[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
OPERATION FAST AND FURIOUS: MANAGEMENT FAILURES AT THE DEPARTMENT OF
JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
SECOND SESSION
__________
FEBRUARY 2, 2012
__________
Serial No. 112-103
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
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72-915 WASHINGTON : 2012
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
DARRELL E. ISSA, California, Chairman
DAN BURTON, Indiana ELIJAH E. CUMMINGS, Maryland,
JOHN L. MICA, Florida Ranking Minority Member
TODD RUSSELL PLATTS, Pennsylvania EDOLPHUS TOWNS, New York
MICHAEL R. TURNER, Ohio CAROLYN B. MALONEY, New York
PATRICK T. McHENRY, North Carolina ELEANOR HOLMES NORTON, District of
JIM JORDAN, Ohio Columbia
JASON CHAFFETZ, Utah DENNIS J. KUCINICH, Ohio
CONNIE MACK, Florida JOHN F. TIERNEY, Massachusetts
TIM WALBERG, Michigan WM. LACY CLAY, Missouri
JAMES LANKFORD, Oklahoma STEPHEN F. LYNCH, Massachusetts
JUSTIN AMASH, Michigan JIM COOPER, Tennessee
ANN MARIE BUERKLE, New York GERALD E. CONNOLLY, Virginia
PAUL A. GOSAR, Arizona MIKE QUIGLEY, Illinois
RAUL R. LABRADOR, Idaho DANNY K. DAVIS, Illinois
PATRICK MEEHAN, Pennsylvania BRUCE L. BRALEY, Iowa
SCOTT DesJARLAIS, Tennessee PETER WELCH, Vermont
JOE WALSH, Illinois JOHN A. YARMUTH, Kentucky
TREY GOWDY, South Carolina CHRISTOPHER S. MURPHY, Connecticut
DENNIS A. ROSS, Florida JACKIE SPEIER, California
FRANK C. GUINTA, New Hampshire
BLAKE FARENTHOLD, Texas
MIKE KELLY, Pennsylvania
Lawrence J. Brady, Staff Director
John D. Cuaderes, Deputy Staff Director
Robert Borden, General Counsel
Linda A. Good, Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on February 2, 2012................................. 1
Statement of:
Holder, Eric H., Jr., Attorney General of the United States.. 124
Letters, statements, etc., submitted for the record by:
Burton, Hon. Dan, a Representative in Congress from the State
of Indiana, prepared statement of.......................... 213
Cummings, Hon. Elijah E., a Representative in Congress from
the State of Maryland, letter dated January 30, 2012....... 5
Gosar, Hon. Paul A., a Representative in Congress from the
State of Arizona, prepared statement of.................... 214
Holder, Eric H., Jr., Attorney General of the United States,
prepared statement of...................................... 128
Issa, Hon. Darrell E., a Representative in Congress from the
State of California:
Discovery documents.............................. 187, 191, 195
Memo dated February 1, 2012.............................. 102
Speier, Hon. Jackie, a Representative in Congress from the
State of California, memo dated November 16, 2007.......... 183
OPERATION FAST AND FURIOUS: MANAGEMENT FAILURES AT THE DEPARTMENT OF
JUSTICE
----------
THURSDAY, FEBRUARY 2, 2012
House of Representatives,
Committee on Oversight and Government Reform,
Washington, DC.
The committee met, pursuant to notice, at 9:13 a.m., in
room 2154, Rayburn House Office Building, Hon. Darrell E. Issa
(chairman of the committee) presiding.
Present: Representatives Issa, Burton, Platts, McHenry,
Jordan, Chaffetz, Walberg, Lankford, Amash, Buerkle, Gosar,
Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta,
Farenthold, Kelly, Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Welch,
Yarmuth, Murphy, and Speier.
Staff present: Ali Ahmad, communications advisor; Michael
R. Bebeau, assistant clerk; Robert Borden, general counsel;
Molly Boyl, parliamentarian; Lawrence J. Brady, staff director;
Sharon Casey, senior assistant clerk; Steve Castor, chief
counsel, investigations; John Cuaderes, deputy staff director;
Carlton Davis, Jessica L. Donlon, and Mitchell S. Kominsky,
counsels; Kate Dunbar, legislative assistant; Adam P. Fromm,
director of Member services and committee operations; Linda
Good, chief clerk; Christopher Hixon, deputy chief counsel,
oversight; Henry J. Kerner, senior counsel for investigations;
Justin LoFranco, deputy director of digital strategy; Mark D.
Marin, director of oversight; Ashok M. Pinto, deputy chief
counsel, investigations; Laura L. Rush, deputy chief clerk;
Rebecca Watkins, press secretary; Jeff Wease, deputy CIO;
Beverly Britton Fraser, Peter Kenny, and Carlos Uriarte,
minority counsels; Kevin Corbin, minority deputy clerk; Ashley
Etienne, minority director of communications; Susanne Sachsman
Grooms, minority chief counsel; Devon Hill, minority staff
assistant; Jennifer Hoffman, minority press secretary; Carla
Hultberg, minority chief clerk; Adam Koshkin, minority staff
assistant; Lucinda Lessley, minority policy director; Scott
Lindsay, minority senior counsel; and Dave Rapallo, minority
staff director.
Chairman Issa. The committee will come to order.
The Oversight Committee's mission statement is that we
exist to secure two fundamental principles: First, Americans
have a right to know that the money Washington takes from them
is well spent; and, second, Americans deserve an efficient,
effective government that works for them.
Our duty on the Oversight and Government Reform Committee
is to protect these rights. Our solemn responsibility is to
hold government accountable to taxpayers, because taxpayers
have a right to know what they get from their government. Our
job is to work tirelessly in partnership with citizen watchdogs
to deliver the facts to the American people and bring genuine
reform to the bureaucracy.
I will now recognize myself for an opening statement.
Today, we are joined by the Attorney General of the United
States over a matter that this committee has invested more than
a year in research.
In November 2009, Fast and Furious opens.
In December 2009, DEA meets with the ATF and gives them
info on Fast and Furious targets, info that could have well
ended the operation.
On January 6, 2010, Fast and Furious becomes, in fact, a
joint exercise.
On March 15, 2010, the first Federal wiretaps are issued in
this case.
On December 15, 2010, December 15, 2010, Brian Terry is
murdered with weapons found at the scene that came from Fast
and Furious.
On January 27th, Senator Grassley first asked the
Department of Justice about Fast and Furious; and within days
we are given a false statement of facts, denying that guns were
ever allowed to walk. Within days of that, we began to know
that Fast and Furious was going to be difficult.
That was more or less Groundhog Day a year ago. Today is
Groundhog Day again. This committee has lost its patience to
wait longer. We will not wait until next Groundhog Day to get
answers for the American people, for Brian Terry, and for
others.
On March 3, 2011, John Dodson goes public. Agent Dodson is
here today. He, too, deserves to have this nightmare of
uncertainty, of having a temporary assignment, of not being
allowed to do the job for which he has dedicated his career put
behind him.
On October 11th, after months and months and months of this
committee trying to get further voluntary cooperation, we
issued subpoenas for documents. To date, we have been told two
things. First of all, they are difficult and time-consuming to
give us, and yet 10 times as many documents were provided to
the Inspector General. More than three times as many people
have been able to be interviewed by the Attorney--I'm sorry, by
the IG, the Inspector General--sorry, Mr. Attorney General--by
your Inspector General. During that period of time,
whistleblowers have consistently brought us additional
information. That information allows us to glean more than most
of the documents we have received through discovery.
The minority can say what they want and issue the opinions
they want, the memos they want. They have been absent from
this, and I am disappointed for that. This is a legitimate
requirement of this committee to get to the bottom of it and to
get genuine change so this cannot happen again--and I repeat--
the genuine change, the safeguards, the protections that were
not there apparently before so this cannot happen again.
Mr. Attorney General, as we go through questioning, my
question will be when is the primary investigative committee of
Congress, of the U.S. House, going to be allowed to have the
same access that your own essentially self-appointed Inspector
General has?
The IG, if you will, the 12,000 people of the Inspector
General's Office throughout the government are important, and
we expect them to be respected, and we expect them to receive
information. But the 70 men and women that work for the
majority and the 30 or so that work for the minority are a very
small fraction of that.
We ask very little of government by comparison to what the
internal controls historically and always will ask for. Our
budget is less than 1/20th of what the Inspector General's
Office is. We are not an agency that can ask for vast amounts
of documents. We have asked you for documents, and if you look
at the totality of government, we have asked for very little
compared to the IG's offices.
We believe--and I think the ranking member will join me in
this--that we deserve those answers in at least as timely a
fashion as your own IG gets. It is our opinion that we haven't
gotten that, that the need for overmanaging and redacting and
careful looking by teams of lawyers have gotten in the way of
the legitimate speed with which we should get that.
We are going to ask you many things today. Hopefully, you
came prepared to know a great deal about Fast and Furious. The
important things that I am going to ask today are: What can you
do to bring this to a close? What can you do before the IG
completes her investigation to allow the American people to see
change that tells them this is no longer going on and it won't
go on in the future?
Last, before I recognize the ranking member, it is this
majority at least committee's belief that this is an operation
that included reckless behavior at ATF; failure to push harder
and inform more by DEA and the FBI; a U.S. attorney who clearly
didn't do his job in a way that anyone should be proud of. We
now have a Justice Department official who has taken the Fifth.
We have moved up a ways, and all of those people should be
ashamed that Brian Terry is dead because they didn't do as good
a job as they should. Kenneth Melson has said that publicly and
privately, that he bears a great deal of that blame.
The point here today is we want to know how Justice will
oversee every local operation, every State, every one of the
various agencies that are either under your authority or in a
joint task force become under your authority, how you will
ensure for the American people that this will not happen again,
or at least the systems are in place to give us the confidence
that it is much more unlikely to happen.
Those are the items that I come here today, asked you to
come here today for, and I appreciate your being here
voluntarily to answer. It is the committee's responsibility to
ask. I hope we will get the answers and the commitments today
that we ask for.
I recognize the ranking member for his opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman, and I want
to welcome the Attorney General today.
Mr. Chairman, when the committee started this investigation
almost a year ago, you and I made pledges to the family of
Agent Brian Terry to find out what led to the release of
hundreds of firearms to criminal networks on both sides of the
border. We pledged to follow the facts wherever they may lead
and provide the public with answers.
Mr. Chairman, I want to acknowledge your efforts here. Over
the past year, we devoted incredible amounts of time, money,
and energy to investigating this issue. We interviewed 22
witnesses, including senior officials at the Department of
Justice and ATF. We also reviewed thousands of pages of
documents, and we held four full committee hearings on this
very topic.
Because of our extensive work, we have had concrete
results. The committee has exposed a 5-year--5-year pattern of
gun-walking operations run by the Phoenix division of ATF and
the Arizona U.S. Attorney's Office. More importantly, we have
put a stop to it. This is a significant accomplishment, and I
commend you for it.
In addition, we can now explain to the public how this
series of reckless operations originated and evolved over the
past 5 years. I ask unanimous consent to place into the record
a report I sent to Members earlier this week.
Chairman Issa. Without objection, so ordered.
Mr. Cummings. Thank you, Mr. Chairman.
[The information referred to follows:]
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Mr. Cummings. This 95-page report, called Fatally Flawed:
Five Years of Gun-Walking in Arizona, provides a detailed and
comprehensive account of what we learned in our investigation.
It documents how suspects in 2006 and 2007 trafficked more than
450 firearms during Operation Wide Receiver as ATF agents, who
knew they had probable cause, chose not to make arrests in
order to build bigger cases. As one field agent said at the
time, ``We want it all.''
It documents the Hernandez case in 2007 in which suspects
purchased 200 firearms as ATF failed repeatedly to coordinate
interdiction with Mexican officials. Despite alerting then
Attorney General Mukasey about these failed operations, they
continued.
It documents the Medrano case in 2008 in which ATF agents
watched in real time as suspects who were part of a trafficking
ring that bought more than 100 firearms packed weapons into the
back seat of a car and drove them across the border.
It documents operation Fast and Furious, during which the
same ATF Special Agent in charge of the Phoenix field division
in all three previous operations chafed against an order from
the Deputy Director of ATF to shut down the operation. As the
agent stated, ``I don't like headquarters driving our cases.''
Instead, field agents continued to encourage gun dealers to
sell firearms to suspects for months.
There are several things that our investigation did not
find. We found no evidence that agents or prosecutors in
Arizona acted in bad faith. They sincerely wanted to put away
gun traffickers and higher-level targets. In pursuit of that
goal, however, they lost sight of predictable collateral damage
of letting guns walk.
In addition, contrary to many unsubstantiated allegations,
the committee obtained no evidence indicating that the Attorney
General authorized gun-walking. None of the 22 witnesses we
interviewed claimed to have spoken with the Attorney General
about the tactics used in Operation Fast and Furious before
this controversy broke.
Mr. Chairman, although you deserve credit for exposing
these operations over the last 5 years, we part ways in what we
should do next. You now appear intent on escalating controversy
and promoting unsubstantiated allegations in a campaign that
looks more like an election year witch hunt than even-handed
investigation.
This is the sixth time--the sixth time the Attorney General
has testified on these issues. In contrast, you have never once
called the former head of the ATF to testify at a public
hearing, even though ATF was the agency responsible for these
reckless programs. And although Attorney General Holder has
answered questions repeatedly, you refuse to even interview
former Attorney General Mukasey.
When I was just starting as a lawyer some 30-some years
ago, the senior partner in the law firm said to me, young man,
you have to take the facts as you find them. You cannot
manufacture them.
Now that we have the facts, I hope that we can put aside
the politics and the rhetoric and focus on concrete reforms to
ensure that this never, ever, never, ever happens again.
With that, I yield back.
Chairman Issa. I thank the gentleman.
Now I ask unanimous consent that the majority memo and
related materials be entered in the record.
Without objection, so ordered.
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Chairman Issa. I will now recognize myself for 5 minutes--
oh, I am sorry. I am a little off on that. To be honest, I just
thought I would respond to a few of your things, but that will
wait.
Mr. Attorney General, we are pleased to have you here. As
the highest-ranking law official in the land, we appreciate
your commitment to the time, both here and in the Senate, that
you have given.
Contrary to the ranking member, I believe that today will
be one of the first times in which you are fully briefed and
prepared to answer in detail questions exclusively about Fast
and Furious; and I would caution both sides of the aisle to
stick to the subject. We are not--and I repeat--we are not the
Judiciary Committee. The Attorney General is not here to answer
a plethora of questions we may have about the conduct of his
office. He is not here to generally tell us about law
enforcement. I will assert the gavel if someone goes on a broad
expedition beyond Fast and Furious and, as the ranking member
said, related activities, including Wide Receiver and others. I
think respect for the Attorney General's time and the
legitimate portion of the jurisdiction that our committee has
taken requires that I ask all of you to please stick to that,
particularly since the Attorney General's time is valuable.
Mr. Attorney General, pursuant to the rules of the
committee, I would ask that you rise and take the oath.
[Witness sworn.]
Chairman Issa. Let the record represent an affirmative
answer. Thank you, Mr. Attorney General.
In order to allow time for discussion, the committee, like
all committees, will tell you to stay within 5 minutes. I in
fact have no intention on picking up the gavel as long as you
present what you have here today.
I would ask that to the greatest extent possible that you
realize that your opening statement in its written form is
completely in the record and that you certainly have our
permission to include material not in the record in order to
further delineate your prepared testimony today.
With that, Mr. Attorney General, you are recognized.
STATEMENT OF ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE
UNITED STATES
Attorney General Holder. Thank you.
I am here today because I understand and appreciate the
importance of congressional oversight and because I am
committed to ensuring the highest standards of integrity and
professionalism at the U.S. Department of Justice. That is
precisely what I pledged to do exactly 3 years ago tomorrow
when I was sworn in as Attorney General, and it is exactly what
I have done over the last 3 years.
My dedication to the Department's mission is shared by an
extraordinary group of colleagues, over 117,000 employees, who
each day in offices all around the world work tirelessly to
protect the American people from a range of urgent and
unprecedented threats--from global terrorism and financial
fraud, violent crime, human trafficking, civil rights abuses,
and more.
Over the last 3 years, we have made a number of significant
improvements, including policy and personnel changes that
address many of the concerns that are the subject of this
hearing today. Today, I would like to discuss some of these
improvements in specific terms and outline the steps that we
have taken to ensure that the flawed tactics in Operation Fast
and Furious and in earlier operations under the prior
administration are never used again.
Now, in some of my comments today, if they sound familiar,
it is because this marks the sixth time that I have answered
questions about this operation before a congressional committee
in the last year. Let me start, however, with something that
cannot be said enough: Allowing guns to ``walk'', whether in
this administration or the prior one, is wholly unacceptable. I
have been consistent on this. I have said this from day one.
The tactic of not interdicting weapons, despite having the
ability and legal authority to do so, appears to have been
adopted in a misguided effort to stem the alarming number of
illegal firearms that are trafficked each year from the United
States to Mexico. Now, to be sure, stopping this dangerous flow
of weapons is a laudable and critical goal, but attempting to
achieve it by using such inappropriate tactics is neither
acceptable nor excusable.
That is why, when I learned early last year about the
allegations raised by ATF agents involved with Fast and
Furious, I took action. In addition to requesting an Inspector
General investigation last February, I ordered that a directive
be sent prohibiting the use of such tactics. There have also
been important personnel changes in the Department, and vital
reforms reflecting the lessons that we have learned from
Operation Fast and Furious have been implemented.
Today, I want to reaffirm my commitment to ensuring that
these flawed tactics are never used again, and I reiterate my
willingness to work with Congress generally and with this
committee more specifically to address the public safety and
national security crisis along our Southwest border that has
taken far too many lives.
Congress has legitimately sought answers to questions about
law enforcement Operations Wide Receiver and Fast and Furious,
and my colleagues and at the Department of Justice have worked
diligently to provide those answers. In addition to my frequent
testimony before Congress, I have answered and am continuing to
answer questions that have been submitted for the record during
previous hearings. The Department has also responded to more
than three dozen letters from Members of Congress and
facilitated numerous witness interviews. We have also submitted
or made available for review some 6,400 pages of documents to
congressional investigators. This has been a significant
undertaking for Justice Department employees, and our efforts
in this regard remain ongoing.
We have also provided Congress with virtually unprecedented
access to internal deliberative documents to show how
inaccurate information was initially conveyed in a letter sent
to Senator Grassley on February 4, 2011. These documents show
that Department officials relied on information provided by
supervisors from the relevant components in the best position
to know the facts. We now know that some of the information
that they provided was, in fact, inaccurate. We also understand
that in subsequent interviews with congressional investigators
these supervisors stated that they did not know at the time
that the information that they provided was inaccurate.
In producing internal communications regarding the drafting
of the February 4th letter, the Department made a rare, limited
exception to longstanding executive branch policy. This
decision reflected unusual circumstances and allowed us to
respond, in the most comprehensive way possible, to
congressional concerns where the Department itself concluded
that information in the letter was inaccurate. The documents we
produced have answered the question of how that letter came to
be drafted and put to rest questions of any intentional effort
to mislead. All of our communications to Congress should be
accurate, and that is the standard that I expect the Department
to meet. At my direction, the Deputy Attorney General has
instituted new procedures to increase safeguards in this area.
As I testified in a previous hearing, the Department does
not intend to produce additional deliberative materials--I want
to emphasize deliberative materials--about the response to
congressional oversight or media requests that post-date the
commencement of congressional review. This decision is
consistent with the longstanding approach taken by the
Department, under both Democratic and Republican
administrations, and reflects concerns for the constitutionally
protected separation of powers.
Prior administrations have recognized that robust internal
communications would be chilled and the executive branch's
ability to respond to oversight requests thereby impeded if our
internal communications concerning our responses to
congressional oversight were disclosed to Congress. For both
branches, this would be an undesirable outcome. The appropriate
functioning of the separation of powers requires that executive
branch officials have the ability to communicate confidentially
as they discuss how to respond to inquiries from Congress.
Now, I want to note that the separation of powers concerns
are particularly acute here, because the committee has sought
information about open criminal investigations and
prosecutions. This has required Department officials to confer
on how to accommodate congressional oversight interests while
also ensuring that critical ongoing law enforcement
decisionmaking is never compromised and is free from even the
appearance of political influence. Such candid internal
deliberations are necessary to preserve the independence, the
integrity, and the effectiveness of the Department's law
enforcement activities and would be chilled by disclosure of
such materials. Just as we have worked to accommodate the
committee's legitimate oversight needs, I trust that the
committee will equally recognize the executive branch's
constitutional interests and will work with us to avoid further
conflict on this matter.
I know the committee is also keenly interested in the
policy changes that the Department has undertaken in the wake
of Operation Fast and Furious. The ATF, which is now under the
leadership of Acting Director Todd Jones, has implemented a
number of key reforms and critical oversight procedures to
prevent such a flawed operation from occurring again. These
reforms are numerous and include a number of things.
I am also pleased to report that, under the leadership of
the Department's Criminal Division, we have bolstered crime-
fighting capacity on both sides of the U.S.-Mexico border; and
we have done this by doing a number of important things as
well.
This is an important start, but we have to do a lot more.
And no one knows this better than the members of our Nation's
law enforcement community, including--and I want to emphasize
this--including the ATF agents who testified before this
committee last summer. Not only did these brave 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 to improve public
safety.
These courageous agents explained that ATF's ability to
stem the flow of guns from the United States into Mexico
suffers from a lack of effective enforcement tools.
Unfortunately, in 2011, a majority of House Members, including
all the members of the majority on this committee, voted to
keep law enforcement in the dark when individuals purchase
multiple semiautomatic rifles, shotguns, and long guns--like
AK-47s--in gun shops along our Southwest border states.
In this new year, I hope that we can work together to
provide law enforcement agents with the tools that they say
they desperately need and that they have requested to protect
our citizens and to ensure their own safety. Indeed, incidents
of violence against law enforcement officers are approaching
the highest level that we have seen in nearly two decades, even
though violent crime is down overall.
That is simply unacceptable, and the Justice Department is
committed to turning back this rising tide and to protecting
those who serve on the front lines. We have designed and
implemented a comprehensive new training initiative to provide
law enforcement leaders with the information, analysis, and
tools they need to respond to a range of threats.
Let me be clear: Nothing is more important than ensuring
the safety of the brave law enforcement professionals who put
their lives at risk for us each and every day, but we can't
make the progress we need and that the law enforcement partners
deserve without your assistance and without your leadership.
As I said before, I am determined to ensure that our shared
concerns about these flawed law enforcement operations lead to
more than worn-out Washington ``gotcha'' games and cynical
finger pointing. The Department of Justice stands ready to work
with you not only to correct the mistakes of the past but also
to strengthen our law enforcement capacity in the future.
Thank you.
Chairman Issa. I thank the gentleman.
[The prepared statement of Attorney General Holder
follows:]
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Chairman Issa. Before I begin my questioning, Mr. Attorney
General, would you agree to release to us legal opinions on the
constitutionality of the material that you have thus far
refused to supply the committee?
Attorney General Holder. To the extent that there are legal
opinions, I will look at them; and to the extent that they can
be provided, I have no objection to that. I don't know if these
are OLC opinions that OLC would have an objection to providing.
But to the extent that I can, I will make those available to
you.
Chairman Issa. Okay.
I will begin my questioning I guess by following up.
Mr. Attorney General, you have--the executive branch has
executive privilege. It is narrow. It is well defined. There is
case law. If you do not find a legitimate basis to deny us the
material we have asked for, we will seek the remedies necessary
to compel.
Having said that, I appreciate your being here today; and I
don't want to waste any of your or my time on this at this
point.
Let's go through a couple of items here.
First of all, it is reported through discovery that we have
received that Mr. Monty Wilkinson may have informed you of
Agent Terry's murder in a timely fashion. Is that true?
Attorney General Holder. He may have. I know the murder
occurred December 14th. I heard about it I think probably
within 24 hours. I don't know if it came from Monty Wilkinson
or from some other member of my staff, but I knew about the
murder within 24 hours of its occurrence.
Chairman Issa. When you were informed about that within 24
hours, did anyone inform you or allude to the fact that the
weapons found at the scene were from Fast and Furious?
Attorney General Holder. No. I didn't know about Operation
Fast and Furious until the beginning parts of 2011 after I
received that letter from Senator Grassley I guess at the end
of January, and then that was about Operation Gunrunner. I
actually learned about the Fast and Furious operation in
February of that year.
Chairman Issa. Would you make available to us through
whatever records you can find the name of the person who
informed you so that we can ascertain why that individual would
not or did not tell you what was widely known almost
immediately, that in fact law enforcement allowed weapons
walked--basically, that these were Fast and Furious weapons?
The emails that we have received through whistleblowers show us
extensively that law enforcement was aware and concerned about
it. We would like to know why someone kept that from you.
Attorney General Holder. I am not sure that anybody kept it
from me. I mean, I found out about it, as I said, I think in
January-February 2011, and I am not even sure how I found out
about it. It might have been either through a letter I received
from Senator Grassley on February 9th--I am not sure if it was
contained in there. There were certainly media reports about it
in February. Again, I am not sure exactly how I found out about
the term ``Fast and Furious.''
Chairman Issa. Would it be fair from your own knowledge to
say that neither Lanny Breuer as head of the Criminal Division
nor Jason Weinstein did anything to stop the program after they
learned of what it was about?
Attorney General Holder. Stop the program----
Chairman Issa. Fast and Furious, prior to Brian Terry's
death.
Attorney General Holder. I mean, they both admitted that
they were aware of Operation Wide Receiver and never connected
the techniques that were used in Wide Receiver to Operation
Fast and Furious and, as a result, did not take any action in
that regard; and both have admitted that that was a mistake.
Chairman Issa. Let's go through this. I think in my limited
time I want to make sure that we do deal with Wide Receiver
versus Fast and Furious.
As of today, do your law enforcement authorities such as
the ATF have the ability to see a straw purchase--believed
straw purchase--and, rather than arrest them at the door with
no evidence, follow them to the next location?
Attorney General Holder. See them----
Chairman Issa. In other words, does law enforcement have
the ability to follow suspected gun traffickers with the
weapons in their car from location to location?
Attorney General Holder. And keep them under constant
surveillance?
Chairman Issa. Yes.
Attorney General Holder. They certainly have that capacity.
Chairman Issa. Okay. So as far as we have been reported,
every piece of evidence shows that in Wide Receiver every
effort was made, unsuccessfully in many cases, which is one of
the things that concerns us, to follow the weapons. To your
knowledge, was there ever an order under Wide Receiver to
abandon following the weapons and let them walk?
Attorney General Holder. Well, I would say, you know,
during the early--as I have seen more on Wide Receiver as we
have provided materials----
Chairman Issa. A yes or no would be a good start, Mr.
Attorney General. Do you know of any time in which people were
ordered to peel off and let the guns walk under Wide Receiver?
Attorney General Holder. I am not sure about whether they
were ordered to or not, but I do know that in the early phases
of the investigation observations were made of people buying
guns and decisions made not to surveil them after those
purchases were made. And, as a result, 100, 400--I am not sure
exactly what the number is--of guns walked; and there were
complaints raised by people connected to the investigation
about the fact that guns were walking in Operation Wide
Receiver.
Chairman Issa. Since it was never allowed to simply let
known straw buyers, known guns fall into illicit criminals'
hands, have you taken any action to fire anyone or discipline
anyone from Operation Wide Receiver?
Attorney General Holder. Operation Wide Receiver occurred
in the prior administration. I don't think that----
Chairman Issa. We are not talking about political
appointees. We were talking about people who would transcend
the transition. Have you, to your knowledge, disciplined anyone
from Wide Receiver?
Attorney General Holder. No, I have not.
Chairman Issa. Have you disciplined anyone from Fast and
Furious?
Attorney General Holder. No, I have not, as yet. As yet.
There have been personnel changes made at ATF. We obviously
have a new U.S. attorney in Arizona. We have made personnel
switches at ATF. People have been moved out of positions.
I am certainly going to wait and see what I get from the
Inspector General, the report that we have from the majority. I
don't know if the minority is going to produce--from the
minority. I don't know if the majority is going to produce a
report. And I will be taking all that into consideration, in
addition to all these things I am able to find out on my own,
and make personnel changes as I think they are appropriate.
Chairman Issa. My time has expired. I will say that I don't
think the minority report is going to do you a whole lot of
good since it seems to say more or less nothing happened.
With that, I recognize the author of the minority report,
Mr. Cummings, for his round of questions.
Mr. Cummings. Thank you very much, Mr. Chairman, and I
respectfully disagree with what you just said. Our staff worked
very hard on that report. And, by the way, it is based upon the
evidence that the majority presented, that the majority
presented. You all heard the same evidence that we heard, and
we basically looked at the facts and presented them.
Mr. Attorney General, I want to thank you again; and I am
sorry my colleagues on the other side of the aisle have made
completely unsubstantiated allegations against dedicated and
hardworking FBI agents, DEA, officials and others. And I want
to thank all of them for what they do every day to protect the
American public.
I face a real challenge today. I have to ignore the
political sideshow and keep my focus on the very real problems
that led to these flawed operations.
As our report explains, we have no evidence that you
approved gun-walking. We have no evidence that you knew about
it. The same can probably be said of former Attorney General
Mukasey. I assume that if either of you actually heard that
gun-walking was taking place, you would have put a stop to it.
As I review this report from my staff, however, I get a
little bit upset. First I get upset that this happened.
Hundreds of weapons went to criminal networks on both sides of
the border because agents did not arrest suspects when they
could have.
I also get upset that this went on for so long. We
identified four different operations in Phoenix over 5 years
across two administrations involving hundreds of weapons, and
these weapons put law enforcement agents in danger.
In your written statement you noted that 177 officers lost
their lives in the line of duty last year, and 70 of those
deaths involved firearms. As the country's chief law
enforcement officer, what is your reaction to the fact that
these operations continued for so long?
Attorney General Holder. Well, it bothers me a great deal
when one sees the death toll that we have seen in Mexico, 40-
50,000 people have been killed over the last 5 years, 64,000
guns traced from the United States into Mexico, and that is
traced, which means there are probably substantially greater
numbers of guns that have gone from the United States into
Mexico. And the concern I have is that with these guns going
into Mexico and cartel activities that reach into the United
States that at some point these guns will be trained on law
enforcement officers.
Though we have seen an historic drop in the crime rate to
40- and 50-year lows, we have seen a rise over the last 2 years
in the number of police officers, Federal enforcement agents,
who have been killed. I have been to far too many funerals, I
have had to write far too many letters, talk to far too many
widows about the death of brave people who have died in service
to their country, and we have to do something about it. We have
to.
Mr. Cummings. The ATF Deputy Director William Hoover, an
experienced career ATF officer, became concerned in 2010 about
the number of weapons involved in Fast and Furious. He told us
he did not know about gun-walking, but he ordered an exit
strategy based on his overall concerns. He told the Phoenix
office to end this operation within 90 days and bring
indictments, but they didn't do it. They did not like ATF
headquarters running their cases, and they continued for months
to encourage gun dealers to sell to straw purchasers without
arrest.
During his interview, Mr. Hoover also told us that he never
told anyone at the Department of Justice about his general
concerns with the operation or his order for an exit strategy,
and our interviews with Justice Department officials confirm
that.
So I have two questions. I understand that field agents
don't like bureaucrats in Washington looking over their
shoulder, but how can a field office effectively ignore the
directives of ATF headquarters in this way? And, second, what
specific reforms are now in place or should we consider to
ensure better coordination and oversight?
Attorney General Holder. Well, there is a tension between
the field and headquarters. I have been in the field, I have
been in headquarters, and depending on where I sit, I think
greater wisdom exists in that place. We have to come up with
ways in which we make clear what the policies are.
After I heard about gun-walking--I don't know about
Attorney General Mukasey, but after I heard about gun-walking,
I was very firm. I had a directive sent out by the Deputy
Attorney General to the field that indicated that those kind of
techniques were simply unacceptable, were not to be used by the
Department of Justice.
Now, Todd Jones, the Acting Director at ATF, has instituted
a number of reforms. I want to say that the report that you
have put out contains at the back a number of suggestions with
regard to reforms, and I think--I don't remember what the
number is, but a substantial number of those have been
instituted by Todd, among them coming up with ways in which we
ensure that the trafficking of guns, the gun-walking, does not
occur, that more levels of review have to occur.
I think also significant, given the fact that Agent Dodson
is here, is that we have to have ways in which at ATF people
who have concerns about ATF operations have a greater ability,
don't have any concerns for their careers about surfacing
things within ATF, so that the leadership at ATF and ultimately
back at headquarters can take the necessary corrective actions.
But I would salute the minority report for the management
changes and policy changes that are included in that report.
Mr. Cummings. Thank you very much, Mr. Chairman. My time is
up.
Chairman Issa. Thank you.
We now go to the former chairman of the full committee, Mr.
Burton, for 5 minutes.
Mr. Burton. Nice seeing you again.
Attorney General Holder. It has been a while.
Mr. Burton. Yes, it sure has.
You know, it is very interesting, Mr. Attorney General, for
6 years I remember when you were with Janet Reno and the Deputy
Attorney General, and we fought to get documents, and we had a
difficult time. You have said here today that there are certain
documents that you will not give us because of the separation
of powers. Now, we have been down that road before and we got
them, but we had to threaten that we would have a contempt
citation in Congress. This is not just during the Reno
administration but during Gonzales as well. And we got the
documents. So I think you are hiding behind something here that
will not stand up. So you ought to give us the documents.
Now, we received 6,000 documents with redactions. And I
know that is an old school policy, you know. Send them up here
and cross out everything of relevance and let us try to figure
out what it is. And you dump them on us on Friday night so that
the staff here can't do anything with them unless they stay
over the weekend and work 10, 12, 14 hours. I have been down
that road, too.
Now, there are 93,000 documents--93,000 documents that you
are not giving this committee; and you are saying, well, the
separation of powers prohibits you from doing that. That is
baloney. That is just baloney. And I have worked with you for 6
years--well, I wouldn't say ``with'' you. I have worked for 6
years when you were the Deputy Attorney General.
So why don't you give us those documents? The conclusion
that I come to is there are some things in there that are being
hidden that you don't want us to see. I don't know if it
involves you or some other ATF agents or some other members of
the Justice Department. But this committee is the Oversight
Committee, and we have every right under the Constitution to
check on what you are doing. We are supposed to oversee the
executive branch, and you are part of that branch.
So for you to deny this committee anything like that is
just dead wrong, and I don't think you are going to find any
way that you can do it, and I would urge the chairman to move a
contempt citation against you if you don't give them to us.
Now, let me just ask you a couple of questions.
Why won't you let Patrick Cunningham, the head of the
Criminal Division in Phoenix, and Emory Hurley, a line
prosecutor, why won't you let them come and talk to the
committee? If you can't let them do it publicly, you ought to
let them do it in a private setting. Why won't you let them do
that?
Attorney General Holder. Well, a couple of things.
Just for the record, I was only a Deputy Attorney General
for 4 years. It seemed like 6.
Mr. Burton. Okay. Well, 4 years. It seemed like longer than
that for me.
Attorney General Holder. All right, longer than 6 for me as
well then.
Chairman Issa. Would the gentleman yield?
Mr. Burton. I would be happy to yield.
Chairman Issa. Since Mr. Cunningham has now taken the
Fifth, I would say none of us have that direct authority.
But to add to the gentleman's question, would you make all
testimony and information on Mr. Cunningham immediately
available to us unredacted so we may evaluate to a great extent
what you know about why he took the Fifth?
Go ahead. I yield back.
Attorney General Holder. Well, in terms of making
available--I am not sure where you get the number of 93,000
documents. Those redactions that have occurred are only because
there are things that are either not relevant or are protected
by grand jury secrecy rules, court orders that have sealed
material. We have provided to this committee material that is
relevant and only redacted that which is necessary, and there
is a key that tells you why something was redacted.
With regard to the two people you have talked about,
Hurley--Mr. Hurley is a line prosecutor, and we never make line
prosecutors available. That is every Attorney General that I
know has followed that policy. Mr. Cunningham no longer works
in the Justice Department, and so I don't have the ability to
compel him to testify. He left the Justice Department I think
this past Monday or last Friday.
Mr. Burton. You asked him to leave, I guess, didn't you?
Attorney General Holder. No.
Mr. Burton. You didn't?
Attorney General Holder. No.
Mr. Burton. He left on his own after he took the Fifth
Amendment?
Attorney General Holder. He had planned to leave well
before he invoked his Fifth Amendment privilege to take a job
in private practice--or at a company.
Mr. Burton. As I understand it, the IG has 80,000
documents, and you have given us 6,000. So whether we are
talking about 93 documents or 80,000, this committee has asked
for those and has not gotten them, and it appears as though we
are being stonewalled and there is something that is being
hidden.
Let me ask you another question: Have you apologized
personally to the whistleblowers who were in effect called
liars by those within your own agency, when we now know they
were telling the truth and we wouldn't know any of this today
if they hadn't come forward? I am talking about people like
John Dodson, who is here today, and Peter Forcelli. Have you
apologized to them personally?
Attorney General Holder. I have not apologized to them.
I spoke to Mr. Dodson, Agent Dodson, at the beginning of
the hearing when the chairman was kind enough to bring him by.
I gave him my telephone number and told him to give me a call
if he wants to talk about the way----
Mr. Burton. Give you a call?
Attorney General Holder. Give me a call.
Mr. Burton. Why don't you call him and apologize? Because
you are the Attorney General of the United States, and you are
in charge of these people, and they were in effect called
liars, and they were telling the truth. And I think, as the
head of that agency, it should be your responsibility to say
hey, guys, I am sorry that you were called liars when you did
tell the truth.
Attorney General Holder. I am not aware of them being
called liars.
But, beyond that, what we have tried to do is treat them
with respect. I don't think any adverse action has been taken
against any of the people who came here and testified before
this committee.
To the extent that there are concerns that Mr. Dodson has,
I will be more than glad to talk to him about them. I will
note, however, that he has had a meeting with the Acting
Director of ATF and I think he has expressed whatever his
thoughts were, at least at that time. If that has not been
sufficient, as I said, I am more than glad to have a
conversation with him.
Mr. Burton. I wish you would call him.
Thank you, Mr. Chairman.
Chairman Issa. The gentleman's time has expired.
Did you want to answer on the Cunningham question of
materials in your possession now that he has left under this
cloud?
Attorney General Holder. Yes. I wouldn't say it was ``under
a cloud''. But, anyway----
Chairman Issa. Taking the Fifth is not a cloud?
Attorney General Holder. I don't know why he took the
Fifth. There are a variety of reasons, not the least of which
was that apparently there was a report issued by this committee
or a statement by this committee that he had acted
inappropriately. I don't know why he invoked his Fifth
Amendment privilege. That is certainly his right as an American
citizen.
We have provided already 153 documents with regard to Mr.
Cunningham that entails about 387 pages of material. We will
continue to look at that material; and to the extent there is
information that is relevant, we will provide it to the
committee.
Chairman Issa. I thank you.
We now recognize the other former chairman of the
committee, Mr. Towns, for 5 minutes.
Mr. Towns. Thank you very much, Mr. Chairman.
This committee has not obtained one shred of evidence that
would contradict your testimony, Mr. Attorney General, not one
witness, not one document, not one email; and still some
continue to suggest that you did personally authorize gun-
walking and the tactics in Operation Fast and Furious. I hope
this will be the last time you have to answer this question:
Did you, Mr. Attorney General, ever authorize gun-walking?
Attorney General Holder. I did not, and I will say it that
way. I am from New York, and I would say it in a different way,
but I am going to have great respect for this committee and
simply say I did not.
Mr. Towns. I am from New York, so I would understand your
answer. And, of course, my colleague next to me would, also.
Did you ever authorize the controversial tactics employed
in Operation Fast and Furious, the non-interdiction of illegal
firearms, in order to build a bigger case?
Attorney General Holder. Not only did I not authorize those
tactics, when I found out about them I told the field and
everybody in the U.S. Department of Justice that those tactics
had to stop, that they were not acceptable, and that gun-
walking was to stop. That was what my reaction to my finding
out about the use of that technique was.
Mr. Towns. To your knowledge, did Deputy Attorney General
Gary Grindler or Assistant Attorney General Lanny Breuer ever
authorize gun-walking or the tactics employed in Fast and
Furious?
Attorney General Holder. To my knowledge, they did not.
Mr. Towns. Let me ask this: If you had been asked to
approve of gun-walking, what would you have done or said?
Attorney General Holder. No. Simple.
You know, there are questions that you have in public
corruption cases when you are trying to decide are you going to
let the money walk. There are questions that you have in
narcotics cases if you are going to let the drugs walk so that
you can make a case. You have spirited conversations about
that, and I can understand how there will be differing
opinions.
The notion that you would let guns walk in a firearms case
is for me absurd, absurd, and it was the reason why I said it
cannot happen. While we stopped it, it is not DOJ policy, and
anybody who does it now is breaking a direct directive from the
Attorney General of the United States.
Mr. Towns. So if you had been asked or told by ATF or the
U.S. Attorney's Office about the tactics in Operation Fast and
Furious, how would you have acted or responded?
Attorney General Holder. In the same way that I did I think
in early March 2011, by telling everybody in the Justice
Department, don't do this. It is unacceptable, it is stupid, it
is dangerous, and not something that this Department of Justice
can ever do.
Mr. Towns. You know, I want to thank you for coming up and,
of course, thank you for your testimony. I think it is pretty
clear that the attempts to tarnish your reputation with these
unsubstantiated allegations is pure politics and this
definitely has a political flavor, and that is unfortunate.
So, on that note, I will yield back.
Chairman Issa. I thank the gentleman.
We now go to the gentleman from North Carolina, Mr.
McHenry, for 5 minutes.
Mr. McHenry. Thank you, Mr. Chairman.
Thank you, Attorney General Holder, for being here.
Listening to the answer you had from the former chairman,
it seems to me when you see that folks did not follow policy,
did not follow your directives, and we are here 13 months after
you found out that an agent was murdered for policies that you
did not support, and we find out you have not fired a single
individual, we find out that you have not rebuked any staff
members--heck, you haven't even put a letter in people's
personnel files saying that they on their watch acted and an
agent was murdered. That is absolutely absurd from this side of
the dais. So I ask you, why have you not taken steps to make
sure this doesn't happen again?
Attorney General Holder. Well, I have taken steps.
Certainly with regard----
Mr. McHenry. Yes, you told people you were mad, you were
upset. That to me is silly. You have not taken action. You have
not fired anybody. You haven't changed policy. Because it is
clear you didn't enforce the policy before. You didn't know--
you are saying you didn't even know about it. So it strikes me
as incompetence in terms of management.
Attorney General Holder. Well, I am not sure you understand
how the Justice Department works. I didn't express the fact
that I was mad or that I thought it was silly. I issued a
directive that said that the Attorney General of the United
States that says this policy, this kind of technique, is
inappropriate and should not be followed.
We are still in the process of trying to determine, the
Inspector General is trying to determine, where this policy
originated. We know that it started probably in the ATF office
in Phoenix. It was approved by the U.S. Attorney's Office in
Phoenix. Now, exactly who the people were who actually approved
the technique we are still in the process of trying to work
through.
But that is not all that I have done. I have made personnel
changes with regard to leadership positions. We have moved
people around. We have instituted a series of policies now that
I think are designed to make sure that that doesn't happen
again.
Mr. McHenry. So an agent was murdered, and your action is
to move people around. That seems to me to simply inconvenience
people, not to rid them of Federal employment.
Attorney General Holder. Well, to the extent that we find
out who precisely was involved in this or who gave that order,
I can assure you that, unless there is some truly compelling
circumstance, that person, those people will be removed from
Federal service.
But that is not all we have done with regard to the murder.
We are in the process of investigating that murder, and the
people who are responsible for it will be held accountable, and
I expect that you will hear something about that relatively
soon.
Mr. McHenry. Relatively soon. Thirteen months later.
Attorney General Holder. No. Well, these matters----
Mr. McHenry. It is 13 months after the fact, sir. That is
what I am saying. At what point are you going to take action?
Attorney General Holder. As soon as we are in a position to
make arrests and hold people accountable, put them in a court
of law and try them with maximum charges. These are not cases--
--
Mr. McHenry. Is that likely this year?
Attorney General Holder. I think that is likely this year.
Mr. McHenry. Is it likely in the next 6 months?
Attorney General Holder. Yes, I think it is likely in the
next 6 months.
Mr. McHenry. Could you see this happening this quarter?
Attorney General Holder. When does this quarter end? I
don't know.
Chairman Issa. March 31st.
Attorney General Holder. It is possible.
Mr. McHenry. It is possible. Okay, 13 months later we have
the possibility of somebody actually being punished for an
agent being killed. This is absolutely absurd.
Mr. Chairman, I yield the balance of my time.
Attorney General Holder. No, it is not absurd. It takes
time to build a case that you are going to be able to take
before a jury with a high standard of proof, convict somebody,
hold them accountable. You don't want to go into court and put
yourself on a time limit and at 3 months say let's take
whatever we have and get into court and, because some critics
are going to say we are not acting fast enough, end up losing
the case and then the people who are responsible for this
heinous act are not held accountable.
We go into court when we think we have cases that are ready
to go. I am not putting any pressure on people in that regard,
other than to do it as quickly as they can but to do it as
thoroughly as we can so that we bring the best possible case
that we can.
Chairman Issa. I thank the gentleman for yielding.
Quickly following up--no, it isn't--Mr. Lanny Breuer is not
going to be criminally indicted or anything else, but when Mr.
McHenry was asking about holding people accountable, he was
really asking about people that work for you. Now, is your
management style a hands-off or is it a hands-on? Do you want
to know what is going on or do you want others to handle it and
brief you at relatively high level?
Attorney General Holder. I think I have a hands-on style.
Chairman Issa. If you have a hands-on style, have you read
any of or been fully briefed on any of the wiretaps, including
the March 10th wiretap in this case?
Attorney General Holder. These wiretaps are very
voluminous, read well kind of things. I have not read them.
Chairman Issa. Okay. Kenneth Melson told us--and this has
been publicly reported--that in fact he was sick to his stomach
when he discovered it. This was approved by Lanny Breuer's
office. Indications are that your chief deputy knew about this.
I mean, it comes through Criminal Division at some point.
The question is, will you or isn't it appropriate that you
know about these wiretaps so that you could know what former
ATF, acting ATF Director knew, which was these wiretaps are
reasonably believed to be sufficient in what they disclosed,
that many parts of this operation should have stopped, should
have stopped sooner, and that people were saying that at DEA
and other places, and that the Office of Criminal Division,
Lanny Breuer's division, if you will, knew or should have known
that?
That is the kind of thing Mr. McHenry was asking about, is
holding people accountable, whether they are career
professionals or political appointees. Are you prepared to do
any of that prior to the Attorney General's final report?
Because you haven't done any so far, as far as we can tell.
Attorney General Holder. I think you mean the Inspector
General's report.
Chairman Issa. I am sorry, the Inspector General's. I am
sorry, Mr. General. I keep confusing the two generals.
But, yes, I very much note your Inspector General's report,
which seems to be the reason for the delay in executing on
disciplinary actions.
Attorney General Holder. Well, I mean, you have packed a
lot into that question.
I think, first off, there is no indication that Mr. Breuer
or my former deputy were aware of the tactics that were
employed in this matter until everybody I think became aware of
them, which is like January-February of last year. The
information--I am not at this point aware that any of those
tactics were contained in any of the wiretap applications.
I will say this: To the extent that those wiretap
applications have been shared, that is in direct violation of
court orders, and if I find--if I find that somebody in the
U.S. Department of Justice has shared the contents of a wiretap
application, that will be something that will have to be looked
at.
There is a wide variety of things, information that we can
share, but I am not going to go against sealing orders by a
court with regard to a wiretap application, and anybody who
leaks that material or submits that material for people to
examine does so at their peril.
Chairman Issa. I appreciate that. For the record, Members
of Congress are not covered by that prohibition. Members of
Congress are not in any way under that order. In fact, if we
receive the information from whistleblowers, just like the
press, it is in fact legitimate for us to know it and to act on
it in our investigation. We are not covered by that Federal
Court order.
Your law enforcement people related--before I yield, did
you want to respond after you got a note on that?
Attorney General Holder. With all due respect, Mr.
Chairman, I think that direction that you just said about the
media and Congress and court orders is really incorrect, and I
think you act at your peril if you think that is the truth.
Chairman Issa. Well, certainly we would say that the
release of information from our testimony of Kenneth Melson
that appears to have been leaked to your people also would be
inappropriate, but we will get to that at another time.
With that, we recognize the gentlelady from New York for 5
minutes, Mrs. Maloney.
Mrs. Maloney. Thank you. I would like to respond to my good
friend and colleague, Mr. McHenry's statement that the AG had
not responded to Agent Terry's death. He responded immediately,
and has expressed his concern for the other agents that are
being killed at a higher rate than ever in our history.
Mr. McHenry. If the gentlelady will yield.
Mrs. Maloney. No, I will not yield. I will not yield.
And not only did he do that, he immediately took swift
action to stop gun walking, which did not happen in the prior
administration, and established reforms to prevent this type of
flawed operation from ever happening again. He further called
for--and we could all help him do this, particularly the
Republican majority--to confirm a permanent ATF director. That
would help more than anything. He also called for a Federal
firearms trafficking statute. He called for appropriate
funding, for the ATF to do its job and increase penalties for
straw purchasing. So these are some of the concrete actions
that he has taken in response to that tragic death.
And once again today, this investigation continues on its
vast and curious mission to fix the symptoms rather than the
cause of so much deadly gun violence on the southern border.
And this committee has unfortunately refused time and again to
examine the serious underlying problem that so heavily
contributed to a series of ill-conceived, fatally flawed
programs, such as Fast and Furious. And as this committee well
knows, and everyone should know in America, Fast and Furious
was not the first, but the fourth investigation to use gun
walking as a tactic to go after bigger fish. And the gun
walking strategy dates back to 2006, the prior administration.
And just to underscore how vast and curious this investigation
is, let's review that----
Is this the sixth occasion, Mr. Attorney General, that you
have been before Congress on this issue?
Attorney General Holder. It's the sixth time I have
testified about Fast and Furious.
Mrs. Maloney. This is the sixth time he has testified on
Fast and Furious. And he handed out a list of what his
responsibilities are, which I would like him to be able to do.
And I want to add to that one that I'm grateful for, and that
is implementing the 9/11 health and compensation bill, on which
your whole unit is doing such a brilliant job. Thank you so
much. We appreciate it.
Also, over 6,400 papers and ongoing IG review, all of this
is taking place. But in your testimony today, I appreciated
your tribute to the courageous agents that work in the ATF. And
you spoke about the whistleblowers and how courageous they are.
And I wanted to point out the testimony of Special Agent Peter
Forcelli, who called the current laws against gun trafficking
``absolutely toothless.'' And he went on to testify that there
was no enforcement and he went on and said all kinds of things.
Do you agree that there's no enforcement, that law
enforcement really doesn't have the tools to do the job to
crack down on gun trafficking?
Attorney General Holder. I really agree with Agent
Forcelli. I mean, there's really a need, I believe, for a
Federal firearms trafficking statute. We need increased
penalties for straw purchasers who engage in that kind of
inappropriate activity. And I think that we would like to work
with Congress so that we can put in place these measures that
will ultimately help ATF and the Federal Government be more
effective in the fight that we all say we want to have, which
is to stop the flow of guns into Mexico.
Mrs. Maloney. After that hearing with Special Agent
Forcelli, I worked with Ranking Member Cummings and also with
Congressman Towns and Congresswoman Norton, and we drafted a
bill which is to crack down on illegal trafficking conduct, not
law-abiding gun owners, but would go after those illegal
activities. And we should get busy working on helping to give
them the tools. We know that we do things that are far more
helpful than going on a politically motivated fishing trip,
which I feel this is what we are doing today. And the real
agenda of this investigation does not aid or honor those who
risk their lives every day, working to keep Americans safe from
gun violence.
And I must say that this is getting out of hand. The AG's
testimony that over 60,000 guns, I believe you said, have been
traced in Mexico that are directly tied to having been gotten
there from America. And I must say that one chilling example
was an ad that al Qaeda put on their Web site saying, Go to
America. Get guns. It's so easy to do. Get guns for your
illegal activities.
So I want to congratulate you for your vision and mission
of wanting to give law enforcement the tools to get the job
done, to have a Federal statute banning gun trafficking with
increased penalties.
Chairman Issa. Would the gentlelady yield?
Mrs. Maloney. Yes. I most certainly will.
Chairman Issa. I join with you in believing that Andrew
Traver who, I believe, is the November 2010 designate should in
fact be given an up-or-down vote, should, in fact, be given an
opportunity to be confirmed. I would note that he wasn't put
up. No one was put up for the first 2 years of the Obama
administration. And it's sad that they didn't have somebody in
the queue earlier.
I thank the gentlelady for yielding.
Mrs. Maloney. I want to thank the chairman for supporting
the confirmation, and you certainly can help us make that
happen.
Chairman Issa. We'll do what we can.
Mrs. Maloney. I appreciate that.
Chairman Issa. I thank the gentlelady.
I now recognize the gentleman from Utah, Mr. Chaffetz, for
5 minutes.
Mr. Chaffetz. Thank you, Mr. Chairman. Thank you, Mr.
Attorney General, for being here. I had an opportunity on the
Judiciary Committee to ask you questions on December 8, 2011. I
had asked you if you had spoken to President Obama, Secretary
Clinton, or Secretary Napolitano. You said that you had not
spoken to either of those three about Fast and Furious. Is that
still true today?
Attorney General Holder. With regard to Secretary
Napolitano, yes. Secretary Clinton, yes.
Mr. Chaffetz. I'm sorry. Secretary Clinton, you have spoken
with her about Fast and Furious?
Attorney General Holder. No. Well, I should say no.
Secretary Napolitano, no. Secretary Clinton, no. And I've had
passing conversations with the President just about the fact of
my testifying in connection with Fast and Furious.
Mr. Chaffetz. On Wednesday, February 16th, you issued a
press release along with Secretary Napolitano saying that you
had met together. This is on the heels of Jaime Zapata. He had
just been killed in Mexico. There were questions as to whether
or not there were ties to Fast and Furious. You say that you
didn't have any interaction with Janet Napolitano about Fast
and Furious. My question is about Secretary Clinton. What sort
of interaction did you have with the State Department?
Attorney General Holder. I'm not sure at what lower levels,
if there was interaction between the Justice Department and
people at the State Department. I know that I have not
interacted with Secretary Clinton with regard to Fast and
Furious.
Mr. Chaffetz. I was questioning whether or not you had
actually had some interaction, or the words Fast and Furious
came up. You had some interaction. You said, ``You have to
understand something about the way Washington works.'' Explain
that to me and the interactions that your department or agency
has had with the State Department.
Attorney General Holder. Well, one of the things that I was
saying--I was trying to say and I got cut off, was that when
people know that I'm going to be the subject of these kinds of
hearings--you know, six times and all that--nobody necessarily
wants to get involved in these kinds of things or get dragged
into it and then have some interaction, conversation that I had
with them be made more than it is. And I understand when people
don't necessarily want to talk to me about Fast and Furious,
knowing that at lower levels----
Mr. Chaffetz. You know that they're withholding information
from you.
Attorney General Holder. No, they're not.
Mr. Chaffetz. Well, you just said that they're not going to
provide you the information because they don't want to drag you
into it.
Attorney General Holder. I said they didn't want to have
conversations with me.
Mr. Chaffetz. Isn't that withholding information? If you
can't tell the boss what's really going on, you are going to be
oblivious to what's going on.
Attorney General Holder. We are talking about cabinet-level
people. And I'm saying that the people who work under them,
either DHS, State other executive branch agencies, are
certainly providing information to the Justice Department so
that we have access to whatever information----
Mr. Chaffetz. And is the Justice Department providing that
information to, say, the State Department or Homeland Security?
You may say, we're not having face-to-face discussion which
troubles me--I don't care whether you are a Democrat or a
Republican, the idea that you are not being informed and not
having conversations because you are afraid of coming to
Congress is troublesome, at the least.
Attorney General Holder. I'm not afraid to come to
Congress. I have been here six times.
Mr. Chaffetz. I know. But if you are not being informed so
you purposely can claim ignorance on the issue, that's a
problem. My question is, at the lower level, is there an
expectation on your part that there is interaction between
these departments and agencies?
Attorney General Holder. Well there is not only an
expectation. I know that, in fact, there is that kind of
interaction because with regard for instance to the death of
Agent Terry, I know that DHS is working with the FBI, State
Department and Justice.
Mr. Chaffetz. What about the State Department?
Attorney General Holder. State, you know, doesn't have as
direct a role. Obviously we interact with our counterparts in
Mexico, and we talk to the State Department, inform them of
contacts that I have. In fact, I will be speaking to the
attorney general from Mexico in the latter part of--well, I
guess, early this afternoon.
Mr. Chaffetz. In paragraph five of your testimony today,
you talk about the national security crisis along the border. I
guess my concern, Mr. Attorney General, is, you have an
expectation that there's interaction between the Department of
Justice and the State Department, correct?
Attorney General Holder. Oh, there certainly is, through
the Merida Initiative, if nothing else. And through other ways
in which our law enforcement components talk to one other----
Mr. Chaffetz. I am sorry. My time is so short.
Chairman Issa. Would the gentleman suspend? Do you have a
point of order?
Mr. Towns. Mr. Chairman, I think that if he is asks a
question, he should have an opportunity to answer it. I am
trying to follow it. But the point is that without him being
able to respond, what are we really doing?
Chairman Issa. The gentleman's point is valid, and I
appreciate that both under your leadership and hopefully under
mine, we make sure that all witnesses get to answer.
Mr. McHenry. Mr. Chairman, may I ask for 1 additional
minute for the gentleman?
Chairman Issa. Without objection, so ordered.
Mr. Attorney General, at the end of any round of
questioning within a reasonable period of time by yourself, if
you feel you have been unable to answer a question--and I would
like you to be succinct--we will give you the additional time
at the end so you may answer. I do respect the fact that a
Member may want to go on to a next question. So you may have to
wait until the end to sort of revise and extend briefly. And
with that, I mean no disrespect. The gentleman was fully within
his rights. But I wanted to make that clear because the past
chairman and my policy are to make sure that people get to make
full answers, even if it's not during the 5 minutes.
Mr. Chaffetz. Mr. Chairman, I would ask that without the
starting of the clock--again, if he wants to fully answer that.
With concern to Mr. Towns, I just want to be able to do the
followup question.
Chairman Issa. The gentleman is absolutely right. The
gentleman will continue.
Mr. Chaffetz. If you want to more completely answer that,
please.
Attorney General Holder. I'm not sure where I was.
Mr. Chaffetz. The interaction between you--the Department
of Justice and the State Department on Fast and Furious, and
that's the concern here is Fast and Furious.
Attorney General Holder. Right. We work together with our
State Department counterparts on a number of things in
connection with Mexico. There is the Merida Initiative that
really kind of is the umbrella way in which we operate in
Mexico in a law enforcement way. So there is a lot of contact
at the lower levels and not so lower levels. I know our Deputy
Attorney General speaks a great deal with his counterpart at
the State Department.
Mr. Chaffetz. My question, Mr. Attorney General, is the
testimony from October 27th of this year that Secretary Clinton
gave over in the Senate where she said, ``I can tell you that
based on the information on the part of the State Department
that would deal with this kind of issue, we have no record of
any request for coordination. We have no record of any kind of
notice or heads up.''
How is it that the Secretary of State is saying, we've
never been involved in any way, shape, or form in Fast and
Furious and you are testifying that it's happening on a regular
basis?
Attorney General Holder. Well, you have to put this in the
appropriate context. What I'm saying is that we interact with
them in a number of ways. Now Fast and Furious might not be a
primary thing that we are talking about with the State
Department. We are certainly working more closely with DHS when
it comes to Fast and Furious. But those kinds of things are
discussed. It might not be, you know, a primary thing that
exists between a topic of conversation between State and----
Mr. Chaffetz. And I guess that's the concern, Mr. Attorney
General. We have 1,500 weapons. We've got 300 dead people in
Mexico. We have a dead U.S. agent. We've had an untold number
of hearings and discussions and press reports. And yet, you had
the people at the highest level of the government saying, well,
we don't talk to each other because our people don't tell us
information because we've got to remain ignorant because we're
going to have to testify and they don't want to get me
involved. And at the same time, you're telling me that they are
interacting with the State Department on a regular basis, and
the State Department, the Secretary, is telling us, it isn't
happening. And Janet Napolitano is saying very similar things
at the Department of Homeland Security. If we're going to solve
this problem and make sure it never happens again, we have to
solve these challenges. And I have no confidence that you've
addressed it or offered anything to actually solve it.
I yield back.
Chairman Issa. The gentleman's time has expired. Did the
gentleman want to follow up?
Attorney General Holder. I'm not sure about the context in
which that remark was made by Secretary Clinton, but I can tell
you that when it comes to the issue of violence in Mexico, the
problem of guns going to Mexico, we are joined with our
partners at the State Department----
Mr. Chaffetz. Mr. Chairman, Mr. Chairman, can I read the
question?
Chairman Issa. Does the gentleman want the question read
back?
Mr. Chaffetz. No. The question that Secretary Clinton got.
You asked a legitimate question. I don't know what context
Secretary Clinton asked----
Chairman Issa. The gentleman will suspend. If you make that
question available to the Attorney General's staff so they can
brief him, we will return to that out of order to get an
answer. But I think, in fairness, we've given sufficient time.
If you will make it available to staff, we'll make sure we get
to it before the end of the hearing.
With that, we go to the gentlelady from the District of
Columbia, Ms. Norton, for 5 minutes.
Ms. Norton. Thank you, Mr. Chairman. Mr. Chairman, I don't
know if conversations with the Secretary of State, with
Secretary Clinton, or Secretary Napolitano are of major
importance here. But I do know this, that after calling the
Attorney General of the United States six times before the
Congress, I think the public would have expected that we would
have begun to talk about remedy by this time; and yet there has
been no remedy to give the Justice Department the tools it
needs to prosecute straw purchasers or gun trafficking. But
here we go again with the sixth hearing.
Mr. Attorney General, I want to commend you for the changes
you have made, the multiple changes you have made while this
matter was unfolding and the facts were coming forward,
recognizing full well that until you get the inspector
general's report, particularly considering that this is the
Justice Department, to proceed without due process would be
fairly unseemly. You have to understand that when there's an
issue like this and it was very important because of the death
of an agent, there is an incentive for the committee, if it can
get a hold of a highly placed government official, to call on
as much as you can because with him comes the press and the
public.
My concern, I must say, for the Attorney General today, who
has foreign and domestic matters of great moment on his plate,
that at least a remedy come out. And we certainly haven't seen
anything even approaching that.
I would like to go through the 5 years of gun walking
because they all get merged. We have 3 years of gun walking, or
so-called gun walking in the Bush administration, 5 years
total, two in this administration, beginning with the Arizona
U.S. attorney Paul Charlton. Now we haven't had the opportunity
to have him before us. But the problem emerged out of his
office, and with warnings, apparently, in his office at that
time, that there were real issues that the ATF--at least his
legal counsel raised issues, including what he called moral
objections.
Now Mr. Charlton, we do know--even though we haven't had
the opportunity to speak with him--was briefed and continued to
allow hundreds of guns to walk across the border to Mexico. The
notorious Hernandez case arose during the Bush administration
when the effort of coordination failed and yet the gun walking
continued.
Now we come to this administration. When you became
Attorney General in 2009, were you aware that ATF had this long
history of gun walking in its Phoenix office?
Attorney General Holder. No. I didn't become aware of gun
walking at all until the beginning of 2011.
Ms. Norton. Mr. Attorney General, if every attempt at
coordination--and remember, Mr. Hernandez was never arrested.
Those authorities were never--no one was ever taken into
custody. But if every attempt at coordinating fails, do you
think the agent should have stopped authorizing further
attempts to coordinate between Mexico and the United States and
allow the gun walking to proceed?
Attorney General Holder. Do I think they should have
allowed that?
Ms. Norton. Do you think that given the repeated attempts
of failed coordination that the agents should have stopped
authorizing it or simply continued to allow further attempts,
even as they saw the attempts of coordination fail with no
arrests being made on the Mexican side?
Attorney General Holder. Yeah. I think both experientially,
based on what you have noted, I think there was no basis for a
continuation of gun walking. But then even conceptually, as I
think I testified before, the notion that you would let guns
walk is simply not something that I think is a sound law
enforcement technique.
Ms. Norton. So when does it become gun walking, Mr.
Attorney General?
Attorney General Holder. When you have the ability to
arrest somebody for some firearm transaction that they have
engaged in and you make the determination not to make the
arrest, and then they proceed from that site, and you don't
surveil them, you don't take any kind of affirmative action,
and you allow that person who has committed a firearms offense
to simply walk away with the firearm. That, from my
perspective, is gun walking. And conceptually, experientially,
it is simply not a good thing to do.
Ms. Norton. That should have stopped even before even this
administration took office.
Attorney General Holder. Sure. I think so.
Chairman Issa. I thank the gentlelady. I would note for the
record that the Attorney General has testified as to Fast and
Furious on November 8th before the Senate, on December 8th
before the House. The other previous testimonies were not on
the subject of Fast and Furious. And he was not briefed and
able to answer it properly during those times. I just wanted to
make sure. This is also the first time before our committee. So
Judiciary, quite frankly--and particularly in the House--has
not taken the lead the way this committee has on both sides of
the aisle.
Attorney General Holder. If I could just maybe correct the
record----
Chairman Issa. Of course.
Attorney General Holder [continuing]. I certainly did speak
in those--the number five or six is, in fact, correct.
Chairman Issa. The times that you were asked, not the times
you were brought to answer questions that were prepared.
Attorney General Holder. Whether it was Senate
Appropriations, Senate Judiciary, I was asked questions about
Fast and Furious and answered those questions.
Chairman Issa. With that, the next gentleman will be the
gentleman from Michigan, Mr. Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman. And thank you Mr.
Attorney General, for being here today.
I'm tempted to ask your opinion on former Penn State coach
Joe Paterno. It might be an interesting conversation, but we
don't have time for that in the questioning. But I would state
that Joe Paterno reported allegations of child molestation to
his superiors but did nothing else because he didn't want to
jeopardize university procedure. Jason Weinstein, a senior
official in the criminal division, knew about gun walking as
early as April 2010. After a single meeting with ATF about it,
he then failed to follow up or take action. Joe Paterno, a
legend in his sport, and yet he was unceremoniously fired.
Weinstein continues on in his current position even though Fast
and Furious has held deadly consequences, most importantly, to
Agent Brian Terry, a proud son of Michigan, my State.
My question for you is, what's the difference between the
case of Joe Paterno at Penn State and the Justice Department
under your leadership?
Attorney General Holder. Well, I'm not going to get into
the Paterno case. I will talk about Jason Weinstein. He knew
about wide receiver and he told Mr. Breuer about it. He met
with ATF. He has indicated that he did not know about the
tactics, the inappropriate tactics, the gun walking tactics
involved in Fast and Furious until later on and didn't connect
those tactics with the ones that were used in wide receiver and
has admitted that what he did was a mistake and has indicated
that he was, you know, that he failed in not making that
connection.
Mr. Walberg. And so he continues on, as do other senior
officials moved around as chessmen on a board with no
consequences of a significant nature at this point in time, no
admission, other than now when brought on the carpet and
brought into the public life that this thing has gone wrong,
was set up to go wrong and, frankly, I believe was set up to go
wrong in order to deal with Second Amendment liberties of law-
abiding citizens and pushing into a perception that it was a
problem of the Second Amendment as opposed to law enforcement.
And more importantly, Mr. Attorney General, your oversight of
an agency, of a department, of individual leaders in that
department that have not been held accountable.
Attorney General Holder. Well, with all due respect--and I
mean this with great respect--the notion that this was an
operation set up to do something to impinge upon the Second
Amendment rights of my fellow citizens is absurd. The operation
that was put together here was an attempt to stop the flow of
guns from the United States into Mexico, something I think we
should all agree upon.
Mr. Walberg. And it wasn't effective, was it?
Attorney General Holder. It was not effective. In fact it
was flawed, fundamentally flawed.
Mr. Walberg. Very flawed.
Attorney General Holder. I have said that from day one. But
the notion that somehow or another this was a setup to come up
with measures that would impinge upon Second Amendment rights
is simply not substantiated by the facts. And I think in some
ways--again, with all due respect, I think that's almost
irresponsible.
Mr. Walberg. Well with all due respect, I would concur that
your mention today of the necessity for impinging upon Second
Amendment liberties of law-abiding citizens still further
brought that question up. Let me move on here. An article
yesterday by former CIA director Michael Hayden noted that you
``launched a reckoning of CIA renditions detentions and
interrogations of terrorists by directing the Justice
Department to reopen investigations closed years before by
career prosecutors.'' This decision was opposed by Leon Panetta
and his seven predecessors. The article notes that you
reportedly made the decision without reading detailed memos
prepared by those career prosecutors, declining to pursue
further proceedings.
And further, Mr. Attorney General, you are well known in
this town for not reading memos. You admitted you failed to
read memos addressed to you in Fast and Furious; you failed to
read memos before the Mark Rich pardon. You failed to read
memos or even the law related to the Arizona immigration law.
What does that say about your leadership and management that
you consistently fail to read extremely important papers placed
on your desk?
Chairman Issa. The gentleman will suspend.
As I previously said--although you can certainly talk about
your management style--this hearing is limited to Fast and
Furious, so I would ask that you limit your answers to the
management style as it may relate to Fast and Furious and not
to any other cases unrelated to our investigation.
Mr. Walberg. Thank you, Mr. Chairman.
Attorney General Holder. Well, I disagree with that. Given
the decision to almost engage in character assassination, I
will respond to at least some of that.
I'm the Attorney General of the United States, okay? And
when it comes to deciding what I'm going to investigate, how
I'm going to investigate, I take into account a wide variety of
things. The decision I made to open up those CIA matters--and I
was an aware that this was something that was opposed by a
great many people. I read a great deal before I made that
determination. I had access to material that other people who
criticized that decision have never had access to.
Now I have great respect for the people, the men and women
of the CIA who put their lives on the line and who protect this
Nation in a way that many of you don't, because I see a
briefing every day at 8:30 about the great work that they do.
But there were things done, things that were done during the
course of those interrogations that were antithetical to
American values, that resulted in the deaths of certain people
and that justified my decision to order an investigation. That
investigation has run its course. We are at a point where we
are about to close those investigations. It would have been
irresponsible for me, given the new information that I had a
chance to review, not to order that investigation.
With regard to your more general point about me reading or
not reading memos, I read those things that are brought to my
attention or things that I think I need to read in order to
make appropriate decisions. I'm confident that the management
style that I have, the involvement that I have is adequate to
allow me to make appropriate decisions based on facts, based on
interpretations of the law. And I have a good staff that brings
to my attention those things that I need to read.
Chairman Issa. The gentleman's time has expired. Before I
go to Mr. Tierney, I would like to make--and we are sort of
speaking to your staff to a certain extent--the staff aware of
the CRS report that on numerous occasions, Congress has
interviewed line attorneys, including in the Rocky Flats
investigation, the early 1990's under obviously a Republican
administration. So I would ask that your staff review that so
that you may correct your statement, that it never happens.
With that, we go to the gentleman from Massachusetts next,
Mr. Tierney.
Mr. Tierney. Thank you, Mr. Chairman. Mr. Attorney General,
indulge me, if you will, on this for a second. This committee's
obligation is to the family of the deceased, to the other law
enforcement officers involved, to the citizens of this country.
And this committee is charged with first finding out what
happened; and then once we determine that, making sure we can
work on practices so that it never happens again in a flawed
situation like this. Members of both parties--and our staff did
a great deal of work in determining the facts, and I think the
ranking member has already gone on a great deal about the
number of interviews that staffs of both parties and the number
of documents that they reviewed went on, and also laid out a
number of actions that were recommended for the future. And I
know that you have taken some actions and the new ATF director
has set out some actions as well.
So at this stage, it seems to me we have a couple of
alternatives. We could further explore on how the program of
gun walking began back in 2006; it repeated itself in 2007; it
repeated itself again in 2008 and 2009; and it repeated itself
again in Fast and Furious. But to do that, we would need to
talk to Mr. Mukasey, I should think, and the majority is not
willing to bring Mr. Mukasey forward.
As far as I know, he is the only Attorney General that had
documents in front of him that even mentioned the programs, or
some of those programs, although that doesn't indicate that he
authorized it or even condoned it. But certainly if that
alternative of trying to find out more facts about what
happened, he would be somebody I think would be worth talking
to, and we have not been given that opportunity. We could
explore reforms, necessarily beyond those that you've
implemented and the ATF director's implemented and what
statutory changes about gun trafficking and things might be
involved. But the committee doesn't seem--at least the majority
doesn't seem interested in doing that. Or unfortunately, as we
seem intent on doing here at this hearing put by the majority
we could continue to chase what seems to be a political agenda
of trying to find out that somebody in the administration--you,
in particular, somehow had knowledge or authorized or condoned
this operation.
If that were the case it would seem to me that a good
witness for us to talk to would be Mr. Melson, who was the
then-acting ATF director. Mr. Cummings has asked the chairman
to bring Kenneth Melson as a witness. Mr. Melson indicated he
is willing to come as a witness. In fact, he even testified or
talked, was interviewed in a closed interview with staff from
both parties. They asked him if he had ever approved gun
walking. He said he had not. They asked if he had ever been
briefed about gun walking. He said no. They asked if he was
aware if the senior Justice Department officials had ever
authorized gun walking. He said no.
Surely if the details of Operation Fast and Furious were
approved at the highest levels of the Department of Justice, as
has been accused, then Mr. Melson, the director of the ATF
presumably would have known about it. This is however, what he
said in that interview, ``I don't believe I had knowledge of
the specific tactics used in Fast and Furious until the facts
began to be disclosed in the media.''
So Mr. Melson told the committee he never authorized gun
walking, the Justice Department never authorized it. He wasn't
aware of it in the Fast and Furious operation, and he never
briefed the Attorney General or anyone else at the Department
of Justice about it. I think that's pretty valuable information
if the focus of this inquiry is going to be who knew what when
and where.
This interview with Mr. Melson took place 7 months ago.
Chairman Issa has refused to let him answer those questions in
public before our Members. We can draw some conclusions of our
own as to why that case's testimony directly contradicts the
assertions that the operation was approved at the highest
levels of the Justice Department.
So that leaves us with only, I guess, to find out whether
or not there were any bad actions by people at higher levels of
asking you yet again, Mr. Attorney General, did Mr. Melson, the
director of ATF, ever raise any issues to your attention about
gun walking or the conduct of Operation Fast and Furious?
Attorney General Holder. No he didn't.
Mr. Tierney. Do you rely on your component heads to bring
significant issues within their agencies to your attention?
Attorney General Holder. Sure. That's one of the
responsibilities that they have. And I hope I have the kind of
relationship with them so that they feel free to bring to my
attention issues like that.
Mr. Tierney. Are you disappointed that neither Mr. Melson
nor anyone else at ATF raised concerns about Fast and Furious
to your attention or to anyone else at the Department's
headquarters?
Attorney General Holder. Yeah. I am disappointed not only
in Mr. Melson, but other people within the Department who were
seized with this knowledge and who did not bring it to my
attention and who have admitted they made mistake in not
bringing it to my attention or to the Deputy Attorney General's
attention the fact that gun walking existed in at least some of
these operations.
Mr. Tierney. And have you or has anybody held Mr. Melson
accountable for not bringing these issues to your attention?
Attorney General Holder. Well, Mr. Melson made the
determination and we agreed that it would be better for him to
leave ATF to allow ATF to get a fresh start and to allow him to
get a fresh start as well.
Mr. Tierney. Mr. Chairman, at this time, I ask unanimous
consent to enter into the record the transcript of the
interview by Republican and Democratic staff.
Chairman Issa. I object. You know that's grossly
inappropriate.
Mr. Tierney. Well, I think, Mr. Chairman, it's grossly
inappropriate to have a pertinent witness who is not allowed to
come before this committee and testify. And I thought, since
you don't seem willing to do that, then maybe we'd go to the
next best thing where both parties had an opportunity to
interview Mr. Melson and talk about issues that seemed to be
right at the core of what you are alleging over and over again.
Chairman Issa. The gentleman's unanimous consent is not--
okay, I will be even kinder. I reserve.
Now speaking on my reservation, does the gentleman really
believe that that is the right thing to do, to make public an
ongoing investigation that includes a number of officials,
includes a situation in which an official has taken the Fifth
and left the Justice Department to make any of those documents
publicly available at this time when, in fact, it is pursuant
to our investigation? Does the gentleman actually believe that?
Mr. Tierney. Mr. Chairman, I withdraw my request at this
point in time. But I hope we've made the point here that what
is important is for you to change your mind hopefully and allow
Mr. Melson to come here and testify in public and answer the
questions which have been the core of the matter there and the
allegations that you continuously make apparently erroneously
but refuse to acknowledge.
Chairman Issa. I appreciate the gentleman's comments. I
would note for the record I have not called for the Attorney
General's resignation. I have not said the Attorney General
knew. I certainly have--and I think many of us are making the
point that people didn't know that should have known things
that, in fact, we are trying to find out where the failures
were made other than the local level, which we have begun
describing in the case of the acting--and it's in his
testimony, obviously, which will not in its entirety made
available today. But the acting director, in fact, is culpable
for not knowing more of what a director should know or ensure
that people know that make stoppage.
So I join with the gentleman in saying that, in fact, it
does concern me that someone who is supposed to direct over
1,800 individuals did not know that this, in fact, involved gun
walking. But remember, on February 4--well after many of these
events--the Attorney General's office prepared a document, gave
it to us which said we never let guns walk. That is of concern
too. And the committee is not shy about having additional
hearings. The Attorney General made himself available at this
date pursuant to a request. We did not and are not saying this
is the culmination or we are taking him in lieu of less
significant----
Mr. Tierney. Mr. Melson's interview was some 7 months ago.
And a direct quote from you, Mr. Chairman, on a television
show, the Roger Hedgecock Show--there was a radio back there--
you said, ``ATF people and Justice people are telling us, this
goes all the way to the very top. It goes all the way to the
ATF Office of the Director and obviously goes to the Office of
the Attorney General. This is the approved plan that you know
is basically at the highest levels of the Obama appointees.''
If those are allegations that you are going to make, then
it would be important to have Mr. Melson come in here and
testify as part of that instead of blocking his testimony and
continuing to make those assertions which now apparently are
obviously not correct.
Chairman Issa. I appreciate the gentleman giving Roger
Hedgecock a plug. The fact is that those allegations were made
with a number of other false allegations. I might note for the
record that we were given statements, allegations that the ATF
director was viewing on closed circuit Internet connection the
actual purchases being made. After receiving testimony and
multiple checks, we discovered that although he inquired about
the capability of viewing these surveillance as they occurred,
that no such event occurred. This often happens in
investigations.
Mr. Tierney. Well Mr. Chairman I am glad that you
recognized that those comments that you were amplifying at the
very least are false and now maybe we can move on to the
business of determining what we can do as a government----
Mr. Cummings. Mr. Chairman, just to follow up on what you
just said. I know you are reserving, Mr. Chairman.
Chairman Issa. Actually the gentleman withdrew.
Mr. Tierney. I withdrew.
Mr. Cummings. I was just wondering if there was a way that
we could have a portion of that document that goes to Mr.
Melson's testimony where he clearly states that he never told
the Attorney General about these tactics in Fast and Furious
where he says that he did not--he, himself, did not know. I
mean, the staff worked together----
Chairman Issa. The gentleman from Massachusetts has done a
very good job of making that available, and I certainly----
Mr. Cummings. I just want to make sure that the record is
complete. The Attorney General has been accused of--some very
unkind things have been said about him. His reputation hangs in
the balance, and I think that we've got Mr. Melson, the former
ATF director, who clearly stated that he never said anything
about these tactics to the Attorney General. And he even said
that he didn't even know about them himself. I was just
wondering if we could just have that portion of the transcript
as a part of the record. I'm not trying to----
Chairman Issa. I will work with the ranking member to find
appropriate portions that seek your concerns that can be made
available. I might note that my side has quoted repeatedly--and
this is why I want to make sure we are fair on both such
quotes. My side has quoted where he said he was sick to his
stomach when he read the wiretaps and discovered what he didn't
know. So although I think it is inappropriate to release the
entire transcript, I will work with the gentleman. We will hold
the record open to make appropriate statements that you believe
are necessary to make the record complete. And I will be glad
to do that.
Mr. Cummings. Just 30 seconds. What you just said is one of
the reasons why I want to make sure it's a part of the record.
When Mr. Melson said as he sat at his kitchen table--and I read
it 50 million times. And he said his stomach got in knots when
he found out about it, basically his point was that he didn't
know about it before then.
So if he didn't know about it, it was impossible for him to
tell the Attorney General about it. And that's all.
Attorney General Holder. If I could----
Chairman Issa. Well, I'm not going to allow--and I
apologize Mr. Attorney General. I'm not going to allow this to
turn into a sequence of those because I think both sides could
get into various testimonies. I will work with the gentleman.
He has a valid point. We will now return to regular order.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman Issa. You're very welcome.
Attorney General Holder. Could I just say one thing?
Chairman Issa. The gentleman is recognized.
Attorney General Holder. When Mr. Melson indicated that he
became sick to his stomach, he did not--it was not when he was
reading the wiretap applications. He was reading reports of
investigations. And I think that's an important distinction.
Chairman Issa. I appreciate that.
We now go to the gentlelady who has been waiting patiently
from New York, Ms. Buerkle for 5 minutes.
Ms. Buerkle. Thank you, Mr. Chairman. And thank you Mr.
Holder for being here this morning. I just want to make a
couple of comments to start out because we've heard it from the
other side of the aisle and even yourself with regards to this
being a Democratic or a Republican issue, whether this is a,
you know, political game, if this is an election year charade.
I think it's very important to recognize that you, as the
Attorney General, with all due respect, need to be held
accountable, or someone does, as to what happened.
Now I'm amazed that of all the issues that face this
country, this is the issue that I hear from my district so
frequently about. And, in fact, today--and I will enter them
into the record--I have no fewer than 30 questions from folks
in my district who want to know what happened, why it happened,
and who is going to be held accountable to us. And I was taken
aback just a little bit with your response to my colleague, Mr.
Walberg, when you sort of declared that I am the Attorney
General.
Well, with all due respect, sir, yes, you are, but you are
also accountable to not only the folks in my district, but the
American people. And I just want to--if you would indulge me--
just play a recording because most importantly--and as you are
well aware of, we had a hearing here in June with Brian Terry's
family. And in that hearing, I specifically asked his mother--
and we'll play that hearing, if you would, please.
[Video shown.]
Ms. Buerkle. So Mr. Attorney General, on behalf of Mr.
Heyer, who is Brian Terry's cousin and actually the
spokesperson for his mother and his sister, I would ask you, to
what lengths has your investigation into Operation Fast and
Furious gone? And will everyone in that operation that had to
deal with those specific weapons be brought up on charges
facilitating the murder of Brian Terry?
Attorney General Holder. Well, we are certainly working now
to--I mean this is an ongoing investigation. It's actually a
very sensitive time. I'm not sure I can talk an awful lot about
where the investigation is. I have indicated that I think we
are pretty close to making some announcements. And we will hold
accountable, seek to hold accountable those people who are
responsible for Agent Terry's death. With regard to people who
were involved in Operation Fast and Furious, we are endeavoring
to find out who made the determinations to allow guns to walk.
I'm not really at liberty to talk about the weapons that we
used in the actual incident. That goes to ballistics reports,
and I don't think I can comment on that here. That will
obviously come out during the course of the trial. But we will
hold accountable people who were involved in--as I have
described, this flawed investigation.
And one other thing. I did not mean to imply the comments
that I made there that I should not be held accountable. But I
also think that there's a certain fairness component to this as
well. And I ought to be held accountable for those things that
are within my area of responsibility. I should be held
accountable for things that are factually correct as opposed to
those things that are politically desired. And I'm more than
willing to admit mistakes when I have made them. But I also
think that if we are going to really get ahead here, if we are
really going to make some progress, we need to put aside the
political gotcha games in an election year and focus on matters
that are extremely serious. When one looks at the death toll in
Mexico, when we look at the guns----
Ms. Buerkle. Excuse me, sir. My time is ticking away. I
just have one more question. Unlike the chairman, I was one of
the Members of Congress who called for your resignation. I feel
that the Department of Justice--that you are responsible for
all of the activities that fall under your umbrella. And I
think that you have denied knowledge of the program and that
accordingly, you should not be held accountable.
My question to you today is, what more could have possibly
gone wrong that you would have been held accountable? And
before you answer that, I would suggest that the President has
been eerily quiet about coming to your defense. So let me ask
it this way: How many more Border Patrol agents would have had
to die as a part of Operation Fast and Furious for you to take
responsibility?
Chairman Issa. The gentlady's time has expired. The
gentleman may answer, or not.
Attorney General Holder. You know, that's the kind of
thing, you know, you wonder why you are getting those calls. I
mean, people will focus on a question as much as an answer. And
as a Member of Congress, I mean, really--is that the way in
which you want to be seen, you want to be known?
You know, I should be held accountable for--certainly my
role in whatever I did or didn't do in connection with the
supervision of Fast and Furious. But, yeah, I'm Attorney
General of the United States, and I should also be held
accountable and perhaps even given some credit--imagine that--
given some credit for the things that this Justice Department
has done under my leadership, whether it deals with national
security, revitalize antitrust, revitalize civil rights
enforcement efforts. And so one has to balance all of these
things.
I'm not claiming to be a perfect person or a perfect
attorney general. I get up every day and try to do the best job
that I can. I have great faith in the people who work in the
Department. And you know, that kind of question I think is,
frankly--and again, with respect--I think that's beneath a
Member of Congress.
Chairman Issa. The gentleman has concluded I think. We now
go to the other gentleman from Massachusetts, Mr. Lynch, for 5
minutes.
Mr. Lynch. Thank you, Mr. Chairman. And I want to thank the
Attorney General for helping the committee with its work. I
know this is your sixth time.
If I could, I would like to try to put the political part
of this aside and really out of respect for Agent Brian Terry
and his family and the other 117,000 people who work for you,
try to look at some reforms that actually might go to the core
of what went wrong here.
Now I know you have referred repeatedly to a tactic, the
tactic of gun walking. But really, when you drill down on that,
what we are allowing here--in this case, in Fast and Furious at
least, and in the earlier cases under the Bush administration,
basically what the Department of Justice did was authorize
criminal activity to allow folks that they knew--they knew
these 20 dealers were buying hundreds of guns--heavy arms,
shipping them into Mexico.
In my city, in Boston, through the Office of the FBI,
through the confidential informant program, we had folks that
were allowed to commit 19 murders under the care and protection
of the FBI. I've got a situation right now that's in court
where another individual, a confidential informant, has killed
at least--alleged to have killed at least a half dozen people.
The problem here is that this tactic actually authorized--it
puts the law enforcement, Federal law enforcement in a position
of authorizing criminal activity. They become complicit in it.
That's very troubling, especially when it results in the death
of a very brave, courageous agent or to innocent American
civilian citizens.
And what is especially troubling is that I believe that you
didn't know about it. I believe that you didn't know about it.
But that's not a comfort to me. It is unbelievable that either
the Phoenix field office or the Boston office of the FBI can
authorize criminal activity, not just a mere tactic, but a
whole strategy of using that outside the law, and then having
innocent civilians killed.
So I actually think one of the solutions might be for
Congress to pass a law that says, if there are those limited
occasions where we are going to authorize criminal activity to
go on in our society under the cover of law enforcement's
authority, then either yourself, as the Attorney General, or
the director of the FBI or the head of the ATF has to sign off
on it because here, everyone escaped responsibility because of
plausible deniability. They can say, I didn't know about it.
Well, that's troubling. That scares the hell out of me when
I think that there's just a local office of the ATF or the FBI
that is authorizing criminals to engage in this typed of
activity, taking AK-47s and letting them get smuggled into
Mexico, or, you know, southern California on our side of the
border.
What are you prepared to do? Look, I know that's a blunt
instrument, saying that you have to sign off on any of these
clandestine operations where we are allowing people to engage
in criminal activity that puts the public at risk. What do you
propose to do to make sure we don't have this ``I didn't know
about it'' approach or the ``I know nothing'' Sergeant Schultz
defense for law enforcement's ``I didn't know about it?'' What
do you propose, sir?
Attorney General Holder. I think that's a legitimate
question. I think we don't want to go too far in this sense in
that law enforcement will engage in illegal activity in an
attempt to solve crimes. We engage in illegal activity when we
are--when we buy drugs from people who are selling drugs. We
engage in illegal activity when we pay corrupt public officials
money, when we go into undercover operations. But we have to
have that ability. It is an extremely important law enforcement
technique. But I think the point that you raise is a good one,
and that is, that the approval to do these kinds of activities
can't rest at the line level. There has to be supervisory
responsibility. And the question is, where do you draw that
line?
It is not realistic for the Attorney General to sign off on
every one of those things. We have mechanisms within the
Department when it comes to undercover operations that rise to
a certain level where an undercover review committee actually
has to approve them. There's a committee that does that. The
reforms that have been put in place by Todd Jones at the ATF
requires greater supervisory responsibility for approving those
things.
But even with all those approvals--as I said before, you
know, letting drugs walk, letting money walk, that's one thing.
But letting guns walk, I simply don't see--I just don't see how
that's an appropriate law enforcement technique. If you balance
the potential gain against the potential harm, the harm is too
great to justify the use of gun walking.
Chairman Issa. I would ask unanimous consent that the
gentleman have an additional 30 seconds.
Mr. Lynch. I thank the gentleman. Where do we draw that
line though? There has to be some accountability here. There
has to be. And again, I go back to the very nature of this
tactic. It is putting law enforcement--and the confidential
informant arrangements are especially troubling. These folks
operated for years. We are taking taxpayer money to pay
confidential informants at a very generous lifestyle, and it
seems to be all clandestine. At least in the Boston office, the
higher-ups didn't know anything about it.
Chairman Issa. Would the gentleman yield?
Mr. Lynch. Sure.
Chairman Issa. I agree with the gentleman that we need to
do more oversight over the FBI and other entities that have
this authority. I also agree with the gentleman that there has
to be a congressionally stated level that we are comfortable
with that can approve this, particularly in light of Fast and
Furious, recognizing that cartel members are unindicted and in
fact, were part of this operation that led to Brian Terry's
death. So I join with the gentleman in support of Congress
doing oversight and taking that role.
Mr. Lynch. I thank the gentleman, and I yield back the
balance of my time. Thank you, sir.
Chairman Issa. I thank the gentleman for yielding back.
We now go to the gentleman from Arizona, Mr. Gosar.
Mr. Gosar. Thank you, Attorney General, for coming today.
There is no secret about how I feel, absolutely no secret. And
I am appalled, absolutely appalled. And I am appalled even
further about the discussion today, because if this same thing
had occurred on the east coast, how much more of a ruckus we
would have heard. How much more we would have actually taken
into consideration.
I am the only member on this committee that is from
Arizona. Yes, we lost a border agent. But we are further
impugned because these guns are going to show up at crime
scenes, particularly in Arizona, from here to whenever, as well
as the Mexican government, and the Mexican people who have lost
over 300 people.
And I think that I am very taken aback by when you said,
you know, we shouldn't be doing this. We shouldn't be gun
walking. And everybody knows that that is inappropriate. Well,
I tell you what. That shows me exactly why I am so appalled,
because if there was a doctrine out there that said listen, if
you walk guns, you are going to do time, that is the penalty
that should be placed here, because that is what we are going
to have to endure. And I am finding it very upsetting that
Arizona is taking this on the face and we trivialize what is
going on here.
I think we should be able to share all information to find
exactly who exactly authorized this. We talked about in-line,
people that have been moved from Arizona up the line to DOJ,
having that discussion to find out how this came about, because
this is in our backyard. Don't you agree?
Attorney General Holder. Agree--you have said a lot.
Mr. Gosar. Don't you agree that we shouldn't trivialize
this.
Attorney General Holder. No, and it has not been
trivialized. This is obviously--at least not by me.
Mr. Gosar. Do you think it is appropriate that we just say
don't do it. You shouldn't be doing gun walking. Or do you say
it shouldn't be done, and if it is done and you are found
culpable and you are a participant in this, that you should be
held to the same standards as the rest of us are?
Attorney General Holder. What I did after I found out about
gun walking was to issue a directive that said this is
unacceptable, don't do it, and you will be held accountable if,
in fact, you do do it.
Mr. Gosar. So you will agree with me that if they do this,
and they are put before a jury of their peers, that they would
do criminal time?
Attorney General Holder. Well, I don't know about criminal
time. I mean, one has to look at the facts of a particular
case, and if somebody did something with criminal intent, sure,
that would be appropriate. But if somebody did something with
criminal intent. I mean, you have to get past, you know, beyond
a reasonable doubt. There is a whole variety of things----
Mr. Gosar. You just can't slap somebody's hand on this and
just say don't do it again. What I am seeing here is it is
something inappropriate, and that is in Main Street America, we
don't get these same kind of privileges to make mistakes. And
we are dealing with people's lives.
Attorney General Holder. Well, you know, we actually do
have a situation in which people who engage in straw purchasing
and in some forms of gun trafficking actually do get slaps on
the wrist and that is why we need a stronger gun trafficking
law and we need greater penalties when it comes to straw
purchasing. Because we have as I think Agent Forcelli described
people who essentially are being charged as if they were
speeding. That is unacceptable.
Mr. Gosar. So straw purchasing, so let me ask you with the
FFLs, the Federal firearms licensees, no new regulations on
them? They did everything that they were told to do and then
some. They kept even pounding people saying, this is ungodly.
This same guy is coming in here and we got ATF saying sell
guns. Sell the guns. Something is wrong here. So putting
additional restrictions on FFLs is not the protocol. It is
further disseminating what is going on and than having a higher
cognizance, won't you say?
Attorney General Holder. I am not sure what additional
restrictions you are talking about when it comes to FFLs.
Mr. Gosar. Obviously right now, down in Arizona we have
further paperwork to fill out if you are selling long guns. How
did that come about?
Attorney General Holder. Well, four States, the border
States have been asked if you sell long guns, like AK-47s, more
than two guns in a 5-day period, that ought to be reported to
ATF, which is what is consistent with what they have to do now
when it comes to the sale of handguns. That is all we have
asked. And that is a nationwide thing that has been in effect,
the handgun restriction, since the 1980's, I think probably
since the Reagan administration.
All we have said is the four States, the four States along
with the border where the greatest amount of trafficking occurs
into Mexico, that you have this additional requirement, and a
Federal judge here in Washington has said that that is
appropriate.
Mr. Gosar. I find it interesting that back here on the east
coast dictating west coast. But you know, a hypothetical. So
what do you think the penalty should be for a cabinet member, a
sworn officer of the law, who comes to testify before Congress
and knowingly lies?
Attorney General Holder. Well, hypothetically, there is a
perjury statute. There is a false statement statute. I don't
know what the penalty is. It is 10 years. I am not sure.
Whatever. We have something in Title 18 that already answers
that question.
Mr. Gosar. Well, I am one of those people that I find it
disdainful about how we have conducted business over this. If
it were any other State than Arizona, I think we would have
seen different results and different penalties and different
critical people and manpower put toward this to find this and
being much more cooperative, and I am very disturbed by that.
Attorney General Holder. We have talked an awful lot about
during the Republican primary----
Chairman Issa. The gentleman's time has expired. Is there a
pending question you are answering, Mr. Attorney General?
Attorney General Holder. I think I was.
Chairman Issa. Okay, feel free to answer the question.
Attorney General Holder. I was just saying that, you know,
the notion that we are somehow looking at this in a regional
way and that a particular region of the country is not getting
the attention that it deserves or it is not being taken as
seriously as it might if something happened back on the east
coast, your reference to a judge here in Washington, this is an
American problem. This is an American problem. And what I have
tried to say is that, you know, we too often think about these
things as border problems, when the reality is what happens in
Arizona, what happens in New Mexico, California, Texas, will
have a direct impact in Chicago, New York, other parts of
California, Washington State, here in Washington, DC.
Chairman Issa. I thank the Attorney General. I don't think
there really is a pending question that that is responsive too.
But I appreciate your comment.
We now go to the gentleman from Virginia for 5 minutes, Mr.
Connolly.
Mr. Connolly. Thank you, Mr. Chairman, and welcome, Mr.
Attorney General, and thank you for being here and showing such
dignity and honor in the face of some attempts to suggest you
are other than a dignified and honorable Attorney General
serving his country well. And I just think for the record,
welcome on Groundhog Day. We heard that Punxsutawney Phil saw
his shadow, so we have 6 more weeks, and it is fitting you are
here for the sixth time before Congress with repeated attempts
to try to pin something on you and this President that cannot
be pinned, and it is my firm hope that at some point the
majority would actually acquiesce to the request to have your
predecessor Mukasey come here and talk about Wide Receiver and
his knowledge of that program and gun running.
Mr. Holder, I assume there is a law that specifically
forbids the trafficking of firearms, particularly if that
trafficking ends up arming drug cartels, or if the weapons are
subsequently found at crime scenes. Is that not the case?
Attorney General Holder. We don't have a Federal
trafficking statute, and that is one of the things that we are
working for.
Mr. Connolly. I am sorry. Forgive me for interrupting. We
don't have such a law?
Attorney General Holder. No. And that is one of the things
that we have been trying to get Congress to consider and to
pass.
Mr. Connolly. Well, now, you have appeared before Congress
many times, six on this subject. Has any of the congressional
committees summoning you to testify had a hearing on that law,
the need for such a law?
Attorney General Holder. No.
Mr. Connolly. Despite our concern about deaths and violence
and an operation gone bad, we haven't had a hearing on trying
to forbid the trafficking of firearms and making it a Federal
penalty?
Chairman Issa. Would the gentleman yield?
Mr. Connolly. I would prefer not to, Mr. Chairman.
Please, Mr. Holder, answer the question.
Attorney General Holder. No, we have not had that hearing.
I have tried to raise it as part of one of the reasons--part
the things that I think we ought to be considering as a means
to deal with this issue, to deal with this problem. There is
clearly a need for a Federal trafficking, a firearms
trafficking statute.
Mr. Connolly. Isn't that interesting that in the majority
in this Congress we haven't had a hearing on that subject.
Well, if there isn't a strong penalty for firearms trafficking,
surely there is some kind of harsh penalty for straw purchasers
of guns?
Attorney General Holder. I would like to be able to say the
answer to that question is yes, but, unfortunately, the answer
to that question is also no. As I indicated before, I go back
to him only because he has great--more experience than I do,
Agent Forcelli who testified previously before this committee,
likened the Federal straw purchasing penalties to a speeding
ticket.
Mr. Connolly. At this very committee?
Attorney General Holder. Right. Yes. At this committee, and
that I think is obviously unacceptable.
Mr. Connolly. And the testimony of that agent called by
this committee, by the majority in this committee, was actually
interrupted and chastised for the nature of his answer because
it actually dared to talk about the need for stricter gun
enforcement and tougher penalties. Is that your recollection,
Mr. Attorney General?
Attorney General Holder. I believe Ms. Maloney was asking a
question in that regard, and I don't know what the technical
term was, but it was ruled out of order or something.
Mr. Connolly. When I was in Mexico on a bipartisan
leadership trip to talk about this and some other difficult
topics with the Attorney General of Mexico at the time, we
asked the Attorney General, if there was one thing the United
States could do to help you in your battle against drug cartels
in the north of your country, violence that has gotten
unbelievably, unspeakably out of control, what would it be? And
his answer was, reinstate the assault weapons ban as American
law. Your view on that?
Attorney General Holder. This administration has
consistently favored the reinstitution of the assault weapons
ban. It is something that we think was useful in the past with
regard to the reduction that we have seen in crime, and
certainly would have a positive impact on our relationship and
the crime situation in Mexico.
Mr. Connolly. Well, surely we have had a hearing on that
though. I mean, you have been up here six times. This is all
about trying to protect that border with Mexico and to try to
help Mexico as well as protect U.S. security of U.S. citizens.
Surely, we have at least had a hearing on that subject, have we
not?
Attorney General Holder. Not to my knowledge. Not a hearing
that I participated in.
Mr. Conyers. Really? It makes one wonder what this hearing
is actually all about. I yield back.
Chairman Issa. Would the gentleman yield?
Mr. Connolly. I certainly would, Mr. Chairman.
Chairman Issa. By the way, we are happen to entertain all
suggestions for hearings. I will note that you keep saying
six----
Mr. Connolly. Reclaiming my time just for a second there,
Mr. Chairman. I am delighted to hear that you are happy to
entertain such requests. I would then formally request that the
former Attorney General, Mr. Mukasey, be invited to the
committee to testify about what he knew and when he knew it
about the program analogous to Fast and Furious in the Bush
administration.
Chairman Issa. We will attempt to glean that information. I
don't know if it will be by personally having somebody come,
but we do intend to glean information from prior
administrations as to the level of coverage, and I will work
with the gentleman on that. I might, though, note that of the
six times the Attorney General has appeared, for example, to
the Appropriations Committee, he may have been asked a question
related to Fast and Furious, but that wasn't the purpose for
which he came.
And I would only note that as far as I can tell, the
Department of Justice has not submitted a request for a Federal
firearms law to Congress. So I know that the gentleman is very
concerned about these laws. Asking Congress to sua sponte come
up with ideas for laws is actually seldom the way the
administration would like it. And I might mention to the
gentleman that if the Attorney General and Justice came up with
a proposed firearms law, that might be a good start to
answering your concerns.
I yield back.
Mr. Connolly. Mr. Chairman, if you would just indulge,
because I would like to follow up on that, that is a very good
point.
Chairman Issa. I ask unanimous consent the gentleman have
an additional 30 seconds.
Mr. Connolly. I would just take our joint question then if
you would, Mr. Chairman, and ask the Attorney General to
comment. Why hasn't the administration, in fact, made the
request the chairman just referred to with respect to
toughening gun laws?
Attorney General Holder. Well, we have certainly requested
it in the past. I will be more than glad to submit something
for consideration. We would love to work with this committee,
the Judiciary Committees in both Houses in that regard. I
believe that Mrs. Maloney actually has a bill that I think
would be a good starting point for us. There is something that
exists there that would be the basis for that conversation.
Chairman Issa. Does the President support Mrs. Maloney's
bill?
Attorney General Holder. We would certainly want to work
with her on that bill. I mean, obviously there are going to be
some things we want to work on, but I think that is certainly a
good starting place.
Mr. Cummings. Would the gentleman yield? I know we are out
of time. But I just want to make sure that is my bill and Mrs.
Maloney's bill.
Attorney General Holder. I am sorry.
Chairman Issa. That will probably help the President like
it even more.
Mr. Cummings. And we welcome your support.
Chairman Issa. All right. I thank all of the gentlemen and
lady. With that, we go to one of the most experienced members
of the committee, although a freshman, the gentleman from
Pennsylvania, Mr. Meehan, for 5 minutes.
Mr. Meehan. Thank you, Mr. Chairman, and thank you, Mr.
Attorney General. I know I sent you a letter some time ago and
I appreciate your coming to our committee. Look, I am going to
try to do my best to work as we try to do with the facts that
are before us, as limited as they are based on the discovery.
But what I have been able to glean, as everybody agrees, is the
tactics of the ATF are not to be supported or condoned.
But if you heard testimony that was given from the U.S.
attorney in Arizona, Paul Charlton, in 2007, that he disagreed
and approved of those tactics and declined the request to
prosecute the cases of Wide Receiver, would you dispute that at
all?
Attorney General Holder. I am not aware of Mr. Meehan's--
Mr. Charlton's testimony.
Mr. Meehan. It is his testimony that he declined to
prosecute those cases. And just so you know, the other facts
that I have been able to glean is that Kevin Carvell, who is a
DOJ Criminal Division gang unit supervisor in September 2009
called it a semi-dormant investigation, gun trafficking
investigation by ATF. And in 2012, Jason Weinstein called it a
case from years earlier, which, in my mind, suggested it was
not something which was current.
Attorney General Holder. But Wide Receiver was dormant and
then was brought back to life.
Mr. Meehan. Well, I want to know why. That is a pretty good
question, because--who is Laura Gwinn?
Attorney General Holder. I don't--I am not sure. I don't
know.
Mr. Meehan. Well, let me tell you who Laura Gwinn is again,
going back. Apparently Laura Gwinn was an attorney from main
Justice who was sent by Lanny Breuer to prosecute gun cases,
and around 2009, September 2009, she was sent to Arizona to
prosecute gun cases. In her e-mail, September 2, 2009, she
sends an e-mail to Jim Trusty in the U.S. Department of Justice
in Washington and it says ``it is my understanding a lot of
those guns walked.''
So we had an attorney from your Department sent to
Washington who sends a communication back to mid-level or
senior level people in the criminal department saying it is my
understanding, I am on the scene, guns walked. And I want to
know why, when a former U.S. attorney based on those opinions,
declines to prosecute cases because he does not like the
procedures of the ATF, and an attorney who goes and identifies
gun walking, why would a subsequent administration send down
attorneys and resurrect these cases for prosecution?
Attorney General Holder. Well, I mean, we want to try to
hold accountable the people who were responsible for crimes
that were committed, and I would guess that people took into
account the techniques that were used in making the
determination as to which cases would, in fact, be prosecuted.
Mr. Meehan. Well, I sure do think that that is correct. And
who do you think the people are who sit there and take into
account the techniques that were used? Those people in ATF that
are looking for the determinations from the Department about
what tactics are appropriate. And what signal does that send
when the prior previous U.S. attorney declines and says those
aren't appropriate tactics, but the new one comes down and says
no, we believe that we are going to prosecute these cases in
which those tactics were used.
But this was simultaneous as well, I know, to an effort in
2009 when Lanny Breuer actually went down and discussed the
idea of traveling to Arizona to meet and plan ways to
coordinate gun trafficking. So I just wanted to know why that
determination was made.
Let me switch to one other thing, because again, it comes
back to the idea of who knew what and when. Was Fast and
Furious an OSADEF case?
Attorney General Holder. Yes, I think it received an OSADEF
designation.
Mr. Meehan. And, you know, I am holding in hand the U.S.
attorney manual, and we have all lived with this, and I know
you know it----
Attorney General Holder. You have, certainly.
Mr. Meehan. We have spent our time. I look and it says, I
am talking about the places, authority of the U.S. attorney and
what needs to be approved by the Department of Justice.
Approval is required for organized crime strike force cases, of
which Fast and Furious was. Every significant action in the
investigation and prosecution from case initiation, court-
authorized electronic surveillance, witness immunity, witness
protection, and other important events must be approved in
advance by the organized crime and racketeering section, which
is in Washington, DC, the last I looked, correct?
Attorney General Holder. That is correct.
Mr. Meehan. So we have the Department in Washington who is
actually making determinations about the sufficiency of the new
investigations that are taking place, the OSADEF investigations
that are taking place, correct, which became Fast and Furious.
Attorney General Holder. Well, I am not sure exactly--it is
one of the things we have to try to, again, figure out, who
exactly----
Mr. Meehan. Well, Mr. Holder, I am figuring it out. I am
watching the documents. I am giving you that route.
Attorney General Holder. Well, there is clearly--I
understand the regulation that you have read. Now the question
is who actually made the necessary approvals, who was involved,
why did they do something that might have been contrary, as you
say, I don't know, to what the previous U.S. attorney did.
These are the kinds of things that I think we are going to find
out from the Inspector General. I have not done a top-to-bottom
review yet. I haven't been allowed to do that. I can't do that.
Mr. Meehan. One of the things we know is there are
approvals as well for wiretaps, and in the conclusion of
approval for a wiretap, we know that we have to put together a
document which is an affidavit from law enforcement, an
affidavit in which to be approved, it has to suggest that all
other law enforcement options with respect to investigative
techniques have been exhausted and are not--so I don't have
access. I would ask, but I suspect you are not going to let
former Federal prosecutor and myself, Mr. Gowdy, have access to
the seven separate affidavits that were included as part of the
wiretap authorizations that were approved by your Department.
Would we be allowed to have access to them?
Attorney General Holder. You know, I am not sure what the
history is in that regard----
Mr. Meehan. They are sealed. I know they are sealed.
Attorney General Holder. They are sealed. And I don't know
whether or not as part of our interaction with Congress
historically, the Department has sought unsealing orders in
that regard. I just don't know.
Mr. Meehan. I would like to know what was in those wiretap
affidavits with respect to which we know there needs to be the
articulation of the investigative steps that were taken. And if
I am----
Attorney General Holder. I am sorry, go ahead.
Mr. Meehan. I would like to know if we would have the
ability to be able to review those, and even in some context in
which we could negotiate. The only thing we want to see is the
extent to which there may be references to tactics that were
used by ATF with respect to gun walking.
Attorney General Holder. Well, as you and Mr. Gowdy will
know maybe better than anybody else on the committee, these
kinds of applications don't always go into all of the
techniques that are used in a particular investigation.
Mr. Meehan. But I don't know that, and I would like to know
that.
Attorney General Holder. I am just saying generally. So
that there is the possibility that a review of the material
submitted by the field in Washington would not contain
something that would say guns were allowed to walk, or however
it might be described.
Mr. Meehan. But there is also the possibility that it
would, and what I want to know, because I do know that your
authorities would have from OEO, and it would actually go up
higher to Mr. Weinstein, if I am correct, who would have to
review that affidavit. So it would be for a pretty serious high
level guy in the criminal division that would have in his hands
that affidavit if he so choose to read it.
Attorney General Holder. A Deputy Assistant Attorney
General has to ultimately approve a wiretap before it goes--a
wiretap application before it goes before a court, and we have
tried to put in place some new measures with regard to OEO and
how these things are handled. But I will, you know, I will look
and see what we have done historically with regard to these
wiretap applications and see how we will proceed, given the
request that you have made.
Mr. Meehan. Thank you. My time has expired.
Chairman Issa. I thank the gentleman. We now go to the
gentleman from Illinois, Mr. Quigley.
Mr. Quigley. Thank you, Mr. Chairman.
Mr. Chairman, as someone who has gone through about 200
trials myself, I know there are a lot of experienced trial
attorneys in this courtroom. I appreciated the novel, Bonfire
of the Vanities. The best line I have read----
Chairman Issa. Say that again, Bonfire----
Mr. Quigley. Bonfire of the Vanities.
Chairman Issa. I would ask unanimous consent that the
gentleman have 15 more seconds to educate us as to that.
Mr. Quigley. Well, there is a wonderful scene in which
Judge White talks to the district attorney about prosecuting
defendants for opportunistic reasons. He concludes wonderfully
by saying, so go tell your boss, the district attorney, Captain
Ahab Weiss, that I know he is out there looking for the great
white defendant, who Mr. Williams over there is not it.
Much the same is today. We come to the conclusion after
nearly six hearings that I note there are those looking for the
perfect case to embarrass the Attorney General and the
President, but after six hearings, this is not it. I say so
respecting and understanding that this is a great tragedy, a
great loss that requires change and accountability. But if it
is done in a way with a Hollywood-type persona, it is
opportunistic.
Frankly, it took the minority staff to write a pretty good
detailed analysis of what happened and what needs to change.
And now, Mr. Attorney General, it is incumbent upon all of us
to make sure that happens, and as you suggested there is
accountability.
But if it is just deflection, we fall into the other movie
trap of the day, which, Mr. Chairman, you referenced, and that
is Groundhog Day. Let's remember what happened in that movie.
The character Bill Murray lives the same day over and over
again until he reaches his own reality and comes to terms with
it.
We do as well. We have to come to terms with the reality
that in this country we let something that is dastardly take
place and it wasn't corrected fast enough. And we need to make
changes. And while they are started, we still need
accountability. But it can't be a deflection.
Now, Mr. Attorney General, you mentioned some of the
issues, the lack of a firearms trafficking statute. We talked
about the long arm reporting requirement to a certain extent.
You mentioned testimony at a previous hearing from agent Peter
Forcelli. His exact quote, by the way, was ``Some people view
this as being no more consequential than doing 65 in a 55.''
That was his testimony about punishment for straw purchases. He
also said something else that is related to this issue and
where we go from now on. He said, ``I have less than 100 agents
assigned to the entire State of Arizona. That is 114,000 square
miles. So do we have enough resources? So do we have the
resources? No, we don't. We desperately need them.''
I also would note toward that end that appropriate funds
for additional ATF personnel in this fiscal 2012 year,
Congress' appropriations for ATF was $57 million below the
agency's modest request, resulting in increased layoffs and
early retirement for critical personnel. ATF plans to reduce
its work force by about 5 percent to comply with these budget
constraints, leaving fewer agents to pursue traffickers and
inspect the small handful of dealers who repeatedly violate
these gun laws.
Mr. Attorney General, if you could briefly comment on the
resources needed to do this job?
Attorney General Holder. Yes. I think that if we are
serious, as we all say we are about dealing with this problem
of guns going to Mexico, we have to have an ATF agency that is
staffed well, that has the appropriate leadership and that has
sufficient resources. We have asked for, with regard to these
teams that ATF puts on the border funding for 14 of them. We
only got funding for nine. We need more people than we have now
in ATF in order for them to do the job in the way they want. We
need a permanent head of ATF. There is something that comes
with a Senate-confirmed head that is different from somebody
who acts in an acting capacity, even though Todd Jones, I
think, is doing a great job.
We need all of these things in order for ATF to be as good
as it can be with regard to the work that it does along the
border, and the decision by whoever to keep this agency not as
strong as it possibly might be is something that I think does a
great disservice to the American people, and certainly to the
law enforcement effort that we all think is important.
Mr. Quigley. Mr. Chairman, my time has expired.
Chairman Issa. I thank the gentleman. We now go to the
gentleman from Tennessee, Mr. DesJarlais. Would the gentleman
yield for 5 seconds?
Mr. DesJarlais. Yes, sir.
Chairman Issa. Mr. Attorney General, I would like to make
sure we make clear, for 2 years, the President didn't put up a
nominee for that position nor did he take advantage of recess
appointment. So I know the gentleman was well-meaning, but
perhaps ill-informed as to the facts related to the director.
Mr. DesJarlais.
Mr. DesJarlais. Mr. Attorney General, thank you for being
here. If we resolve nothing else here today, we made it
painfully clear that you have been here at least six times. I
don't think there is any question about that. But why, why have
we been here six times and why is it taking so long to get the
answers that we need, and how could we have made this process
more simple?
If you will indulge me for a minute, let's just take a
hypothetical that I come home from work 1 day and my kitchen
window is broken out and my boys are there all day playing
baseball and I know it. Well, you know, I ask them how the
window is broken. They don't know. There is a bat laying in the
driveway, there are gloves laying on the table, but they are
just not going to fess up. So I kind of think I know what is
going on, but we can't be sure, because they are not being
straight with me.
So maybe my wife is a little uncomfortable and she says,
well, someone could have tried to break in. Maybe we should
call the police and have them come out and investigate to make
sure someone didn't try to break in. So this process goes on
and on, even though we know that something isn't right. So, at
any rate, I just use that loose parallel, and I think you know
where I am going.
So you are here multiple times, and you opened your
statement with that you are the Attorney General and that you
operate under the highest standards of integrity and
professionalism, and that is exactly what you have done and
what you are doing, and I really have no reason to question
that. But when we started asking for information, and if they
could put up the slide about the Stonewall City, if we look at
this, these are some of the things we have asked for to
expedite this process, some of the evidence, if you will, the
number of documents that we have asked be turned over and what
we have, the number of witnesses that we have asked to talk to
and what we have actually gotten.
These are the kind of things that I guess are frustrating
for us as we try to get to the bottom of this for Agent Terry's
family, and so that these kind of things don't happen again.
Now, you said that you were notified probably within 24 hours
of Agent Terry's death, was that what I heard you say? Sir?
Attorney General Holder. I am sorry?
Mr. DesJarlais. You were notified----
Attorney General Holder. I was looking at Fortress Holder
there. I was kind of interested. That is not my house, by the
way.
Chairman Issa. Actually, I think it is closer to
Disneyland. We are a little concerned that it looks a little
too grand for anything in our government.
Mr. DesJarlais. Did you say that you were notified about 24
hours after Agent Terry's death?
Attorney General Holder. I am sorry, yes.
Mr. DesJarlais. And when you were notified, did they
mention the Phoenix project to you?
Attorney General Holder. No.
Mr. DesJarlais. You had no knowledge that that death was,
in any way, linked to what went on in Phoenix. There was no
mention made of that?
Attorney General Holder. Well, Phoenix, I am sure there was
some kind of geographic reference. But with regard to Fast and
Furious, I didn't know about Fast and Furious until later,
January, early February.
Mr. DesJarlais. So there were no bells going off or any
concern about the gun running or anything at that point?
Attorney General Holder. No. None of the people who were
told of the murder were made aware of the tactics.
Mr. DesJarlais. Okay. Let me reference a letter that was
dated February 4th, and I think the author is sitting behind
you today, Assistant Attorney General Ronald Weich.
Attorney General Holder. Maybe he ought to sit here.
Chairman Issa. With all due respect, he has had this hot
seat for real more than you have, Mr. Attorney General.
Mr. DesJarlais. He submitted a letter to the committee that
denied that ATF sanctioned or knowingly allowed the sale of
assault weapons and allowed them to be walked, and I think your
Department had this letter withdrawn, is that correct?
Attorney General Holder. That is correct.
Mr. DesJarlais. How long did it take to withdraw the
letter?
Attorney General Holder. It was formally withdrawn in
December, December 2nd. Prior to that, there were a number of
indications by me, by Mr. Weich, by Mr. Breuer, that we were
not satisfied with the assertions that were contained in that
February 2nd letter. But it was formally withdrawn on December
2nd.
Mr. DesJarlais. It wasn't a deliberate attempt to deceive
Congress? The letter?
Attorney General Holder. No. I mean, if you look at the
materials that we made available, the deliberative materials
that we made available, you can see how people were, I think,
really struggling to try to get the best information they could
to Congress as quickly as they could, but I think they made a
couple of mistakes. They needed to take more time and they
needed to drill down further.
Mr. DesJarlais. Inaccurate information.
Attorney General Holder. They didn't go down to talk to the
line people. They stopped at the supervisory level.
Mr. DesJarlais. Well, it is amazing how quickly 5 minutes
goes. But I guess as a parent, I want my kids to do the right
thing, and I am sure as the Attorney General, you want the
people who work under you to do the right thing. So I guess
moving forward, how do you feel that you can regain the trust
of the American people in light of all that has happened with
Fast and Furious?
Attorney General Holder. Well, I will take issue with you
again, respectfully. I am not sure I have lost trust of the
American people with regard to this issue. This has become a
political thing. I get that. That is fine. So there is a
certain segment of the American people, certainly a certain
segment of this Congress that has lost faith in my abilities as
a result of what has happened in Fast and Furious. But I think
the way in which to the extent that there are people who are
willing to be persuaded and who have a contrary view now, I
think they need to look at the way in which I reacted to this,
the steps that I have taken, the procedures that I have put in
place, the personnel changes I have made, and ultimately what I
am going to do when I have the ability to look at the minority
report, I assume there will be a majority report, the Inspector
General's report, and judge at that point whether or not I have
reacted appropriately to what was a flawed investigation, both
in concept and in execution.
Mr. DesJarlais. And with all due respect, sir----
Chairman Issa. The gentleman's time has expired, so please
be brief.
Mr. DesJarlais. Okay. With all due respect, with what we
see here on your house, not your house, but the letter that was
sent in, what may appear as political appears now somewhat as a
cover-up----
Chairman Issa. The gentleman's time has expired.
Mr. DesJarlais. And a lot of information here doesn't seem
to be accurate and I think that is why the number of hearings
continue to go on us, because I don't think we are getting the
full information. I apologize.
Attorney General Holder. Wait a minute.
Chairman Issa. If you want to react to something very
quickly, please.
Attorney General Holder. Well, I have heard the magic word
here, ``cover-up,'' and I want to make clear that there is no
attempt at any sort of cover-up. We have shared huge amounts of
information. We will continue to share huge amounts of
information.
There is a misperception as I think was indicated in the
Deputy Attorney General's letter that maybe I can clear up now,
that we are not going to be hiding behind any kind of
privileges or anything to not provide this committee with
information that it wants. We are talking about not providing
deliberative material, and that is consistent with what
executive branch agencies beyond the Justice Department always
do.
But with regard to things post-February 5th, February 4th,
if there is a relevant request, we will respond to that
request. The only thing we are not talking about responding to
is with regard to deliberative material. That was a great
little diagram that you had up there, inaccurate in some pretty
glaring ways, but it is not up there now.
Mr. DesJarlais. And that is what my boys with the baseball
implied as well.
Chairman Issa. I thank the gentleman, and we can have a
later discussion on how many witnesses and how much information
and so on.
For the Attorney General's edification, and I know Mr. Ron
Weich will help you, we have published two majority interim
reports, and hopefully he can bring those to your attention.
Additionally, this committee is investigating a number of
things post-February 4th including related to the false
response, and we hope that that will be cleared up once you
give us or fail to give us a constitutional basis for
withholding.
With that, we now go to the gentleman from Illinois, Mr.
Davis is next in order.
Mr. Davis. Thank you very much, Mr. Chairman. I notice that
we have heard the terminology ``cover-up'' a great deal, not
only during this discussion, but prior to now, and I think
there is no doubt that there is not a single member of this
committee who does not recognize the need for some serious
change.
At the outset of this inquiry, Justice Department officials
sent a letter to Senator Grassley denying that gun walking
occurred in Fast and Furious. However, the Department has,
since then, said that the letter contained inaccurate
information and that senior Department officials relied on
adamant denials by ATF and the Arizona U.S. Attorney's Office.
Mr. Attorney General, to your knowledge, did anyone at the
Department of Justice headquarters intend to mislead Congress
in responding to Senator Grassley's inquiry?
Attorney General Holder. No, I don't believe that. We
submitted inaccurate information, but it was based on attempts
to get that which was accurate, and people simply did not have
access to it. People who we relied on and who we thought were
in possession of the most accurate information were, in fact,
not. There was no intention to deceive, but the information
provided was regrettably inaccurate, and that is why we
withdrew the letter.
Mr. Davis. And you have taken action to hold the personnel
within ATF and the U.S. Attorney's Office accountable for
conveying inaccurate information to the Department?
Attorney General Holder. We have certainly looked at those
places where personnel changes could be made. Some have been
made. It is possible that others will have to be made. There
are reports that are going on. I will wait for those and see
what happens, although I have an independent responsibility,
separate and apart from whatever the Inspector General
generates, to make up my own mind about what kinds of personnel
decisions we need to make, I need to make.
Mr. Davis. The committee has also interviewed a number of--
numerous witnesses, involved in compiling and reviewing the
response to Congress. The Department has also produced more
than 1,300 pages of correspondence relating just to the issue
of how the original letter to Senator Grassley came to be
drafted. These documents support the account of senior
Department of Justice officials that they relied on factual
assertions from the U.S. Attorney's Office in Phoenix and from
ATF. Within 2 months of the February 4, 2011 letter to the
Senator, Department officials told committee staff that the
letter was unintentionally inaccurate and stated that the
Department would cooperate with the committee's investigation.
The Department has now produced over 6,000 pages of documents
and made 18 witnesses available for transcribed interviews,
and, of course, you have testified on matters relating to this
issue six times. Is the Department cooperating with Congress?
Attorney General Holder. I think we are. I think that we
are trying to meet the legitimate requests that have been made
by this committee. This is a legitimate hearing. This is a
legitimate concern that Congress is raising and I think what we
have tried to do is respond as best we can to the requests that
we have made as quickly as we can while, at the same time,
making sure that we don't do things that will have a negative
impact on our ability to do our jobs, and that is with regard
to that small amount of information that deals with
deliberative materials.
Mr. Davis. What categories of information are being held
and why?
Attorney General Holder. The material being held and I
think things that we are going to have to try to work our ways
through are, as I have described, deliberative materials, where
we have eight people within the Justice Department talking to
one another about how we are going to respond to a
congressional request or a media request. That kind of--that is
the kind of material that we are talking about. We have made
available huge amounts of other material. We are still in the
process of processing other things that we will make available.
We are acting in a way that executive branch agencies have
always acted.
Now, you know, again, we can continue to have conversations
about even this deliberative material and see if there are ways
in which we can share it. One of the things I think that we
have to take into account, and I am not sure anybody has ever
done this, we made deliberative material, wholesale
deliberative material available with regard to that February
4th letter, as you say about 1,300 pages of material. I am not
sure I know any Attorney General who has ever done that before
to that degree, and I thought it was the appropriate thing,
given the inaccuracies that were contained in that letter.
Mr. Davis. Thank you very much. I appreciate, Mr. Chairman,
that we are dealing with Fast and Furious, but I also think we
got to make sure that we are fast and accurate, as accurate as
we can possibly be. I yield back.
Chairman Issa. I thank the gentleman. I might note for the
record that the delivery of the February 4th related material
occurred only after I threatened a criminal referral for its
inaccuracy. It was at that point that we began getting some
cooperation, and not before. With that, we recognize the
gentleman----
Attorney General Holder. Well, Mr. Chairman, our view is
that we can disagree on this. We think that the provision of
that February 4th material was done voluntarily, not under
coercion.
Chairman Issa. All right. My threat of criminal prosecution
isn't coercion. It is a fact that we were given false
information and it was subject already to a subpoena.
Cooperation subject to a subpoena--by this committee's
standards, we asked for things long before we issued a
subpoena. We were told no. We issued a subpoena and we were at
the level of going next before we got there. So I appreciate
that everyone on both sides of the aisle has a different
opinion, but the timeline is undeniable that we have never
received voluntary cooperation until we had elevated it
considerably in any case here. And certainly Senator Grassley
would say the same thing when, in fact, he was told he didn't
have subpoena authority, he wasn't the chairman. That is the
reason he originally came to this committee, so we could begin
the process of getting what he was denied in the Senate.
Attorney General Holder. Well, I can say this. I was the
one who made the determination that we were going to release
that February 4th material, the deliberative material, and it
was never brought to my attention that we had the things that
you have just said. The decision that I made was based solely
on what I felt was the right thing to do and without any notion
in my mind that there was coercion or--I don't mean coercion in
a negative way--that there was the threat of criminal
prosecution or anything like that.
My determination was made only on what I thought was right,
given the provision, the regrettable provision of inaccurate
information. Others might have known about that. I did not. And
I was the one who made the call.
Chairman Issa. I don't want to belabor this point, but I do
want to make a point. I signed a subpoena October 12th. It was
to you. So the cooperation came after your office in your name
as you as the recipient received a subpoena. I hope that you
read the subpoenas that come with your name on it.
Attorney General Holder. But the subpoena, we would not
have replied in response to that subpoena, we would not have
given you the deliberative information. That would not have
been something that we would have provided.
Chairman Issa. We are entitled to it and we are not going
to debate that any further. Case law is on our side.
With that, we go to the gentleman from South Carolina,
another constitutional officer in this branch of government,
for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Holder, it is provable beyond a reasonable doubt in my
judgment that main Justice had actual or constructive knowledge
of gun walking, both in Fast and Furious and beforehand, and I
am going to prove it to you.
March 2010, DOJ, not U.S. Attorney's Office in Arizona, DOJ
assigned a prosecutor to Fast and Furious. March 2010, Gary
Grindler, who I believe is your chief of staff, knew about
straw purchases in Fast and Furious and seizures in Mexico, and
it doesn't take a very good prosecutor to ask how weapons got
from Phoenix to Mexico.
July 2010, a memo to you through the acting deputy AG, that
memo specifically mentioned Fast and Furious. It specifically
mentioned straw purchasers. It specifically mentioned 1,500
firearms supplied to Mexican drug dealers. That is July 2010,
1,500 firearms.
April 30, 2010, a memo from main Justice employee Weinstein
to Lanny Breuer, ``ATF let a bunch of guns walk.'' Then the
rest of the email is worrying about the negative press
connotations that may have come from that. Not how to fix the
policy, but how to mitigate negative press consequences.
October 2010, Jason Weinstein and James Trusty swapped
emails, and specifically mentioned gun walking. And, Mr.
Attorney General, that email is so illustrative of our
frustration with the notion that main Justice did not know
about this. I am assuming that James Trusty is a main Justice
employee, am I correct?
Attorney General Holder. I believe that is correct.
Mr. Gowdy. All right. This is the email, and they are
specifically talking about Fast and Furious, and in fairness,
they also mention Laura's Tucson case. They say it is a tricky
case given the number of guns that have walked, but it is a
significant set of prosecutions.
The email back to that is I am not sure how much grief we
are going to get from gun walking. It may be more like people
are finally going to say we went after the people who sent guns
down there.
Now, lay aside the merits of that argument. How can you
deny that people in main Justice knew gun walking was going on
before that February 4th letter was sent to a Member of
Congress? That doesn't even get into the wiretap applications.
That doesn't get to the factual predicate that a member of main
Justice would have had to have read--all of this is before
February 4th. That whole series of evidence predates Mr. Weich
sending a letter to Congress denying the tactic.
So my question to you is this: Who participated in the
drafting of the letter?
Attorney General Holder. Well, first, again, you know, this
is going to be one of those rare instances, you are right.
There was knowledge within the Justice Department of gun
walking. It was related to Wide Receiver.
Mr. Gowdy. Mr. Attorney, with respect, I don't like
interrupting people, but with respect, several of these emails
specifically mention Fast and Furious. I am not talking about
Wide Receiver. I would love to have that conversation some
other time. These emails and memos specifically mention Fast
and Furious.
Attorney General Holder. They mention Fast and Furious, but
do they mention gun walking and Fast and Furious.
Mr. Gowdy. Yes, they do. That is my point.
Attorney General Holder. I would like to see those. Those I
would like to see.
Mr. Gowdy. We got them from you. I mean, we got them from
main Justice.
Attorney General Holder. Let's do this: I promised to give
you all some information. I would really like to see a memo
that says gun walking and Fast and Furious. I would like to see
that.
Mr. Gowdy. Well, if you are looking for a videotaped
confession, I probably can't give you that. But what I can give
you is an email from two main Justice employees back and forth
specifically mentioning Fast and Furious. ``It is a tricky
case, given the number of guns that have walked.'' I don't know
how it can be any clearer than that, Mr. Attorney General. And
my point is this: The February 4th letter----
Chairman Issa. The gentleman will suspend. In order to get
to the truth, we are going to take a 5-minute recess and have
the documents given to the Attorney General. I have too many
people behind him trying to give him instructions on what it
was and what it wasn't. Nobody leave. Please get the documents
to the Attorney General. Take what time you need. Use my
conference room if you need it.
Attorney General Holder. I can stay here.
Chairman Issa. A short recess for 5 minutes.
[Recess.]
Chairman Issa. Would everyone take their seats. We are
going to reconvene as soon as the ranking member is back.
As we reconvene, I understand that the Attorney General's
people are comfortable with what the document is and the
source. I would ask for an additional 1 minute for the
gentleman to go through, restate the document, the source and
so on. This is important, that all sides know what is being
asked, whether there are assumptions of validity, truth and so
on, and testimony that may accompany it. So, with that, the
gentleman from South Carolina may resume.
Mr. Gowdy. Thank you, Mr. Chairman. And in keeping with my
open file discovery policy, I gave him my documents. They have
my notes on them. I will go back through the list again. And I
would also point out, Mr. Attorney General, there are several
memos and emails I did not include because reasonably, it could
be argued that they dealt with something other than Fast and
Furious. Although keep in mind, my question, what I said I was
going to prove is that DOJ knew Fast and Furious, and
beforehand, that gun walking was a tactic, because the letter
Mr. Weich wrote was not specific with respect to gun walking.
True or false: DOJ assigned a prosecutor to Fast and
Furious.
Attorney General Holder. I believe that's right. There were
people that went down--one or two, I'm not sure.
Chairman Issa. The microphone.
Attorney General Holder. I believe that that is right, that
there were people who went down, one or two, I am not sure, who
went down to help with regard to that prosecution, that matter.
Mr. Gowdy. True or false that Mr. Grindler attended a
debriefing on Fast and Furious where his own notes indicate the
seizure of weapons in Mexico.
Attorney General Holder. That--if you are talking about
debriefing, if you are talking about the meeting he had with
the folks from ATF, I guess, in March 2010, 2010----
Mr. Gowdy. Yes, sir, it is March, and there is a note in
cursive handwriting, ``Fast and Furious,'' and there was a map
attached to that of the seizure of weapons in Mexico. And my
point was, it doesn't take a very good prosecutor to ask how
the guns got from Phoenix to Mexico.
Attorney General Holder. Mr. Grindler has testified and
indicated that what happened in that meeting was that he was
briefed on the operation and was told that it was essentially a
successful operation, and no mention of tactics came out of
that meeting.
Mr. Gowdy. All right. There was a memo to you through the
acting deputy AG from the National Drug Intelligence, I can't
recall his name because I don't have my copy of it. Fast and
Furious is mentioned specifically, straw purchasers are
mentioned specifically, and 1,500 firearms are mentioned
specifically.
Attorney General Holder. This is what we call a weekly
report, and I have testified about this I don't know how many
times. There are a number of these that coming from NDIC. And
for the record it is from Michael Walther, who is the Director
of the National Drug Intelligence Center, and these things just
talk about what is going on with regard to operations. Again,
there is no mention of tactics in any of these. There is no
indication that inappropriate tactics are being used in
connection with the underlying investigation, and that is why
these things were not brought to my attention by my staff.
Mr. Gowdy. Well, it mentions 1,500 firearms and it
mentioning straw purchasers. And, Mr. Holder, despite the
protestations of some of your staff behind you that you are
being treated unfairly, I never once said that you were aware
of it. I said that main Justice was aware of it. I suspect you
didn't draft the letter on February 4th. My question is, who
participated in the drafting of it? And I'm out of time, so I
will go ahead and ask the second question. After that, I would
hope perhaps at some point, Mr. Chairman, I could ask the rest
of the questions I have.
But here of my two questions. Who participated in the
drafting of it? Because the criminal chief head, Lanny Breuer,
was in Mexico contemporaneous with the drafting of the February
4th letter advocating gun walking. Get that image, that visual
image of a letter being drafted denying gun walking while the
criminal chief at main Justice is in Mexico advocating for gun
walking.
Chairman Issa. The gentleman's time has expired. The
Attorney General may answer.
Attorney General Holder. In terms of who drafted the
February 4th letter, that is obvious from the materials we
shared from with you, those 1,300 pages or so. I mean, I
don't--I can't recall all their names, but you will really see,
I think, virtually everybody, if not everybody, who was
involved at the Justice Department in the creation of the
February 4th letter, so you could review that.
I don't think it is correct to say that while the letter
was being drafted that Mr. Breuer was in Mexico advocating for
gun walking. He was in Mexico. And I think you are talking
about a February 2nd email or report, I guess, from the State
Department that indicated that what he was talking about was
the possibility of a surveilled delivery of weapons to people
who would take them to the border and an arrest made at the
border, and interestingly, on the Mexican side of the border,
because the penalties that exist in Mexico for gun trafficking,
for straw purchasing, are higher than they are here in the
United States.
That is what he was proposing. Not gun walking, but
something very, very different. It was something that was
raised, ultimately never carried out.
Chairman Issa. I thank the gentleman. I apologize. There is
no additional time at this time. We now go to the gentleman
from Vermont, Mr. Welch, for 5 minutes.
Mr. Welch. Thank you very much, Mr. Chairman.
Two things. Number one, I want to express appreciation for
the hard work of the people of the ATF. This is an incredible
challenge that they have. We lost a revered officer, Officer
Terry, in the service of his country, and it is because there
is a huge problem with guns going from the southwest into
Mexico. In the past 5 years, 94,000 guns recovered in Mexico,
over 64,000 are traced to the United States, and every year,
thousands are transported across the border. You have very few
tools at Justice to try to deal with that. You have spoken
about that so I won't ask you.
But I think it is important for us to ask the question
whether the point of this hearing is to try to do something
that is going to help the men and women of law enforcement deal
with the major problem, or it is going to be something that is
going to run into one dead end after another without any good
outcome.
Second, we get in our own way a little bit here with the
investigation because it goes off into many different
directions, largely because we make some allegations that as we
investigate them and take up staff time, they don't go
anywhere. And I have great affection for my chairman, who is a
hard-charging man, but in my experience, sometimes you get
ahead of yourself on some of the allegations you make. I will
just mention a few.
You had indicated, let me get it, one of your allegations
was that, and I quote, you said that folks made a crisis and
they are using this crisis to somehow take away or limit
people's Second Amendment rights. That this hearing has nothing
to do with that, this whole investigation has nothing to do
with that.
Chairman Issa. Would the gentleman yield?
Mr. Welch. I would be glad to yield.
Chairman Issa. I will be very brief. When the ATF began
asking and the Justice began asking for additional directly
related enforcement, including the idea that every two-rifle
purchase in fact build to a data base that Congress has
repeatedly limited in statute on request, it did seem and does
still seem to this Member as though a crisis created by gun
walking and Brian Terry's death was, in fact, being partially
justified by this new requirement at a very inappropriate time,
at least the optics of it.
Mr. Welch. I will reclaim my time, but thank you. I would
disagree. But some of the unsubstantiated allegations though
were, for instance, the allegations that your office and you
made--accused Mr. Holder of ``authorizing every aspect of
this.'' There is no shred of evidence to back that up.
Last October, an allegation was made that there was a third
gun because there was an item of evidence marked number 2 and
number 3. Those were two guns. It turned out item of evidence
was number one was not a gun, it was I think a blood sample. So
every time any one of us makes an allegation that is theory and
conjecture but not based on any solid foundation, it creates a
lot of consternation among the public, takes staff time and
ends us into a blind alley.
Now, the real question has always been what did the
Attorney General know and when did he know it. In the six
investigations that we have had or the six that have been
ongoing, the answer to that is the Attorney General was unaware
of this activity at ATF.
Now, Mr. Gowdy has raised a good question here, and I want
to give you a good chance to answer that. But my understanding
about Mr. Weinstein is that the discussion there was about
activities that were taking place during the Bush
administration, not during this administration, and the fact
that this tactic may have been used in the Bush administration
doesn't mean that you knew that it was an ongoing tactic that
was used in Fast and Furious.
So I want to just give you an opportunity to try to
elaborate whatever answer you want to give to the question
that's been raised by Mr. Gowdy.
Attorney General Holder. Yeah. The email that I had I guess
from Mr. Gowdy, and I gave it back, is from Jason Weinstein,
and he has indicated that the reference that he makes in there
is not to Fast and Furious but it is to Wide Receiver. He
testified that it is his email.
You know, I think in some ways he's the best person to
determine what his own words meant. I mean, I've looked at it,
and I appreciate the chairman giving us the opportunity to look
at it over the course of that couple of minutes. But the email
is, as I said, Jason's email--Jason Weinstein's email where he
indicated that he was talking about Wide Receiver and not Fast
and Furious.
Mr. Welch. Thank you, Mr. Holder.
I yield back the balance of my time.
Chairman Issa. I thank the gentleman.
If you will yield, I would like to explain something.
Mr. Welch. I'm out of time. But the chairman, as I
understand it, has some prerogatives.
Chairman Issa. Well, I think in the case of an accusation
of a false statement, I will, briefly.
Brian Terry's mother and father were told by a law
enforcement official that they believed there was a third gun.
The missing number that was later explained seemed to
corroborate it. Ultimately, though, three people have reported
that they were told there was a third weapon.
Now we don't know there was or wasn't. Justice has not
confirmed whether or not there's a ballistic match on the two
Fast and Furious weapons there, nor have they confirmed they're
looking for an additional weapon or an additional shooter.
I take very seriously getting the facts right. The fact is,
we report in a limited basis things which in this case the
press was way ahead of and we said, yes, we're looking into it.
We did--and I will admit, we did and do get things wrong during
an investigation. We do go down blind alleys regularly.
Certainly that's the case. Today's hearing and the 1,300 pages
out of 6,000 that were directly related to a response to a
false statement made to us in writing on February 4th is an
example where a lot of time has been spent going down a false
thing.
The gentleman, though, is correct, and this chairman will
admit, during this investigation, for more than a year, there
have been times in which we did not get the information right.
So, while correcting you, I'm not going to say we get it all
right. Our goal is to get it all right before we publish; and,
hopefully, each of our publications, majority and minority, is
where we make sure we only state that which we can substantiate
with footnotes.
Mr. Welch. Thank you, Mr. Chairman.
Chairman Issa. Thank you.
We now go to the gentleman from Florida, Mr. Ross.
Mr. Ross. Thank you, Mr. Chairman.
Mr. Attorney General, I want to make sure I understand your
testimony today and the facts as well. You've indicated today
that you were not aware of any gun-walking at all until you
were briefed in, it looks like, 2011. That would have been
January or February 2011?
Attorney General Holder. Yeah, January, February 2011.
Mr. Ross. And you are specifically speaking of gun-walking,
not just Fast and Furious?
Attorney General Holder. No, I didn't become aware of Fast
and Furious until about the same time period.
Mr. Ross. So you were not aware of any gun-walking,
including Wide Receiver, prior to the end of January 2011?
Attorney General Holder. No. I learned of Wide Receiver,
actually, later on. I became aware of Wide Receiver as we were
preparing documents to be submitted to this committee.
Mr. Ross. And without regard to Mr. Weinstein's memo, which
you were not aware of, so you did not know anything about Wide
Receiver? I just want to make sure that that's clear.
Attorney General Holder. No.
Mr. Ross. So when you said earlier that you were not aware
of the term Fast and Furious being used, were you aware at the
time of Mr. Terry's death of any investigation or program that
was going on as a result of his death?
Attorney General Holder. As a result of his death. I
certainly was aware of the fact that there was an investigation
into who killed him. There was a criminal investigation that
started December--right at the time of his death, December
14th, 15th. I was aware of that.
Mr. Ross. And in fact you testified today that you were
notified the date of his death, is that correct?
Attorney General Holder. Yes.
Mr. Ross. And was that by Mr. Wilkinson?
Attorney General Holder. I don't know. I'm not sure who
told me.
Mr. Ross. If I might refresh your recollection, because,
pursuant to some of the documents that we received Friday
evening, we did receive some emails; and one of which was an
email sent on December 15th. It was an email exchange that
began from somebody to Dennis Burke, your U.S. attorney in
Arizona at the time, saying, our agent has passed away. Dennis
Burke then forwarded that to Monty Wilkinson, who was acting as
your deputy chief of staff I believe at the time.
Attorney General Holder. Deputy chief of staff.
Mr. Ross. On December 15th, at 9:41 a.m., Mr. Burke said:
Not good, 18 miles within. Thereafter, at 10:04 that morning,
your deputy chief of staff, Monty Wilkinson, then said in an
email to Mr. Burke: Tragic. I have alerted the AG, the Acting
DAG, Lisa, etc.
Would it then be correct to assume that the way you learned
of Brian Terry's death was from Mr. Wilkinson himself as a
result of his statement that he notified you?
Attorney General Holder. Well, he notified me, but I'm
saying it's entirely possibly that I knew about it before Monty
told me.
Mr. Ross. You have no reason to dispute that Monty told you
about it?
Attorney General Holder. I suppose he did. But I'm just
saying that when it comes to that--when a law enforcement
death, especially involving a Federal law enforcement officer,
that's the kind of information that gets to me very, very
quickly.
Mr. Ross. And it should.
Attorney General Holder. Yes, and from a variety of places.
Mr. Ross. In fact, to follow up on that, in the email
exchange later at 11:15 a.m. That morning, there was another
email from Mr. Wilkinson to Dennis Burke saying, please provide
any additional details as they become available to you, asking
the U.S. attorney in Arizona, please tell us, Mr. U.S.
Attorney, we want to know more.
Later that day, in an email from Mr. Burke, the U.S.
attorney in Arizona, to Mr. Wilkinson, your deputy chief: The
guns found in the desert near the murdered BP officer connect
back to the investigation we were going to talk about. They
were AK-47s purchased at a Phoenix gun store.
My question to you, Mr. Attorney General, were you aware of
this email exchange? Were you aware of an investigation ongoing
that involved a Phoenix gun store and specifically AK-47s at
the time?
Attorney General Holder. No, I wasn't. But what's
interesting--listen to what you just said. He said that we were
going to talk about, we were going to talk about, which implies
that they did not talk about.
Mr. Ross. Not prior to but subsequent to. Subsequent to the
death. Mr. Wilkinson has already told you about Brian Terry's
death. Now he's being informed about an investigation involving
the slain officer, involving a gun store in Phoenix. Did that
not raise any sense of awareness? Did it not raise any sense of
intrigue--if not from Mr. Wilkinson, at least from you--to say,
what investigation then is ongoing?
Attorney General Holder. I was not told about this. I was
unaware of this. And unless there was some indication that----
Mr. Ross. I appreciate that. But you've testified today
that you are a hands-on manager.
Attorney General Holder. What I was saying was that, unless
there's some indication that the tactics that we are so against
were employed there, all we know is that this was something--
this was a tragic event connected to an ongoing investigation.
Mr. Ross. Involving a gun store and an AK-47. What else do
we have to say, involving a cartel?
I mean, come on. From December 15th until the end of
January, you don't learn about a gun-walking operation ongoing
in your Department? And I'm supposed to go home and tell my
constituency that that's the facts? Mr. Attorney General, I
have a hard time believing that.
And if you are, if you are responsible for those underneath
your direction, I would assume that those underneath your
direction would make sure you are fully informed of all
incidents of significance, including an ongoing investigation
subsequent to an agent's death.
Attorney General Holder. What I would say is that, in the
absence of an indication that these inappropriate tactics were
used, you have here a tragic death connected to an ongoing
Federal matter, an ongoing investigation. You know,
unfortunately, that happens all the time, too many times.
What makes this case, this situation unique are the
inappropriate tactics. And I don't think there's any indication
that Mr. Wilkinson or anybody else was aware of these tactics
until the January, February timeframe--late January, early
February timeframe.
Mr. Ross. So you made no inquiry as to whether this
investigation involved gun-walking?
Attorney General Holder. I'm sorry?
Mr. Ross. You made no inquiry as to the investigation
involving Brian Terry's death involved gun-walking?
Attorney General Holder. That information was not brought
to my attention, so I would not have----
Mr. Ross. But you made no inquiry.
Chairman Issa. The gentleman's time has expired.
Mr. Ross. I'm not asking if it was brought to your
attention. You yourself made no inquiry with regard to that.
Attorney General Holder. There was no indication. There was
no basis for us to believe that gun-walking was at all a part
of any of this stuff. I didn't know anything about gun-walking
or the use of that technique until February. And by February
the 28th, in early March, I said, guess what, we're not doing
gun-walking. It took me a month--or less than a month--to say
the gun-walking was inappropriate. Brought to my attention,
fairly rapid response to say, don't ever do this again.
Chairman Issa. I thank the gentleman.
We now go to the gentlelady from California, Ms. Speier,
for 5 minutes.
Ms. Speier. Mr. Chairman, thank you.
Over here, Attorney General. Last person on the totem pole,
so to speak.
Chairman Issa. She will be moving up in future years.
Ms. Speier. Don't count on it.
In any case, first of all, let me say that I think we can
stipulate for the record that this hideous chapter in the
Attorney General's Office dating back to 2006 is one that we
never want to see repeated. But I think it's important for us
to recognize that this has been going on for a long time; and,
but for the death of Agent Terry, would it still be going on
today? And that's one of the things that continues to trouble
me.
For the record, Mr. Chairman, I would like to ask unanimous
consent to put into the record a memo provided to then Attorney
General Mukasey in November 2007 in which it specified to him,
of particular importance ATF has recently worked jointly with
Mexico on the first-ever attempts to have controlled delivery
of weapons being smuggled into Mexico by a major arms
trafficker. While the first attempts at the controlled delivery
have not been successful, the investigation is ongoing and ATF
would like to expand the possibility of such joint
investigations and controlled delivery.
Chairman Issa. I'm more than happy to have that piece of
discovery placed in the record. No objection.
Ms. Speier. Thank you.
[The information referred to follows:]
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Ms. Speier. Attorney General, were you ever told about
General Mukasey's briefing regarding controlled deliveries,
another word for gun-walking?
Attorney General Holder. I didn't find out about that until
late in this process as we were developing documents to submit
to this committee with regard to operation Wide Receiver. I
didn't know before that.
Ms. Speier. All right.
This committee is Government Oversight and Reform, so I
would like to spend a couple of minutes on the reform side.
Hopefully, we are not just having these hearings to continue to
beat up on what is an atrocious chapter in our history, but how
do we make sure that it doesn't happen again? So speak to me
about the fact that we do not have a Federal statute on gun
trafficking.
Attorney General Holder. We don't have a tool that we
really need. We need to have an ability to say that gun
trafficking is inappropriate, it's wrong, and there's a Federal
criminal penalty for it. And a statute can be drawn in such a
way that it is respectful of the Second Amendment rights that
all American enjoy. What I'm talking about are people who are
doing things for criminal, illicit purposes that put the
American people at risk and put at risk our colleagues, our
neighbors south of the border, in Mexico.
Ms. Speier. What other things do we need in place to avoid
this kind of activity? From your own testimony, you said that
you could trace 60,000 weapons, but that's just a small
percentage of what's really being trafficked from the United
States into Mexico.
Attorney General Holder. Well, I think that's right. Sixty-
four thousand weapons have been traced from the United States
to Mexico. But those are the ones that have been traced. There
are substantially a greater number of guns that have not been
traced. We need to have a statute that will make meaningful
what I think as a crime straw purchasing and make meaningful a
penalty for people who engage in straw purchasing to get around
the rules that this Congress enacted and that I am charged with
enforcing.
We need to have an ATF head who is confirmed. I'm glad to
hear the chairman say that he would support that.
There are other management changes that we have made and,
as I said before, that are consistent with the minority report;
and I think that you all have done a really good job in making
that list--there are actually a couple that we didn't think of
that I am looking at that I think we will try to implement as
well.
There are a whole variety of things that can be done in a
way that, if we are truly going to put partisan concerns aside,
put lobbying concerns aside, and have some courage--because it
will take some courage, because this will not be universally
approved--we can really make a difference in the lives of the
American people and protect the lives of law enforcement
officers.
Ms. Speier. Have you developed a statute that you could
provide to the committee around penalizing straw purchasers and
gun trafficking?
Attorney General Holder. I can check with our legislative
affairs folks and see exactly what it is that we have there.
As I indicated before, Congresswoman Maloney and
Congressman Cummings have actually put something on paper that
I think is a good place for us to start, but I can also check
and see what it is that we have and that we can share with this
committee.
Ms. Speier. All right. I would appreciate that.
My time has expired.
Chairman Issa. I thank the gentlelady.
I now ask unanimous consent that discovery documents HOGR
DOJ 005752, 53, and 54 be placed in the record along with the
gentlelady's documents from earlier, just immediately before.
These show Lanny Breuer lobbying for gun-walking in a
coordinated fashion across the border for people to be arrested
in Mexico on February 4.
Without objection, so ordered.
[The information referred to follows:]
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Mr. Cummings. Mr. Chairman, I would just reserve because I
don't think that accurately describes that document.
Chairman Issa. Well, the document speaks for itself.
Mr. Cummings. He's not talking about gun-walking. I thought
he was talking about a coordinated effort with the Mexican
Government to follow those guns and then make a cooperative
effort----
Chairman Issa. Which is what----
Mr. Cummings. Not letting it just walk but----
Chairman Issa. Right. But the definition of gun-walking
which the minority has chosen to put on Wide Receiver--Wide
Receiver was a coordinated effort where they followed to the
border the guns. The problem with Wide Receiver and the reason
it had to be abandoned is that they found that, as it crossed
the border, repeatedly they lost control of the guns.
The program described here in the email related to Mr.
Breuer is exactly the same program. Now maybe if you do
something enough times you might get it different in the
outcome. But the program, the attempt to follow from the store
to the border and then pass off to Mexican authorities is, in
fact, Wide Receiver. That was that program which differs from
Fast and Furious, where in Fast and Furious, they told people
to peel away and they'd find the guns later.
There is a distinct difference, but there is no difference
between what this document shows and the stated Wide Receiver.
The fact is Lanny Breuer in this document was clearly trying to
say, let's do Wide Receiver again, but let's get it right this
time.
Mr. Cummings. Mr. Chairman, I reserve. I would like to see
the document.
Chairman Issa. You have the document. This is DOJ 0057-54.
Mr. Cummings. Go ahead.
Chairman Issa. No. You have reserved. I will wait.
Mr. Cummings. Mr. Chairman, again, I think we have a
differing opinions of what gun-walking is. I will withdraw my
reservation.
Chairman Issa. I thank the gentleman.
And you are right. We can disagree as to what the document
means. My discussion was what I believe it means. But you are
absolutely right. Ms. Speier and myself could both be wrong
about what the document means, but I appreciate your allowing
it to be placed in the record.
I'm going to ask unanimous consent that DOJ 0058-11 and 12
be placed in the record, but I will reserve myself until the
minority has a chance to see it and be comfortable with it.
[The information referred to follows:]
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Chairman Issa. And, with that, we now go to the gentleman
from Texas who has patiently been waiting down in the cheap
seats, Mr. Farenthold.
Mr. Farenthold. Thank you very much, Chairman Issa.
Mr. Attorney General, I want to follow up on something Mr.
Ross said, because I think we're looking at management and how
the DOJ is managed. I think you told him that you were informed
about Agent Terry's death but never heard anything back about
it being associated with the guns that walked.
I'm the kind of person--maybe our management styles are
different--that if an employee under my charge was killed in
the line of duty, I would want to be briefed almost on a daily
basis as to how that investigation is going. I'm asking again,
you didn't hear for quite some time that the Fast and Furious
guns were involved in this?
Attorney General Holder. Well, no. That's correct. I didn't
hear about that for a while.
I mean, you know, to draw a distinction here--and I'm
almost hesitant to do this--we are talking about a brave law
enforcement officer. Well, it wasn't a part--that doesn't
matter.
I was brought up to date about, you know, the ongoing
investigation, what we were doing at the Justice Department but
did not hear anything about the connection between that death
and the gun-walking tactics until, as I said, February 2011.
Mr. Farenthold. All right. Well, we've been investigating
Fast and Furious for some time. Y'all have been looking at it
internally. You've constantly blamed the ATF or the U.S.
Attorney's Office in Arizona, I think. Mr. Gowdy's made it
clear through some of his questions that it actually has gone
up to Main Justice. But I just don't see y'all doing anything.
There were several questions earlier about what you've
done. And nobody's been disciplined. Nobody's been fired. There
hasn't even been a letter put in. I don't think that's good
management, and I think that's the reason that many of my
colleagues--myself included--have suggested it might be time
for you to resign.
My question is that, knowing what you know about the
handling of Operation Fast and Furious, do you believe you're
capable of running the top law enforcement agency in this
country? And can you tell the taxpayers that you're the most
qualified person to manage the Department of Justice?
Attorney General Holder. First off, let me just say we have
not blamed--I have not blamed the people in Phoenix, either ATF
or the U.S. Attorney's Office there. I mean, they're good
people down there. They work hard. And I'm not going to allow
that to stand in the record. I'm not blaming anybody. We want
to find out who in those offices might have been responsible as
well as who at Main Justice is responsible.
Mr. Farenthold. Don't you think 13 months is a little long
to run that investigation?
Attorney General Holder. You have to understand something.
I don't have the ability to do a top-to-bottom investigation
here because of the Inspector General's investigation, and I
have to respect that.
Now with regard to my capacities to run this Department,
you know, I'll let the record speak for itself. People have
differing views in this room about Fast and Furious and my role
in it.
Mr. Farenthold. I just have a limited amount of time.
You've indicated----
Attorney General Holder. You asked a question, I mean,
questioning whether or not I should resign. And I don't have a
chance to respond to that?
Mr. Farenthold. That's fine.
Attorney General Holder. Thank you.
So if you are going to judge me and ask me to resign, as
you have and as have some of your colleagues, you know, you've
asked a broad question. And how you judge that, well, you look
at everything that I've done in this Department for the past 3
years and you look at the Department and the state that it was
in when I got here--a dispirited Department that had gone
through scandals, that had the traditions of the Department
turned on its head. It had been politicized.
I will stand on what I've done with regard to the Criminal
Division, the Antitrust Division, with regard to the Civil
Division and the fraud money that we've brought in, the great
work we've done on national security. And if you want to say
that I am a person not qualified to be Attorney General you
take that into account as well.
Mr. Farenthold. Well, then why are we withholding some of
the deliberative documents, too? That's another one of my
concerns. Really, a lot of times here in Washington it's not
what actually happens that you get hung on. It's the cover-ups.
So I'm concerned that some of those documents are going to show
some of the theories that have been floated around that maybe
some delays were put on stopping Fast and Furious based on some
of the things that the people on the other side of the aisle
are calling for now in additional and more stricter laws.
I mean, if there was a political purpose to that, I think
the American people have a right to know about that. So I would
urge you to release those documents. Let us look at them and
let the American people make that decision.
But I'm almost out of time, and I've learned from the
testimony here that things tend not to bubble up to your desk
very often. I did want to make sure that you were aware of an
operation with the DEA that has two Houston, Texas, based
pilots being detained in Panama over money laundering. I
realize that's out of the scope of this investigation. You can
choose to comment on it or not. But I did want to make sure it
bubbled up to your level.
And my time has expired.
Chairman Issa. I thank the gentleman.
Will the gentleman yield?
Mr. Farenthold. Yes.
Chairman Issa. Just quickly, the minority's not objecting
to the Cole document from March 10, 2011. So that is placed in
the record.
I thank the gentleman.
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Chairman Issa. And with that, we go----
Mr. Farenthold. Excuse me. Did you wish to answer? You are
welcome to or not.
Chairman Issa. The gentleman may respond.
Attorney General Holder. There is a limited amount of
information I can talk about that.
The DEA leadership has told my staff that the incident you
described in your letter was not a DEA operation. I can't
respond much more than that. But DEA can provide your staff a
briefing with regard to that outside of this setting.
Mr. Farenthold. That's fine. I'm just worried about the
pilots.
Attorney General Holder. That's fine. Sure.
Chairman Issa. I thank the Attorney General. On December
5th, we actually asked for a briefing on that. We appreciate
your commitment to that briefing in an appropriate setting.
Now we go to the very patient gentleman from Missouri, Mr.
Clay.
Mr. Clay. Thank you, Mr. Chairman, and thank you, Attorney
General Holder, for, once again, coming before the committee.
Our job on this committee is oversight. It is to examine
the facts and come to conclusions. People of good faith may
disagree. Reasonable people can look at the same evidence and
come to differing conclusions.
In this case, we're not looking at evidence and then coming
to conclusions. Rather, the majority is not looking at evidence
and coming to conclusions. The majority came to a conclusion
before any facts were examined, before any evidence was
produced, before any witnesses were given the opportunity to
testify. And that conclusion was that there was a scandal, a
scandal that the majority could exploit for political gain, an
Obama administration scandal that could garner the majority the
splashy headlines they promised when they took control of this
committee.
Remember now, this is when the chairman of this committee
promised the American people that he would hold seven hearings
a week times 40 weeks. These plans weren't reflective of actual
evidence, of actual facts already gathered that would determine
the number and pace of hearings. This was at a time when, flush
with victory, the majority began to display the hubris that
would be their hallmark for the last 13 months.
Chairman Issa. Would the gentleman yield?
Mr. Clay. Not yet. This was at a time when the incoming
chairman on the committee said that President Obama has been
one of the most corrupt Presidents in modern time. Since then,
we have sat through politicized hearing after politicized
hearing and we have seen the majority level wild accusations
against the administration with absolutely no basis in fact. We
have watched the majority berate witnesses. We have heard the
majority accuse witnesses of lying. We have seen the majority
attempt to deny us the right to call our own witnesses, and we
have seen what we see here once again today.
The majority has been and is accusing the administration,
the Justice Department, the Attorney General of participating
in a vast conspiracy. The chairman has compared the Fast and
Furious operation with Iran-Contra. This was a completely
irresponsible comparison. Iran-Contra was, indeed, a vast
conspiracy, one that reached directly to the Oval Office, and
evidence proved that.
It is irresponsible to take that gavel to assume the grave
responsibility of leading this committee and to wield the power
to subpoena, the power to call and examine witnesses, the power
to investigate like a political instrument, solely like a
political instrument, to accuse the AG of--no, I won't repeat
the irresponsible wholly manufactured accusation, but to do so
without evidence is irresponsible.
Now there is evidence Fast and Furious was a fatally flawed
operation. We know that from the evidence. We also know from
the evidence that an Attorney General knew about flawed failed
gun-walking operations. We know this from the documents
produced by the Justice Department. However, that was Attorney
General Mukasey in President Bush's administration.
So we have evidence of knowledge at the highest level of
the Justice Department about a bad, flawed policy. Does the
majority call former Attorney General Mukasey to testify? Does
the majority examine the full history of these operations in a
fair and responsible manner? Does the majority even attempt to
avoid the appearance that this is a politically motivated
attack?
I think from the evidence we know the answer to those
questions; and, Mr. Chairman, I will now yield the balance of
my time to the ranking member.
Chairman Issa. The ranking member has 5 seconds.
Mr. Cummings. Mr. Chairman in light of the latitude that
you've given on your side, I would ask for 2 minutes. Unanimous
consent.
Chairman Issa. Any objections?
Without objection, the gentleman from Missouri has an
additional 2 minutes.
Mr. Cummings. Thank you very much.
I'm going to look at this organizational chart, Attorney
General, and I see every single person with immediate
supervisory responsibility of Operation Fast and Furious has
been removed or reassigned.
Let's look at ATF. Here are the people that have been
removed from their management positions and from any
operational roles: the director, the deputy director, the
assistant director, the deputy assistant director, the special
agent in charge, the assistant special agent in charge, and the
group's supervisor. Is that right?
Attorney General Holder. I can't see the bottom of the
chart, but I think that's all accurate.
Mr. Cummings. Similarly, at the U.S. Attorney's Office in
Arizona, all of the key personnel involved in Fast and Furious
have resigned, been removed, or been reassigned: the U.S.
attorney, the criminal chief, the section head, and line
prosecutor. Is that right?
Attorney General Holder. I believe that's all correct as
well.
Mr. Cummings. One of the criticisms is that no one has been
actually fired. Can you explain why you are waiting to take
final personnel actions against some of these employees?
Attorney General Holder. Well, I don't want to single those
people out, because the universe is actually larger than that.
But certainly one of the things that I'm going to take into
consideration is what we find from the Inspector General report
and what factual findings that she makes in addition to the
material that I have just gotten I guess over the past couple
of days, the minority report.
I think the chairman's right. There are a couple of
majority reports I should look at as well before I make final
determinations.
Mr. Cummings. Would a confirmed director of ATF be able to
improve management supervision?
Attorney General Holder. Oh, I don't think there's any
question about that.
Again, Todd Jones has done a great job, and he has put in
place great number of reforms and has done a lot of the things
that you are pointing up to there on the ATF side. But I think
you need to have a person with the prestige of a Senate
confirmation to really run an agency in the way that we would
like it to be run.
Mr. Cummings. Thank you, Mr. Chairman.
Chairman Issa. I thank the gentleman, and I thank you for
making my point that no one in Washington has been held
accountable.
And, with that, we go to the gentleman from Pennsylvania,
Mr. Kelly.
Mr. Kelly. Thank you, Mr. Chairman.
Chairman Issa. Another cheap seat, I'm afraid. You will
move up, though.
Mr. Kelly. I hope so.
The real reason we're here today--and I appreciate your
being here. I know you've gone through a lot of questioning.
And the fact that it's not a political hearing, I understand
that. But I'm getting a little bit confused, because we keep
going back to the political side of it.
To me, this is about trust. And you're the highest-ranking
law enforcement official in the country. And when the people
lose trust in an agency, that's a very difficult thing to
recover, if you can recover it at all.
And I go back to a couple of quotes, and these are ones
that you will recognize.
One is: ``Transparency is the best thing.'' That's from
you, by the way, in January 2009. ``For a long time now,
there's been too much secrecy in this city. Let me say it as
simply as I can, transparency and the rule of law will be the
touchstones of this presidency.''
So we always hear this talk about we're going to be
transparent, we're going to be clear. And then the only thing
that I hear that I'm clear on is that you were never onboard
with any of these things. No matter what it was, you know what,
I never was informed.
And I'm not questioning your management style. I come from
an industry that if you lose somebody's confidence, it's very
hard to get it back.
Now we can keep talking about this for a long time. But
what I'm amazed about is that since 2009, 2010, 2011, there is
very little information about what happened. When we go back to
2006 in a previous administration, we can very clearly
demonstrate what they did and what they did not do.
And what I'm really bothered by is a letter from the
Department of Justice--and we've already made reference to it.
And this is to Senator Grassley. This responds to your letters
dated January 27, 2011, and January 31, 2011, to Acting
Director Kenneth Melson of the Bureau of Alcohol, Tobacco,
Firearms and Explosives, ATF, regarding Project Gunrunner: We
appreciate your strong support for the Department's law
enforcement. At the outset, the allegation described in your
January 27th letter that ATF sanctioned or otherwise knowingly
allowed the sale of assault weapons to a straw purchaser who
then transported them into Mexico is false. ATF makes every
effort to interdict weapons that have been purchased illegally.
And then on that very same day: Below is a synopsis of
Assistant Attorney General Lanny Breuer's meetings with the
Mexican Attorney General's Office, Mexican Federal Police, and
the Secretary of Foreign Relations.
Now who else was there? AAG Breuer, Deputy Chief of Mission
John Feeley from the State Department, DAAG Blanco, Kevin
Sundwall. All these folks are here, and at the end of it here's
what they come up with:
AAG Breuer told Ventura that there had been a proposed
increase in U.S. sentencings or guidelines for straw
purchasers. AAG Breuer suggests that a letter from the SRE or
PGR in support of increased sentencing guidelines for straw
purchasers may be useful. The proposed cross-border operation
AAG Breuer suggested allowing straw purchasers cross into
Mexico so SSB can arrest and PGR can convict and prosecute
these folks. Such coordinated operations between the United
States and Mexico may send a strong message to arms
traffickers.
And now it is preposterous for me to sit here and listen
thatyou, as the highest law enforcement officer in the country,
say, but I didn't know. I didn't know. See, that's the problem.
I just didn't know. Had I known, I would have changed it. And
had I known earlier, I wouldn't have waited until December 2nd
of this year to pull the message that Breuer had sent. I
wouldn't have allowed the February 4, 2011, letter to be
entered into it.
Don't you see where the problem is, Mr. Attorney General?
It isn't that you say I didn't know or I wasn't quite aware of
it. The problem is the American public relies on you, sir, to
follow all those guidelines. You are the chief officer.
And then to come before this body and for us then to be
accused of some type of a political agenda, this isn't a
Republican issue or a Democrat issue. This is a United States
of America issue.
So you have your AAG down in Mexico saying, yeah, it's a
good idea. We're going to keep doing it. And then you have
people back home saying, you know what, we never did that, and
we don't want it to go on.
Is there any wonder then the American people have lost
trust and lost faith in this system? Absolutely not. The fact
that they still hang on to a thread of it goes back to what
they know the country was to be in the beginning and what it
still can be.
But when you continue to find out that those who are
responsible don't do their work and at the end of the day they
don't say, you know, it happened on my watch; it's my fault.
What they say is, it happened in the previous administration
and, doggone it, the people who were supposed to brief me never
briefed me.
I can't believe that the transition from the last
administration to this administration, there was no briefing? I
mean, there may have been--the AGs may have turned, but I
betcha the same people were still on. So to say that we really
didn't know about it to me is absolutely preposterous, and
that's something that I can't accept.
If you go back to northwest Pennsylvania, you know what
integrity is? It's saying what you mean and meaning what you
say. And don't run around the outsides of it. Go right to the
middle and tell people what happened.
You know what I would appreciate you saying? You know what?
I didn't have the foggiest idea what was going on. I went after
the people that handled it and handled it poorly, and they are
no longer involved.
Chairman Issa. The gentleman's time has expired.
We go to the gentleman from Ohio, Mr. Kucinich, for 5
minutes.
Mr. Attorney General, we're going to get you close to 1.
We're down to about six people left.
Go ahead, Mr. Kucinich.
Mr. Kucinich. Thank you very much, Mr. Chairman, members of
the committee.
I want you to know, Attorney General--I'm sorry I'm late to
this hearing, but my wife and I were at the prayer breakfast
this morning. And I knew this meeting started at 9, and we were
still at the prayer breakfast, and we were praying for you.
Attorney General Holder. I can't complain about that.
Mr. Kucinich. Well, let me tell you, based on what I've
seen, I think my prayers have been answered. Because, frankly,
I haven't seen anyone make a case about you not performing your
duties in the way that you should, and I want to go over that
right now.
You and senior Justice Department officials have repeatedly
been accused of authorizing the gun-walking tactics used in
Fast and Furious. We already have the record about what my
chairman has said. He said, ``there's no question that high-
ranking officials at Justice were briefed and rebriefed, and
many of them had direct contacts in authorizing the program.
They now call it a failed program when in fact the very
concept, the very way they wanted it to be executed was deadly
and dangerous.''
Now none of the 22 witnesses that this committee has
interviewed supported that claim. And I want to look at, for
the moment, the Department of Justice organizational chart,
which is relevant here.
Of course, you know, the DOJ, you are at the top. ATF
reports to you through the Deputy Attorney General.
The former head of the ATF--and I emphasize the word
``former''--Kenneth Melson told us that the controversial
tactics were never raised to my level. He said he was not aware
of gun-walking and never brought it to the attention of senior
DOJ officials.
Now Mr. Melson's second in command, William Hoover, also
told the committee staff he did not know of the gun-walking
tactics in Fast and Furious. He said it was his ``firm belief
that the strategic and tactical decisions made in this decision
were born and raised in Phoenix.''
Now, Mr. Attorney General, can you corroborate their
statements to the committee? And did the head of ATF or his
deputy ever warn you that gun-walking was occurring?
Attorney General Holder. No, I never got that from either
Mr. Melson or from Mr. Hoover.
Mr. Kucinich. Well, I want to go back over this chart
again, because it's really important for Members to have an
understanding here.
You've got the U.S. attorney in Arizona, the ATF--the ATF,
Mr. Hoover, Mr. Melson. ATF didn't report anything to the
Deputy Attorney General. The U.S. attorney for the district of
Arizona didn't put any information through to the Deputy
Attorney General. So what I want to know is, all of this talk
about resignation, we're really devaluing the whole concept of
asking a top-level official to resign when you haven't reached
the level of proof that something was right on his desk. No
one's proved that at all. But we keep talking about
resignation.
If we cheapen this whole idea of just--you don't like
someone, you ask them to resign. You don't like an
administration, you ask people to quit. You cheapen that idea.
It makes this whole committee process less significant.
And I want this committee to be important. I chose to be on
this committee when I first came to Congress because government
oversight is a very important function. I want to support my
chair's call for this hearing, even though it's the sixth
hearing. You must feel like Tom Hanks in the movie Groundhog
Day because we keep coming to the same point. But you know
what? You have an obligation to come to us, nevertheless.
So look at that chart. Hold that up again, please. All this
information, all these assertions, they never got to the
Attorney General. Now why? Whether you like him or not, you've
got to be able to make the case, and the case has not been made
here that the Attorney General, Eric Holder, was in any way
derelict in his duties. And those on the other side of the
aisle know me well enough that if I thought that he was I
wouldn't hesitate to say it.
So I think that we've got to be very careful here with
people's reputations, because reputations take a lifetime to
build. They can't just be trashed in a minute without facts.
After a while, this is starting to sound like Alice in
Wonderland or Through the Looking Glass, where you've got the
queen saying, sentence first, verdict afterwards.
The sentence is resignation, resign. But we haven't made a
fact pattern that would suggest that we should have that
conclusion raised to the level of the President having to take
the action because you serve at the pleasure of the President.
So I just want to say, whatever disagreements that we may
have on certain policies, I don't see anything that's been
produced here today that should cause you to have to stop
serving the people of the United States of America. And I just
want that on the record, haven't seen the facts that would show
otherwise.
Thank you.
Chairman Issa. I thank the gentleman.
We now go to the gentleman from Idaho, Mr. Labrador, for 5
minutes.
Mr. Labrador. Mr. Chairman, thank you.
I'm glad that the minority has made a point that I've been
trying to make for a long time: Government is too big and has
too many layers of bureaucracy.
But I'm one of the first people who asked for your
resignation, and I did it after thinking about it for a long
time. And in my statement when I asked for your resignation I
said that, in your testimony before Congress, you either lied
or you were grossly incompetent in your actions when it came to
finding out about Fast and Furious and your handling of this
matter.
The reason we keep bringing you back to Congress is because
we want to know what you knew and when you knew it. It's a
simple question. But the problem is that, even though you have
testified six times up here on this matter on differing
occasions, your story continues to evolve and continues to
change. In fact, today your story changed a little bit.
So let's talk about the facts. Everybody wants the facts.
So let's talk about the facts here.
On May 2011, you said in the Senate Judiciary that you
first heard about Fast and Furious a few weeks ago. In November
2011, you said that a few weeks was inaccurate and that you
should have said a couple of months. Emails released on January
28th show that you were informed by your deputy chief of staff
of Agent Terry's death; and you just testified today that, yes,
that is correct, on December 15, 2011.
And this is what I am trying to get to right here. On that
same day--and it's already been shown--your deputy chief of
staff learned that the guns used to kill Agent Terry were from
Fast and Furious. So what you want us to believe is that you
were told about the death of Agent Terry but you chose not to
ask any followup questions on that same day about what caused
the death of Agent Terry and that, in fact, you didn't learn
about the connection between the death of Agent Terry and Fast
and Furious until a couple of months later.
That's what you want us to believe. And that's fine. That
may be the truth. But you can continue to come to Congress--
that may be the truth. That's fine. I don't have a problem with
it. You continue to come to Congress unprepared. Don't you
agree that this is a pattern that you have of dealing with
difficult questions and embarrassing issues in your office,
continuing to come to Congress unprepared?
Attorney General Holder. I think it's very interesting what
you just said: That may be the truth. What I said may be the
truth.
Mr. Labrador. Yeah, it may be the truth. I'm not disputing
it. I'm saying, but you continue to come to Congress
unprepared. Wouldn't you admit that you continue to come to
Congress unprepared when you have to testify? Where you have to
change your statements, you have to withdraw memos from your
office, isn't that a fact?
Attorney General Holder. No.
Mr. Labrador. Okay. Let's look at that. Let's look at the
facts. If we could go to the slides, please.
When you came to Congress on February 14, 2001, you were
being asked about Mr. Mark Rich's pardon. It says, ``Mr. Rich's
name was unfamiliar to me. I had gained only a passing
familiarity with the underlying facts of the Rich case.''
Go to the next slide. ``I did not acquaint myself with his
record.''
Let's go to the next slide. ``I never actually saw that
letter.''
There's a pattern here that we continue to hear in your
testimony.
Let's go to the next slide. ``You're right.''
Mr. Cummings. Mr. Chairman, you said at the beginning that
this would be limited to Fast and Furious; and here we are--I'm
seeing something up there from 2001.
Mr. Labrador. I'm just showing a pattern of behavior.
Mr. Cummings. We've honored that. And I have been very
strict with my people on this side to stay within the
parameters that the chairman set. And, as a matter of fact, I
thought we've done a pretty good job so far.
Chairman Issa. The gentleman will suspend.
I'm going to limit what he can do to anything that he wants
to say related to management style. And the Attorney General
does not have to answer any questions. I don't actually see a
question here.
I have heard time and time again people talking about gun
control and the need for it and a number of other items.
Expressing an opinion within the 5 minutes by a Member of
Congress is something I have limited authority. The gentleman
has only 5 minutes. I do not expect the Attorney General to
answer, although in defending himself in this case he may
choose to. And I would caution the gentleman from Idaho to get
to the management question quickly because this is about Fast
and Furious.
Mr. Cummings. Thank you, Mr. Chairman.
Mr. Labrador. Okay.
Next slide. ``You're right. I didn't have the ability to
look at all the materials.''
Next slide, please. ``I have not had a chance--'' on May
13, 2010, when you were testifying about Fast and Furious,
``I've not had a chance to. I have glanced at it. I have not
read it.''
Next slide, please. ``I have no recollection of knowing
about Fast and Furious''--on October 7, 2011.
Next slide, please. On October 7, 2011: ``On a weekly
basis, my office typically receives over 100 pages and weekly
reports that are provided.''
Next slide, please. ``I certainly never knew about the
tactics employed in the operation.''
Next slide, please--and this is on February 14, 2001: ``And
I think the one thing that would have changed this whole thing
is if I had said to the person on my staff, what's the status
of the Rich matter?''
I believe that's what would have changed, and we would have
avoided the six hearings that we have had about this matter, is
if you would have just asked a simple question of your staff
before you came to testify in Congress: What did we know about
Fast and Furious, and when did we know it?
You failed to do that. You failed to do that under the Mark
Rich investigation, and you failed to do it on this case, and
this is why we continue to have these hearings.
Mr. Attorney General, I believe the American people deserve
better. I believe that the American people deserve to have an
Attorney General that they can trust. And for that reason, I
have asked for your resignation. And I believe that, because
you have been grossly incompetent in the way that you have
prepared before coming to Congress, I think you should resign.
Thank you very much.
Ms. Norton. Mr. Chairman, I just want to note for the
record, this gentleman could have had a whole pattern that
begins with Fast and Furious, but he insisted----
Chairman Issa. Does the gentlelady state a point of order?
Ms. Norton. It was a violation of the rules you yourself,
Mr. Chairman, set----
Chairman Issa. Madam Norton, the rules of the House
severely limit my ability to impede your 5 minutes of opinion
or his 5 minutes of opinion. I have cautioned Members. I have
made it very clear the witness will not be expected to answer
any questions that are not on the narrow subject of Fast and
Furious.
Staff will show you the rules that limit how much I can
stop----
Ms. Norton. Mr. Chairman, if I may say, it seems to me that
that interpretation of the rule was clearly not before us
before. And I am going to have to ask, sure, if it's the
right--it has been my view all along that a Member may ask
about what time it is on the Moon in her 5 minutes. I never had
a chairman before try to keep me from using my First Amendment
rights. But since that had been your rule and this isn't the
first time you have invoked it, I tried to honor it.
Chairman Issa. I thank the gentlelady for her comment.
I have the ability to limit the scope of a hearing. I've
tried to protect the Attorney General from answering questions
which were not within the scope of his preparation. I respect
the gentlelady's right to use her 5 minutes to state opinions,
and I have never stopped somebody from it, although I have
cautioned.
It is the intent of this committee to keep this from being
anything other than a legitimate investigation as to Fast and
Furious and conditions that occurred around the investigation
of a number of committees. So I appreciate the gentlelady's
comment and would recognize for 10 seconds the gentleman from
Ohio.
Mr. Kucinich. I just want to correct the record. It was
suggesting that it was Bill Murray, not Tom Hanks, in Groundhog
Day. So I just want to make sure that, you know, I thought that
you may have felt like Bill Murray in Groundhog Day, not Tom
Hanks.
Chairman Issa. I thank the gentleman. And, for the record,
it was 38 days in a row in which that repeated itself for
Groundhog Day.
Attorney General Holder. Mr. Chairman, if I could just say
one thing in response to Mr. Labrador.
Chairman Issa. Of course.
Attorney General Holder. That was among the worst things I
think I've ever seen in Congress. You took a whole series of
statements out of context, with no context----
Mr. Labrador. With all due respect, the worst thing I've
ever seen----
Chairman Issa. The gentleman's time has expired.
Attorney General Holder. And, you know, the Mark Rich thing
was considered in my confirmation. We talked about it then.
There are a whole bunch of things that I could say about what
you just did. And maybe this is the way you do things in
Idaho--or wherever you are from.
But understand something. I'm proud of the work I've done
as Attorney General of the United States. And looked at fairly
I think that I've done a pretty good job. Have I been perfect?
No. Have I made mistakes? Yes. Do I treat the members of this
committee with respect? I always hope that I do.
And what you have just done is, if nothing else,
disrespectful. And if you don't like me, that's one thing. But
you should respect the fact that I hold an office that is
deserving of respect.
And, you know, maybe you are new to this committee. I don't
know. I don't know how long you have been here. But my hope
would be that, you know, we can get beyond that kind of
interaction, that kind of treatment of a witness, whether it's
me or somebody else. Because I think in some ways what you did
was fundamentally unfair, just not right.
Chairman Issa. I thank the gentleman.
We now go to the senior member of the committee from
Pennsylvania, Mr. Platts.
Mr. Platts. Thank you, Mr. Chairman. I certainly appreciate
your efforts on this important issue.
Mr. Attorney General, I guess first I'd just comment, most
of my line of questions or questions have been addressed,
asked, and answered, and I am not going to repeat what others
have already addressed.
To the last exchanges, I guess I have two comments:
For the most part, I agree with what you just said and
consider the gentleman from Idaho a friend and don't share the
approach in this instance that he took. And I think your points
of a reminder of civility are important.
Along with that, I also share the frustration I think
that's coming through in his presentation or others on both
sides of the aisle that what this is all about is a courageous
American who died in the line of service to this country and
that the actions of others in service to this country may have
played a role because of mismanagement of a program or
outrageous conduct relating to gun trafficking and that we stay
focused on that.
The frustration is that, apparently, the Inspector General
has thousands of pages of documents that this committee, in
trying to do legitimate oversight, has not been privy to; and
the sooner this committee on both sides of the aisle have
access to the same information, the sooner the efforts of this
committee can be achieved in a nonpartisan, just good
government fashion.
So I think we all need to keep the focus. This is about how
do we make sure that the death of a servant of this Nation
never is repeated in the circumstances that we see in here.
So with my questions being asked and answered, I'm going to
yield. I know the gentleman from South Carolina has something
he didn't get to finish up. So I am going to yield him the
balance of my time.
Mr. Gowdy. I thank the gentleman from Pennsylvania.
I just want to circle back, Mr. Attorney General, with
respect to the October 12, 2010, email, Mr. Weinstein and Mr.
Trusty. And I am happy to provide you a copy if you do not have
one.
You would agree with me that Fast and Furious is mentioned
specifically in that email exchange?
Could I ask that the clock be tolled, Mr. Chairman, while--
--
Chairman Issa. We will suspend, and we'll give him back the
document again.
Attorney General Holder. I have it in front of me. This is
October 14th, October 17th, and October 18th.
Mr. Gowdy. That's correct. If you need time to familiarize
yourself with it, take all the time you want.
Attorney General Holder. That's fine. No, I'm okay.
Mr. Gowdy. Would you agree with me that Fast and Furious is
mentioned specifically in that email exchange?
Attorney General Holder. Yeah. I guess this is the October
17th from Jason Weinstein to James Trusty.
Mr. Gowdy. And both of those gentlemen are Main Justice
employees, correct?
Attorney General Holder. That's right.
Mr. Gowdy. And you would agree with me that gun-walking is
mentioned specifically, correct?
Attorney General Holder. Yes. In the second line. Number of
guns that have walked.
Mr. Gowdy. Yes, sir. And it is actually mentioned in both
the exchanges, guns that have walked and then somebody says
gun-walking. So that's two references to it.
Now can you find the phrase ``Wide Receiver'' anywhere in
that email?
Attorney General Holder. I can't see this very well, but
I'm just going to assume that, given the tenor of your
question, that the term Wide Receiver does not appear in here.
But Mr. Weinstein testified that when he was talking about a
tricky case he was referring to Wide Receiver in the Sunday,
October 17th, email.
Mr. Gowdy. And I can't speak to that, Mr. Attorney General.
My point is this: Leading up to February 4th, a letter was
being drafted--and I'm much more concerned with the name at the
top of that letter than I am the name at the bottom. The name
Department of Justice means something to me. The name at the
bottom of it, not so much.
While that letter was being drafted, there are people in
Main Justice who knew the body of that letter was incorrect,
factually incorrect. And while that letter was being drafted,
the criminal chief Lanny Breuer was in Mexico talking about
gun-walking.
Do you know whether or not he alerted our Mexican
counterparts that Fast and Furious was something that they
needed to be prepared to deal with because of the number of
weapons? Did he at least mention to them, be alerted; a lot of
weapons went down there; a lot of your civilians are going to
be killed?
Attorney General Holder. Well, first I would say yes, there
were people at main Justice who did have that knowledge of Wide
Receiver and who admitted they did not make the connection
between Wide Receiver and Fast and Furious, and that should
have happened, and that could changed the February 4th letter.
Lanny Breuer was not down there talking about gun walking as we
have used that term during the course of these last 4 hours or
so when he was dealing with the people in Mexico.
And I don't remember the third question----
Mr. Gowdy. Well, I actually don't like interrupting
witnesses, but I am almost out of time. I am going to read a
summary. And this isn't my summary. This is from a DOJ attache
named Tony Garcia. The summary reads, ``Mr. Breuer suggested
allowing straw purchasers crossing into Mexico so Mexican
police can arrest and Mexican prosecutors can prosecute and
convict.'' Mr. Garcia then wrote a summary saying what a
horrible idea that was for the very reasons we have been
talking about for the last hours, that people were going to die
and weapons were going to get away from us.
So my time is out. I just want to ask one more question.
Chairman Issa. Very, very briefly.
Mr. Gowdy. Very briefly. Has there been discussion at main
Justice of either a grant of immunity to Mr. Cunningham so we
can know what it is that he feels the need to invoke his Fifth
Amendment right to not say? Have you discussed granting him
immunity, and has there been a conversation by calling for a
special prosecutor who may want to issue that grant of
immunity?
Attorney General Holder. We have not discussed immunity or
a special prosecutor. I think that would be for you-all to ask
us, if that is something you want to have considered. I will
say I don't know exactly why he invoked his Fifth Amendment
privilege, but I can say that in the preparation of that
February 4th letter that he was involved in, I don't have any
basis to believe that he knowingly provided with us any false
information. But, again, I don't know why he invoked his
privilege. He has a lawyer from a very good law firm here in
D.C., and I am not sure why he did that.
Chairman Issa. The gentleman's time has expired.
Mr. Cummings. Mr. Chairman, just 5 seconds. I just want to
say to Mr. Gowdy, we have answered all your questions that you
asked about Weinstein in our report, and it comes from
documents that were during the testimony and before our staffs.
Chairman Issa. I thank the gentleman. We now go to the
gentleman from Oklahoma, Mr. Lankford.
Mr. Lankford. Mr. Attorney General, thank you for being
here, your testimony. It is a long day and you dealt with this
topic a lot. I know you also did not want to see the death of
Brian Terry. None of us did. This was a horrible incident that
we are dealing with a lot of consequences of over time because
we want to make sure it never happens again. We have heard loud
and clear from you, you want to make sure this never happens
again, and I appreciate that.
What I want to do is talk briefly about ATF and the
structure there. Obviously this was an acting director. You
have to have concerns, have extra there, you have extra
attention to it in the management based on an acting director
and the transitions and all that has happened with ATF on it.
The structure with the FBI, and if they are going to go for
an undercover operation, they have a field office proposal that
goes through the supervisor in charge, it goes through
headquarters, it goes through legal. Then legal has to
determine is this entrapment, is this fully within the bounds
of that. A U.S. attorney may get involved in it at some point,
and then it goes up to headquarters if it involves a certain
amount of money and a length of time and such. So it has a very
lengthy process getting all the way up to the Department of
Justice on that.
Is that a similar process to what ATF also does to be able
to approve an operation like this undercover?
Attorney General Holder. I am not sure that it is as robust
as what you have just described with regard to the FBI, but it
is certainly----
Mr. Lankford. But that is consistent with the FBI process,
is that correct?
Attorney General Holder. I am sorry?
Mr. Lankford. Is that the right process for FBI that they
go through?
Attorney General Holder. I think the FBI process is a good
one, and I think that what we need to do is have, not only with
regard to ATF but all the other investigative agencies within
the Justice Department, make sure that we have similar
procedures in place. That is one of the things that I have
talked about with Todd Jones, the Acting Director who is in the
process of making changes at ATF.
Mr. Lankford. Because that is the concern obviously, to put
in a system and structure to make sure this never, ever happens
again. It is one thing to talk about it after the fact. It is
another thing to try to fix it so it doesn't become such a
bureaucratic maze that nothing happens, but it also makes sure
there are some checks and balances, that we are not doing
entrapment, that someone else is checking it, that it is
getting up to your office. If it wasn't getting to your office
or something like this before, let's try to make sure it does
in the future day get up to DOJ. So that is something in
process.
What is the timeframe on that for a decision and a shift on
that that is occurring?
Attorney General Holder. You know, I mean, I would hope
this is something we can do over a matter of a relatively short
number of months. I think to do this right, we need to have
buy-in from people who are at ATF headquarters, people who are
in the field, so they have an ability to express their views
and so that they will accept--these are things that are
probably going to be changes in the way in which they have
operated. So I think we are talking about a matter of months
before we have those kinds of things in place.
Again, Todd has really made significant changes. He is
working real hard at this. But I think the concern that you
have expressed is one that I agree with. We should make sure
that we have processes in place to minimize the possibility
that what we are talking about today, and legitimately talking
about today, never happens again.
Mr. Lankford. Right. The last thing I want to say to the
Terry family at some point is this occurred and nothing has
happened to make sure it never occurs again, that there is some
way to be able to say this is never going to occur again as
long as it is on any of our watch on it.
Let me make a quick side statement and then I am going to
yield back to the chairman as well. This is not something that
I expect you to answer on it. It is a comment that I want to be
able to make. It is off topic on it, so I am going to tell you
that.
Yesterday this committee had a hearing dealing with the
constitutional issues and the repercussions of the President's
appointments to the NLRB and CFPB in January. Obviously your
Department is very involved in that in the constitutional
statement.
In 2010, Deputy Solicitor General Neal Katyal was before
the Supreme Court and Chief Justice Roberts asked him
specifically, can the NLRB, a question, be resolved with a
recess appointment? Neal Katyal at that time----
Ms. Norton. Mr. Chairman, it looks like there is another
violation of your rule coming up.
Chairman Issa. The gentlelady is out of order.
Mr. Lankford. I already prefaced this by saying I do not
anticipate this--I am making a statement. I do not expect the
Attorney General to respond to this.
So Neal Katyal made this statement to the Supreme Court
saying that a recess appointment could not be done if it is
less than 3 days. So there was an opinion by him on that before
the Supreme Court dealing specifically with the NLRB. Two years
later, Justice came back out and came out with a statement
saying no, that is legal, so there was a transition.
Mr. Chairman, what I would hope for at some point is to be
able to have some conversation to say what changed between 2010
and 2012 in Justice, that at one point they considered it not
legal and 2 years later considered it legal and appropriate at
that point. So obviously I am not expecting--that is not in
your preparation on that, but that is something we just dealt
with as a committee yesterday, and I would hope at some future
day we would deal with.
Chairman Issa. I thank the gentleman. There is no question
there.
Attorney General Holder. If I could just----
Chairman Issa. Are you yielding to me?
Mr. Lankford. I do yield back.
Chairman Issa. I will give you time for a quick close.
The evidence that you have given us through discovery that
on February 4th, Lanny Breuer was, in fact, talking about a
program that included guns passing over the border in the hopes
that they would be intercepted, well, in fact, on March 10th in
the Cole email there is a statement I will read verbatim here.
``As I said on the call, to avoid any potential confusions I
want to reiterate the Department's policy as though existing.
We should not design or conduct undercover operations which
include guns crossing the border. If we have knowledge that
guns are about to cross the border, we must take immediate
action to stop firearms from crossing the border, even if that
permanently terminates or otherwise jeopardizes an
investigation.'' That is a complete paragraph.
Can you, in fact, answer for this committee how you have
counseled or changed Lanny Breuer from a man who flew to Mexico
and said I want to have guns crossing the border to this, which
says there is a policy and it is wrong, and we have only got a
month in between them?
Attorney General Holder. Well, clearly what was proposed
in, I guess, February by Lanny Brewer was in contravention of
the policy that I had the Deputy Attorney General make clear to
everybody at main Justice and to the field. And to the extent
that there is a tension, the policy that Mr. Cole has laid out
is the policy of the Justice Department and is the thing that I
support.
Chairman Issa. I want to thank you. I am not going to ask
any more questions. You have been very generous with your time.
I want to reiterate just one thing. We can't undo
everything that was said here. The effort was made for this to
be narrowly about Fast and Furious. I believe that two other
committees, Senate Judiciary, House Judiciary, had each one
time in which the primary reason for you being called was not
normal oversight, but in fact, related to Fast and Furious and
the letter that followed. We believe we have had one crack at
it also, and we appreciate your coming three times to three
separate committees. And that we appreciate.
In closing, I do believe there are people at Main Justice
who ultimately do need to go. If you are a political appointee,
you should not be reassigned if you are in some way culpable in
something like Fast and Furious. I have never accused you of
having personal knowledge. This committee has never accused you
of having personal knowledge. One of our Members went on quite
a bit about the alternative of either you knew or should have
known. I share that, that, in fact, Justice has to have a
bubble-up system that holds specific people accountable for
specific levels of action.
This committee would hope, under our reorganization and
organizational side, not our investigation side, that we can
continue working with Justice so that we can have a comfort
level, along with the Judiciary Committees, that those systems
are put into place so that in the future, if something like
this happens, we know that, for example, a person signing a
wiretap would also be a person who would understand the level
of the operation being described in great detail, and you
described it as this thick a document, and it often is.
So I appreciate what you came here to do. This committee is
obviously widely divided on details of Fast and Furious and the
letter that followed.
I said I would let you have the last word. So, Mr. Attorney
General, you have the last word.
Attorney General Holder. Well, Mr. Chairman, I would just
say----
Chairman Issa. Would the gentleman suspend.
Mr. Cummings. Just 30 seconds.
Chairman Issa. Thirty seconds of, course.
Mr. Cummings. I just wanted to go back very quickly, Mr.
Chairman, to something that Mr. Gowdy was asking about with
regard to Mr. Weinstein, and just wanted to make it part of the
record, this transcript page 121, where he says, ``Okay, first
of all, let me clear up the confusion that you noted about the
pronouns. When I say it is a tricky case given the number of
guns that have walked, I am talking exclusively about Wide
Receiver.'' I just wanted to say that.
Thank you, Mr. Attorney General.
Chairman Issa. Thank you. As we said, you have the last
word, Mr. Attorney General.
Attorney General Holder. Well----
Chairman Issa. Briefly.
Attorney General Holder. As I said, you and I talked before
the hearing began, and I just want to say that you, the ranking
member, the members of this committee have treated me fairly,
with one exception, one glaring exception, and I have talked
about that. The questions you have asked have been tough, they
have been fair, and I share what was indicated, a desire to
make sure that we have in place mechanisms so that the thing
that brings us here today is something we will never have to
discuss again.
I think there are a variety of things that we can work on
as people who are dedicated to the safety of the American
people, and I look forward to working with the members of this
committee across party lines to try to reach those kinds of--
successfully reach those kinds of solutions.
Chairman Issa. I thank you, General Holder. We stand
adjourned.
[Whereupon, at 1:20 p.m., the committee was adjourned.]
[The prepared statements of Hon. Dan Burton and Hon. Paul
A. Gosar follow:]
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