Polis. But
we welcome him today.
And will be recognizing you immediately for questions.
Mr. Polis. Thank you so much, Mr. Chairman.
I would like to draw your attention, Mr. Attorney General,
to the issues surrounding the regulation of medical marijuana.
I wanted to first clarify, there is a memo dated October
19, 2009, from David Ogden. I am sure you are familiar with
that memo. The contents of that memo is advisory to the States
is still in force. Is that correct? That is still a current
memo?
Attorney General Holder. Yes.
Mr. Polis. Okay. Thank you. And one of the issues that was
later clarified in a memo by James Cole is what we are talking
about when we are talking about caregivers, who your memo
instructs should not be an enforcement priority. The Colorado
Constitution in Article XIV happens to have a definition of
caregiver. It is further refined in our Colorado statutes. And
I wanted to see whether I can get your assurance that our
definition of caregiver in our State's Constitution will be
given some deference by the U.S. Attorney General's Office.
Attorney General Holder. I am not familiar with the
provision. But what we said in the memo we still intend, which
is that given the limited resources that we have, and if there
are States that have medical marijuana provisions, and if you
take into account the Cole memo, if in fact people are not
using the policy decision that we have made to use marijuana in
a way that is not consistent with the State statute, we will
not use our limited resources in that way. And so I don't
know--I assume that--I just don't know about that provision.
Mr. Polis. And again, in the case of Colorado, we do have
definitions of some of the terms in your documents in our
Constitution. And I would hope that the U.S. Attorney General
for the State would look at that.
Now, as you know, the Department of Justice recently
announced a crackdown in California. Now, part of the issue
there, it is my understanding, they did not have a functional
State-level regulatory authority. Colorado does have an
extensive State regulatory and licensing system for medical
marijuana. And I would like to ask whether our State
regulation, our thoughtful State regulation, passed with strong
bipartisan majorities in both Chambers of our legislature,
provide any additional protection to Colorado from Federal
intervention.
Attorney General Holder. Again, I am not familiar with it,
but I would have to look at it. But again, our thought was that
where a State has taken a position, it has passed a law and
people are acting in conformity with the law--not abusing the
law, but acting in conformity with it--and again given our
limited resources, that would not be an enforcement priority
for the Justice Department.
Mr. Polis. Thank you. I am grateful for that clarification.
One of the issues that many of the legal, regulated medical
marijuana shops and dispensaries shops in Colorado brought to
my attention is their inability to open bank accounts at most
FDIC institutions. That makes the industry harder for the State
to track, to tax, to regulate, and in fact makes it prone to
robberies because it becomes a cash business as well. Is there
any intention of the Department of Justice to prosecute bankers
for doing business with licensed and regulated medical
marijuana providers in the States?
Attorney General Holder. Again, I would think, consistent
with the notion that how we use our limited resources, again,
if the bankers, the people seeking to make the deposits are
acting in conformity with State law, that would not, again, be
an enforcement priority for the Justice Department.
Mr. Polis. Thank you.
Moving onto another issue with regards to Internet piracy,
as you know the Judiciary Committee recently held hearings on
SOPA, Stop Online Piracy Act. I had many concerns with this
bill, including an overly broad definition of infringement. As
you know, there is a lot of content on the Internet. In fact,
as example, on YouTube alone, there's 100 hours of video that
is uploaded every minute. Many of this, many of the videos that
have been uploaded contain some type of rights infringement,
with no intent for commercial gain.
I ask with the substantial new powers that would be granted
to the Attorney General's Office under SOPA, what type of
resources would the Department of Justice need to handle the
hundreds of millions of prosecutions that would be necessary
and indicated under SOPA?
Attorney General Holder. Well, I think that you have to
look at what powers we would be granted and then how we would
use our resources. Not every matter, though it might be a
technical violation of a statute, is something that we are
going to use our resources going against. I mean, if there is a
YouTube upload of something that is not intended for commercial
use and we don't think there is any great harm, that is not the
kind of thing we are going to be going after.
Mr. Polis. So it is fair to say, given otherwise the
absence of tens or hundreds of billions of resources to go
after everybody, there would be selective enforcement of the
Stop Online Piracy Act from the Attorney General's Office?
Attorney General Holder. Well, selective enforcement, as a
prosecutor you get a little nervous saying that phrase. But
there would be an appropriate use of our resources, taking into
account what the harm is, and always with the thought that what
we are trying to do is to protect the abuse of copyrighted
material.
Mr. Polis. I thank the gentleman.
And just note that with regard to the selective
enforcement, there is not currently criteria in the bill, so
that would be at the discretion of your office to decide what
type of selective enforcement of that law and the new powers
would be given to the Attorney General under that would entail.
And I yield back the balance of my time.
Mr. Smith. Thank you, Mr. Polis.
The gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Holder, Assistant Attorney General Ronald Weich wrote a
letter to a Member of Congress, February 2011, a letter which
was demonstrably false. Your Department withdrew that letter 10
months later. When did you learn that that letter was false?
Attorney General Holder. Well, I would not characterize the
letter as false. I would say it contained inaccuracies.
Mr. Gowdy. Well, Mr. Attorney General, it contained
material demonstrably false statements. Agreed?
Attorney General Holder. No.
Mr. Gowdy. You don't think they were demonstrably false
when you represented ATF makes an effort to interdict all
weapons going to Mexico? You don't think that is demonstrably
false?
Attorney General Holder. Not in the way you used the word.
Mr. Gowdy. How do you know what way I used the word?
Attorney General Holder. I am listening to you.
Mr. Gowdy. Is it false? Can I demonstrate that it is false?
Attorney General Holder. Well, you said materially false.
You are using legal terms there. You are a lawyer. So now we
are in that realm. And you said materially false. And that is a
fundamentally different thing from----
Mr. Gowdy. All right. Do you think it was demonstrably
false?
Attorney General Holder. I would say that it was
inaccurate.
Mr. Gowdy. All right. When did you learn it was inaccurate,
demonstrably false?
Attorney General Holder. You know, I am not sure, but I had
concerns about it early enough that in spite of the expression
on February 4, I ordered that investigation on February the 28.
And it was an evolving process. As time went on, more and more
information became available. And it became more and more clear
that that letter contained inaccurate information.
Mr. Gowdy. Well, it strikes me that if a statement that
false were made to a judge, you would have withdrawn that
statement, that brief, that memo, that filing the moment that
you learned it was false. And I am just curious why there is
not the same regard for this branch of government that there
would be for the judicial branch of government.
Attorney General Holder. If you look at what happened over
the course of months between the time of the letter until it
was formally withdrawn, there were a number of instances where
we indicated that we had concerns about what was in the letter,
in testimony that Mr. Weich gave, at one point I believe, he
said we were not--I don't remember the exact expression that he
used, but he indicated there that we had concerns. In a letter
that I sent I guess in October, I indicated there were problems
with Fast and Furious which was inconsistent with what the
letter said. There were a number of things that happened
between February 4 and I guess December or November, whenever
it is that we actually withdrew it.
Mr. Gowdy. Let's go back to February 4, because there are
at least four senior DOJ officials who knew or should have
known that letter was false at the time it was delivered. Your
chief of staff, Gary Grindler, saw a map of Mexico where guns
were being recovered. He was debriefed on Fast and Furious. He
knew that cash was being paid for the weapons in Arizona. Lanny
Breuer, you will concede, knew for a fact that gun walking was
taking place in February of 2011. Agreed?
Attorney General Holder. No.
Mr. Gowdy. You disagree that Lanny Breuer, despite the fact
that he has admitted it, knew that gun walking was taking place
by ATF. Mr. Attorney General, there are e-mails where he
admitted it in October of 2010.
Attorney General Holder. Okay, now Congressman, you have to
be careful here. He said that he knew about gun walking in
Operation Wide Receiver.
Mr. Gowdy. Right. Which is why it is very important Mr.
Weich didn't say Fast and Furious in his letter to Senator
Grassley. I see where you are going with that. He didn't make a
distinction on Fast and Furious.
Attorney General Holder. I am just trying to be careful
here.
Mr. Gowdy. And I want to be careful, too.
Attorney General Holder. You don't want to conflate things.
Mr. Gowdy. I am not conflating.
Attorney General Holder. Okay.
Mr. Gowdy. Did Lanny Breuer know that ATF engaged in gun
walking in February of 2011.
Attorney General Holder. He knew they had engaged in gun
walking in the Fast--in the Wide Receiver operation.
Mr. Gowdy. So the answer to that question would be yes.
Lanny Breuer knew that any statement that ATF makes every
effort to interdict guns and not allow them to go to Mexico, he
knew that statement would have been false.
Attorney General Holder. He said that he made a mistake in
not connecting that which he knew about Wide Receiver and
didn't apply that knowledge to what happened in Fast and
Furious.
Mr. Gowdy. What about Jason Weinstein and James Trusty?
This is their e-mail exchange: It is a tricky case given the
number of guns of that have walked. That is October 2010.
Trusty responds, It is not going to be any surprise that a
bunch of U.S. guns are being used in Mexico, so I am not sure
how much grief we get for gun walking. These aren't AUSAs in
Arizona. These aren't rogue ATF agents. These are senior DOJ
officials. And I cannot believe that they just learned recently
that a demonstrably false letter had been mailed to a Member of
Congress. Why not correct it the moment you realized that it
was wrong?
Attorney General Holder. Well, they admit that they made
mistakes with regard to what their level of knowledge was and
what they should have done in the preparation of the letter.
They relied on people who they thought had the best knowledge
in Arizona and did not bring into their calculation information
that they had previously had about the gun walking that had
occurred in that prior operation.
Mr. Gowdy. Mr. Attorney General, you brought several law
enforcement officials with you today. And I salute their
service. It just strikes me--and I am quite confident I will
get this question when I go back home--when law enforcement
officers lie to lawyers, they go to jail. When lawyers lie to
Congress, they seem to get promoted. There is a Border Patrol
agent who is on his way to Federal prison right now on a 1001
conviction. What consequences can we expect because of false
statements made to Congress?
Mr. Smith. The gentleman's time has expired.
And if the Attorney General will respond to the question.
Attorney General Holder. As I said, there is an Inspector
General investigation that is underway. I will look at the
results of that investigation.
But I will also be looking to see what happened with regard
to the creation of that letter, if there is any more
information that I can glean on my own, before making
determinations as to how people will be held accountable for
the mistakes that they made.
In taking into account in making that determination, what
roles have they played in the Department, what good things have
they done. I mean, one cannot look at these mistakes, I think,
in isolation. One has to look at the totality of the person's
service to the Department and then, on that basis, make a
determination as to what the appropriate sanction will be. And
that is what I will do.
Mr. Gowdy. Mr. Chairman, I would ask unanimous consent for
15 seconds just so I can follow up on one point.
Mr. Smith. The gentleman continues to be recognized for 15
seconds.
Mr. Gowdy. Mr. Attorney General, it just seems to me that
the policy is now going to be let's get the least knowledgeable
person that we can to write the letter. I found the exchange
between you and Chairman Sensenbrenner to be interesting on
mens rea. The defense is that Mr. Weich didn't know what he
didn't know, so we are going to get the least knowledgeable
person in the Department of Justice to write the letters to
Members of Congress. Is that what we can expect from now on?
Attorney General Holder. No. What you can expect from this
Department of Justice, as long as I am the Attorney General, is
that we will do our best to get you accurate information as
quickly as we can.
And I actually think that one of the problems with regard
to the Fast and Furious response is that we were rushed. If
people--although if you look at, you know, that e-mail, all
those e-mails that we sent around, you see people are really
interacting with one another, trying to find information. But I
think there was a time pressure there that, frankly, they
should not have allowed in the process. They should have taken
more time, sent a placeholder response or something like that,
and if it took 2 weeks to get a response back to Congress, that
would have been better than I think the 4 or 5 days that it
took. I think that is certainly one of the problems. And there
was a lesson learned.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Gowdy.
The gentleman from Florida, Mr. Deutch, is recognized.
Mr. Deutch. Thank you, Mr. Chairman.
General Holder, welcome, thank you for spending the day
with us. Thank you for your candid responses.
I would note that sometimes facts get in the way of
political theatrics. And I appreciate your willingness to share
facts with us today.
I would like to just revisit this discussion by taking a
step back for a minute, General. Can you, since we have delved
into the weeds, can we back up for a second? When did you learn
about Operation Fast and Furious?
Attorney General Holder. Sometime in the beginning of the
year. It would have been I think after I got those letters from
Senator Grassley on January the 31st. And at some point after
that, I think sometime in February, I first learned about
Operation Fast and Furious.
Mr. Deutch. And what did you tell the U.S. Attorney's
Offices? What notice did you send them when you learned of
this?
Attorney General Holder. After I ordered the Inspector
General investigation, in March, I sent a directive to all of
the U.S. Attorney's Offices that gun walking was not
acceptable, not an acceptable technique or tactic, that it was
contrary to DOJ policy. I had the Deputy Attorney General send
that out to all of the U.S. Attorneys.
Mr. Deutch. And that was after you ordered the
investigation. And tell me about the investigation that you
were ordering.
Attorney General Holder. The order for the investigation
was on February 28. I thought that I was getting conflicting
information from people within the Department of Justice and
what I was reading in the media and, frankly, what Congress was
bringing to my attention. And it just seemed to me that I
needed to have--find a mechanism to finally resolve what these
conflicting positions, and as a result, I ordered--I asked the
Inspector General to engage in this investigation.
Mr. Deutch. And what is the time frame of that
investigation?
Attorney General Holder. I am not sure. They are--I know,
they are feverishly working on it. When it will actually be
completed, I don't know.
Mr. Deutch. I appreciate that.
There are 64,000 guns in Mexico is the number that I
understand. Ninety-five percent of the weapons recovered from
murders in Mexico, 95 percent, were traced to the United
States. Tens of thousands of weapons were traced to the United
States. It is--this discussion is vitally important, but I
think it is equally important for us to broaden the discussion
to one of how to address the fact that there are still tens of
thousands of weapons that are winding up in Mexico from our
border.
Can you speak, General, to the actions the Congress can
take in order to help stem that flow of guns?
Attorney General Holder. Well, I think, certainly, if
Congress were supportive of our funding requests to help ATF
with these teams that we would like to send to the border--we
tried to send 14 at one point. I think we only sent seven or
eight because of funding problems, these ATF teams that have an
ability to monitor the trafficking of weapons into Mexico. That
would be helpful.
There is a trafficking statute, if Congress would pass--
consider and pass that, I think that could help us as well.
Support for that regulation that we put in place that deals
with long guns and the sale of them over the course of, you
know, a 5-day period. All of these things I think would be
helpful. And a more protracted dialogue about what the nature
of the problem is, which is a national security threat to the
United States. You know, it is not only the executive branch
that has ideas that I think could be useful. I am sure there
are great ideas in Congress as well. And to the extent that we
can identify them, work on them, and do so in a way that is
respectful of and consistent with the Second Amendment, I think
that would be very useful.
Mr. Deutch. I agree. I also would suggest, General, that it
is worth broadening this debate to within our own borders as
well.
I think it is worth noting that 100,000 people a year in
America are shot in gun violence; 32,000 died from gun violence
last year; 20,000 American children and teens are shot every
year involving gun violence. Every day in America 270 people in
America, 47 of them children and teens, are shot. And every
day, 87 people die from gun violence in this country.
This is a very important hearing. And this is an important
discussion about this operation and the investigation that you
have started.
I think, unfortunately, the debate that we are not having
often enough here is one about gun violence in this country, is
one that acknowledges the fact that law enforcement officers in
our country now need to carry assault weapons themselves in
order to match the firepower of the criminals who carry assault
weapons. There was a survey done of about two dozen police
departments by the International Association of Chiefs of
Police that since 2004, all of the agencies have either added
assault weapons to patrol units or replaced existing weapons
with military-style assault rifles. Military-style assault
weapons are now necessary. They are needed by our police
officers because assault weapons are flowing freely within our
own borders.
And while this discussion is important, we live in a
country where the assault weapon ban has expired, and we see
assault weapons now flowing through the streets, causing our
law enforcement to have to carry assault weapons.
The gun show loophole continues to exist. And it is about
time, and I say this only rhetorically, I don't ask for your
response, General, but it is about time that we focus as a
Congress on the steps that we need to take to decrease gun
violence in this country and to get these assault weapons, that
are created for the sole purpose of killing people, off of our
streets one and for all.
I very much appreciate your being here, and I appreciate
this exchange, General. Thanks so much for coming.
Attorney General Holder. Thank you.
Mr. Smith. Thank you, Mr. Deutch.
The gentleman from Florida, Mr. Ross, is recognized.
Mr. Ross. Thank you, Mr. Chairman.
And Mr. Attorney General, I thank you for being here. I
know it has been a rather long day for all of us. I just want
to clarify your understanding of your being here today, because
there was some confusion I think at the beginning. Is it your
understanding that you are here under oath, that you are under
penalties of perjury as to your testimony?
Attorney General Holder. I am here to tell the truth, sure.
Mr. Ross. Okay. So you believe that you are here under
oath. Is that your understanding?
Attorney General Holder. I am not sure I am technically
under oath, but I have an obligation to tell the truth. I don't
need to swear an oath; I am here to tell the truth.
Mr. Ross. Thank you. I hope so. Thank you.
Attorney General Holder. I am going to tell the truth.
Mr. Ross. I want you to tell the truth. Because I want to
ask you a little bit about your management style.
Attorney General Holder. All right.
Mr. Ross. You know, it looks as though that you have not
really been reading any of the memos that you get on Fast and
Furious. In fact, I think that your Chief of Staff Ken Ohlson
has testified before the Senate Judiciary Committee that he
also did not read the memos sent to your attention regarding
Fast and Furious. And I am just curious, why would that be? You
learn about this operation sometime after the first of the year
this year, and yet it has been going on for a year. You are the
number one law enforcement officer in this country. And yet you
don't know what is going on. That would make me upset if I was
in your position. Does it not you?
Attorney General Holder. You have to understand these memos
that you are talking about are weekly reports that come to the
Office of the Attorney General, the Office of the Deputy
Attorney General. And they are statements by the various
components of what is going on in them. If you look at the very
things that we have submitted to Congress that show what
actually dealt with Fast and Furious in those weekly reports,
they don't indicate anything about these bad tactics.
Mr. Ross. Okay.
Attorney General Holder. It talks only about Fast and
Furious as if----
Mr. Ross. But somewhere in the line, somewhere in the line
of authority, you have been--you are not new to this. You were
in the Office of Public Integrity, what, for 12 years?
Attorney General Holder. Public Integrity Section.
Mr. Ross. Yeah, Public Integrity Section for 12 years. You
were Deputy Attorney General for 3 years. None of this
structure is new to you. And yet there is somebody below you,
and not your chief of staff, because he didn't read the memos,
but there is somebody who is reading these memos. Why are they
not reporting to you?
Attorney General Holder. Because if you read the memos,
read them, if you will read the memos you will see--and they
are not memos, they are these excerpts--if you read these
excerpts about Fast and Furious, all it says is that Fast and
Furious essentially is going fine----
Mr. Ross. But did you know what Fast and Furious was at
that time? Did you know that it was akin to Wide Receiver but
not the same?
Attorney General Holder. No.
Mr. Ross. Did you know what Fast and Furious was at all at
that time?
Attorney General Holder. No, I didn't know about Fast and
Furious until about February of this year.
Mr. Ross. Shouldn't you have known?
Attorney General Holder. No, because Fast and Furious is an
operation, a regional operation. There are all kinds of
operations going on right now in the Justice Department about
which I know nothing because of the way in which the Department
of Justice is structured. They are handled by----
Mr. Ross. Who specifically would have been reading those
memos? Do you know by name who specifically would have been
reading----
Attorney General Holder. People on my staff.
Mr. Ross. Who are their names?
Attorney General Holder. The people--whoever had the
portfolio for ATF with regard to their weekly memos, NDIC with
regard to their weekly memos. Those are the people on my staff
who would have had that responsibility, making the initial
determination as to whether or not there was information
contained in those reports that should be brought to my
attention.
Mr. Ross. Would you agree that one of the most fundamental
principles of leadership is that you can delegate authority but
you cannot delegate responsibility?
Attorney General Holder. Okay. That sounds about right.
Mr. Ross. And would you be willing then to say that you are
responsible for Fast and Furious operation?
Attorney General Holder. As I said, I am ultimately
responsible for everything that happens in the Justice
Department.
Mr. Ross. Do you have any remorse for what happened with
Agent Terry?
Attorney General Holder. Of course, I do.
Mr. Ross. Have you spoken to their family? Have you
apologized to their family?
Attorney General Holder. I have had contact with the family
that I am not going into. The nature of my interaction with
them is between me and them, and I will leave to them how they
want to, if they want to, reveal that. People on my staff, in
addition to me, are in constant touch with the Terry family.
Mr. Ross. But you have not apologized to them, as I
understand it.
Attorney General Holder. I will say that I have expressed
my feelings to them, and I am going to leave----
Mr. Ross. You are the number one law enforcement officer in
this country, and a law enforcement officer has died as a
result of a botched operation. Don't you feel some sense of
remorse that you ought to apologize to the family?
Attorney General Holder. I feel great remorse, great
regret, and I have expressed this to the Terry family. I am not
going to reveal to you in this setting the nature of the
interaction----
Mr. Ross. Just real briefly. And I----
Attorney General Holder [continuing]. The nature of the
interaction that I have had with the Terry family. I am not
going to do this in front of the media. I am not going do it in
front of a Congressional----
Mr. Ross. But you haven't apologized. That is all I wanted
to establish. Now, you also testified in your opening statement
that, as you state here, that used inflammatory and
inappropriate rhetoric about particular one tragedy that
occurred near the Southwest border in an effort to score
political points. Do you feel that somebody is trying to score
political points with this incident?
Attorney General Holder. With the Fast and Furious
incident?
Mr. Ross. Yes.
Attorney General Holder. Well, let's just say that some
people have not let facts get in the way of----
Mr. Ross. And you are here with clean hands to say that.
Correct?
Attorney General Holder. Excuse me?
Mr. Ross. You are here with clean hands to say that.
Because in your opening statement, you also allege, or you
assert that, for example, earlier this year the majority of
House Members voted to keep law enforcement in the dark when
individuals purchase multiple semi-automatic rifles and
shotguns. Mr. Attorney General, it seems to me that you are
trying score as many political points as you are asserting that
somebody else has done in this operation. And I find that
rather offensive.
Attorney General Holder. What I have said there is
factually accurate. I don't have any problem with people, you
know, criticizing me or the Department as long as what you say
is factually based. That is fine. I mean I understand that. I
am a big guy. I have been in Washington for a long time.
The concern I have is where things are thrown at the
Department generally, and me personally, that are not factually
based. That is where I draw the distinction.
Mr. Ross. I see my time is up. I yield back.
Mr. Smith. Thank you, Mr. Ross.
The gentleman Puerto Rico, Mr. Pierluisi, is recognized.
Mr. Pierluisi. Thank you, Mr. Chairman.
Thank you, General. I am sorry I haven't been able to be
here as long as I wished. I had a parallel hearing I couldn't
excuse myself from.
But the first thing that comes to my mind is that I should
commend you, because the little time I have been here, I have
been watching you. And I keep seeing that you keep saying, as I
have said, as I have said, as I have said. And that leads me to
believe that you have been asked so many questions, similar
questions, and you have had the candor, the demeanor, the
patience to deal with them.
And that is what we should be expecting, and we expect from
the Attorney General. And so that is why I thank you, and I
commend you.
Attorney General Holder. Thank you.
Mr. Pierluisi. Stay like that, though, because this hasn't
finished.
But I have a couple of questions, a couple of comments.
First, I am personally concerned about the gun shows and,
obviously, the straw purchasers. And putting aside this Fast
and Furious operation, which you have already denounced, and
you put a stop to it as soon as you learned of it, what else
are you doing to deal with the straw purchases and the gun
shows that seem to be, you know, like totally unregulated and
so on?
Attorney General Holder. Well, we have tried to make a
priority the fight against gun violence. And we try to approach
it in a variety of ways, by being aggressive in going after
those who traffic in firearms, to go after those people,
convicted felons, for instance, who should not have access to
weapons, to try to come up with ways in which we keep guns out
of the hands of felons. And that is really important, because
if you look at the number of police officers who have been shot
and, unfortunately, died over the last couple of years, the
vast majority of them have been shot by people who were felons
and who should not have had access to weapons. And so we do a
whole variety of things to try keep guns out of hands of people
who should not have them.
Mr. Pierluisi. That is good.
One thing that bugs me is that for 5 and a half years, we
haven't had a permanent director at ATF. Yet I see lots of
vacancies there. I see them in Puerto Rico, my district, my
place; 45 percent of the slots are vacant, even though we have
a huge crime issue and illegal gun issue. Is that affecting the
level of resources that ATF has? I mean, is this lack of a
permanent director affecting its mission, its ability to meet
its mission?
Attorney General Holder. I do think so. I think that
internally an organization runs better when a person who is
seen as the permanent head, the Senate-confirmed head is in
charge. I think people respond better, although I think Todd
Jones is doing a great job as the acting person now.
But beyond that, a person who is Senate confirmed has the
ability in the budget process to lobby for his or her
organization in a way that a person who is doing it in an
acting capacity cannot. You just have more heft within the
Administration, in dealing with Congress, if you are the
confirmed head. And I think because ATF has been so long
without a confirmed head, it has not had the ability to argue
as forcefully, as effectively as maybe some of the other
components within the Department for resources.
Mr. Pierluisi. Going back a bit to this Operation Fast and
Furious, I am the first one who recognizes that Congress has
every right to do oversight on this issue and investigate and
so on. And I know you do, too.
But one thing that comes to my mind is that the moment you
learned of it and you did not get the right answers from your
troops, that is when you said, I am referring this to Inspector
General. And as far as I know, the Inspector General doesn't
report to you, has wide discretion. Her objectivity hasn't been
questioned. So this is in the proper hands. And is there an
investigation ongoing at the moment? And what is--and another
question I have is isn't that your modus operandi? When you see
any potential irregularity in your Department, isn't the
Inspector General the place you go to to try correct it? And
then if there is going to be referrals, administrative actions,
then they happen?
Attorney General Holder. Yeah. I think that was--I thought
that was the appropriate thing to do. I continue to think it is
the appropriate thing to do, to have an independent Inspector
General look at this situation, this flawed operation, and
share with me and with the rest of the world what her
conclusions will be.
The Inspector General in the Justice Department has I think
a deserved reputation for independence. There were a lot of
investigations that were done by the IG during the Bush
administration that I think generated a lot of attention and I
think were indicative of the kind of independence that the IG
is capable of doing when it was making determinations about the
Justice Department in which the office sits. I am confident
that with regard to this matter, the IG will be able to
independently review this, as I described, flawed operation and
come up with some facts upon which I can take further action.
Mr. Pierluisi. Thank you.
Mr. Chairman, I ask unanimous consent for 15 more seconds.
Mr. Smith. The gentleman is recognized for another 15
seconds.
Mr. Pierluisi. Before I stop, my time has expired, I want
to mention to you, Attorney General, that I have requested that
ONDCP Director Gil Kerlikowske, the drug czar, craft what I
call a Caribbean Border Initiative, something similar to the
Southwestern Border Initiative. And the reason is
straightforward. We are in a crisis in the Caribbean. Homicides
at the worst possible level. More than half of the homicides in
Puerto Rico are drug related. The situation merits particular
attention, a similar initiative to the one you have in the
Southwest. I hope I will count on your support.
Attorney General Holder. The point you make is a very good
one. The Administration has what is called the Caribbean Basin
Security Initiative that is in place to deal with the island
nations in the Caribbean and the problems that they are facing.
I was in the Caribbean for 4 days, I guess 2 or 3 weeks ago,
where I met with four heads of state, a variety of attorneys
general and interior ministers to talk about--I was in the
Dominican Republic. I was in Barbados. And I was in Trinidad.
And I met with, as I said, those groups of people to deal with
the situation that they are talking about. And as Mexico is
becoming more successful, drugs are now starting to flow
through the Caribbean Nations both to the United States and
then through Africa into Europe.
Mr. Pierluisi. And there are two American territories,
Puerto Rico and the Virgin Islands right here.
Attorney General Holder. That is very true. And the problem
is one we have to confront. This is a national security issue
that we have to confront.
Mr. Smith. Thank you, Mr. Pierluisi.
The gentlewoman from Florida, Ms. Adams, is recognized.
Mrs. Adams. Thank you, Mr. Chairman.
Mr. Holder, I am going to ask you some questions, and I
think they are pretty easy yes or no questions. Let's see if we
can go that route. Are you aware of a 1994 implementation DOJ
was responsible----
Attorney General Holder. I am sorry, I can't hear you too
well.
Mrs. Adams. 1994, there was an implementation, DOJ was
responsible for the implementation of CALEA standards for law
enforcement. Are you aware of that?
Attorney General Holder. I am note sure of the year, but I
certainly remember CALEA, yeah.
Mrs. Adams. Does your agency operate under CALEA standards,
or do you just implement them for law enforcement agencies
across the country?
Attorney General Holder. I am not sure, do we operate under
them?
Mrs. Adams. Yes. I mean do you have that type of--are you
accredited? I mean, you accredit other agencies. Are you
following the same type of accreditation, guidelines as
agencies throughout our Nation?
Attorney General Holder. I assume that we do, yes.
Mrs. Adams. You assume. So then you would agree that
supervisory personnel are accountable for those people and in
the performance of the people underneath them. Correct?
Attorney General Holder. Yeah. As a general rule, sure,
yes.
Mrs. Adams. You know, I listened intently because I am one
of those law enforcement officers. I am not a lawyer or
anything else. And I also have a husband on the wall over in
Judiciary Square. I have a lot of friends on that wall also. So
I am going to come at it a different area.
I take issue with you saying that we are trying make
political points with Officer Terry's death. To me it is
personal. Okay? It is not political. One of our officers were
killed with weapons that were allowed to walk. That should
never have happened. I have worked in undercover. We never
would allow weapons to walk.
Now, I have heard you say if we get this provision that
would--the long guns then it would help. The problem is under
Fast and Furious, it wouldn't have helped, would it? Those
weapons still would have walked, wouldn't they? Under Fast and
Furious, would they have walked or not.
Attorney General Holder. Yeah, but----
Mrs. Adams. Yes.
Attorney General Holder. One does not necessarily preclude
the other. I mean, the fact is that under Fast and Furious, a
flawed operation, and about which I have not tried to defend
the conduct----
Mrs. Adams. Correct. I understand that. But under that
system, would they not have walked?
Attorney General Holder. In the larger picture, there is no
question that the implementation of that long gun rule will
decrease the possibility that we will have further tragedies.
Mrs. Adams. Mr. Attorney General, what my question was,
under Fast and Furious, those weapons still would have walked,
would they not? Yes or no?
Attorney General Holder. You don't dictate. The weapons
went into the flow of commerce because of mistaken decisions
that were made by people in the Justice Department.
Mrs. Adams. Let's talk about those decisions. Let's talk
about those decisions. Here we have an operation you get memos
on, but no one, not you nor your chief of staff is reading
those memos. Somewhere along the lines, somebody has to know
something because this is an operation that is not just within
our borders; it is crossing international borders. So what
rises to the level that the Attorney General of our United
States needs to know? What is it that you need to know about
that rises to that level that you have an operation crossing
international borders? You now say that you didn't find out
about it until after the fact, and after inquiries happened,
after Mr. Terry--Officer Terry's death. What is it that would
rise to the level that you would have to sign off on? Since
going across international borders isn't one of them, could you
tell me what would be?
Attorney General Holder. Well, first of all, you are
referring to these as memos. They were weekly reports.
Mrs. Adams. Well, any operation. Is there an operation that
would rise to the level that would need your sign off?
Attorney General Holder. Sure, there are things that I have
to sign off on.
Mrs. Adams. But not this one, the one that crossed
international borders.
Attorney General Holder. No.
Mr. Issa. Would the gentlelady yield briefly?
Attorney General Holder. Can I answer the question first?
One has to understand, and I would urge you, if you have not
done this, to look at these weekly reports, and to look at
exactly what it was----
Mrs. Adams. Mr. Holder, I understand you had weekly
reports. And I have got a couple more questions. I want to make
sure I get them in. But I am asking you, and I ask you what
would rise to the level for you to have to sign off on it?
Because this apparently did not. You said you had weekly
reports that you didn't review and your chief didn't review.
That is the question I asked, and you said there is, so I am
waiting to hear. But while I wait for that answer, let me ask
you another question. Because one of my colleagues asked you
about your e-mails. And you went straight to your work e-mail,
hardly anybody has that. I am going to ask you a very direct
question. You have a personal e-mail account. Did you at any
time, at any time, e-mail on your personal account with Larry
Breuer or Lanny Breuer and Gary Grindler in regards to Fast and
Furious ever?
Attorney General Holder. Ever?
Mrs. Adams. Yes or no.
Mr. Smith. The gentlewoman is recognized for an additional
minute so the Attorney General can respond to her questions.
Attorney General Holder. I don't know. I can tell you that
I----
Mrs. Adams. Would you check and get back with us? If you
need some help, I am sure that your agency personnel can get
into those computers.
Attorney General Holder. Well, with regard to provision of
e-mails, I thought I had made it clear that after February the
4th, it is not our intention to provide e-mail information,
consistent with the way in which the Justice Department has
always conducted itself.
The exception that I made, that I made in the hope that the
Justice Department would be seen as transparent, was to go
against that tradition and to make available deliberative
material around the February 4 letter.
Mrs. Adams. So, again, as in when you were here before and
I asked you about a totally different issue, you were saying
that you refused to provide that information. Is that correct?
Attorney General Holder. I didn't hear you--you were
talking at the same time I was talking. And please, she can
have more time. I don't want to cut off your time. I just
didn't hear the question.
Mrs. Adams. Previously, in another Committee, when you were
here earlier, I asked you another question. You said you would
not answer that question. Now you are saying that you won't
provide those e-mails because that is not consistent with
whatever policy was previous. I am asking you if there is clean
hands here, will you provide those e-mails to this Committee?
Attorney General Holder. As I said----
Mrs. Adams. Yes or no?
Attorney General Holder. I am going to act in a way that is
consistent with the all Attorneys General before me.
Mrs. Adams. That is not my question, Attorney General. You
know, with due respect, that was not my question. I asked you,
with clean hands, would you supply those e-mails, whether it is
work related or personal e-mails, as they apply to anything
that had to do with Fast and Furious?
Attorney General Holder. And as I said----
Mrs. Adams. To this Committee? Yes or no?
Attorney General Holder. As I said, with regard to the
Justice Department as a whole----
Mrs. Adams. I yield back, Mr. Chair. I am not going to get
an answer.
Attorney General Holder. As I said, with respect to the
Justice Department as a whole, and I am certainly a member of
the Justice Department, we will not provide memos after
February the 4th. And that is a way in which we are----
Mrs. Adams. With regards to e-mails. I didn't ask memos. I
said e-mails.
Attorney General Holder. Emails, memos, consistent with the
way in which the Department of Justice has always conducted
itself in its interaction----
Mrs. Adams. What about prior to February 4?
Mr. Smith. The gentlewoman's time has expired.
The answer was no, is that correct, Mr. Attorney General.
Attorney General Holder. No, but consistent with the way in
which the Justice Department has always conducted itself. This
is not something that I am making up in terms of new policy.
Mr. Smith. I know. But you used the word ``not.'' I took
``not'' to be no.
Attorney General Holder. Oh, I said no. I am saying no, but
again, consistent with DOJ policy.
Mr. Issa. Mr. Chairman?
Mr. Smith. Thank you, Mrs. Adams.
The gentleman from Arizona, Mr. Quayle, is recognized.
Mr. Quayle. Thank you, Mr. Chairman.
And thank you, Attorney General Holder, for being here.
I want to kind of go back to the February 4 letter as well
that Mr. Gowdy was talking about earlier, because when we were
looking over some of the e-mails between DOJ, ATF, and the U.S.
Attorney's Office in Phoenix, and trying to kind of parse the
language of how they were going to respond to Senator
Grassley's letter----
Attorney General Holder. I am not hearing you very well on
that mike.
Mr. Quayle. Is that better?
Attorney General Holder. Okay.
Mr. Quayle. Okay. One of the things, just parsing the
language and figuring out how to respond properly to Senator
Grassley in the letter, for me, it kind of looked like you were
starting--that group was starting to move into a not a coverup
mode, but a mode that really is more intent on language rather
than providing a straightforward response. At any time,
wouldn't it have been easier, because the letter was actually
addressed to the director, Acting Director Melson, wouldn't it
have been easier, and do you know or if anybody else knows if
Acting Director Melson actually just said, hey, why don't I go
in to Senator Grassley, talk to him, brief him, brief his staff
on what the operation is all about rather than relying on
somebody who did not have the requisite information to draft a
letter that turned out to be factually inaccurate that you
later had to withdraw?
Attorney General Holder. Well, I think a couple things
there. Acting Director Melson actually did come to the
Committee headed by Chairman Issa on his own----
Mr. Quayle. But that was well after the letter.
Attorney General Holder. That is fine. That is fine. That
is true. But he went in there and spoke to them on his own
after--before we had scheduled an appointment with him. So he
did that on his own. But with regard to the formation or the
formation of that letter, ATF was intimately involved. If you
look at the e-mails, you will see that you have people from ATF
at a high level here in Washington, as well as ATF people in
the field who were involved in the interaction, the back and
forth of that e-mail traffic trying to get accurate information
to send back to that congressional inquiry.
Mr. Quayle. And I would just say sometimes, it is just
easier to just have a short briefing. And I don't know if--did
the acting director offer to go and meet with Senator Grassley
at that time, and then was he rebuffed and told not do that?
Attorney General Holder. No.
Mr. Quayle. He was not?
Attorney General Holder. No. I think what we were doing was
responding to a letter that was sent to us and that expected a
letter back in response.
Mr. Quayle. Well, it did say briefing. I am just curious,
because I thought that would probably be the most efficient use
of time and resources, rather than the back and forth of making
sure that we have the language right.
Attorney General Holder. My guess would be that having the
Director show up would be the person who would have to get
briefed in order to do that exchange of information. It is
probably better to have the people who were lower down and
closer to the facts be the ones who were involved. If you look
at the e-mails, you will see that that was the case.
Mr. Quayle. In talking about that letter, do you know when
was the last time that the Department of Justice actually had
to withdraw a letter that it sent to Congress?
Attorney General Holder. I don't know.
Mr. Quayle. So is it a rare thing or is it----
Attorney General Holder. Sure it is a rare thing.
Mr. Quayle. It is a pretty rare thing. I mean, I know that
Mr. Gowdy already addressed this issue, but what sort of
policies have you put in place, or structural reforms have you
put in place so that something like the factually, grossly
factually inaccurate letter that was sent to Congress doesn't
happen again? And if it does, that the Department of Justice
will act more swiftly in withdrawing that letter so that the
Members of Congress can have accurate information?
Attorney General Holder. Well, I think we have learned
lessons here. And we have had requests for information
regarding Fast and Furious since that time that, frankly, we
have taken more time to respond to. We have sent interim
responses to indicate that we are in the process of looking at
information, gathering information to make sure that what we
send is in fact accurate.
I mean, you got to understand something. It is rare, as you
said, and it is something about which I have great regret. This
is not something I want to have happen on my watch. But I want
to make sure that it doesn't happen again. People who are in
the Department who were involved in that process and have
observed it I think have all been sensitized in a way that
perhaps we were not before, which is not to say that people
were cavalier, but that I think we need to up our game and be
even more careful than we had been in the past.
Mr. Quayle. Okay. Have you put into place other structural
reforms to make sure that--I mean, you have stated the Fast and
Furious was just an abject failure and had fundamental flaws--
that are put into place so that something like Fast and Furious
does not happen again?
Attorney General Holder. Yeah. I think that if you will
look at all of the things that have been done at ATF, there is
for instance now a protocol that has to be followed at ATF when
gun trafficking is observed or when you are doing gun
trafficking investigations. You cannot lose sight of guns. You
have to make a decision about when an arrest is going to occur.
What happened in Fast and Furious under the new regulations,
and assuming that they are followed, it could not happen. In
addition, I have sent out, through the Deputy Attorney General,
an edict that makes very clear that gun walking is simply an
unacceptable practice.
Mr. Quayle. I know that you are aware of this, but there is
a number of Members of Congress that have called for your
resignation over this. So I just want to know, will you be
resigning over--because of the fallout from Fast and Furious?
Attorney General Holder. I have no intention of resigning.
I am the Attorney General who put an end to these misguided
tactics that were used in Fast and Furious when I found out
about them. I am also the Attorney General who called on the
Acting Inspector General to investigate this matter. I am also
the Attorney General--no, you know----
Mr. Smith. The gentleman's time has expired.
Mr. Quayle. Could I ask unanimous consent for 15 more
seconds?
Mr. Smith. The gentleman is recognized for an additional 15
seconds.
Attorney General Holder. More time is fine. If I could
finish my answer.
Mr. Quayle. I was just asking you just a yes or no, and
that is fine. But do you think that Mr. Breuer, Mr. Grindler
should resign or be removed from their posts?
Attorney General Holder. On the basis of the information
that I have now, no.
Mr. Quayle. What about Mr. Weinstein or Mr. Siskel, if we
are going down another level? I know Mr. Siskel is over at the
White House Counsel, but do you think that they should resign
or be removed from their posts?
Attorney General Holder. On the basis of the information I
have now, no.
Mr. Quayle. Okay. Thank you.
Mr. Smith. Should anyone resign?
Attorney General Holder. Again, on the basis of the
information I have at this point, no. Now, there have been
resignations that have occurred. Let's not think that nothing
has happened here since Fast and Furious was exposed.
Resignations have occurred. People have been moved in terms of
personnel actions. And as I indicated, I guess in one of my
responses to somebody, the personnel actions that I have
ordered are initial ones, and I will be monitoring the
situation to see if there are other things that I should be
doing.
Mr. Smith. Thank you.
Thank you, Mr. Quayle.
The gentleman from Arkansas, Mr. Griffin.
Mr. Griffin. Thank you, Mr. Chairman. Thank you, General
Holder for being here today, I just want to follow up on a few
points my colleagues have touched on today. First of all, I
want to talk a little bit about Ms. Adams' point that she was
making, and that is, certainly I worked at main Justice, I
worked in the criminal division with Assistant Attorney General
Chertoff. I understand how much paper comes across your desk
and everyone else's desk. I understand that time is limited and
you have to do the best you can to process a lot of
information, I get that. But I think Ms. Adams raises a good
point, and that is, at what point do you believe the assistant
Attorney General, or someone else, had or has an obligation to,
particularly in your case, with Lanny Breuer, because you have
a close relationship, or a longstanding relationship with him,
at what point is there an obligation for one of these senior
officials to raise something like this to your level? I
understand that they are in briefings and you can't read them
all.
There is a lot of stuff that my staff puts in my inbox, but
they know that if it is something really urgent, they don't
stick it in my in box, they call me, they come in my office,
they get in my face and say, hey, this is very important.
So this is not just an operation, or this was not just an
operation. This was, in fact, an international operation if
taken--if looked at broadly, because the consequences of these
firearms going across a border, and that was part of the plan.
So my question would be, at what point is someone expected to
raise something like this knowing that if it were maybe Canada
or the U.K. Or some other country where we were trying to let
guns walk. We certainly would, I would think, we would want to
inform them or work with them. Help me understand what your
perspective is on that, because at some level, at some level,
someone has to walk into your office and say, this should not
be occurring.
I want to give you one more fact on that, Mr. Breuer
indicated that when he learned about gun walking in early 2010
instead of calling the head of the ATF, or telling you, he just
asked two of his deputies to raise concerns with folks at the
ATF. And so in light of what has happened, who and when should
they come to you about something like this?
Attorney General Holder. I think that is a very legitimate
question. And Lanny Breuer has indicated that the information
that he obtained about Operation Wide Receiver and the gun
walking that happened there, or the failure of the mission to
stop the flow of guns into Mexico, that is something that he
should have brought to my attention, to the attention of the
Deputy Attorney General. I think that is the kind of
information that, in fact, should be. If we had an instance
where you had evidence of gun walking, either the assistant--
whoever had possession of that information, the Assistant
Attorney General, people in my staff, that is the kind of
information that should have been brought to my attention. As
Mr. Breuer indicated, he said that he made a mistake in not
doing so.
Mr. Griffin. Are there set policies on that now?
Attorney General Holder. I am not sure there are set
policies as much, you know, you have to look at this
information and you have got to know what are the kinds of
things that are routine and need not be brought to somebody's
attention, that which is important.
Mr. Griffin. I am limited on time so I am going to try to
move quickly. I would just suggest that regardless of what
other issues might arise at the Department of Justice, you
might want to put gun walking on a list somewhere as something
that raises flags.
The other question--I see my time is running out. I want to
go back to what Mr. Lungren asked about earlier, he referred to
a CBS article that talked about using antidotal cases to
support a demand letter on long gun multiple sales, basically
using a situation created by the government to support a policy
argument folks in the government want to make. And your
response was that that was somehow unrelated, or it was so far
back in time that maybe it was unconnected. What exactly was
your response on that to Mr. Lungren?
Attorney General Holder. The statement, the notion that
somehow this operation was used to justify the request for that
regulation is simply not accurate. It did not happen that way.
The operation was conducted separate and apart from any desire
to have this long gun regulation, that is simply not there. So
that just didn't happen.
Mr. Griffin. Mr. Chairman, I ask unanimous consent for 30
more seconds.
Mr. Smith. The gentleman is recognized without objection
for another 30 more seconds.
Mr. Griffin. I look further down in that CBS news article
and it says, ``On January 4 of 2011,'' because the quote
referenced earlier was July of 2010--''on January 4, 2011, as
ATF prepared a press conference to announce arrests in Fast and
Furious, Newell saw it as another time to address multiple sale
on long gun issue.'' And the next day he e-mailed--Chait e-
mailed Newell, ``Bill, well done yesterday. In light of our
request for demand letter 3, this case could be a strong
supporting factor, if we could determine how many multiple
sales of long guns occurred during the course of this case.
I know I am running out of time. I just ask you to take
another look at that. You may not have intended it, I don't
know what was going on over there, but clearly, some folks had
what happened in Fast and Furious, they had that in mind as
something to use to support a policy that people in this
Administration are advocating for. So I just ask you to take a
second look at that, this is an article on CBS News Web site
yesterday. Thank you, thank you, Mr. Chairman, and thank you
for being here.
Attorney General Holder. Clearly an attempt to use Fast and
Furious as a way to bolster the request for that long gun
regulation would have been foolhardy given the flawed way in
which Fast and Furious was carried out.
Mr. Smith. Thank you, Mr. Griffin. The very patient
gentleman from Nevada, Mr. Amodei is recognized.
Mr. Amodei. Thank you, Mr. Chairman, and thank you General
Holder for your patience, too. How would you describe your
leadership style?
Attorney General Holder. I am sorry?
Mr. Amodei. How would you describe your leadership style?
Attorney General Holder. I think I am a person who
delegates pretty well. I think I set goals that I expect people
to meet. I am not a micromanager, I hire good people, I invest
them with the authority to carry out that which I expect them
to do. Try to give them the resources they need in order to do
their jobs. And I would think that on the basis of what I--
being immodest here, what I have been able to do over the last
couple years, 2\1/2\ years, whatever it has been at the Justice
Department, I think I have done a good job in managing the
Justice Department.
Mr. Amodei. Do you lead from the front?
Attorney General Holder. I'm sorry?
Mr. Amodei. Do you lead from the front?
Attorney General Holder. Yeah, I think I do. I don't ask
anything of the people who work for me that I would not be
willing to do myself. I work hard, I work long hours, as do
they.
Mr. Amodei. Thank you. Mr. Chairman, I would like to yield
the balance of my time to my colleague from South Carolina.
Mr. Smith. The gentleman from South Carolina, Mr. Gowdy has
the balance of the time.
Mr. Gowdy. I thank the gentleman. Mr. Holder there were a
series of wiretap applications made to the Department of
Justice in Fast and Furious. Do you recall how many?
Attorney General Holder. No.
Mr. Gowdy. Several. Would you disagree with that?
Attorney General Holder. I am sorry?
Mr. Gowdy. Several?
Attorney General Holder. I don't know how many, but I have
to say that with regards to discussions of wiretaps there is a
limited amount of information that I am going to be able to
share in this forum.
Mr. Gowdy. Right. And I am not going to ask you thinking
that is going to get you in trouble with a Federal judge.
Attorney General Holder. Please don't.
Mr. Gowdy. Those applications are voluminous, they are long
and they are factual predicates to support the application for
a wiretap, correct?
Attorney General Holder. Speaking just generally and not--I
won't get in any trouble, speaking generally, that is accurate.
Mr. Gowdy. Are you convinced there is no discussion of gun
walking in any of those T-33 applications?
Attorney General Holder. Again, I can't get into the
specifics.
Mr. Gowdy. Have you read them?
Attorney General Holder. I have not read them.
Mr. Gowdy. Who approves them? Whose division is that? Is
that the criminal division?
Attorney General Holder. That is the criminal division.
Mr. Gowdy. That would be Mr. Breuer?
Attorney General Holder. No, he only approves the roving
wiretaps.
Mr. Gowdy. Is he the head of the criminal division?
Attorney General Holder. Right but there are no roving
wiretaps in Operation Fast and Furious.
Mr. Gowdy. But there are several wiretaps, wiretaps that
have long factual predicate supporting the application.
Attorney General Holder. I not seen them but I make that
assumption.
Mr. Gowdy. You haven't read them, so you can't say whether
or not yet another Department of Justice official would have
been put on notice that gun walking was part of Fast and
Furious.
Attorney General Holder. I can't say that, but you cannot
say it either.
Mr. Gowdy. No, I can't.
Attorney General Holder. You can't say the converse.
Mr. Gowdy. No, I can't. Who does Mr. Weich report to?
Attorney General Holder. Who does Mr.----
Mr. Gowdy. Weich.
Attorney General Holder. Ron Weich?
Mr. Gowdy. Yeah.
Attorney General Holder. I guess on the Justice Department
chart probably through the Deputy Attorney General to me.
Mr. Gowdy. What I am trying to get at, your defense of your
friend Lanny Breuer, I guess at some level is admirable, I just
don't understand it. It took me a minute to get you to admit
that he knew that guns were being walked and there are scores
of e-mails where he admitted it. He assigned a prosecutor to
Fast and Furious. This is someone who, on his own Web site,
boasts of being one of the best 100 lawyers in America. He knew
that guns were being walked; he assigned a prosecutor to Fast
and Furious; he forwarded an e-mail to his home computer of a
draft of Mr. Weich's letter, and he is going to stick around,
Mr. Attorney General?
Attorney General Holder. Well, you are saying things. See
you are doing what I asked you to not before and that is
conflating things. He said--I said he knew about and he
admitted he knew about gun walking when it came to Operation
Wide Receiver. Shortly after.
Mr. Gowdy. Mr. Holder, the letter is very specific. ATF
makes every effort to interdict weapons that have been
purchased illegally, and prevent their transportation to
Mexico, is that true or false?
Attorney General Holder. That is not accurate, but Mr.
Breuer didn't--as he indicated, he said he did not have
anything do did with the creation.
Mr. Gowdy. He forwarded this letter, a draft to his home
computer. It does not take a long walk to get that he forwarded
it to his home computer to read it.
Attorney General Holder. I am only going by what Mr. Breuer
has testified to, which is that he did not think that he
reviewed the letter--reviewed the drafts before they went out.
That is what he testified to.
Mr. Gowdy. But you agree with me----
Mr. Issa. Mr. Chairman.
Mr. Pierluisi. Regular order, Mr. Chairman. The witness
should be allowed to finish.
Mr. Issa. Would the gentleman from Nevada be willing to
further yield?
Mr. Smith. The gentleman from South Carolina has the time.
Mr. Gowdy. I will be happy to yield to the gentleman from
California.
Mr. Issa. I thank the gentleman. Mr. Attorney General, if
there were seven wiretaps and they were all approved under the
criminal justice committee, the criminal division, certainly we
would hope that between now and the time you next appear, you
would read them as would Lanny Breuer in detail since he
approved them through his minions.
Attorney General Holder. Well----
Mr. Issa. Let me just go through one thing that I have to
ask you, yesterday----
Attorney General Holder. Understand something----
Mr. Issa [continuing]. We became aware, Mr. Attorney
General----
Attorney General Holder. Please.
Mr. Pierluisi. Mr. Chairman, regular order. The time has
expired.
Mr. Issa. Mr. Attorney General, I didn't ask you a
question, I simply said I would like you to be aware.
Mr. Smith. The gentleman from California has the time. The
gentleman from California is granted an extra 1 minute to allow
the AG to respond.
Mr. Issa. There was no question. Here is the question----
Attorney General Holder. No----
Mr. Issa. Yesterday, Mr. Attorney General, we became aware
of the e-mail between----
Mr. Pierluisi. Mr. Chairman.
Mr. Issa.--Lanny Breuer and his deputy Jason Weinstein,
about Fast and Furious in March time frame that they exist.
Some of these, actually all of these, have been withheld from
the Committee. Will you agree to turn over those communications
in the March time frame between Lanny Breuer and his deputy,
Jason Weinstein?
Attorney General Holder. March of what year?
Mr. Issa. 2011.
Attorney General Holder. As I have indicated we are not
going to be turning over materials after February----
Mr. Issa. Are you aware that you are, in fact, by doing so,
in the fact that we already issued from the Oversight Committee
a subpoena, you are standing in contempt of Congress unless you
have a valid reason that you express it, that you provide logs
which you refused to provide for the other information,
otherwise you will leave the Committee no choice but to seek
contempt for your failure to deliver, or to cite a
constitutional exemption.
Mr. Smith. The gentleman's time has expired, the Attorney
General will be allowed to respond.
Attorney General Holder. We will respond in a way that is
consistent with the way in which the Justice Department has
always responded to those kinds of----
Mr. Issa. That is not the question, Mr. Attorney General.
Attorney General Holder. Can I----
Mr. Pierluisi. Regular order, Mr. Chairman.
Mr. Smith. Please proceed, Mr. Attorney General.
Attorney General Holder. We will respond in a way that
other Attorneys General have, other justices.
Mr. Issa. John Mitchell responded that way too.
Mr. Pierluisi. Regular order, Mr. Chairman.
Attorney General Holder. Was that called for? Mr. Chairman?
Mr. Pierluisi. He should be allowed to----
Mr. Smith. The gentleman from South Carolina has the time,
but I am going allow the Attorney General. Do you have any
further response to that question?
Mr. Issa. To the question, Mr. Chairman, about whether or
not he understood that it was in fact an act of contempt unless
they recited a constitutional exemption and still had a
responsibility to provide us logs, both of which they are
refusing to do in testimony here today.
Mr. Smith. The gentleman from South Carolina's time has
again expired. Do you have a final response, Mr. Attorney
General?
Attorney General Holder. Ms. Adams asked me about--
Congresswoman Adams asked me about political points. The
reference to John Mitchell, let's think about that, think about
that, at some point--as they said in the McCarthy hearings at
some point, have you no shame? But in any case, I will say that
with regard to--we have made our point clear how we will
respond. With regard to the question of wiretap information,
Mr. Gowdy knows there is only so much I will be able to say
about wiretap information. So reading it should not lead
anybody to believe that I am going to be free, unless I--you
want to get me in real trouble with a Federal judge about
what's contained in a wiretapping.
Ms. Adams. Mr. Chair.
Mr. Smith. I thank you, Mr. Attorney General. Mr. Attorney
General, thank you for your testimony today. Without objection,
all Members will have 5 legislative days to submit additional
written questions for the witness or additional materials for
the record. I ask unanimous consent that the gentleman from
Colorado, Mr. Polis, be assigned to the Subcommittee on Courts,
Commercial and Administrative Law and the Subcommittee on
Crime, Terrorism and Homeland Security. Is there an objection?
If not, so ordered. The hearing is adjourned.
[Whereupon, at 4:05 p.m., the Committee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Lamar Smith, a Representative in
Congress from the State of Texas, and Chairman, Committee on the
Judiciary
Attorney General Eric Holder appeared before the House Judiciary
Committee last May and we appreciate his willingness to appear today to
address many issues, including questions about his previous testimony.
While I am pleased to welcome back Attorney General Holder, I am
disappointed in the Department's repeated refusal to cooperate with
this Committee's oversight requests.
This lack of cooperation is evident in the Department's handling of
inquiries related to the Bureau of Alcohol, Tobacco, Firearms and
Explosives' (ATF's) Operation Fast and Furious, and the death of Border
Patrol Agent Brian Terry in December 2010.
Operation Fast and Furious intentionally allowed straw buyers for
criminal organizations to purchase hundreds of guns so that the ATF
could track them across the U.S.-Mexico border. But Fast and Furious
had a fatal flaw. Once purchased, there was no attempt to follow the
firearms. Instead, the guns were allowed to cross over into Mexico
without any coordination with Mexican authorities or any attempt to
track the firearms.
Tragically, two of the guns were found at the scene of the shooting
death of Customs and Border Patrol Agent Brian Terry. And by the
Department's own admission, hundreds of guns remain unaccounted for.
It's been a year since the death of Agent Terry. Yet, many
questions remain as to how such a reckless and dangerous law
enforcement program was allowed to operate under the Justice
Department.
And inconsistent statements from Department officials about who
knew what and when have only raised more concerns.
I am also disappointed in how the Department has responded to my
oversight requests regarding Justice Kagan's involvement in health care
legislation or related litigation while she served as United States
Solicitor General.
Despite claims from Obama administration officials that then-
Solicitor General Kagan was ``walled off'' \1\ from discussions
regarding the President's health care law, recently released e-mails
indicate there may be more to the story.
---------------------------------------------------------------------------
\1\ E-mail from Principal Deputy Solicitor General Neal Katyal to
Solicitor General Elena Kagan (Jun 15, 2010).
---------------------------------------------------------------------------
On March 21, 2010, an e-mail from the Deputy Solicitor General
forwarded to Solicitor General Kagan contained information about a
meeting at the White House on the health care law and asked: ``I think
you should go, no? I will regardless but feel this is litigation of
singular importance.'' \2\ Solicitor General Kagan responded by asking
him for his phone number.
---------------------------------------------------------------------------
\2\ E-mail from Principal Deputy Solicitor General Neal Katyal to
Solicitor General Elena Kagan (Mar. 21, 2010).
---------------------------------------------------------------------------
We also know from the e-mails that she personally supported the
legislation's passage. In a March 21, 2010, exchange with a Justice
Department colleague discussing the health care legislation, Ms. Kagan
exclaims, ``I hear they have the votes, Larry!! Simply amazing.'' \3\
---------------------------------------------------------------------------
\3\ E-mail from Principal Deputy Solicitor General Neal Katyal to
Justice Department Counselor Lawrence Tribe (Mar. 21, 2010).
---------------------------------------------------------------------------
These e-mails reveal inconsistencies with the administration's
claims that then-Solicitor General Kagan was walled off from this
issue.
To help clear up any confusion, I wrote the Justice Department to
get additional documents and conduct staff interviews. It took nearly
four months before the Department sent a one page response that denied
my request.
The Department did not assert any legal privilege over the
requested information but simply refused to comply with the request.
That is not a sufficient answer.
Health care legislation was passed by the Senate on December 24,
2009. On January 8, 2010, Ms. Kagan told the Deputy Solicitor General
that she ``definitely would like the Office of the Solicitor General to
be involved in'' \4\ preparations to defend against challenges to the
pending health care proposals.\5\
---------------------------------------------------------------------------
\4\ E-mail from Principal Deputy Solicitor General Neal Katyal to
Brian Hauck, Senior Counsel to Associate Attorney General Thomas
Perrelli (Jan. 8, 2010).
\5\ Health care passed the House on March 21, 2010, and was signed
into law on March 23, 2010.
---------------------------------------------------------------------------
Ms. Kagan found out she was being considered for a potential
Supreme Court vacancy on March 5, 2010.\6\ So the issue is how involved
was she in health care discussions between January 8 and March 5. Just
as President Nixon had an eighteen and a half minute gap, does Ms.
Kagan have a two month gap?
---------------------------------------------------------------------------
\6\ The Nomination of Elena Kagan to be an Associate Justice of the
Supreme Court of the United States Before the S. Comm. on the
Judiciary, 111th Cong. (2010) (written response of Elena Kagan to
Supplemental questions from Senators Jeff Sessions, Orrin Hatch,
Charles Grassley, Jon Kyl, Lindsey Graham, John Cornyn and Tom Coburn)
---------------------------------------------------------------------------
The Office of the Solicitor General is responsible for defending
the positions of the federal government in litigation before the
Supreme Court. So it was the duty of then Solicitor General Kagan to
participate in meetings and discussions regarding the legal defense
strategy for the President's health care proposal.
It would have been a surprising departure from her responsibilities
for Solicitor General Kagan not to advise the Administration on the
health care bill.
But if the Department continues to assert that she was ``walled off
from day one'' \7\ from discussions, then they should be willing to
provide Congress and the public with documentation to prove that
statement.
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\7\ E-mail from Principal Deputy Solicitor General Neal Katyal to
Solicitor General Elena Kagan (Jun 15, 2010).
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The law clearly states that Justices must recuse themselves if they
``participated as counsel, advisor or material witness concerning the
proceeding or expressed an opinion concerning the merits of the
particular case'' \8\ while they worked in a government capacity.
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\8\ 28 U.S.C. 455(b)(3).
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The public has a right to know the extent of Justice Kagan's
involvement with this legislation as well as any previously stated
legal opinions about the legislation while she served as Solicitor
General.
The NFL would not allow a team to officiate its own game. If
Justice Kagan was part of the Administration's team that put the health
care mandate into play, she should not officiate when it comes before
the Supreme Court.
If the Department has nothing to hide, why not provide Congress
with the requested information? The continued refusal to cooperate with
legitimate oversight inquiries only heightens concerns that she might
have a conflict of interest.
President Obama has promised an ``open and transparent
government.'' \9\ Unfortunately, we often see a closed and secretive
Justice Department.
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\9\ Steven VanRoekel & Aneesh Chopra, Data.gov Goes Global,
WhiteHouse.gov (Dec. 5, 2011) available at, http://www.whitehouse.gov/
blog/2011/12/05/datagov-goes-global.
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I know all members of the Committee look forward to asking
questions on these and other issues.
Response to Post-Hearing Questions from Judith C. Appelbaum, Acting
Assistant Attorney, General, Office of Legislative Affairs, U.S.
Department of Justice