[Congressional Record Volume 158, Number 99 (Thursday, June 28, 2012)]
[House]
[Pages H4177-H4418]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1430
RECOMMENDING THAT ATTORNEY GENERAL ERIC HOLDER BE FOUND IN CONTEMPT OF 
                                CONGRESS

  Mr. ISSA. Mr. Speaker, by direction of the Committee on Oversight and 
Government Reform, I call up the report (H.Rept. 112-546) to accompany 
resolution recommending that the House of Representatives find Eric H. 
Holder, Jr., Attorney General, U.S. Department of Justice, in contempt 
of Congress for refusal to comply with a subpoena duly issued by the 
Committee on Oversight and Government Reform.
  The Clerk read the title of the report.
  The SPEAKER pro tempore. Pursuant to House Resolution 708, the report 
is considered read.
  The text of the report is as follows:
       The Committee on Oversight and Government Reform, having 
     considered this Report, report favorably thereon and 
     recommend that the Report be approved.
       The form of the resolution that the Committee on Oversight 
     and Government Reform would recommend to the House of 
     Representatives for citing Eric H. Holder, Jr., Attorney 
     General, U.S. Department of Justice, for contempt of Congress 
     pursuant to this report is as follows:
       Resolved, That Eric H. Holder, Jr., Attorney General of the 
     United States, shall be found to be in contempt of Congress 
     for failure to comply with a congressional subpoena.
       Resolved, That pursuant to 2 U.S.C. 192 and 194, the 
     Speaker of the House of Representatives shall certify the 
     report of the Committee on Oversight and Government Reform, 
     detailing the refusal of Eric H. Holder, Jr., Attorney 
     General, U.S. Department of Justice, to produce documents to 
     the Committee on Oversight and Government Reform as directed 
     by subpoena, to the United States Attorney for the District 
     of Columbia, to the end that Mr. Holder be proceeded against 
     in the manner and form provided by law.
       Resolved, That the Speaker of the House shall otherwise 
     take all appropriate action to enforce the subpoena.

                          I. EXECUTIVE SUMMARY

       The Department of Justice has refused to comply with 
     congressional subpoenas related to Operation Fast and 
     Furious, an Administration initiative that allowed around two 
     thousand firearms to fall into the hands of drug cartels and 
     may have led to the death of a U.S. Border Patrol Agent. The 
     consequences of the lack of judgment that permitted such an 
     operation to occur are tragic.
       The Department's refusal to work with Congress to ensure 
     that it has fully complied with the Committee's efforts to 
     compel the production of documents and information related to 
     this controversy is inexcusable and cannot stand. Those 
     responsible for allowing Fast and Furious to proceed and 
     those who are preventing the truth about the operation from 
     coming out must be held accountable for their actions.
       Having exhausted all available options in obtaining 
     compliance, the Chairman of the Oversight and Government 
     Reform Committee recommends that Congress find the Attorney 
     General in contempt for his failure to comply with the 
     subpoena issued to him.

                       II. AUTHORITY AND PURPOSE

       An important corollary to the powers expressly granted to 
     Congress by the Constitution is the implicit responsibility 
     to perform rigorous oversight of the Executive Branch. The 
     U.S. Supreme Court has recognized this Congressional power on 
     numerous occasions. For example, in McGrain v. Daugherty, the 
     Court held that ``the power of inquiry--with process to 
     enforce it--is an essential and appropriate auxiliary to the 
     legislative function. . . . A legislative body cannot 
     legislate wisely or effectively in the absence of information 
     respecting the conditions which the legislation is intended 
     to affect or change, and where the legislative body does not 
     itself possess the requisite information--which not 
     infrequently is true--recourse must be had to others who do 
     possess it.'' \1\ Further, in Watkins v. United States, Chief 
     Justice Warren wrote for the majority: ``The power of 
     Congress to conduct investigations is inherent in the 
     legislative process. That power is broad.'' \2\
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     \1\ McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
     \2\ Watkins v. United States, 354 U.S. 178, 187 (1957).
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       Both the Legislative Reorganization Act of 1946 (P.L. 79-
     601), which directed House and Senate Committees to 
     ``exercise continuous watchfulness'' over Executive Branch 
     programs under their jurisdiction, and the Legislative 
     Reorganization Act of 1970 (P.L. 91-510), which authorized 
     committees to ``review and study, on a continuing basis, the 
     application, administration and execution'' of laws, codify 
     the oversight powers of Congress.
       The Committee on Oversight and Government Reform is a 
     standing committee of the House of Representatives, duly 
     established pursuant to the Rules of the House of 
     Representatives, which are adopted pursuant to the Rulemaking 
     Clause of the Constitution.\3\ House rule X grants to the 
     Committee broad oversight jurisdiction, including authority 
     to ``conduct investigations of any matter without regard to 
     clause 1, 2, 3, or this clause [of House rule X] conferring 
     jurisdiction over the matter to another standing committee.'' 
     \4\ The rules direct the Committee to make available ``the 
     findings and recommendations of the committee . . . to any 
     other standing committee having jurisdiction over the matter 
     involved.'' \5\
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     \3\ U.S. CONST., art. I, 5, clause 2.
     \4\ House rule X, clause (4)(c)(2).
     \5\ Id.
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       House rule XI specifically authorizes the Committee to 
     ``require, by subpoena or otherwise, the attendance and 
     testimony of such

[[Page H4178]]

     witnesses and the production of such books, records, 
     correspondence, memoranda, papers, and documents as it 
     considers necessary.'' \6\ The rule further provides that the 
     ``power to authorize and issue subpoenas'' may be delegated 
     to the Committee chairman.\7\ The subpoenas discussed in this 
     report were issued pursuant to this authority.
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     \6\ House rule XI, clause (2)(m)(1)(B).
     \7\ House rule XI, clause (2)(m)(3)(A)(i).
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       The Committee's investigation into actions by senior 
     officials in the U.S. Department of Justice and the Bureau of 
     Alcohol, Tobacco, Firearms, and Explosives (ATF) in 
     designing, implementing, and supervising the execution of 
     Operation Fast and Furious, and subsequently providing false 
     denials to Congress, is being undertaken pursuant to the 
     authority delegated to the Committee under House Rule X as 
     described above.
       The oversight and legislative purposes of the 
     investigations are (1) to examine and expose any possible 
     malfeasance, abuse of authority, or violation of existing law 
     on the part of the executive branch with regard to the 
     conception and implementation of Operation Fast and Furious, 
     and (2) based on the results of the investigation, to assess 
     whether the conduct uncovered may warrant additions or 
     modifications to federal law and to make appropriate 
     legislative recommendations.
       In particular, the Committee's investigation has 
     highlighted the need to obtain information that will aid 
     Congress in considering whether a revision of the statutory 
     provisions governing the approval of federal wiretap 
     applications may be necessary. The major breakdown in the 
     process that occurred with respect to the Fast and Furious 
     wiretap applications necessitates careful examination of the 
     facts before proposing a legislative remedy. Procedural 
     improvements may need to be codified in statute to mandate 
     immediate action in the face of highly objectionable 
     information relating to operational tactics and details 
     contained in future applications.
       The Committee's investigation has called into question the 
     ability of ATF to carry out its statutory mission and the 
     ability of the Department of Justice to adequately supervise 
     it. The information sought is needed to consider legislative 
     remedies to restructure ATF as needed.

            III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION

       In February 2011, the Oversight and Government Reform 
     Committee joined Senator Charles E. Grassley, Ranking Member 
     of the Senate Committee on the Judiciary, in investigating 
     Operation Fast and Furious, a program conducted by ATF. On 
     March 16, 2011, Chairman Darrell Issa wrote to then-Acting 
     ATF Director Kenneth E. Melson requesting documents and 
     information regarding Fast and Furious. Responding for Melson 
     and ATF, the Department of Justice did not provide any 
     documents or information to the Committee by the March 30, 
     2011, deadline. The Committee issued a subpoena to Melson the 
     next day. The Department produced zero pages of non-public 
     documents pursuant to that subpoena until June 10, 2011, on 
     the eve of the Committee's first Fast and Furious hearing.
       On June 13, 2011, the Committee held a hearing entitled 
     ``Obstruction of Justice: Does the Justice Department Have to 
     Respond to a Lawfully Issued and Valid Congressional 
     Subpoena?'' The Committee held a second hearing on June 15, 
     2011, entitled ``Operation Fast and Furious: Reckless 
     Decisions, Tragic Outcomes.'' The Committee held a third 
     hearing on July 26, 2011, entitled ``Operation Fast and 
     Furious: The Other Side of the Border.''
       On October 11, 2011, the Justice Department informed the 
     Committee its document production pursuant to the March 31, 
     2011, subpoena was complete. The next day, the Committee 
     issued a detailed subpoena to Attorney General Eric Holder 
     for additional documents related to Fast and Furious.
       On February 2, 2012, the Committee held a hearing entitled 
     ``Fast and Furious: Management Failures at the Department of 
     Justice.'' The Attorney General testified at that hearing.
       The Committee has issued two staff reports documenting its 
     initial investigative findings. The first, The Department of 
     Justice's Operation Fast and Furious: Accounts of ATF Agents, 
     was released on June 14, 2011. The second, The Department of 
     Justice's Operation Fast and Furious: Fueling Cartel 
     Violence, was released on July 26, 2011.
       Throughout the investigation, the Committee has made 
     numerous attempts to accommodate the interests of the 
     Department of Justice. Committee staff has conducted numerous 
     meetings and phone conversations with Department lawyers to 
     clarify and highlight priorities with respect to the 
     subpoenas. Committee staff has been flexible in scheduling 
     dates for transcribed interviews; agreed to review certain 
     documents in camera; allowed extensions of production 
     deadlines; agreed to postpone interviewing the Department's 
     key Fast and Furious trial witness; and narrowed the scope of 
     documents the Department must produce to be in compliance 
     with the subpoena and to avoid contempt proceedings.
       Despite the Committee's flexibility, the Department has 
     refused to produce certain documents to the Committee. The 
     Department has represented on numerous occasions that it will 
     not produce broad categories of documents. The Department has 
     not provided a privilege log delineating with particularity 
     why certain documents are being withheld.
       The Department's efforts at accommodation and ability to 
     work with the Committee regarding its investigation into Fast 
     and Furious have been wholly inadequate. The Committee 
     requires the subpoenaed documents to meet its 
     constitutionally mandated oversight and legislative duties.

    IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF THE 
                         DEPARTMENT OF JUSTICE

       The story of Operation Fast and Furious is one of 
     widespread dysfunction across numerous components of the 
     Department of Justice. This dysfunction allowed Fast and 
     Furious to originate and grow at a local level before senior 
     officials at Department of Justice headquarters ultimately 
     approved and authorized it. The dysfunction within and among 
     Department components continues to this day.

                   A. The ATF Phoenix Field Division

       In October 2009, the Office of the Deputy Attorney General 
     (ODAG) in Washington, D.C. promulgated a new strategy to 
     combat gun trafficking along the Southwest Border. This new 
     strategy directed federal law enforcement to shift its focus 
     away from seizing firearms from criminals as soon as 
     possible, and to focus instead on identifying members of 
     trafficking networks. The Office of the Deputy Attorney 
     General shared this strategy with the heads of many 
     Department components, including ATF.\8\
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     \8\ E-mail from [Dep't of Justice] on behalf of Deputy Att'y 
     Gen. David Ogden to Kathryn Ruemmler, et al. (Oct. 26, 2009).
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       Members of the ATF Phoenix Field Division, led by Special 
     Agent in Charge Bill Newell, became familiar with this new 
     strategy and used it in creating Fast and Furious. In mid-
     November 2009, just weeks after the strategy was issued, Fast 
     and Furious began. Its objective was to establish a nexus 
     between straw purchasers of firearms in the United States and 
     Mexican drug-trafficking organizations (DTOs) operating on 
     both sides of the United States-Mexico border. Straw 
     purchasers are individuals who are legally entitled to 
     purchase firearms for themselves, but who unlawfully purchase 
     weapons with the intent to transfer them to someone else, in 
     this case DTOs or other criminals.
       During Fast and Furious, ATF agents used an investigative 
     technique known as ``gunwalking''--that is, allowing 
     illegally-purchased weapons to be transferred to third 
     parties without attempting to disrupt or deter the illegal 
     activity. ATF agents abandoned surveillance on known straw 
     purchasers after they illegally purchased weapons that ATF 
     agents knew were destined for Mexican drug cartels. Many of 
     these transactions established probable cause for agents to 
     interdict the weapons or arrest the possessors, something 
     every agent was trained to do. Yet, Fast and Furious aimed 
     instead to allow the transfer of these guns to third parties. 
     In this manner, the guns fell into the hands of DTOs, and 
     many would turn up at crime scenes. ATF then traced these 
     guns to their original straw purchaser, in an attempt to 
     establish a connection between that individual and the DTO.
       Federal Firearms Licensees (FFLs), who cooperated with ATF, 
     were an integral component of Fast and Furious. Although some 
     FFLs were reluctant to continue selling weapons to suspicious 
     straw purchasers, ATF encouraged them to do so, reassuring 
     the FFLs that ATF was monitoring the buyers and that the 
     weapons would not fall into the wrong hands.\9\ ATF worked 
     with FFLs on or about the date of sale to obtain the unique 
     serial number of each firearm sold. Agents entered these 
     serial numbers into ATF's Suspect Gun Database within days 
     after the purchase. Once these firearms were recovered at 
     crime scenes, the Suspect Gun Database allowed for expedited 
     tracing of the firearms to their original purchasers.
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     \9\ Transcribed Interview of Special Agent Peter Forcelli, at 
     53-54 (Apr. 28, 2011).
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       By December 18, 2009, ATF agents assigned to Fast and 
     Furious had already identified fifteen interconnected straw 
     purchasers in the targeted gun trafficking ring. These straw 
     purchasers had already purchased 500 firearms.\10\ In a 
     biweekly update to Bill Newell, ATF Group Supervisor David 
     Voth explained that 50 of the 500 firearms purchased by straw 
     buyers had already been recovered in Mexico or near the 
     Mexican border.\11\ These guns had time-to-crimes of as 
     little as one day, strongly indicating straw purchasing.\12\
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     \10\ E-mail from Kevin Simpson, Intelligence Officer, Phoenix 
     FIG, ATF, to David Voth (Dec. 18, 2009).
     \11\ Id.
     \12\ Id.
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       Starting in late 2009, many line agents objected 
     vociferously to some of the techniques used during Fast and 
     Furious, including gunwalking. The investigation continued 
     for another year, however, until shortly after December 15, 
     2010, when two weapons from Fast and Furious were recovered 
     at the murder scene of U.S. Border Patrol Agent Brian Terry.
       Pursuant to the Deputy Attorney General's strategy, in late 
     January 2010 the ATF Phoenix Field Division applied for Fast 
     and Furious to become an Organized Crime Drug Enforcement 
     Task Force (OCDETF) case. In preparation for the OCDETF 
     application process, the ATF Phoenix Field Division prepared 
     a briefing paper detailing the investigative strategy 
     employed in Fast and Furious. This document was not initially 
     produced by the Department pursuant to its

[[Page H4179]]

     subpoena, but rather was obtained by a confidential source. 
     The briefing paper stated:

       Currently our strategy is to allow the transfer of firearms 
     to continue to take place, albeit at a much slower pace, in 
     order to further the investigation and allow for the 
     identification of additional co-conspirators who would 
     continue to operate and illegally traffic firearms to Mexican 
     DTOs which are perpetrating armed violence along the 
     Southwest Border.\13\
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     \13\ Phoenix Group VII, Phoenix Field Division, ATF, Briefing 
     Paper (Jan. 8, 2010).

       Fast and Furious was approved as an OCDETF case, and this 
     designation resulted in new operational funding. 
     Additionally, Fast and Furious became a prosecutor-led OCDETF 
     Strike Force case, meaning that ATF would join with the 
     Federal Bureau of Investigation, Drug Enforcement 
     Administration, Internal Revenue Service, and Immigrations 
     and Customs Enforcement under the leadership of the U.S. 
     Attorney's Office for the District of Arizona.

   B. The United States Attorney's Office for the District of Arizona

       The U.S. Attorney's Office for the District of Arizona led 
     the Fast and Furious OCDETF Strike Force. Although ATF was 
     the lead law enforcement agency for Fast and Furious, its 
     agents took direction from prosecutors in the U.S. Attorney's 
     Office. The lead federal prosecutor for Fast and Furious was 
     Assistant U.S. Attorney Emory Hurley, who played an integral 
     role in the day-to-day, tactical management of the case.\14\
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     \14\ Transcribed Interview of Special Agent in Charge William 
     Newell, at 32-33 (June 8, 2011).
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       Many ATF agents working on Operation Fast and Furious came 
     to believe that some of the most basic law enforcement 
     techniques used to interdict weapons required the explicit 
     approval of the U.S. Attorney's Office, and specifically from 
     Hurley. On numerous occasions, Hurley and other federal 
     prosecutors withheld this approval, to the mounting 
     frustration of ATF agents.\15\ The U.S. Attorney's Office 
     chose not to use other available investigative tools common 
     in gun trafficking cases, such as civil forfeitures and 
     seizure warrants, during the seminal periods of Fast and 
     Furious.
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     \15\ Transcribed Interview of Special Agent Larry Alt, at 94 
     (Apr. 27, 2011).
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       The U.S. Attorney's Office advised ATF that agents needed 
     to meet unnecessarily strict evidentiary standards in order 
     to speak with suspects, temporarily detain them, or interdict 
     weapons. ATF's reliance on this advice from the U.S. 
     Attorney's Office during Fast and Furious resulted in many 
     lost opportunities to interdict weapons.
       In addition to leading the Fast and Furious OCDETF task 
     force, the U.S. Attorney's Office was instrumental in 
     preparing the wiretap applications that were submitted to the 
     Justice Department's Criminal Division. Federal prosecutors 
     in Arizona filed at least six of these applications, each 
     containing immense detail about operational tactics and 
     specific information about straw purchasers, in federal court 
     after Department headquarters authorized them.

                          C. ATF Headquarters

       Fast and Furious first came to the attention of ATF 
     Headquarters on December 8, 2009, just weeks after the case 
     was officially opened in Phoenix. ATF's Office of Strategic 
     Information and Intelligence (OSII) briefed senior ATF 
     personnel about the case on December 8, 2009, discussing in 
     detail a large recovery of Fast and Furious weapons in Naco, 
     Sonora, Mexico.\16\
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     \16\ Interview with Lorren Leadmon, Intelligence Operations 
     Analyst, Washington, D.C., July 5, 2011 [hereinafter Leadmon 
     Interview].
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       The next day, December 9, 2009, the Acting ATF Director 
     first learned about Fast and Furious and the large recovery 
     of weapons that had already occurred.\17\ The following week, 
     OSII briefed senior ATF officials about another large cache 
     of Fast and Furious weapons that had been recovered in 
     Mexico.\18\
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     \17\ Oversight of the U.S. Department of Justice: Hearing 
     Before the S. Comm. on the Judiciary, 112th Cong. (May 4, 
     2011) (Questions for the Record of Hon. Eric H. Holder, Jr., 
     Att'y Gen. of the U.S.).
     \18\ Leadmon Interview, supra note 16.
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       On January 5, 2010, OSII presented senior ATF officials 
     with a summary of all of the weapons that could be linked to 
     known straw purchasers in Fast and Furious. In just two 
     months, these straw purchasers bought a total of 685 guns. 
     This number raised the ire of several individuals in the 
     room, who expressed concerns about the growing operation.\19\
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     \19\ Transcribed Interview of Deputy Ass't Dir. Steve Martin, 
     ATF, at 36 (July 6, 2011) [hereinafter Martin Tr.].
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       On March 5, 2010, ATF headquarters hosted a larger, more 
     detailed briefing on Operation Fast and Furious. David Voth, 
     the Group Supervisor overseeing Fast and Furious, traveled 
     from Phoenix to give the presentation. He gave an extremely 
     detailed synopsis of the status of the investigation, 
     including the number of guns purchased, weapons seizures to 
     date, money spent by straw purchasers, and organizational 
     charts of the relationships among straw purchasers and to 
     members of the Sinaloa drug cartel. At that point, the straw 
     purchasers had bought 1,026 weapons, costing nearly 
     $650,000.\20\
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     \20\ See generally ``Operation the Fast and the Furious'' 
     Presentation, Mar. 5, 2010.
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       NATF's Phoenix Field Division informed ATF headquarters of 
     large weapons recoveries tracing back to Fast and Furious. 
     The Phoenix Field Division had frequently forwarded these 
     updates directly to Deputy ATF Director Billy Hoover and 
     Acting ATF Director Ken Melson.\21\ When Hoover learned about 
     how large Fast and Furious had grown in March 2010, he 
     finally ordered the development of an exit strategy.\22\ This 
     exit strategy, something Hoover had never before requested in 
     any other case, was a timeline for ATF to wind down the 
     case.\23\
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     \21\ E-mail from Mark Chait to Kenneth Melson and William 
     Hoover (Feb. 24, 2010) [HOGR 001426].
     \22\ Transcribed Interview of William Hoover, ATF Deputy 
     Director, at 9 (July 21, 2011).
     \23\ Id. at 72.
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       Though Hoover commissioned the exit strategy in March, he 
     did not receive it until early May. The three-page document 
     outlined a 30-, 60-, and 90-day strategy for winding down 
     Fast and Furious and handing it over to the U.S. Attorney's 
     Office for prosecution.\24\
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     \24\ E-mail from Douglas Palmer, Supervisor Group V, ATF, to 
     William Newell, ATF (Apr. 27, 2010).
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       In July 2010, Acting Director Melson expressed concern 
     about the number of weapons flowing to Mexico,\25\ and in 
     October 2010 the Assistant Director for Field Operations, the 
     number three official in ATF, expressed concern that ATF had 
     not yet halted the straw purchasing activity in Fast and 
     Furious.\26\ Despite these concerns, however, the U.S. 
     Attorney's Office continued to delay the indictments, and no 
     one at ATF headquarters ordered the Phoenix Field Division to 
     simply arrest the straw purchasers in order to take them off 
     the street. The members of the firearms trafficking ring were 
     not arrested until two weapons from Fast and Furious were 
     found at the murder scene of Border Patrol Agent Brian Terry.
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     \25\ E-mail from Kenneth Melson to Mark Chait, et al., (July 
     14, 2010) [HOGR 002084].
     \26\ E-mail from Mark Chait to William Newell (Oct. 29, 2010) 
     [HOGR 001890].
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                        D. The Criminal Division


                        1. Coordination with ATF

       In early September 2009, according to Department e-mails, 
     ATF and the Department of Justice's Criminal Division began 
     discussions ``to talk about ways CRM [Criminal Division] and 
     ATF can coordinate on gun trafficking and gang-related 
     initiatives.'' \27\ Early on in these discussions, Lanny 
     Breuer, Assistant Attorney General for the Criminal Division, 
     sent an attorney to help the U.S. Attorney's Office in 
     Arizona prosecute ATF cases. The first case chosen for 
     prosecution was Operation Wide Receiver, a year-long ATF 
     Phoenix Field Division investigation initiated in 2006, which 
     involved several hundred guns being walked. The U.S. 
     Attorney's Office in Arizona, objecting to the tactics used 
     in Wide Receiver, had previously refused to prosecute the 
     case.
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     \27\ E-mail from Jason Weinstein to Lanny Breuer (Sept. 10, 
     2009) [HOGR 003378].
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       According to James Trusty, a senior official in the 
     Criminal Division's Gang Unit, in September 2009 Assistant 
     Attorney General Breuer was ``VERY interested in the Arizona 
     gun trafficking case [Wide Receiver], and he is traveling out 
     [to Arizona] around 9/21. Consequently, he asked us for a 
     `briefing' on that case before the 21st rolls around.'' \28\ 
     The next day, according to Trusty, Breuer's chief of staff 
     ``mentioned the case again, so there is clearly great 
     attention/interest from the front office.'' \29\
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     \28\ E-mail from James Trusty to Laura Gwinn (Sept. 2, 2009) 
     [HOGR 003375].
     \29\ E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) 
     [HOGR 003376].
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       When the Criminal Division prosecutor arrived in Arizona, 
     she gave Trusty her impressions of the case. Her e-mail 
     stated:

       Case involves 300 to 500 guns. . . . It is my understanding 
     that a lot of these guns ``walked''. Whether some or all of 
     that was intentional is not known.\30\
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     \30\ E-mail from Laura Gwinn to James Trusty (Sept. 3, 2009) 
     [HOGR 003377].

       Discussions between ATF and the Criminal Division regarding 
     inter-departmental coordination continued over the next few 
     months. On December 3, 2009, the Acting ATF Director e-mailed 
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     Breuer about this cooperation. He stated:

       Lanny: We have decided to take a little different approach 
     with regard to seizures of multiple weapons in Mexico. 
     Assuming the guns are traced, instead of working each trace 
     almost independently of the other traces from the seizure, I 
     want to coordinate and monitor the work on all of them 
     collectively as if the seizure was one case.\31\
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     \31\ E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 
     2009) [HOGR 003403].

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       Breuer responded:

       We think this is a terrific idea and a great way to 
     approach the investigations of these seizures. Our Gang Unit 
     will be assigning an attorney to help you coordinate this 
     effort.\32\
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     \32\ E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 
     2009) [HOGR 003403].

       Kevin Carwile, Chief of the Gang Unit, assigned an 
     attorney, Joe Cooley, to assist ATF, and Operation Fast and 
     Furious was selected as a recipient of this assistance. 
     Shortly after his assignment, Cooley had to rearrange his 
     holiday plans to attend a significant briefing on Fast and 
     Furious.\33\
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     \33\ E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 
     2010) [HOGR 002832].
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       Cooley was assigned to Fast and Furious for the next three 
     months. He advised the lead federal prosecutor, Emory Hurley, 
     and received detailed briefings on operational details. 
     Cooley, though, was not the only Criminal Division attorney 
     involved with

[[Page H4180]]

     Fast and Furious during this time period. The head of the 
     division, Lanny Breuer, met with ATF officials about the 
     case, including Deputy Director Billy Hoover and Assistant 
     Director for Field Operations Mark Chait.\34\
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     \34\ Meeting on ``Weapons Seizures in Mexico w/ Lanny 
     Breuer'' at Robert F. Kennedy Building, Room 2107, Jan. 5, 
     2010, 10:00 AM [HOGR 001987].
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       Given the initial involvement of the Criminal Division with 
     Fast and Furious in the early stages of the investigation, 
     senior officials in Criminal Division should have been 
     greatly alarmed about what they learned about the case. These 
     officials should have halted the program, especially given 
     their prior knowledge of gunwalking in Wide Receiver, which 
     was run by the same leadership in the same ATF field 
     division.
       On March 5, 2010, Cooley attended a briefing about Fast and 
     Furious. The detailed briefing highlighted the large number 
     of weapons the gun trafficking ring had purchased and 
     discussed recoveries of those weapons in Mexico. According to 
     Steve Martin, Deputy Assistant Director in ATF's Office of 
     Strategic Intelligence and Information, everyone in the room 
     knew the weapons from Fast and Furious were being linked to a 
     Mexican cartel.\35\ Two weeks later, in mid-March 2010, 
     Carwile pulled Cooley off Fast and Furious, when the U.S. 
     Attorney's Office informed him that it had the case under 
     control.\36\
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     \35\ Martin Tr. at 100.
     \36\ E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 
     2010, 9:00 a.m.) [HOGR DOJ 2382].
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                              2. Wiretaps

       At about the same time, senior lawyers in the Criminal 
     Division authorized wiretap applications for Fast and Furious 
     to be submitted to a federal judge. Fast and Furious involved 
     the use of seven wiretaps between March and July of 2010.
       In a letter to Chairman Issa, the Deputy Attorney General 
     acknowledged that the Office of Enforcement Operations (OEO), 
     part of the Justice Department's Criminal Division, is 
     ``primarily responsible for the Department's statutory 
     wiretap authorizations.'' \37\ According to the letter, 
     lawyers in OEO review these wiretap packages to ensure that 
     they ``meet statutory requirements and DOJ policies.'' \38\ 
     When OEO completes its review of a wiretap package, federal 
     law provides that the Attorney General or his designee--in 
     practice, a Deputy Assistant Attorney General in the Criminal 
     Division--reviews and authorizes it.\39\ Each wiretap package 
     includes an affidavit which details the factual basis upon 
     which the authorization is sought. Each application for Fast 
     and Furious included a memorandum from Assistant Attorney 
     General Breuer to Paul O'Brien, Director of OEO, authorizing 
     the interception application.\40\
---------------------------------------------------------------------------
     \37\ Letter from Dep Att'y Gen. James M. Cole Chairman 
     Darrell Issa et al., at 6 (Jan. 27, 2012) [hereinafter Cole 
     Letter].
     \38\  Id.
     \39\ See 18 U.S.C. Sec. 2516(1).
     \40\ See, e.g., Memorandum from Lanny A. Breuer, Ass't Att'y 
     Gen., Criminal Division to Paul M. O'Brien, Director, Office 
     of Enforcement Operations, Criminal Division, Authorization 
     for Interception Order Application, Mar. 10, 2010.
---------------------------------------------------------------------------
       The Criminal Division's approval of the wiretap 
     applications in Fast and Furious violated Department of 
     Justice policy. The core mission of the Bureau of Alcohol, 
     Tobacco, Firearms, and Explosives is to ``protect[ ] our 
     communities from . . . the illegal use and trafficking of 
     firearms.'' \41\
---------------------------------------------------------------------------
     \41\ Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
     ``ATF's Mission,'' http://www.atf.gov/about/mission (last 
     visited May 1, 2012).
---------------------------------------------------------------------------
       The wiretap applications document the extensive involvement 
     of the Criminal Division in Fast and Furious. These 
     applications were constructed from raw data contained in 
     hundreds of Reports of Investigation (ROI); the Department of 
     Justice failed to produce any of these ROI in response to the 
     Committee's subpoena. The Criminal Division authorized Fast 
     and Furious wiretap applications on March 10, 2010; April 15, 
     2010; May 6, 2010; May 14, 2010; June 1, 2010; and July 1, 
     2010. Deputy Assistant Attorney General Jason Weinstein, 
     Deputy Assistant Attorney General Kenneth Blanco, and Deputy 
     Assistant Attorney General John Keeney signed these 
     applications on behalf of Assistant Attorney General Lanny 
     Breuer.

              E. The Office of the Deputy Attorney General

       The Office of the Deputy Attorney General (ODAG) maintained 
     close involvement in Operation Fast and Furious. In the 
     Justice Department, ATF reports to the Deputy Attorney 
     General (DAG).\42\ In practice, an official in the Office of 
     the Deputy Attorney General is responsible for managing the 
     ATF portfolio. This official monitors the operations of ATF, 
     and raises potential ATF issues to the attention of the 
     DAG.\43\ During the pendency of Fast and Furious, this 
     official was Associate Deputy Attorney General Edward Siskel.
---------------------------------------------------------------------------
     \42\ USDOJ: About Department of Justice Agencies, available 
     at http://www.justice.gov/agencies/index-org.html (last 
     visited May. 1, 2012).
     \43\ Transcribed Interview of Acting Dir. Kenneth Melson, at 
     25 (July 4, 2011).
---------------------------------------------------------------------------
       Officials in ODAG became familiar with Fast and Furious as 
     early as March 2010. On March 12, 2010, Siskel and then-
     Acting DAG Gary Grindler received an extensive briefing on 
     Fast and Furious during a monthly meeting with the ATF's 
     Acting Director and Deputy Director. This briefing presented 
     Grindler with overwhelming evidence of illegal straw 
     purchasing during Fast and Furious. The presentation included 
     a chart of the names of the straw purchasers, 31 in all, and 
     the number of weapons they had acquired to date, 1,026.\44\ 
     Three of these straw purchasers had already purchased over 
     100 weapons each, with one straw purchaser having already 
     acquired over 300 weapons. During this briefing, Grindler 
     learned that buyers had paid cash for every single gun.\45\
---------------------------------------------------------------------------
     \44\ ``Operation the Fast and the Furious,'' March 12, 2010 
     [HOGR 002820--HOGR 002823].
     \45\ Id.
---------------------------------------------------------------------------
       A map of Mexico detailed locations of recoveries of weapons 
     purchased through Fast and Furious, including some at crime 
     scenes.\46\ The briefing also covered the use of stash houses 
     where weapons bought during Fast and Furious were stored 
     before being transported to Mexico. Grindler learned of some 
     of the unique investigative techniques ATF was using during 
     Fast and Furious.\47\ Despite receiving all of this 
     information, then-Deputy Attorney General Gary Grindler did 
     not order Fast and Furious to be shut down, nor did he 
     follow-up with ATF or his staff about the investigation.
---------------------------------------------------------------------------
     \46\ Id.
     \47\ Id.
---------------------------------------------------------------------------
       Throughout the summer of 2010, ATF officials remained in 
     close contact with their ODAG supervisors regarding Fast and 
     Furious. Fast and Furious was a topic in each of the monthly 
     meetings between ATF and the DAG. ATF apprised Ed Siskel of 
     significant recoveries of Fast and Furious weapons, as well 
     as of notable progress in the investigation, and Siskel 
     indicated to ATF that he was monitoring it.\48\ In mid-
     December 2010, after Fast and Furious had been ongoing for 
     over a year, Grindler received more details about the 
     program. On December 15, 2010, Border Patrol Agent Brian 
     Terry was killed. Two Fast and Furious weapons were recovered 
     at the scene of his murder. Two days later, Associate Deputy 
     Attorney General Brad Smith sent Grindler and four ODAG 
     officials an e-mail detailing the circumstances of Terry's 
     murder and its connection to Fast and Furious.\49\ Smith 
     attached a four-page summary of the Fast and Furious 
     investigation.
---------------------------------------------------------------------------
     \48\ E-mail from Edward N. Siskel to Mark R. Chait (July 14, 
     2010) [HOGR 002847].
     \49\ E-mail from Assoc. Deputy Att'y Gen. Brad Smith to 
     Deputy Att'y Gen. Gary Grindler, et al. (Dec. 17, 2010) [HOGR 
     002875-002881].
---------------------------------------------------------------------------

   V. THE COMMITTEE'S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY GENERAL 
                                 HOLDER

       On October 12, 2011, the Committee issued a subpoena to 
     Attorney General Eric Holder, demanding documents related to 
     the Department of Justice's involvement with Operation Fast 
     and Furious. The subpoena was issued following six months of 
     constant refusals by the Justice Department to cooperate with 
     the Committee's investigation into Operation Fast and 
     Furious.

                  A. Events Leading Up to the Subpoena

       On March 16, 2011, Chairman Issa sent a letter to then-ATF 
     Acting Director Ken Melson asking for information and 
     documents pertaining to Operation Fast and Furious.\50\ Late 
     in the afternoon of March 30, 2011, the Department, on behalf 
     of ATF and Melson, informed the Committee that it would not 
     provide any documents pursuant to the letter. The Committee 
     informed the Department it planned to issue a subpoena. On 
     March 31, 2011, the Committee issued a subpoena to Ken Melson 
     for the documents.
---------------------------------------------------------------------------
     \50\ Letter from Chairman Darrell Issa to ATF Acting Dir. 
     Kenneth Melson (Mar. 16, 2011) [hereinafter Mar. 16 Letter].
---------------------------------------------------------------------------
       On May 2, 2011, Committee staff reviewed documents the 
     Department made available for in camera review at Department 
     headquarters. Many of these documents contained partial or 
     full redactions. Following this review, Chairman Issa wrote 
     to the Department on May 5, 2011, asking the Department to 
     produce all documents responsive to the Committee's subpoena 
     forthwith.\51\ That same day, senior Department officials met 
     with Committee staff and acknowledged ``there's a there, 
     there'' regarding the legitimacy of the congressional inquiry 
     into Fast and Furious.
---------------------------------------------------------------------------
     \51\ Letter from Chairman Darrell Issa to Att'y Gen. Eric 
     Holder (May 5, 2011).
---------------------------------------------------------------------------
       In spite of Chairman Issa's May 5, 2011, letter, during the 
     two months following the issuance of the subpoena, the 
     Department produced zero pages of non-public documents. On 
     June 8, 2011, the Committee again wrote to the Department 
     requesting complete production of all documents by June 10, 
     2011.\52\ The Department responded on June 10, 2011, stating 
     ``complete production of all documents by June 10, 2011, . . 
     . is not possible.'' \53\ At 7:49 p.m. that evening, just 
     three days before a scheduled Committee hearing on the 
     obligation of the Department of Justice to cooperate with 
     congressional oversight, the Department finally produced its 
     first non-public documents to the Committee, totaling 69 
     pages.\54\
---------------------------------------------------------------------------
     \52\ Letter from Chairman Darrell Issa to ATF Acting Dir. 
     Kenneth Melson (June 8, 2011).
     \53\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (June 10, 2011).
     \54\ Id.
---------------------------------------------------------------------------
       Over the next six weeks, through July 21, 2011, the 
     Department produced an additional 1,286 pages of documents. 
     The Department produced no additional documents until 
     September 1, 2011, when it produced 193 pages of

[[Page H4181]]

     documents.\55\ On September 30, 2011, the Department produced 
     97 pages of documents.\56\ On October 11, 2011, the 
     Department produced 56 pages of documents.\57\
---------------------------------------------------------------------------
     \55\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Sep. 1, 2011).
     \56\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa and Senator Charles Grassley (Sep. 30, 2011).
     \57\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Oct. 11, 2011) [hereinafter Oct. 11 Letter].
---------------------------------------------------------------------------
       Early in the investigation, the Committee received hundreds 
     of pertinent documents from whistleblowers. Many of the 
     documents the whistleblowers provided were not among the 
     2,050 pages that the Department had produced by October 11, 
     2011, demonstrating that the Department was withholding 
     materials responsive to the subpoena.
       The Committee requested additional documents from the 
     Department as the investigation proceeded during the summer 
     of 2011. On July 11, 2011, Chairman Issa and Senator Grassley 
     wrote to the Attorney General requesting documents from 
     twelve people in Justice Department headquarters pertaining 
     to Fast and Furious.\58\ The Justice Department first 
     responded to this letter on October 31, 2011, nearly four 
     months later.\59\
---------------------------------------------------------------------------
     \58\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to Att'y Gen. Eric Holder (July 11, 2011).
     \59\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Oct. 31, 2011) [hereinafter Oct. 31 Letter].
---------------------------------------------------------------------------
       On July 11, 2011, Chairman Issa and Senator Grassley sent a 
     letter to the FBI requesting documents relating to the FBI's 
     role in the Fast and Furious OCDETF investigation.\60\ The 
     letter requested information and documents pertaining to paid 
     FBI informants who were the target of the Fast and Furious 
     investigation. The FBI never produced any of the documents 
     requested in this letter.
---------------------------------------------------------------------------
     \60\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to FBI Dir. Robert Mueller (July 11, 2011) 
     [hereinafter Mueller Letter].
---------------------------------------------------------------------------
       On July 15, 2011, Chairman Issa and Senator Grassley sent a 
     letter to the DEA requesting documents pertaining to another 
     target of the Fast and Furious investigation.\61\ The DEA was 
     aware of this target before Fast and Furious became an OCDETF 
     case, a fact that raises serious questions about the lack of 
     information-sharing among Department components. Though DEA 
     responded to the letter on July 22, 2011, it, too, did not 
     provide any of the requested documents.\62\
---------------------------------------------------------------------------
     \61\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to DEA Adm'r Michele Leonhart (July 15, 2011).
     \62\ Letter from DEA Adm'r Michele Leonhart to Chairman 
     Darrell Issa and Senator Charles Grassley (July 22, 2011).
---------------------------------------------------------------------------
       On September 1, 2011, Chairman Issa and Senator Grassley 
     wrote to the Acting U.S. Attorney in Arizona requesting 
     documents and communications pertaining to Fast and 
     Furious.\63\ As the office responsible for leading Fast and 
     Furious, the Arizona U.S. Attorney's Office possesses a large 
     volume of documents relevant to the Committee's 
     investigation. The Department of Justice, on behalf of the 
     U.S. Attorney's Office for the District of Arizona, did not 
     respond to this letter until December 6, 2011, the eve of the 
     Attorney General's testimony before the House Judiciary 
     Committee.\64\
---------------------------------------------------------------------------
     \63\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to Acting U.S. Att'y Ann Scheel (Sep. 1, 2011).
     \64\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa and Senator Charles Grassley (Dec. 6, 2011) 
     [hereinafter Dec. 6 Letter].
---------------------------------------------------------------------------
       On September 27, 2011, Chairman Issa and Senator Grassley 
     sent a letter to the Attorney General raising questions about 
     information-sharing among Department components, the 
     Department's cooperation with Congress, and FBI documents 
     requested in the July 11, 2011, letter to FBI Director 
     Mueller.\65\ To date, the Department has not responded to 
     this letter.
---------------------------------------------------------------------------
     \65\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to Att'y Gen. Eric Holder (Sep. 27, 2011).
---------------------------------------------------------------------------
       The Department wrote to Chairman Issa on October 11, 2011, 
     stating it had ``substantially concluded [its] efforts to 
     respond to the Committee requests set forth in the subpoena 
     and the letter of June 8th.'' \66\ The letter further stated:
---------------------------------------------------------------------------
     \66\ Oct. 11 Letter, supra note 57.

       [O]ther documents have not been produced or made available 
     for these same reasons because neither redacting them nor 
     making them available for review (as opposed to production) 
     was sufficient to address our concerns. Our disclosure of the 
     vast majority of the withheld material is prohibited by 
     statute. These records pertain to matters occurring before a 
     grand jury, as well as investigative activities under seal or 
     the disclosure of which is prohibited by law . . . we also 
     have not disclosed certain confidential investigative and 
     prosecutorial documents, the disclosure of which would, in 
     our judgment, compromise the pending criminal investigations 
     and prosecution. These include core investigative and 
     prosecutorial material, such as Reports of Investigation and 
     drafts of court filings.
       Finally . . . we have also withheld internal communications 
     that were generated in the course of the Department's effort 
     to respond to congressional and media inquiries about 
     Operation Fast and Furious. These records were created in 
     2011, well after the completion of the investigative portion 
     of Operation Fast and Furious that the Committee has been 
     reviewing and after the charging decisions reflected in the 
     January 25, 2011, indictments. Thus, they were not part of 
     the communications regarding the development and 
     implementation of the strategy decisions that have not been 
     the focus of the Committee's inquiry . . . Disclosure would 
     have a chilling effect on agency officials' deliberations 
     about how to respond to inquiries from Congress or the media. 
     Such a chill on internal communications would interfere with 
     our ability to respond as effectively and efficiently as 
     possible to congressional oversight requests.\67\
---------------------------------------------------------------------------
     \67\ Id.

       The following day, on October 12, 2011, after the 
     Department announced its intention to cease producing 
     documents responsive to the Committee's March 31, 2011, 
     subpoena to Melson, the Committee issued a subpoena to 
     Attorney General Eric Holder demanding documents relating to 
     Fast and Furious.

                     B. Subpoena Schedule Requests

       In the weeks following the issuance of the subpoena, 
     Committee staff worked closely with Department lawyers to 
     provide clarifications about subpoena categories, and to 
     assist the Department in prioritizing documents for 
     production. Committee and Department staff engaged in 
     discussions spanning several weeks to enable the Department 
     to better understand what the Committee was specifically 
     seeking. During these conversations, the Committee clearly 
     articulated its investigative priorities as reflected in the 
     subpoena schedule. The Department memorialized these 
     priorities with specificity in an October 31, 2011, e-mail 
     from the Office of Legislative Affairs.\68\
---------------------------------------------------------------------------
     \68\ E-mail from Office of Leg. Affairs Staff, U.S. Dep't of 
     Justice, to Investigations Staff, H. Comm. on Oversight and 
     Gov't Reform (Oct. 31, 2011) [hereinafter OLA e-mail].
---------------------------------------------------------------------------
       Despite the Department's acknowledgement that it 
     understands what the Committee was seeking, it has yet to 
     provide a single document for 11 out of the 22 categories 
     contained in the subpoena schedule. The Department has not 
     adequately complied with the Committee's subpoena, and it has 
     unequivocally stated its refusal to comply with entire 
     categories of the subpoena altogether. In a letter to 
     Chairman Issa on May 15, 2012, the Department stated that it 
     had delivered or made available for review documents 
     responsive to 13 of the 22 categories of the subpoena.\69\
---------------------------------------------------------------------------
     \69\ Letter from Deputy Att'y Gen. James Cole to Chairman 
     Darrell Issa (May 15, 2012), at 4 [hereinafter May 15 Cole 
     Letter].
---------------------------------------------------------------------------
       A review of each of the 22 schedule categories in the 
     subpoena reflects the Department's clear understanding of the 
     documents sought by the Committee for each category. Below is 
     a listing of each category of the subpoena schedule, followed 
     by what the Department has explained is its understanding of 
     what the Committee is seeking for each category.
       1. All communications referring or relating to Operation 
     Fast and Furious, the Jacob Chambers case, or any Organized 
     Crime Drug Enforcement Task Force (OCDETF) firearms 
     trafficking case based in Phoenix, Arizona, to or from the 
     following individuals:
       a. Eric Holder, Jr., Attorney General;
       b. David Ogden, Former Deputy Attorney General;
       c. Gary Grindler, Office of the Attorney General and former 
     Acting Deputy Attorney General;
       d. James Cole, Deputy Attorney General;
       e. Lanny Breuer, Assistant Attorney General;
       f. Ronald Weich, Assistant Attorney General;
       g. Kenneth Blanco, Deputy Assistant Attorney General;
       h. Jason Weinstein, Deputy Assistant Attorney General;
       i. John Keeney, Deputy Assistant Attorney General;
       j. Bruce Swartz, Deputy Assistant Attorney General;
       k. Matt Axelrod, Associate Deputy Attorney General;
       l. Ed Siskel, former Associate Deputy Attorney General;
       m. Brad Smith, Office of the Deputy Attorney General;
       n. Kevin Carwile, Section Chief, Capital Case Unit, 
     Criminal Division;
       o. Joseph Cooley, Criminal Fraud Section, Criminal 
     Division; and,
       p. James Trusty, Acting Chief, Organized Crime and Gang 
     Section.
       Department Response: In late October 2011, the Department 
     acknowledged that it had ``already begun searches of some of 
     the custodians listed here relating to Fast and Furious, such 
     as in response to the Chairman's letter of 7/11/11.'' \70\ 
     Still, it has produced no documents since the issuance of the 
     subpoena pursuant to subpoena categories 1(a), 1(b), 1(g), 
     1(i), and 1(k), only two documents pursuant to subpoena 
     category 1(d), and very few documents pursuant to subpoena 
     category 1(j) and 1(l).
---------------------------------------------------------------------------
     \70\ OLA e-mail.
---------------------------------------------------------------------------
       2. All communications between and among Department of 
     Justice (DOJ) employees and Executive Office of the President 
     employees, including but not limited to Associate 
     Communications Director Eric Schultz, referring or relating 
     to Operation Fast and Furious or any other firearms 
     trafficking cases.
       Department Response: The Department acknowledged that the 
     Committee identified several people likely to be custodians 
     of

[[Page H4182]]

     these documents.\71\ Though the Department has stated it has 
     produced documents pursuant to this subpoena category, the 
     Committee has not found any documents produced by the 
     Department responsive to this subpoena category.\72\
---------------------------------------------------------------------------
     \71\ Id.
     \72\ May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
       3. All communications between DOJ employees and Executive 
     Office of the President employees referring or relating to 
     the President's March 22, 2011, interview with Jorge Ramos of 
     Univision.
       Department Response: The Department represented that it 
     would ``check on communications with WH Press Office in the 
     time period preceding the President's 3/22/11 interview,'' 
     and that it had identified the most likely custodians of 
     those documents.\73\ Nonetheless, it has produced no 
     documents responsive to this subpoena category. The 
     Department has not informed the Committee that no documents 
     exist responsive to this schedule number.
---------------------------------------------------------------------------
     \73\ Id.
---------------------------------------------------------------------------
       4. All documents and communications referring or relating 
     to any instances prior to February 4, 2011, where the Bureau 
     of Alcohol, Tobacco, Firearms and Explosives (ATF) failed to 
     interdict weapons that had been illegally purchased or 
     transferred.
       Department Response: The Department has produced some 
     documents responsive to this subpoena category.
       5. All documents and communications referring or relating 
     to any instances prior to February 4, 2011, where ATF broke 
     off surveillance of weapons and subsequently became aware 
     that those weapons entered Mexico.
       Department Response: The Department has produced documents 
     responsive to this subpoena category.
       Most of the responsive documents the Department has 
     produced pursuant to the subpoena pertain to categories 4 and 
     5 and relate to earlier cases the Department has described as 
     involving gunwalking. The Department produced these documents 
     strategically, advancing its own narrative about why Fast and 
     Furious was neither an isolated nor a unique program. It has 
     attempted to accomplish this objective by simultaneously 
     producing documents to the media and the Committee.
       6. All documents and communications referring or relating 
     to the murder of Immigrations and Customs Enforcement Agent 
     Jaime Zapata, including, but not limited to, documents and 
     communications regarding Zapata's mission when he was 
     murdered, Form for Reporting Information That May Become 
     Testimony (FD-302), photographs of the crime scene, and 
     investigative reports prepared by the FBI.
       Department Response: The Department ``understand[s] that 
     the Zapata family has complained that they've been `kept in 
     the dark' about this matter'' which necessitated this 
     subpoena category.\74\ The Department ``conferred with the 
     U.S. Attorney's Office . . . which we hope will be helpful to 
     them and perhaps address the concerns that are the basis of 
     this item.'' \75\ Though the Department has stated it has 
     produced documents pursuant to this subpoena category, the 
     Committee has not found any documents produced by the 
     Department responsive to this subpoena category.\76\
---------------------------------------------------------------------------
     \74\ Id.
     \75\ Id.
     \76\ May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
       In late February 2012, press accounts revealed that 
     prosecutors had recently sentenced a second individual in 
     relation to the murder of Immigration and Customs Enforcement 
     (ICE) Agent Jaime Zapata. One news article stated that 
     ``[n]obody was more astonished to learn of the case than 
     Zapata's parents, who didn't know that [the defendant] had 
     been arrested or linked to their son's murder.'' \77\ Press 
     accounts alleged that the defendant had been ``under ATF 
     surveillance for at least six months before a rifle he 
     trafficked was used in Zapata's murder''--a situation similar 
     to what took place during Fast and Furious.\78\ Despite this 
     revelation, the Department failed to produce any documents 
     responsive to this subpoena category.
---------------------------------------------------------------------------
     \77\ Sharyl Attkisson, Second gun used in ICE agent murder 
     linked to ATF undercover operation, (Feb. 22, 2012, 5:29 
     P.M.), http://www.cbsnews.com/8301-31727_162-57383089-
10391695/second-gun-used-in-ice-agent-murder-linked-to-atf-
undercover-operation/.
     \78\ Id.
---------------------------------------------------------------------------
       7. All communications to or from William Newell, former 
     Special Agent-in-Charge for ATF's Phoenix Field Division, 
     between:
       a. December 14, 2010 to January 25, 2011; and,
       b. March 16, 2009 to March 19, 2009.
       Department Response: The Department has not produced any 
     documents responsive to subpoena category 7(b), despite its 
     understanding that the Committee sought documents pertaining 
     ``to communications with [Executive Office of the President] 
     staff regarding gun control policy'' within a specific and 
     narrow timeframe.\79\ The Department has not informed the 
     Committee that no documents exist responsive to this schedule 
     number.
---------------------------------------------------------------------------
     \79\ OLA e-mail, supra note 68.
---------------------------------------------------------------------------
       8. All Reports of Investigation (ROIs) related to Operation 
     Fast and Furious or ATF Case Number 785115-10-0004.
       Department Response: Department representatives contended 
     that this subpoena category ``presents some significant 
     issues for'' the Department due to current and potential 
     future indictments.\80\ The Department has not produced any 
     documents responsive to this subpoena category. The 
     Department has not informed the Committee that no documents 
     exist responsive to this schedule number.
---------------------------------------------------------------------------
     \80\ Id.
---------------------------------------------------------------------------
       9. All communications between and among Matt Axelrod, 
     Kenneth Melson, and William Hoover referring or relating to 
     ROIs identified pursuant to Paragraph 8.
       Department Response: The Department acknowledged its 
     understanding that this request specifically pertained to 
     ``emails Ken sent to Matt and Billy, expressing concerns, 
     perhaps in March 2011, [that] are core to [the Committee's] 
     work, and we'll look at those.'' \81\ Still, it has produced 
     no documents pursuant to this subpoena category. The 
     Department has not informed the Committee that no documents 
     exist responsive to this schedule number.
---------------------------------------------------------------------------
     \81\ Id.
---------------------------------------------------------------------------
       10. All documents and communications between and among 
     former U.S. Attorney Dennis Burke, Attorney General Eric 
     Holder, Jr., former Acting Deputy Attorney General Gary 
     Grindler, Deputy Attorney General James Cole, Assistant 
     Attorney General Lanny Breuer, and Deputy Assistant Attorney 
     General Jason Weinstein referring or relating to Operation 
     Fast and Furious or any OCDETF case originating in Arizona.
       Department Response: The Department has produced some 
     documents responsive to this subpoena category.
       A complete production of these documents is crucial to 
     allow Congress to understand how senior Department officials 
     came to know that the February 4, 2011, letter to Senator 
     Grassley was false, why it took so long for the Department to 
     withdraw the letter despite months of congressional pressure 
     to do so, and why the Department obstructed the congressional 
     investigation for nearly a year. These documents will show 
     the reactions of top officials when confronted with evidence 
     about gunwalking in Fast and Furious. The documents will also 
     show whether these officials knew about, or were surprised to 
     learn of, the gunwalking. Additionally, these documents will 
     reveal the identities of Department officials who 
     orchestrated various forms of retaliation against the 
     whistleblowers.
       11. All communications sent or received between:
       a. December 16, 2009 and December 18, 2009; and,
       b. March 9, 2011, and March 14, 2011, to or from the 
     following individuals:
       i. Emory Hurley, Assistant U.S. Attorney, Office of the 
     U.S. Attorney for the District of Arizona;
       ii. Michael Morrissey, Assistant U.S. Attorney, Office of 
     the U.S. Attorney for the District of Arizona;
       iii. Patrick Cunningham, Chief, Criminal Division, Office 
     of the U.S. Attorney for the District of Arizona;
       iv. David Voth, Group Supervisor, ATF; and,
       v. Hope MacAllister, Special Agent, ATF.
       Department Response: The Department acknowledged that it 
     ``will first search these custodians for records re a) the 
     Howard meeting in 12/09; and b) the ROI or memo that was 
     written during this time period relating to the Howard mtng 
     in 12/09.'' \82\ Although the Department has produced 
     documents that are purportedly responsive to this category, 
     these documents do not pertain to the subject matter that the 
     Department understands that the Committee is seeking.
---------------------------------------------------------------------------
     \82\ Id.
---------------------------------------------------------------------------
       12. All communications sent or received between December 
     15, 2010, and December 17, 2010, to or from the following 
     individuals in the U.S. Attorney's Office for the District of 
     Arizona:
       a. Dennis Burke, former United States Attorney;
       b. Emory Hurley, Assistant United States Attorney;
       c. Michael Morrissey, Assistant United States Attorney; 
     and,
       d. Patrick Cunningham, Chief of the Criminal Division.
       Department Response: The Department understood that the 
     Committee's ``primary interest here is in the communications 
     during this time period that relate to the Terry death and, 
     per our conversation, we will start with those.'' \83\ 
     Although the Department has produced some documents 
     responsive to this subpoena category, it has not represented 
     that it has produced all responsive documents in this 
     category.
---------------------------------------------------------------------------
     \83\ Id.
---------------------------------------------------------------------------
       13. All communications sent or received between August 7, 
     2009, and March 19, 2011, between and among former Ambassador 
     to Mexico Carlos Pascual; Assistant Attorney General Lanny 
     Breuer; and Deputy Assistant Attorney General Bruce Swartz.
       Department Response: The Department acknowledged that it 
     ``understand[s] the Committee's focus here is Firearms 
     Trafficking issues along the SW Border, not limited to Fast & 
     Furious.'' \84\ The Department has produced some documents 
     responsive to this subpoena category.
---------------------------------------------------------------------------
     \84\ Id.
---------------------------------------------------------------------------
       14. All communications sent or received between August 7, 
     2009, and March 19, 2011, between and among former Ambassador 
     to Mexico Carlos Pascual and any Department of Justice 
     employee based in Mexico City referring or relating to 
     firearms trafficking initiatives, Operation Fast and Furious 
     or

[[Page H4183]]

     any firearms trafficking case based in Arizona, or any visits 
     by Assistant Attorney General Lanny Breuer to Mexico.
       Department Response: The Department has produced only a 
     handful of pages responsive to this subpoena category, even 
     though it ``understand[s] that [the Committee] wants [the 
     Department] to approach this effort with efficiency.'' \85\ 
     Despite the Committee's request for an efficient effort, the 
     Department produced a key document regarding Attorney General 
     Lanny Breuer three and a half months after the subpoena was 
     issued, after several previous document productions, and long 
     after Breuer testified before Congress and could be 
     questioned about the document. Given the importance of the 
     contents of the document and the request for an efficient 
     effort on the part of the Department in this subpoena 
     category, it is inconceivable that the Department did not 
     discover this document months prior to its production. The 
     Department's actions suggest that it kept this document 
     hidden for strategic and public relations reasons.
---------------------------------------------------------------------------
     \85\ Id.
---------------------------------------------------------------------------
       15. Any FD-302 relating to targets, suspects, defendants, 
     or their associates, bosses, or financiers in the Fast and 
     Furious investigation, including but not limited to any FD-
     302s ATF Special Agent Hope MacAllister provided to ATF 
     leadership during the calendar year 2011.
       Department Response: The Department ``understand[s] that 
     [the Committee's] primary focus here is the 5 FBI 302s that 
     were provided to SA MacAllister, which she later gave to 
     Messrs. Hoover and Melson.'' \86\ Despite the specificity of 
     this document request, the Department has not produced any 
     documents responsive to this schedule number. The Department 
     has not informed the Committee that no documents exist 
     responsive to this schedule number.
---------------------------------------------------------------------------
     \86\ Id.
---------------------------------------------------------------------------
       16. Any investigative reports prepared by the FBI or Drug 
     Enforcement Administration (DEA) referring or relating to 
     targets, suspects, or defendants in the Fast and Furious 
     case.
       Department Response: The Department was ``uncertain about 
     the volume here,'' regarding the amount of documents, and 
     pledged to ``work[ ] on this [with] DEA and FBI.'' \87\ 
     Despite this pledge, it has produced no documents responsive 
     to this subpoena category. The Department has not informed 
     the Committee that no documents exist responsive to this 
     schedule number.
---------------------------------------------------------------------------
     \87\ Id.
---------------------------------------------------------------------------
       17. Any investigative reports prepared by the FBI or DEA 
     relating to the individuals described to Committee staff at 
     the October 5, 2011, briefing at Justice Department 
     headquarters as Target Number 1 and Target Number 2.
       Department Response: The Department acknowledged that it 
     ``think[s] we understand this item.'' \88\ Despite this 
     understanding, it has produced no documents responsive to 
     this subpoena category. The Department has not informed the 
     Committee that no documents exist responsive to this schedule 
     number.
---------------------------------------------------------------------------
     \88\ Id.
---------------------------------------------------------------------------
       18. All documents and communications in the possession, 
     custody or control of the DEA referring or relating to Manuel 
     Fabian Celis-Acosta.
       Department Response: The Department agreed to ``start with 
     records regarding information that DEA shared with ATF about 
     Acosta, which we understand to be the focus of your interest 
     in this item.'' \89\ Despite this understanding, the 
     Department has produced no documents responsive to this 
     subpoena category. The Department has not informed the 
     Committee that no documents exist responsive to this schedule 
     number.
---------------------------------------------------------------------------
     \89\ Id.
---------------------------------------------------------------------------
       19. All documents and communications between and among FBI 
     employees in Arizona and the FBI Laboratory, including but 
     not limited to employees in the Firearms/Toolmark Unit, 
     referring or relating to the firearms recovered during the 
     course of the investigation of Brian Terry's death.
       Department Response: The Department's understanding was 
     that ``[the Committee's] focus here is how evidence was 
     tagged at the scene of Agent Terry's murder, how evidence was 
     processed, how the FBI ballistics report was prepared and 
     what it means.'' \90\ Despite this clear understanding, the 
     Department has produced no documents responsive to this 
     subpoena category. The Department has not informed the 
     Committee that no documents exist responsive to this schedule 
     number.
---------------------------------------------------------------------------
     \90\ Id.
---------------------------------------------------------------------------
       20. All agendas, meeting notes, meeting minutes, and 
     follow-up reports for the Attorney General's Advisory 
     Committee of U.S. Attorneys between March 1, 2009, and July 
     31, 2011, referring or relating to Operation Fast and 
     Furious.
       Department Response: This category asks for documents from 
     the Attorney General's Advisory Committee within a clearly 
     specified date range. Despite the fact that the Department 
     has acknowledged this category ``is clear,'' the Department 
     has produced no documents responsive to this subpoena 
     category.\91\ The Department has not informed the Committee 
     that no documents exist responsive to this schedule number.
---------------------------------------------------------------------------
     \91\ Id.
---------------------------------------------------------------------------
       21. All weekly reports and memoranda for the Attorney 
     General, either directly or through the Deputy Attorney 
     General, from any employee in the Criminal Division, ATF, 
     DEA, FBI, or the National Drug Intelligence Center created 
     between November 1, 2009 and September 30, 2011.
       Department Response: This category asks for weekly reports 
     and memoranda to the Attorney General from five different 
     Department components ``regarding ATF cases re firearms 
     trafficking.'' \92\ The Department has produced some 
     documents responsive to this subpoena category.
---------------------------------------------------------------------------
     \92\ Id.
---------------------------------------------------------------------------
       22. All surveillance tapes recorded by pole cameras inside 
     the Lone Wolf Trading Co. store between 12:00 a.m. on October 
     3, 2010, and 12:00 a.m. on October 7, 2010.
       Department Response: This category asks for all ATF 
     surveillance tapes from Lone Wolf Trading Company between two 
     specified dates in October 2010. Both the Committee and the 
     Department ``understand a break-in occurred'' at that 
     time.\93\ The Department has produced no documents responsive 
     to this subpoena category. The Department has not informed 
     the Committee that no documents exist responsive to this 
     schedule number.
---------------------------------------------------------------------------
     \93\ Id.
---------------------------------------------------------------------------

 C. Attempts of Accommodation by the Committee, Lack of Compliance by 
                         the Justice Department

       In public statements, the Department has maintained that it 
     remains committed to ``work[ing] to accommodate the 
     Committee's legitimate oversight needs.'' \94\ The 
     Department, however, believes it is the sole arbiter of what 
     is ``legitimate.'' In turn, the Committee has gone to great 
     lengths to accommodate the Department's interests as an 
     Executive Branch agency. Unfortunately, the Department's 
     actions have not matched its rhetoric. Instead, it has chosen 
     to prolong the investigation and impugn the motives of the 
     Committee. A statement the Attorney General made at the 
     February 2, 2012, hearing was emblematic of the Department's 
     posture with respect to the investigation:
---------------------------------------------------------------------------
     \94\ Fast and Furious: Management Failures at the Department 
     of Justice: Hearing Before the H. Comm. on Oversight and 
     Gov't Reform, 112th Cong. (Feb. 2, 2012) (Statement of Hon. 
     Eric H. Holder, Jr., Att'y Gen. of the U.S.).

       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.\95\
---------------------------------------------------------------------------
     \95\ Id.

       This attitude with respect to a legitimate congressional 
     inquiry has permeated the Department's ranks. Had the 
     Department demonstrated a willingness to cooperate with this 
     investigation from the outset--instead of attempting to cover 
     up its own internal mismanagement--this investigation likely 
     would have concluded well before the election year even 
     began. The Department has intentionally withheld documents 
     for months, only to release a selected few on the eve of the 
     testimony of Department officials.\96\ The Department has 
     impeded the ability of a co-equal branch of government to 
     perform its constitutional duty to conduct Executive Branch 
     oversight. By any measure, it has obstructed and slowed the 
     Committee's work.
---------------------------------------------------------------------------
     \96\ On Friday January 27, 2012, just days before the 
     Attorney General testified before Congress, documents were 
     delivered to the Senate Judiciary Committee so late in the 
     evening that a disc of files had to be slipped under the 
     door. This is not only an extreme inconvenience for 
     congressional staff but also deprives staff of the ability to 
     review the materials in a timely manner.
---------------------------------------------------------------------------
       The Committee has been unfailingly patient in working with 
     Department representatives to obtain information the 
     Committee requires to complete its investigation. The 
     Department's progress has been unacceptably slow in 
     responding to the October 12, 2011, subpoena issued to the 
     Attorney General. Complying with the Committee's subpoena is 
     not optional. Indeed, the failure to produce documents 
     pursuant to a congressional subpoena is a violation of 
     federal law.\97\ Because the Department has not cited any 
     legal authority as the basis for withholding documents 
     pursuant to the subpoena its efforts to accommodate the 
     Committee's constitutional obligation to conduct oversight of 
     the Executive Branch are incomplete.
---------------------------------------------------------------------------
     \97\ 2 U.S.C. 192 states, in pertinent part:
     Every person who having been summoned as a witness by the 
     authority of either House of Congress to give testimony or to 
     produce papers upon any matter under inquiry before . . . any 
     committee of either House of Congress, willfully makes 
     default . . . shall be deemed guilty of a misdemeanor, 
     punishable by a fine of not more than $1,000 nor less than 
     $100 and imprisonment in a common jail for not less than one 
     month nor more than twelve months.
---------------------------------------------------------------------------


                          1. In Camera Reviews

       In an attempt to accommodate the Justice Department's 
     interests, Committee staff has viewed documents responsive to 
     the subpoena that the Department has identified as sensitive 
     in camera at Department headquarters. Committee staff has 
     visited the Department on April 12, May 4, June 17, October 
     12, and November 3, 2011, as well as on January 30 and 
     February 27, 2012 to view these documents. Many of the 
     documents made available for in camera review, however, have 
     been repetitive in nature. Many other documents seemingly do 
     not contain any sensitive parts that require them to be 
     viewed in camera. Other documents are altogether non-
     responsive to the subpoena.
       Committee staff has spent dozens of hours at Department 
     headquarters reviewing these

[[Page H4184]]

     documents. In addition, the Department has identified 
     hundreds of other sensitive documents responsive to the 
     subpoena, which it refuses to make available even for in 
     camera review, instead withholding them from the Committee 
     altogether. The Committee has made these accommodations to 
     the Department at the expense of not being able to make these 
     documents available for review by Committee Members.


                         2. Redacted Documents

       The Department has redacted varying portions of many of the 
     documents it has produced. These redactions purportedly 
     protect ongoing criminal investigations and prosecutions, as 
     well as other sensitive data. The Department has so heavily 
     redacted some documents produced to Congress that they are 
     unintelligible. There appears to be no objective, consistent 
     criteria delineating why some documents were redacted, only 
     provided in camera, or withheld entirely.
       On the evening of May 2, 2011, Department of Justice 
     representatives notified the Committee that the Department 
     was planning to make approximately 400 pages of documents 
     available for an in camera review at its headquarters.\98\ 
     Committee staff went to review those documents on May 4, 
     2011, only to discover they were partially, or in some cases 
     almost completely, redacted. Since these documents were only 
     made available pursuant to Committee's first subpoena and 
     only on an in camera basis, redactions were inappropriate and 
     unnecessary.
---------------------------------------------------------------------------
     \98\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (May 2, 2011).
---------------------------------------------------------------------------
       On June 14, 2011, the Department produced 65 pages of 
     documents to the Committee in a production labeled ``Batch 
     4.'' \99\ Of these 65 pages, every single one was at least 
     partially redacted, 44 were completely redacted, and 61 had 
     redactions covering more than half of the page.
---------------------------------------------------------------------------
     \99\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (June 14, 2011).
---------------------------------------------------------------------------
       On July 18, 2011, after more than a month of discussions 
     between Committee and Department staff, the Department 
     finally included a redaction code that identifies the reason 
     for each redaction within a document.\100\ While the 
     Department has used this redaction code in subsequent 
     document productions to the Committee, documents produced and 
     redacted prior to July 18, 2011, do not have the benefit of 
     associated redaction codes for each redaction.
---------------------------------------------------------------------------
     \100\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (July 18, 2011).
---------------------------------------------------------------------------
       The Department has over-redacted certain documents. The 
     Committee has obtained many of these documents through 
     whistleblowers and has compared some of them with those 
     produced by the Department. In some instances, the Department 
     redacted more text than necessary, making it unnecessarily 
     difficult and sometimes impossible for the Committee, absent 
     the documents provided by whistleblowers, to investigate 
     decisions made by Department officials.
       Further, any documents made available pursuant to the 
     Committee's subpoenas must not have any redactions. To fully 
     and properly investigate the decisions made by Department 
     officials during Fast and Furious, the Committee requires 
     access to documents in their entirety. The Department has not 
     complied with this requirement.
       The Committee does recognize the importance of privacy 
     interests and other legitimate reasons the Department has for 
     redacting portions of documents produced to the Committee. 
     The Committee has attempted to accommodate the Department's 
     stated concerns related to documents it believes are 
     sensitive. The Committee intended to release 230 pages of 
     documents in support of its July 26, 2011, report entitled 
     The Department of Justice's Operation Fast and Furious: 
     Fueling Cartel Violence, and gave the Department an 
     opportunity to suggest its own redactions before the 
     documents became public.\101\ These actions are consistent 
     with the Committee's willingness to accommodate the 
     Department's interests.
---------------------------------------------------------------------------
     \101\ E-mail from Office of Leg. Affairs Staff, U.S. Dep't of 
     Justice, to Staff, H. Comm. on Oversight and Gov't Reform 
     (July 28, 2011).
---------------------------------------------------------------------------


                            3. Privilege Log

       Mindful of the Justice Department's prerogatives as an 
     Executive Branch agency, the Committee has offered the 
     opportunity for the Department to prepare a privilege log of 
     documents responsive to the subpoena but withheld from 
     production. A privilege log would outline the documents 
     withheld and the specific grounds for withholding. Such a log 
     would serve as the basis for negotiation between the 
     Committee and the Department about prioritizing the documents 
     for potential production.
       On January 31, 2012, Chairman Issa wrote to the Attorney 
     General. He said:

       Should you choose to continue to withhold documents 
     pursuant to the subpoena, you must create a detailed 
     privilege log explaining why the Department is refusing to 
     produce each document. If the Department continues to 
     obstruct the congressional inquiry by not providing documents 
     and information, this Committee will have no alternative but 
     to move forward with proceedings to hold you in contempt of 
     Congress.\102\
---------------------------------------------------------------------------
     \102\ Letter from Chairman Darrell Issa to Att'y Gen. Eric 
     Holder (Jan. 31, 2012) [hereinafter Jan. 31 Letter].

       On February 14, 2012, Chairman Issa again wrote to the 
---------------------------------------------------------------------------
     Attorney General. He said:

       We cannot wait any longer for the Department's cooperation. 
     As such please specify a date by which you expected the 
     Department to produce all documents responsive to the 
     subpoena. In addition, please specify a Department 
     representative who will interface with the Committee for 
     production purposes . . . This person's primary 
     responsibility should be to identify for the Committee all 
     documents the Department has determined to be responsive to 
     the subpoena but is refusing to produce, and should provide a 
     privilege log of the documents delineating why each one is 
     being withheld from Congress. Please direct this individual 
     to produce this log to the Committee without further 
     delay.\103\
---------------------------------------------------------------------------
     \103\ Letter from Chairman Darrell Issa to Att'y Gen. Eric 
     Holder (Feb. 14, 2012) (emphasis in original) [hereinafter 
     Feb. 14 Letter].

       On several occasions, Committee staff has asked the 
     Department to provide such a privilege log, including a 
     listing, category-by-category, of documents the Department 
     has located pursuant to the subpoena and the reason the 
     Department will not produce those documents. Despite these 
     requests, however, the Department has neither produced a 
     privilege log nor responded to this aspect of Chairman Issa's 
     letters of January 31, 2012, and February 14, 2012.
       The Department has not informed the Committee that it has 
     been unable to locate certain documents. This suggests that 
     the Department is not producing responsive documents in its 
     possession. Since the Department will not produce a privilege 
     log, it has failed to make a good faith effort to accommodate 
     the Committee's legitimate oversight interests.


                    4. Assertions of Non-Compliance

       The Committee's investigation into Operation Fast and 
     Furious is replete with instances in which the Justice 
     Department has openly acknowledged it would not comply with 
     the Committee's requests. These pronouncements began with the 
     March 31, 2011, subpoena to the former Acting ATF Director, 
     continued through the Committee's October 12, 2011, subpoena 
     to the Attorney General, and persist to this day.
     (a) March 31, 2011, Subpoena
       On March 16, 2011, Chairman Issa sent a letter to the then-
     Acting ATF Director requesting documents about Fast and 
     Furious.\104\ As part of this request, Chairman Issa asked 
     for a ``list of individuals responsible for authorizing the 
     decision to `walk' guns to Mexico in order to follow them and 
     capture a `bigger fish.' '' \105\ On the afternoon of March 
     30, 2011, the deadline given in Chairman Issa's letter, 
     Department staff participated in a conference call with 
     Committee staff. During that call, Department staff expressed 
     a lack of understanding over the meaning of the word 
     ``list.'' \106\ Department officials further informed 
     Committee staff that the Department would not produce 
     documents by the deadline and were uncertain when they would 
     produce documents in the future. Committee staff understood 
     this response to mean the Department did not intend to 
     cooperate with the Committee's investigation.
---------------------------------------------------------------------------
     \104\ Mar. 16 Letter, supra note 50.
     \105\ Id.
     \106\ Teleconference between Committee Staff and U.S. Dep't 
     of Justice Office of Leg. Affairs Staff (Mar. 30, 2011).
---------------------------------------------------------------------------
       The next day Chairman Issa authorized a subpoena for the 
     Acting ATF Director. The following day, the Department wrote 
     to Chairman Issa. Assistant Attorney General Ronald Weich 
     wrote:

       As you know, the Department has been working with the 
     Committee to provide documents responsive to its March 16 
     request to the Bureau of Alcohol, Tobacco, Firearms and 
     Explosives. Yesterday, we informed Committee staff that we 
     intended to produce a number of responsive documents within 
     the next week. As we explained, there are some documents that 
     we would be unable to provide without compromising the 
     Department's ongoing criminal investigation into the death of 
     Agent Brian Terry as well as other investigations and 
     prosecutions, but we would seek to work productively with the 
     Committee to find other ways to be responsive to its 
     needs.\107\
---------------------------------------------------------------------------
     \107\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Apr. 1, 2011).

       Despite the Department's stated intention to produce 
     documents within the next week, it produced no documents for 
     over two months, until June 10, 2011. In the interim, the 
     Department made little effort to work with the Committee to 
     define the scope of the documents required by the subpoena.
       On April 8, 2011, the Department wrote to Chairman Issa to 
     inform the Committee that it had located documents responsive 
     to the subpoena. Assistant Attorney General Weich wrote that 
     the Department did not plan to share many of these materials 
     with the Committee. His letter stated:

       To date, our search has located several law enforcement 
     sensitive documents responsive to the requests in your letter 
     and the subpoena. We have substantial confidentiality 
     interests in these documents because they contain information 
     about ATF strategies and procedures that could be used by 
     individuals seeking to evade our law enforcement efforts. We 
     are prepared to make these documents, with some redactions, 
     available for review by Committee staff at the Department. 
     They will bear redactions to protect

[[Page H4185]]

     information about ongoing criminal investigations, 
     investigative targets, internal deliberations about law 
     enforcement options, and communications with foreign 
     government representatives. In addition, we notified 
     Committee staff that we have identified certain publicly 
     available documents that are responsive. While our efforts to 
     identify responsive documents are continuing, many of your 
     requests seek records relating to ongoing criminal 
     investigations. Based upon the Department's longstanding 
     policy regarding the confidentiality of ongoing criminal 
     investigations, we are not in a position to disclose such 
     documents, nor can we confirm or deny the existence of 
     records in our ongoing investigative files. This policy is 
     based on our strong need to protect the independence and 
     effectiveness of our law enforcement efforts.\108\
---------------------------------------------------------------------------
     \108\ Letter from Ass't Atty'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Apr. 8, 2011).

       The letter cited prior Department policy in support of its 
---------------------------------------------------------------------------
     position of non-compliance:

       We are dedicated to holding Agent Terry's killer or killers 
     responsible through the criminal justice process that is 
     currently underway, but we are not in a position to provide 
     additional information at this time regarding this active 
     criminal investigation for the reasons set forth above. . . 
     .\109\
---------------------------------------------------------------------------
     \109\ Id.

       On June 14, 2011, after the Department had produced 194 
     pages of non-public documents pursuant to the subpoena, the 
     Department informed the Committee that it was deliberately 
---------------------------------------------------------------------------
     withholding certain documents:

       As with previous oversight matters, we have not provided 
     access to documents that contain detailed information about 
     our investigative activities where their disclosure would 
     harm our pending investigations and prosecutions. This 
     includes information that would identify investigative 
     subjects, sensitive techniques, anticipated actions, and 
     other details that would assist individuals in evading our 
     law enforcement efforts. Our judgments begin with the premise 
     that we will disclose as much as possible that is responsive 
     to the Committee's interests, consistent with our 
     responsibilities to bring to justice those who are 
     responsible for the death of Agent Terry and those who 
     violate federal firearms laws.\110\
---------------------------------------------------------------------------
     \110\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Apr. 8, 2011).

       The June 14, 2011, letter arrived one day after the 
     Committee held a hearing featuring constitutional experts 
     discussing the legal obligations of the Department to comply 
     with a congressional subpoena. The Department's letter did 
     not address the views expressed at the hearing, instead 
     reiterating its internal policy. The letter noted that the 
     Department would not provide access to documents discussing 
     its use of ``sensitive techniques''--even though these 
     techniques were central to the Committee's investigation.
       On July 5, 2011, Chairman Issa and Senator Grassley wrote 
     to the Department about serious issues involving the lack of 
     information sharing among Department components, in 
     particular, between the FBI and DEA.\111\ These issues raised 
     the possibility that the Department had been deliberately 
     concealing information about Fast and Furious from the 
     Committee, including the roles of its component agencies. The 
     next day, the Department responded. It wrote:
---------------------------------------------------------------------------
     \111\ Letter from Chairman Darrell Issa and Senator Charles 
     Grassley to Att'y Gen. Eric Holder (July 5, 2011).

       Your letter raises concerns about the alleged role of other 
     agencies in matters that you say touch on Operation Fast and 
     Furious. Chairman Issa's staff previously raised this issue 
     with representatives of the Department and it is my 
     understanding that discussions about whether and how to 
     provide any such sensitive law enforcement information have 
     been ongoing. . . .\112\
---------------------------------------------------------------------------
     \112\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa and Senator Charles Grassley (July 6, 2011).

       On July 11, 2011, Chairman Issa and Senator Grassley wrote 
     to the FBI requesting information on the issue of information 
     sharing within the Department. The letter included a request 
     for information relating to the murder of Immigrations and 
     Customs Enforcement Agent Jaime Zapata.\113\ On August 12, 
     2011, the FBI responded. It wrote:
---------------------------------------------------------------------------
     \113\ Mueller Letter, supra note 60.

       Your letter also asks for specific information related to 
     the crime scene and events leading to the murder of ICE Agent 
     Jaime Zapata in Mexico on February 15, 2011. As you know, 
     crime scene evidence and the circumstances of a crime are 
     generally not made public in an ongoing investigation. 
     Furthermore, the investigative reports of an ongoing 
     investigation are kept confidential during the investigation 
     to preserve the integrity of the investigation and to ensure 
     its successful conclusion. We regret that we cannot provide 
     more details about the investigation at this time, but we 
     need to ensure all appropriate steps are taken to protect the 
     integrity of the investigation.\114\
---------------------------------------------------------------------------
     \114\ Letter from Stephen Kelley, Ass't Dir., FBI Office of 
     Congressional Affairs, to Chairman Darrell Issa and Senator 
     Charles Grassley (Aug. 12, 2011).

       The FBI did not provide any documents to the Committee 
     regarding the information sharing issues raised, though it 
     did offer to provide a briefing to staff. It delivered that 
     briefing nearly two months later, on October 5, 2011.
       On October 11, 2011, the Department wrote to Chairman Issa. 
     The Department stated:

       We believe that we have now substantially concluded our 
     efforts to respond to the Committee requests set forth in the 
     subpoena and the letter of June 8th.\115\
---------------------------------------------------------------------------
     \115\ Oct. 11 Letter, supra note 57.

       The Department was well aware that the Committee was 
     struggling to understand how the Department created its 
     February 4, 2011, letter to Senator Grassley, which the 
     Committee believed to contain false information. To that end, 
---------------------------------------------------------------------------
     the Department stated:

       As we have previously explained to Committee staff, we have 
     also withheld internal communications that were generated in 
     the course of the Department's effort to respond to 
     congressional and media inquiries about Operation Fast and 
     Furious. These records were created in 2011, well after the 
     completion of the investigative portion of Operation Fast and 
     Furious that the Committee has been reviewing and after the 
     charging decisions reflected in the January 25, 2011, 
     indictments. Thus, they were not part of the communications 
     regarding the development and implementation of the strategy 
     decisions that have been the focus of the Committee's 
     inquiry. It is longstanding Executive Branch practice not to 
     disclose documents falling into this category because 
     disclosure would implicate substantial Executive Branch 
     confidentiality interests and separation of powers 
     principles. Disclosure would have a chilling effect on agency 
     officials' deliberations about how to respond to inquiries 
     from Congress or the media. Such a chill on internal 
     communications would interfere with our ability to respond as 
     effectively and efficiently as possible to congressional 
     oversight requests.\116\
---------------------------------------------------------------------------
     \116\ Id.

       The next day, the Committee issued a subpoena to Attorney 
     General Holder.
     (b) October 12, 2011, Subpoena
       On October 31, 2011, the Department produced its first 
     batch of documents pursuant to the Committee's October 12, 
     2011, subpoena.\117\ This production consisted of 652 pages. 
     Of these 652 pages, 116 were about the Kingery case, a case 
     that the Department wanted to highlight in an attempt to 
     discredit some of the original Fast and Furious 
     whistleblowers. Twenty-eight additional pages were about an 
     operation from the prior administration, the Hernandez case, 
     and 245 pages were about another operation from the prior 
     administration, Operation Wide Receiver.
---------------------------------------------------------------------------
     \117\ Oct. 31 Letter, supra note 59.
---------------------------------------------------------------------------
       Although the subpoena covered documents from the Hernandez 
     and Wide Receiver cases, their inclusion into the first 
     production batch under the subpoena was indicative of the 
     Department's strategy in responding to the subpoena. The 
     Department briefed the press on these documents at the same 
     time as it produced them to the Committee. The Department 
     seemed more interested in spin control than in complying with 
     the congressional subpoena. Sixty percent of the documents in 
     this first production were related to either Kingery, 
     Hernandez, or Wide Receiver, and therefore, unrelated to the 
     gravamen of the Committee's investigation into Fast and 
     Furious.
       On December 2, 2011, shortly before the Attorney General's 
     testimony before the House Judiciary Committee, the 
     Department produced 1,364 pages of documents pertaining to 
     the creation of its February 4, 2011, letter.\118\ Despite 
     its statements in the October 11, 2011, letter, the 
     Department, through a letter from Deputy Attorney General 
     James Cole, publicly admitted under pressure its obvious 
     misstatements, formally acknowledging that the February 4, 
     2011, letter ``contains inaccuracies.'' \119\
---------------------------------------------------------------------------
     \118\ Letter from Deputy Att'y Gen. James Cole to Chairman 
     Darrell Issa and Senator Charles Grassley (Dec. 2, 2011).
     \119\ Id.
---------------------------------------------------------------------------
       On December 13, 2011, on the eve of the Committee's 
     interview with Gary Grindler, Chief of Staff to the Attorney 
     General, the Department produced 19 pages of responsive 
     documents.\120\
---------------------------------------------------------------------------
     \120\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa and Senator Charles Grassley (Dec. 13, 2011).
---------------------------------------------------------------------------
       On January 5, 2012, the Department produced 482 pages of 
     documents responsive to the subpoena.\121\ Of these 482 
     pages, 304 of them, or 63 percent, were related to the Wide 
     Receiver case. This production brought the total number of 
     pages produced pursuant to Wide Receiver to 549, nearly 100 
     more than the Department had produced at that time regarding 
     Fast and Furious in three document productions.
---------------------------------------------------------------------------
     \121\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Jan. 5, 2012).
---------------------------------------------------------------------------
       On January 27, 2012, the Department produced 486 pages of 
     documents pursuant to the October 12, 2011, subpoena.\122\ In 
     its cover letter, the Department stated, ``[t]he majority of 
     materials produced today are responsive to items 7, 11 and 12 
     of your October 11 subpoena.'' There are no documents in the 
     production, however, responsive to items 7(b) or 11(b)(i-v). 
     The Department wrote in its January 27 cover letter:
---------------------------------------------------------------------------
     \122\ Cole Letter, supra note 37.

       We are producing or making available for review materials 
     that are responsive to these

[[Page H4186]]

     items, most of which pertain to the specific investigations 
     that we have already identified to the Committee. We are not, 
     however, providing materials pertaining to other matters, 
     such as documents regarding ATF cases that do not appear to 
     involve the inappropriate tactics under review by the 
     Committee; non-ATF cases, except for certain information 
     relating to the death of Customs and Border Protection Agent 
     Brian Terry; administrative matters; and personal 
     records.\123\
---------------------------------------------------------------------------
     \123\ Id.

       The Department refused to produce documents pursuant to the 
     subpoena regarding investigations that it had not previously 
     specified to the Committee, or investigations that ``do not 
     appear'' to involve inappropriate tactics. In doing so, the 
     Department made itself the sole arbiter of the Committee's 
     investigative interests, as well as of the use of 
     ``inappropriate'' tactics. The Department has prevented 
     Congress from executing its constitutionally mandated 
     oversight function, preferring instead to self-regulate.
       The October 12, 2011, subpoena, however, covers all 
     investigations in which ATF failed to interdict weapons that 
     had been illegally purchased or transferred--not just those 
     cases previously identified by the Department. The subpoena 
     does not give the Department the authority to define which 
     tactics are inappropriate. Rather, the language in sections 4 
     and 5 of the subpoena schedule is clear. The Department's 
     refusal to cooperate on this front and only produce documents 
     about investigations that it had previously identified--
     documents that support the Department's press strategy--is in 
     violation of its obligation to cooperate with congressional 
     oversight.
       On January 31, 2012, Chairman Issa again wrote to the 
     Attorney General, this time asking that the Department 
     produce all documents pursuant to the subpoena by February 9, 
     2012.\124\ The following day, the Department responded. It 
     stated:
---------------------------------------------------------------------------
     \124\ Jan. 31 Letter, supra note 102.

       Your most recent letter asks that we complete the 
     production process under the October 11, 2011, subpoena by 
     February 9, 2012. The broad scope of the Committee's requests 
     and the volume or material to be collected, processed and 
     reviewed in response make it impossible to meet that 
     deadline, despite our good faith efforts. We will continue in 
     good faith to produce materials, but it simply will not be 
     possible to finish the collection, processing and review of 
     materials by the date sought in your most recent letter.\125\
---------------------------------------------------------------------------
     \125\ Letter from Deputy Att'y Gen. James Cole to Chairman 
     Darrell Issa (Feb. 1, 2012) [hereinafter Feb. 1 Letter].

       Yet, as discussed in Section V.B above, the Department was 
     acutely aware in October 2011, approximately three months 
     earlier, exactly what categories of documents the Committee 
     was seeking. In response to the subpoena, the Department had, 
     up to February 1, 2012, produced more documents relating to a 
     single operation years before Fast and Furious even began 
     than it had relating to Operation Fast and Furious itself.
       On February 16, 2012, the Department produced 304 pages of 
     documents pursuant to the subpoena.\126\ The production 
     included nearly 60 pages of publicly available and previously 
     produced information, as well as other documents previously 
     produced to the Committee.
---------------------------------------------------------------------------
     \126\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Feb. 16, 2012) [hereinafter Feb. 16 Letter].
---------------------------------------------------------------------------
       On February 27, 2012, the Department produced eight pages 
     pursuant to the subpoena.\127\ These eight pages, given to 
     the Committee by a whistleblower ten months earlier, were 
     produced only because a transcribed interview with a former 
     Associate Deputy Attorney General was to take place the next 
     day.
---------------------------------------------------------------------------
     \127\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Feb. 27, 2012).
---------------------------------------------------------------------------
       On March 2, 2012, the Department produced 26 pages of 
     documents pursuant to the October 12, 2011, subpoena.\128\ 
     Five of these documents were about the Kingery case. Fourteen 
     documents--over half of the production--related to Wide 
     Receiver. Seven pages were duplicate copies of a press 
     release already produced to the Committee.
---------------------------------------------------------------------------
     \128\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (Mar. 2, 2012).
---------------------------------------------------------------------------
       On March 16, 2012, the Department produced 357 pages of 
     documents pursuant to the subpoena. Three hundred seven of 
     these pages, or 86 percent, related to the Hernandez and 
     Medrano cases from the prior Administration. Twenty other 
     pages had been previously produced by the Department, and 
     seven pages were publicly available on the Justice 
     Department's website.
       On April 3, 2012, the Department produced 116 pages of 
     documents pursuant to the subpoena. Forty four of these 
     pages, or 38 percent, related to cases other than Fast and 
     Furious. On April 19, 2012, the Department produced 188 pages 
     of documents pursuant to the subpoena.
       On May 15, 2012, the Department produced 29 pages of 
     documents pursuant to the subpoena. Ten of these pages, or 36 
     percent, related to cases other than Fast and Furious.
       The Department has produced a total of 6,988 pages to the 
     Committee to date.\129\ Though the Department recently stated 
     that it has ``provided documents to the Committee at least 
     twice every month since late last year,'' the Department has 
     not produced any documents to the Committee in over 30 
     days.\130\
---------------------------------------------------------------------------
     \129\ The most recent production by the Department, on May 
     15, 2012, ended with Bates number HOGR 006988.
     \130\ May 15 Cole Letter, supra note 69.
---------------------------------------------------------------------------
     (c) Post-February 4, 2011, Documents
       Many of the documents the October 12, 2011, subpoena 
     requires were created or produced after February 4, 2011. The 
     Department first responded to Congress about Fast and Furious 
     on this date. The Department has steadfastly refused to make 
     any documents created after February 4, 2011, available to 
     the Committee.
       The Department's actions following the February 4, 2011, 
     letter to Senator Grassley are crucial in determining how it 
     responded to the serious allegations raised by the 
     whistleblowers. The October 12, 2011, subpoena covers 
     documents that would help Congress understand what the 
     Department knew about Fast and Furious, including when and 
     how it discovered its February 4 letter was false, and the 
     Department's efforts to conceal that information from 
     Congress and the public. Such documents would include those 
     relating to actions the Department took to silence or 
     retaliate against Fast and Furious whistleblowers and to find 
     out what had happened, and how the Department assessed the 
     culpability of those involved in the program.
       The Attorney General first expressed the Department's 
     position regarding documents created after February 4, 2011, 
     in his testimony before the House Judiciary Committee on 
     December 8, 2011. In no uncertain terms, he stated:

       [W]ith regard to the Justice Department as a whole--and I'm 
     certainly a member of the Justice Department--we will not 
     provide memos after February the 4th . . . e-mails, memos--
     consistent with the way in which the Department of Justice 
     has always conducted itself in its interactions.\131\
---------------------------------------------------------------------------
     \131\ Oversight Hearing on the United States Department of 
     Justice: Hearing Before the H. Comm. on the Judiciary, 112th 
     Cong. (Dec. 8, 2011) (Test. of Hon. Eric H. Holder, Jr., 
     Att'y Gen. of the U.S.).

       He again impressed this point upon Committee Members later 
---------------------------------------------------------------------------
     in the hearing:

       Well, with the regard to provision of e-mails, I thought 
     I've made it clear that after February the 4th it is not our 
     intention to provide e-mail information consistent with the 
     way in which the Justice Department has always conducted 
     itself.\132\
---------------------------------------------------------------------------
     \132\ Id.

       The Department reiterated this position less than a week 
     later in a December 14, 2011, transcribed interview of Gary 
     Grindler, the Attorney General's Chief of Staff. Department 
     counsel broadened the Department's position with respect to 
     sharing documents created after February 4, 2011, in refusing 
     to allow Grindler to answer any questions relating to 
     conversations that he had with anyone in the Department 
     regarding Fast and Furious after February 4, 2011. Grindler 
---------------------------------------------------------------------------
     stated:

       What I am saying is that the Attorney General made it clear 
     at his testimony last week that we are not providing 
     information to the committee subsequent to the February 4th 
     letter.\133\
---------------------------------------------------------------------------
     \133\ Transcribed Interview of Gary Grindler, Chief of Staff 
     to the Att'y Gen., at 22 (Dec. 14, 2011) [hereinafter 
     Grindler Tr.].

     Department counsel expanded the position the Attorney General 
     articulated regarding documentary evidence at the House 
     Judiciary Committee hearing to include testimonial evidence 
     as well.\134\ Given the initial response by the Department to 
     the congressional inquiry into Fast and Furious, the comments 
     by Department counsel created a barrier preventing Congress 
     from obtaining vital information about Fast and Furious.
---------------------------------------------------------------------------
     \134\ Id.
---------------------------------------------------------------------------
       The Department has maintained this position during 
     additional transcribed interviews. In an interview with 
     Deputy Assistant Attorney General Jason Weinstein on January 
     10, 2012, Department counsel prohibited him from responding 
     to an entire line of questioning about his interactions with 
     the Arizona U.S. Attorney's Office because it ``implicates 
     the post-February 4th period.'' \135\
---------------------------------------------------------------------------
     \135\ Transcribed Interview of Jason Weinstein, Deputy Ass't 
     Att'y Gen. at 177 (Jan. 10, 2012).
---------------------------------------------------------------------------
       Understanding the post-February 4th period is critical to 
     the Committee's investigation. Furthermore, documents from 
     this period are responsive to the October 12, 2011, subpoena. 
     For example, following the February 4, 2011, letter, Jason 
     Weinstein, at the behest of Assistant Attorney General 
     Breuer, prepared an analytical review of Fast and 
     Furious.\136\ Weinstein interviewed Emory Hurley and Patrick 
     Cunningham of the Arizona U.S. Attorney's office as part of 
     this review.\137\ The document that resulted from Weinstein's 
     analysis specifically discussed issues relevant to the 
     Committee's inquiry. To date, the Department has not produced 
     documents related to Weinstein's review to the Committee.
---------------------------------------------------------------------------
     \136\ Transcribed Interview of Dennis K. Burke at 158-60 
     (Dec. 13, 2011).
     \137\ Id. at 158-59.
---------------------------------------------------------------------------
       Chairman Issa has sent several letters urging the 
     Department to produce documents pertaining to the Fast and 
     Furious from the post-indictment period, and raising the 
     possibility of contempt if the Attorney General chose not to 
     comply. Initially, the Department refused to produce any 
     documents created after January 25, 2011, the date that the

[[Page H4187]]

     case was unsealed. On November 9, 2011, Chairman Issa wrote 
---------------------------------------------------------------------------
     to the Department:

       Over the past six months, Senator Grassley and I have asked 
     for this information on many occasions, and each time we have 
     been told it would not be produced. This information is 
     covered by the subpoena served on the Attorney General on 
     October 12, 2011, and I expect it to be produced no later 
     than Wednesday, November 16, at 5:00 p.m. Failure to comply 
     with this request will leave me with no other alternative 
     than the use of compulsory process to obtain your testimony 
     under oath.

                           *   *   *   *   *

       Understanding the Department's actions after Congress 
     started asking questions about Fast and Furious is crucial. 
     As you know, substantial effort was expended to hide the 
     actions of the Department from Congress . . . I expect 
     nothing less than full compliance with all aspects of the 
     subpoena, including complete production of documents created 
     after the indictments were unsealed on January 25, 2011.\138\
---------------------------------------------------------------------------
     \138\ Letter from Chairman Darrell Issa to Ass't Att'y Gen. 
     Ronald Weich (Nov. 9, 2011).

       On December 2, 2011, the Department produced documents 
     pertaining to its February 4, 2011, response to Senator 
     Grassley. When the Attorney General testified before Congress 
     on December 8, 2011, he created a new cutoff date of February 
     4, 2011, after which no documents would be produced to 
     Congress, despite the fact that such documents were covered 
     by the October 12, 2011, subpoena. In support of this 
     position regarding post-February 4, 2011, documents, in 
     transcribed interviews, Department representatives have 
     asserted a ``separation of powers'' privilege without further 
     explanation or citation to legal authority.\139\ The 
     Department has not cited any legal authority to support this 
     new, extremely broad assertion of privilege.
---------------------------------------------------------------------------
     \139\ See, e.g., Grindler Tr. at 22.
---------------------------------------------------------------------------
       On January 31, 2012, Chairman Issa wrote to the Attorney 
     General about this new, arbitrary date created by the 
     Department, and raised the possibility of contempt:

       In short, the Committee requires full compliance with all 
     aspects of the subpoena, including complete production of 
     documents created after the Department's February 4, 2011, 
     letter. . . . If the Department continues to obstruct the 
     congressional inquiry by not providing documents and 
     information, this Committee will have no alternative but to 
     move forward with proceedings to hold you in contempt of 
     Congress.\140\
---------------------------------------------------------------------------
     \140\ Jan. 31 Letter, supra note 102.

---------------------------------------------------------------------------
       The Department responded the following day. It said:

       To the extent responsive materials exist that post-date 
     congressional review of this matter and were not generated in 
     that context or to respond to media inquiries, and likewise 
     do not implicate other recognized Department interests in 
     confidentiality (for example, matters occurring before a 
     grand jury, investigative activities under seal or the 
     disclosure of which is prohibited by law, core investigative 
     information, or matters reflecting internal Department 
     deliberations), we intend to provide them.\141\
---------------------------------------------------------------------------
     \141\ Feb. 1 Letter, supra note 125.

       The Department quoted from its October 11, 2011, letter, 
---------------------------------------------------------------------------
     stating:

       [A]s we have previously explained to Committee staff, we 
     have also withheld internal communications that were 
     generated in the course of the Department's effort to respond 
     to congressional and media inquiries about Operation Fast and 
     Furious. These records were created in 2011, well after the 
     completion of the investigative portion of Operation Fast and 
     Furious that the Committee has been reviewing and after the 
     charging decisions reflected in the January 25, 2011, 
     indictments. Thus, they were not part of the communications 
     regarding the development and implementation of the strategy 
     decisions that have been the focus of the Committee's 
     inquiry. It is longstanding Executive Branch practice not to 
     disclose documents falling into this category because 
     disclosure would implicate substantial Executive Branch 
     confidentiality interests and separation of powers 
     principles. Disclosure would have a chilling effect on agency 
     officials' deliberations about how to respond to inquiries 
     from Congress or the media. Such a chill on internal 
     communications would interfere with our ability to respond as 
     effectively and efficiently as possible to congressional 
     oversight requests.\142\
---------------------------------------------------------------------------
     \142\ Id.

       On February 14, 2012, Chairman Issa again wrote to the 
     Department regarding post-February 4, 2011, documents, and 
---------------------------------------------------------------------------
     again raised the possibility of contempt:

       Complying with the Committee's subpoena is not optional. 
     Indeed, the failure to produce documents pursuant to a 
     congressional subpoena is a violation of federal law. The 
     Department's letter suggests that its failure to produce, 
     among other things, ``deliberative documents and other 
     internal communications generated in response to 
     congressional oversight requests'' is based on the premise 
     that ``disclosure would compromise substantial separation of 
     powers principles and Executive Branch confidentiality 
     interests.'' Your February 4, 2011, cut-off date of providing 
     documents to the Committee is entirely arbitrary, and comes 
     from a ``separation of powers'' privilege that does not 
     actually exist.
       You cite no legal authority to support your new, extremely 
     broad assertion. To the contrary, as you know, Congress 
     possesses the ``power of inquiry.'' Furthermore, ``the 
     issuance of a subpoena pursuant to an authorized 
     investigation is . . . an indispensable ingredient of 
     lawmaking.'' Because the Department has not cited any legal 
     authority as the basis for withholding documents, or provided 
     the Committee with a privilege log with respect to documents 
     withheld, its efforts to accommodate the Committee's 
     constitutional obligation to conduct oversight of the 
     Executive Branch are incomplete.\143\
---------------------------------------------------------------------------
     \143\ Feb. 14 Letter, supra note 103.

                           *   *   *   *   *

---------------------------------------------------------------------------
       Please specify a date by which you expect the Department to 
     produce all documents responsive to the subpoena. In 
     addition, please specify a Department representative who will 
     interface with the Committee for production purposes. This 
     individual should also serve as the conduit for dealing with 
     possible contempt proceedings, should the Department continue 
     to ignore the Committee's subpoena.\144\
---------------------------------------------------------------------------
     \144\ Id (emphasis in original).

       On February 16, 2012, the Department responded. The 
     response did not address the post-February 4, 2011, 
     documents, nor did it address the possibility of contempt. 
---------------------------------------------------------------------------
     The Department's letter stated:

       We have produced documents to the Committee on a rolling 
     basis; since late last year these productions have occurred 
     approximately twice a month. It is our intent to adhere to 
     this rolling production schedule until we have completed the 
     process of producing all responsive documents to which the 
     Committee is entitled, consistent with the longstanding 
     policies of the Executive Branch across administrations of 
     both parties. Moreover, we intend to send a letter soon 
     memorializing our discussions with your staff about the 
     status of our production of documents within the various 
     categories of the subpoena.
       Our efforts to cooperate with the Committee have been a 
     significant undertaking, involving a great deal of hard work 
     by a large number of Department employees. The Department has 
     been committed to providing the documents and information 
     necessary to allow the Committee to satisfy its core 
     oversight interests regarding the use of inappropriate 
     tactics in Fast and Furious.

       The Department, however, has yet to produce any documents 
     pursuant to the subpoena created after February 4, 2011. 
     Despite warnings by Chairman Issa that the Committee would 
     initiate contempt if the Department failed to comply with the 
     subpoena, the Department has refused to produce documents.
     (d) Interview Requests
       In addition to the October 12, 2011, subpoena, the 
     Committee has requested to interview key individuals in 
     Operation Fast and Furious and related programs. The 
     Committee accommodated the Department's request to delay an 
     interview with Hope MacAllister, the lead case agent for 
     Operation Fast and Furious, despite her vast knowledge of the 
     program. The Committee agreed to this accommodation due to 
     the Department's expressed concern about interviewing a key 
     witness prior to trial.
       Throughout the investigation, the Department has had an 
     evolving policy with regard to witnesses that excluded ever-
     broader categories of witnesses from participating in 
     volunteer interviews. The Department first refused to allow 
     line attorneys to testify in transcribed interviews, and then 
     it prevented first-line supervisors from testifying. Next, 
     the Department refused to make Senate-confirmed Department 
     officials available for transcribed interviews. One such 
     Senate-confirmed official, Assistant Attorney General Lanny 
     Breuer, is a central focus in the Committee's investigation. 
     On February 16, 2012, the Department retreated somewhat from 
     its position, noting in a letter to the Committee that it was 
     ``prepared to work with [the Committee] to find a mutually 
     agreeable date for [Breuer] to appear and answer the 
     Committee's questions, whether or not that appearance is 
     public.'' \145\ The Department has urged the Committee to 
     reconsider this interview request.
---------------------------------------------------------------------------
     \145\ Feb. 16 Letter, supra note 126.
---------------------------------------------------------------------------
       While the Department has facilitated a dozen interviews to 
     avoid compulsory depositions, there have been several 
     instances in which the Department has refused to cooperate 
     with the Committee in scheduling interviews. The Department 
     has stated that it would not make available certain 
     individuals that the Committee has requested to interview. On 
     December 6, 2011, the Department wrote:

       We would like to defer any final decisions about the 
     Committee's request for Mr. Swartz's interview until we have 
     identified any responsive documents, some of which may 
     implicate equities of another agency. The remaining employees 
     you have asked to interview are all career employees who are 
     either line prosecutors or first- or second-level 
     supervisors. James Trusty and Michael Morrissey were first-
     level supervisors during

[[Page H4188]]

     the time period covered by the Fast and Furious 
     investigation, and Kevin Carwile was a second-level 
     supervisor. The remaining three employees you have asked to 
     interview--Emory Hurley, Serra Tsethlikai, and Joseph 
     Cooley--are line prosecutors. We are not prepared to make any 
     of these attorneys available for interviews.\146\
---------------------------------------------------------------------------
     \146\ Dec. 6 Letter, supra note 64.

       The Department did, however, make Patrick Cunningham, Chief 
     of the Criminal Division for the U.S. Attorney's Office in 
     Arizona, available for an interview. The Committee had been 
     requesting to interview Cunningham since summer 2011. The 
     Department finally allowed access to Cunningham for an 
     interview in December 2011. Cunningham chose to retain 
     private counsel instead of Department counsel. On January 17, 
     2012, Cunningham canceled his interview scheduled for the 
     Committee on January 19, 2012.
       Chairman Issa issued a subpoena to Cunningham to appear for 
     a deposition on January 24, 2012. In a letter dated January 
     19, 2012, Cunningham's counsel informed the Committee that 
     Cunningham would ``assert his constitutional privilege not to 
     be compelled to be a witness against himself.'' \147\ On 
     January 24, 2012, Chairman Issa wrote to the Attorney General 
     to express that the absence of Cunningham's testimony would 
     make it ``difficult to gauge the veracity of some of the 
     Department's claims'' regarding Fast and Furious.\148\
---------------------------------------------------------------------------
     \147\ Letter from Tobin Romero, Williams & Connolly LLP, to 
     Chairman Darrell Issa (Jan. 19, 2012).
     \148\ Letter from Chairman Darrell Issa to Att'y Gen. Eric 
     Holder (Jan. 24, 2012).
---------------------------------------------------------------------------
       On January 27, 2012, Cunningham left the Department of 
     Justice. After months of Committee requests, the Department 
     finally made him available for an interview just before he 
     left the Department. The actions of the Department in 
     delaying the interview and Cunningham's own assertion of the 
     Fifth Amendment privilege delayed and denied the Committee 
     the benefit of his testimony.


                   5. Failure to Turn Over Documents

       The Department has failed to turn over any documents 
     pertaining to three main categories contained in the October 
     12, 2011, subpoena.
     (a) Who at Justice Department Headquarters Should Have Known 
         of the Reckless Tactics
       The Committee is seeking documents relating to who had 
     access to information about the objectionable tactics used in 
     Operation Fast and Furious, who approved the use of these 
     tactics, and what information was available to those 
     individuals when they approved the tactics. Documents that 
     whistleblowers have provided to the Committee indicate that 
     those officials were the senior officials in the Criminal 
     Division, including Lanny Breuer and one of his top deputies, 
     Jason Weinstein.
       Documents in this category include those relating to the 
     preparation of the wiretap applications, as well as certain 
     ATF, DEA, and FBI Reports of Investigation. Key decision 
     makers at Justice Department headquarters relied on these and 
     other documents to approve the investigation.
     (b) How the Department Concluded that Fast and Furious was 
         ``Fundamentally Flawed''
       The Committee requires documents from the Department 
     relating to how officials learned about whistleblower 
     allegations and what actions they took as a result. The 
     Committee is investigating not just management of Operation 
     Fast and Furious, but also the Department's efforts to slow 
     and otherwise interfere with the Committee's investigation.
       For months after the congressional inquiry began, the 
     Department refused to acknowledge that anything improper 
     occurred during Fast and Furious. At a May 5, 2011, meeting 
     with Committee staff, a Department representative first 
     acknowledged that ``there's a there, there.'' The Attorney 
     General acknowledged publicly that Fast and Furious was 
     ``fundamentally flawed'' on October 7, 2011. On December 2, 
     2011, the Department finally admitted that its February 4, 
     2011, letter to Senator Grassley contained false 
     information--something Congress had been telling the 
     Department for over seven months.
       Documents in this category include those that explain how 
     the Department responded to the crisis in the wake of the 
     death of U.S. Border Patrol Agent Brian Terry. These 
     documents will reveal when the Department realized it had a 
     problem, and what actions it took to resolve that problem. 
     These documents will also show whether senior Department 
     officials were surprised to learn that gunwalking occurred 
     during Fast and Furious, or if they already knew that to be 
     the case. These documents will also identify who at the 
     Department was responsible for authorizing retaliation 
     against the whistleblowers. The documents may also show the 
     Department's assignment of responsibility to officials who 
     knew about the reckless conduct or were negligent during Fast 
     and Furious.
     (c) How the Inter-Agency Task Force Failed
       The Organized Crime Drug Enforcement Task Force (OCDETF) 
     program was created to coordinate inter-agency information 
     sharing. As early as December 2009, the DEA shared 
     information with ATF that should have led to arrests and the 
     identification of the gun trafficking network that Fast and 
     Furious sought to uncover. The Committee has received 
     information suggesting that, after arrests were made one year 
     later, ATF discovered that two Mexican drug cartel associates 
     at the top of the Fast and Furious network had been 
     designated as national security assets by the FBI, and at 
     times have been paid FBI informants. Because of this 
     cooperation, these associates are considered by some to be 
     unindictable.
       Documents in this category will reveal the extent of the 
     lack of information-sharing among DEA, FBI, and ATF. Although 
     the Deputy Attorney General is aware of this problem, he has 
     expressed little interest in resolving it.

             VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE

       As discussed above in Section V.C.5, the Department has 
     failed to turn over any documents responsive to three main 
     categories covered by the October 12, 2011, subpoena:
       (a) Who at Justice Department Headquarters Should Have 
     Known of the Reckless Tactics;
       (b) How the Department Concluded that Fast and Furious was 
     ``Fundamentally Flawed''; and,
       (c) How the Inter-Agency Task Force Failed.
       The Committee notified the Justice Department on multiple 
     occasions that its failure to produce any documents 
     responsive to these three categories would force the 
     Committee to begin contempt proceedings against the Attorney 
     General.
       On May 18, 2012, Chairman Issa, along with Speaker John 
     Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin 
     McCarthy, wrote a letter to the Attorney General. As an 
     accommodation to the Department, the letter offered to narrow 
     the scope of documents the Department needed to provide in 
     order to avoid contempt proceedings. \149\ Documents in 
     category (c) are outside the scope of the narrowed request, 
     and so the Department no longer needed to produce them to 
     avoid contempt proceedings, even though such documents are 
     covered by the October 12, 2011, subpoena.
---------------------------------------------------------------------------
     \149\ Letter from Speaker John Boehner et al. to Att'y Gen. 
     Eric Holder (May 18, 2012).
---------------------------------------------------------------------------
       The Committee also obtained copies of wiretap applications 
     authorized by senior Department officials during Operation 
     Fast and Furious. These documents, given to the Committee by 
     whistleblowers, shined light on category (a). Still, many 
     subpoenaed documents under this category have been 
     deliberately withheld by the Department. These documents are 
     critical to understanding who is responsible for failing to 
     promptly stop Fast and Furious. The Department has cited such 
     documents as ``core investigative'' materials that pertain to 
     ``pending law enforcement matters.'' \150\ To accommodate the 
     Department's interest in successfully prosecuting criminal 
     defendants in this case, the Committee is willing to accept 
     production of these documents after the current prosecutions 
     of the 20 straw purchasers indicted in January 2011, have 
     concluded at the trial level. This deferment should in no way 
     be interpreted as the Committee ceding its legitimate right 
     to receive these documents, but instead solely as an 
     accommodation meant to alleviate the Department's concerns 
     about preserving the integrity of the ongoing prosecutions.
---------------------------------------------------------------------------
     \150\ May 15 Cole Letter, supra note 69.
---------------------------------------------------------------------------
       In addition to deferring production of category (a) 
     documents, the Committee is also willing to view these 
     documents in camera with limited redactions. These 
     accommodations represent a significant commitment on the part 
     of the Committee to negotiating in good faith to avoid 
     contempt.
       Unlike documents in category (a), the Department has no 
     legitimate interest in limiting the Committee's access to 
     documents in category (b). On February 4, 2011, the 
     Department wrote a letter to Congress categorically denying 
     that gunwalking had occurred. This letter was false. Still, 
     it was not withdrawn until December 2011. The Committee has a 
     right to know how the Department learned that gunwalking did 
     in fact occur, and how it handled the fallout internally. The 
     deliberative process privilege is not recognized by Congress 
     as a matter of law and precedent. By sending a letter that 
     contained false and misleading statements, the Department 
     forfeited any reasonable expectation that the Committee would 
     accommodate its interest in withholding deliberative process 
     documents.
       On June 20, 2012, minutes before the start of the 
     Committee's meeting to consider a resolution holding the 
     Attorney General in contempt, the Committee received a letter 
     from Deputy Attorney General James Cole claiming that the 
     President asserted executive privilege over certain documents 
     covered by the subpoena. The Committee has a number of 
     concerns about the validity of this assertion:
       1. The assertion was transparently not a valid claim of 
     privilege given its last minute nature;
       2. The assertion was obstructive given that it could have 
     and should have been asserted months ago, but was not until 
     literally the day of the contempt mark-up;
       3. The assertion is eight months late. It should have been 
     made by October 25, 2011, the subpoena return date;
       4. To this moment, the President himself has not indicated 
     that he is asserting executive privilege;
       5. The assertion is transparently invalid in that it is not 
     credible that every document

[[Page H4189]]

     withheld involves a ``communication[ ] authored or solicited 
     and received by those members of an immediate White House 
     adviser's staff who have broad and significant responsibility 
     for investigating and formulating the advice to be given the 
     President on the particular matter to which the 
     communications relate,''; \151\
---------------------------------------------------------------------------
     \151\ In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir 1997).
---------------------------------------------------------------------------
       6. The assertion is transparently invalid where the Justice 
     Department has provided no details by which the Committee 
     might evaluate the applicability of the privilege, such as 
     the senders and recipients of the documents;
       7. Even if the privilege were valid as an initial matter, 
     which it is not, it certainly has been overcome here, as: (i) 
     the Committee has demonstrated a sufficient need for the 
     documents as they are likely to contain evidence important to 
     the Committee's inquiry and (ii) the documents sought cannot 
     be obtained any other way. The Committee has spent 16 months 
     investigating, talking to dozens of individuals, and 
     collecting documents from many sources. The remaining 
     documents are ones uniquely in the possession of the Justice 
     Department; and,
       8. Without these documents, the Committee's important 
     legislative work will continue to be stymied. The documents 
     are necessary to evaluate what government reform is necessary 
     within the Justice Department to avoid the problems uncovered 
     by the investigation in the future.

       The President has now asserted executive privilege. This 
     assertion, however, does not change the fact that Attorney 
     General Eric Holder Jr. is in contempt of Congress today for 
     failing to turn over lawfully subpoenaed documents explaining 
     the Department's role in withdrawing the false letter it sent 
     to Congress.

                VII. HISTORICAL PERSPECTIVES ON CONTEMPT

       Contempt proceedings in Congress date back over 215 years. 
     These proceedings provide Congress a valuable mechanism for 
     adjudicating its interests. Congressional history is replete 
     with examples of the pursuit of contempt proceedings by House 
     committees when faced with strident resistance to their 
     constitutional authority to exercise investigative power.

                     A. Past Instances of Contempt

       Congress first exercised its contempt authority in 1795 
     when three Members of the House charged two businessmen, 
     Robert Randall and Charles Whitney, with offering bribes in 
     exchange for the passage of legislation granting Randall and 
     his business partners several million acres bordering Lake 
     Erie. \152\ This first contempt proceeding began with a 
     resolution by the House deeming the allegations were adequate 
     ``evidence of an attempt to corrupt,'' and the House reported 
     a corresponding resolution that was referred to a special 
     committee. \153\ The special committee reported a resolution 
     recommending formal proceedings against Randall and Whitney 
     ``at the bar of the House.'' \154\
---------------------------------------------------------------------------
     \152\ Todd Garvey & Alissa M. Dolan, Congressional Research 
     Service, Congress's Contempt Power: Law, History, Practice, & 
     Procedure, no. RL34097, Apr. 15, 2008 [hereinafter CRS 
     Contempt Report].
     \153\ Id.
     \154\ Id.
---------------------------------------------------------------------------
       The House adopted the committee resolution which laid out 
     the procedure for the contempt proceeding. Interrogatories 
     were exchanged, testimony was received, Randall and Whitney 
     were provided counsel, and at the conclusion, on January 4, 
     1796, the House voted 78-17 to adopt a resolution finding 
     Randall guilty of contempt. \155\ As punishment Randall was 
     ``ordered [ ] to be brought to the bar, reprimanded by the 
     Speaker, and held in custody until further resolution of the 
     House.'' \156\ Randall was detained until January 13, 1796, 
     when the House passed a resolution discharging him. \157\ In 
     contrast, Whitney ``was absolved of any wrongdoing,'' since 
     his actions were against a ``member-elect'' and occurred 
     ``away from the seat of government.'' \158\
---------------------------------------------------------------------------
     \155\ Id.
     \156\ Id.
     \157\ Id.
     \158\ Id.: quoting Asher C. Hinds, Precedents of the House of 
     Representatives, Sec. 1603 (1907).
---------------------------------------------------------------------------
       Congressional records do not demonstrate any question or 
     hesitation regarding whether Congress possesses the power to 
     hold individuals in contempt.\159\ Moreover, there was no 
     question that Congress could punish a non-Member for 
     contempt.\160\ Since the first contempt proceeding, numerous 
     congressional committees have pursued contempt against 
     obstinate administration officials as well as private 
     citizens who failed to cooperate with congressional 
     investigations.\161\ Since the first proceeding against 
     Randall and Whitney, House committees, whether standing or 
     select, have served as the vehicle used to lay the foundation 
     for contempt proceedings in the House.\162\
---------------------------------------------------------------------------
     \159\ Id.
     \160\ Id. at 5.
     \161\ Id. at 6.
     \162\ Id. at 14.
---------------------------------------------------------------------------
       On August 3, 1983, the House passed a privileged resolution 
     citing Environmental Protection Agency Administrator Anne 
     Gorsuch Burford with contempt of Congress for failing to 
     produce documents to a House subcommittee pursuant to a 
     subpoena.\163\ This was the first occasion the House cited a 
     cabinet-level executive branch member for contempt of 
     Congress.\164\ A subsequent agreement between the House and 
     the Administrator, as well as prosecutorial discretion, was 
     the base for not enforcing the contempt citation against 
     Burford.\165\
---------------------------------------------------------------------------
     \163\ Id.
     \164\ Wm. Holmes Brown et al., House Practice: A Guide to the 
     Rules, Precedents, and Procedures of the House, 450 (2011).
     \165\ Id. at 20, 22.
---------------------------------------------------------------------------
       Within the past fifteen years the Committee on Oversight 
     and Government Reform has undertaken or prepared for contempt 
     proceedings on multiple occasions. In 1998, Chairman Dan 
     Burton held a vote recommending contempt for Attorney General 
     Janet Reno based on her failure to comply with a subpoena 
     issued in connection with the Committee's investigation into 
     campaign finance law violations.\166\ On August 7, 1998, the 
     Committee held Attorney General Reno in contempt by a vote of 
     24 to 18.\167\
---------------------------------------------------------------------------
     \166\ David E. Rosenbaum, Panel Votes to Charge Reno With 
     Contempt of Congress, N.Y. TIMES (Aug. 7, 1998).
     \167\ Id.
---------------------------------------------------------------------------
       During the 110th Congress, Chairman Henry Waxman threatened 
     and scheduled contempt proceedings against several 
     Administration officials.\168\ Contempt reports were drafted 
     against Attorney General Michael B. Mukasey, Stephen L. 
     Johnson, Administrator of the U.S. Environmental Protection 
     Agency, and Susan E. Dudley, Administrator of the Office of 
     Information and Regulatory Affairs (OIRA) in the White House 
     Office of Management and Budget. Business meetings to 
     consider these drafts were scheduled.\169\ Former Attorney 
     General Mukasey's draft contempt report charged him with 
     failing to produce documents in connection to the Committee's 
     investigation of the release of classified information. 
     According to their draft contempt reports, Administrators 
     Johnson and Dudley failed to cooperate with the Committee's 
     lengthy investigation into California's petition for a waiver 
     to regulate greenhouse gas emissions from motor vehicles and 
     the revision of the national ambient air quality standards 
     for ozone.
---------------------------------------------------------------------------
     \168\ Laurie Kellman, Waxman Threatens Mukasey With Contempt 
     Over Leak, U.S.A. TODAY (July 8, 2008); Richard Simon, White 
     House Says No to Congress' EPA Subpoena, L.A. TIMES (June 21, 
     2008).
     \169\ Press Release, Rep. Henry Waxman, Chairman Waxman Warns 
     Attorney General of Scheduled Contempt Vote (July 8, 2008) 
     http://oversight-archive.waxman.house.gov/story.asp?ID=2067 
     (last visited Feb. 22, 2012); Press Release, Rep. Henry 
     Waxman, Chairman Waxman Schedules Contempt Vote (June 13, 
     2008) http://oversight-archive.waxman.house.gov/
story.asp?ID=2012 (last visited Feb. 22, 2012).
---------------------------------------------------------------------------
       Most recently, the House Judiciary Committee pursued 
     contempt against former White House Counsel Harriet Miers and 
     White House Chief of Staff Joshua Bolten.\170\ On June 13, 
     2007, the Committee served subpoenas on Miers and 
     Bolten.\171\ After attempts at accommodations from both 
     sides, the Committee determined that Miers and Bolten did not 
     satisfactorily comply with the subpoenas. On July 25, 2007, 
     the Committee voted, 22-17, to hold Miers and Bolten in 
     contempt of Congress.
---------------------------------------------------------------------------
     \170\ CRS Contempt Report at 54-55.
     \171\ Id.
---------------------------------------------------------------------------
       On February 14, 2008, the full House, with most Republicans 
     abstaining, voted to hold Miers and Bolten in criminal 
     contempt of Congress by a margin of 223-42.\172\ One hundred 
     seventy-three Members of Congress did not cast a vote either 
     in favor or against the resolution.\173\ All but nine Members 
     who abstained were Republican.\174\ Only three Republicans 
     supported the contempt resolution for Miers and Bolten.\175\ 
     This marked the first contempt vote by Congress with respect 
     to the Executive Branch since the Reagan Administration.\176\ 
     The resolutions passed by the House allowed Congress to 
     exercise all available remedies in the pursuit of 
     contempt.\177\ The House Judiciary Committee's action against 
     Miers marked the first time that a former administration 
     official had ever been held in contempt.\178\
---------------------------------------------------------------------------
     \172\ See H. Res. 982.
     \173\ Id.
     \174\ Id.
     \175\ Id.
     \176\ Philip Shenon, House Votes to Issue Contempt Citations, 
     N.Y. TIMES (Feb. 15, 2008).
     \177\ CRS Contempt Report at 54-55.
     \178\ Id.
---------------------------------------------------------------------------

                        B. Document Productions

       The Department has refused to produce thousands of 
     documents pursuant to the October 12, 2011, subpoena because 
     it claims certain documents are Law Enforcement Sensitive, 
     others pertain to ongoing criminal investigations, and others 
     relate to internal deliberative process.
       During the past ten years, the Committee on Oversight and 
     Government Reform has undertaken a number of investigations 
     that resulted in strong opposition from the Executive Branch 
     regarding document productions. These investigations include 
     regulatory decisions of the Environmental Protection Agency 
     (EPA), the leak of CIA operative Valerie Plame's identity, 
     and the fratricide of Army Corporal Patrick Tillman. In all 
     cases during the 110th Congress, the Administration produced 
     an overwhelming amount of documents, sheltering a narrow few 
     by asserting executive privilege.
       In 2008, the Committee received or reviewed in camera all 
     agency-level documents related to the EPA's decision 
     regarding California's request for a rule waiver, numbering 
     approximately 27,000 pages in total.\179\ According to a 
     Committee Report, the EPA

[[Page H4190]]

     withheld only 32 documents related to the California waiver 
     decision based on executive privilege. These included notes 
     of telephone calls or meetings in the White House ``involving 
     at least one high-ranking EPA official and at least one high-
     ranking White House official.'' \180\ The White House Counsel 
     informed the Committee that these documents represented 
     ``deliberations at the very highest level of government.'' 
     \181\
---------------------------------------------------------------------------
     \179\ H. Comm. on Oversight and Gov't Ref. Minority 
     Additional Views, EPA, OIRA Investigations & Exec. Privilege 
     Claims; Missed Opportunities by Majority to Complete 
     Investigations, Oct. 22, 2008.
     \180\ Id.
     \181\ Id.
---------------------------------------------------------------------------
       During the Committee's 2008 investigation into the 
     Administration's promulgation of ozone standards, the EPA 
     produced or allowed in camera review of over 35,000 pages of 
     documents. The President asserted executive privilege over a 
     narrow set of documents, encompassing approximately 35 pages. 
     One such document included ``talking points for the EPA 
     Administrator to use in a meeting with [the President].'' 
     \182\
---------------------------------------------------------------------------
     \182\ Id.
---------------------------------------------------------------------------
       In furtherance of the Committee's ozone regulation 
     investigation, OIRA produced or allowed in camera review of 
     7,500 documents.\183\ Documents produced by EPA and OIRA 
     represented pre-decisional opinions of career scientists and 
     agency counsel.\184\ These documents were sensitive because 
     some, if not all, related to ongoing litigation.\185\ The 
     OIRA Administrator withheld a certain number of documents 
     that were communications between OIRA and certain White House 
     officials, and the President ultimately ``claimed executive 
     privilege over these documents.'' \186\
---------------------------------------------------------------------------
     \183\ Id.
     \184\ Id.
     \185\ Id.
     \186\ Id.
---------------------------------------------------------------------------
       Also during the 110th Congress, the Committee investigated 
     the revelation of CIA operative Valerie Plame's identity in 
     the news media. The Committee's investigation was 
     contemporaneous with the Department of Justice's criminal 
     investigation into the leak of this classified information--a 
     situation nearly identical to the Committee's current 
     investigation into Operation Fast and Furious.
       Pursuant to the Committee's investigation, the Justice 
     Department produced FBI reports of witness interviews, 
     commonly referred to as ``302s.'' Specifically, documents 
     reviewed by the Committee staff during the Valerie Plame 
     investigation included the following:

       FBI interviews of federal officials who did not work in the 
     White House, as well as interviews of relevant private 
     individuals . . . total of 224 pages of records of FBI 
     interview reports with 31 individuals, including materials 
     related to a former Secretary, Deputy Secretary, 
     Undersecretary [sic], and two Assistant Secretaries of State, 
     and other former or current CIA and State Department 
     officials, including the Vice President's CIA briefer.\187\
---------------------------------------------------------------------------
     \187\ H. Comm. on Oversight and Gov't Ref. Draft Report, U.S. 
     House of Reps. Regarding President Bush's Assertion of Exec. 
     Privilege in Response to the Comm. Subpoena to Att'y Gen. 
     Michael B. Mukasey, http://oversight-
     archive.waxman.house.gov/documents/20081205114333.pdf (last 
     visited Mar. 5, 2012).

       To accommodate the Committee, the Department permitted in 
---------------------------------------------------------------------------
     camera review of the following:

       [D]ocuments include[ing] redacted reports of the FBI 
     interview with Mr. Libby, Andrew Card, Karl Rove, Condoleezza 
     Rice, Stephen Hadley, Dan Bartlett, and Scott McClellan and 
     another 104 pages of additional interview reports of the 
     Director of Central Intelligence, and eight other White House 
     or Office of the Vice President officials.\188\
---------------------------------------------------------------------------
     \188\ Id.

       The only documents the Justice Department declined to 
     produce were the FBI 302s with respect to the interviews of 
     the President and the Vice President.\189\ Ultimately, the 
     Committee relented in its pursuit of the President's 
     302.\190\ The Committee, however, persisted in its request 
     for the Vice President's 302. As a result, the President 
     asserted executive privilege over that particular 
     document.\191\
---------------------------------------------------------------------------
     \189\  Id.
     \190\  Id.
     \191\  Id.
---------------------------------------------------------------------------
       The Committee specifically included 302s in its October 12, 
     2011, subpoena to the Attorney General regarding Fast and 
     Furious. These subpoenaed 302s do not include FBI interviews 
     with White House personnel, or even any other Executive 
     Branch employee. Still, in spite of past precedent, the 
     Department has refused to produce those documents to the 
     Committee or to allow staff an in camera review.
       In the 110th Congress, the Committee investigated the 
     fratricide of Army Corporal Patrick Tillman and the veracity 
     of the account of the capture and rescue of Army Private 
     Jessica Lynch.\192\ The Committee employed a multitude of 
     investigative tools, including hearings, transcribed 
     interviews, and non-transcribed interviews. The 
     Administration produced thousands of documents.\193\ The 
     Committee requested the following:
---------------------------------------------------------------------------
     \192\ H. Comm. on Oversight and Gov't Ref. Comm. Report, 
     Misleading Information From the Battlefield: the Tillman & 
     Lynch Episodes, H. Rep. 110-858, Sept. 16, 2008.
     \193\ Id.

       [T]he White House produce all documents received or 
     generated by any official in the Executive Office of the 
     President from April 22 until July 1, 2004, that related to 
     Corporal Tillman. The Committee reviewed approximately 1,500 
     pages produced in response to this request. The documents 
     produced to the Committee included e-mail communications 
     between senior White House officials holding the title of 
     ``Assistant to the President.'' According to the White House, 
     the White House withheld from the Committee only preliminary 
     drafts of the speech President Bush delivered at the White 
     House Correspondents' Dinner on May 1, 2004.\194\
---------------------------------------------------------------------------
     \194\ Id.

       The Department of Defense produced over 31,000 responsive 
     documents, and the Committee received an unprecedented level 
     of access to documents and personnel.\195\
---------------------------------------------------------------------------
     \195\ Id.; The minority views by Hon. Tom Davis states that 
     the Comm. received 50,000 pages of documents and reviewed 
     additional documents in camera.
---------------------------------------------------------------------------
       The Oversight and Government Reform Committee's 
     investigations over the past five years demonstrate ample 
     precedent for the production of a wide array of documents 
     from the Executive Branch. In these investigations, the 
     Committee received pre-decisional deliberative regulatory 
     documents, documents pertaining to ongoing investigations, 
     and communications between and among senior advisors to the 
     President. The Committee's October 12, 2011, subpoena calls 
     for many of these same materials, including 302s and 
     deliberative documents. Still, the Justice Department refuses 
     to comply.
       Further, the number of documents the Department has 
     produced during the Committee's Fast and Furious 
     investigation pales in comparison to those produced in 
     conjunction with the Committee's prior investigations. In 
     separate EPA investigations, the Committee received 27,000 
     documents and 35,000 documents respectively. In the Patrick 
     Tillman investigation, the Committee received 31,000 
     documents. Moreover, in the Valerie Plame investigation, the 
     Committee received access to highly sensitive materials 
     despite the fact that the Justice Department was conducting a 
     parallel criminal investigation.
       As of May 15, 2012, in the Fast and Furious investigation, 
     in the light most favorable to the Department of Justice, it 
     has ``provided the Committee over 7,600 pages of 
     documents''--a small fraction of what has been produced to 
     the Committee in prior investigations and of what the 
     Department has produced to the Inspector General in this 
     matter.\196\ This small number reflects the Department's lack 
     of cooperation since the Committee sent its first letter to 
     the Department about Fast and Furious on March 16, 2011.
---------------------------------------------------------------------------
     \196\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman 
     Darrell Issa (May 15, 2012).
---------------------------------------------------------------------------

                        VIII. RULES REQUIREMENTS

                       Explanation of Amendments

       Mr. Gowdy offered an amendment that updated the Committee's 
     Report to reflect that the President asserted the executive 
     privilege over certain documents subpoenaed by the Committee. 
     The amendment also updated the Report to include the 
     Committee's concerns about the validity of the President's 
     assertion of the executive privilege. The amendment was 
     agreed to by a recorded vote.

                        Committee Consideration

       On June 20, 2012, the Committee on Oversight and Government 
     Reform met in open session with a quorum present to consider 
     a report of contempt against Eric H. Holder, Jr., the 
     Attorney General of the United States, for failure to comply 
     with a Congressional subpoena. The Committee approved the 
     Report by a roll call vote of 23-17 and ordered the Report 
     reported favorably to the House.

                            Roll Call Votes

       The following recorded votes were taken during 
     consideration of the contempt Report:
       1. Mr. Welch offered an amendment to add language to the 
     Executive Summary stating that contempt proceedings at this 
     time are unwarranted because the Committee has not met with 
     former Attorney General Michael Mukasey.
       The amendment was defeated by a recorded vote of 14 Yeas to 
     23 Nays.
       Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
     Tierney, Lynch, Connolly, Quigley, Davis, Braley, Welch, 
     Murphy and Speier.
       Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
     Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
     Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
     Guinta, Farenthold and Kelly.
       2. Mr. Lynch offered an amendment asking for an itemized 
     accounting of the costs associated with the Fast and Furious 
     investigation.
       The amendment was defeated by a vote of 15 Yeas to 23 Nays.
       Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
     Tierney, Clay, Lynch, Connolly, Quigley, Davis, Braley, 
     Welch, Murphy and Speier.
       Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
     Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
     Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
     Guinta, Farenthold and Kelly.
       3. Ms. Maloney offered an amendment to add language to the 
     Executive Summary stating that contempt proceedings at this

[[Page H4191]]

     time are unwarranted because the Committee has not held a 
     public hearing with the former head of the Bureau of Alcohol, 
     Tobacco, Firearms and Explosives, Kenneth Melson.
       The amendment was defeated by a vote of 16 Yeas to 23 Nays.
       Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
     Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, 
     Braley, Welch, Murphy and Speier.
       Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
     Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
     Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
     Guinta, Farenthold and Kelly.
       4. Mr. Gowdy offered an amendment that updated the 
     Committee's Report to reflect that the President asserted the 
     executive privilege over certain documents subpoenaed by the 
     Committee. The amendment also updated the Report to include 
     the Committee's concerns about the validity of the 
     President's assertion of the executive privilege. The 
     amendment was agreed to by a recorded vote.
       The amendment was agreed to by a vote of 23 Yeas to 17 
     Nays.
       Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, 
     Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
     Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
     Guinta, Farenthold and Kelly.
       Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, 
     Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, 
     Braley, Welch, Yarmuth, Murphy and Speier.
       5. The Resolution was favorably reported, as amended, to 
     the House, a quorum being present, by a vote of 23 Yeas to 17 
     Nays.
       Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, 
     Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
     Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
     Guinta, Farenthold and Kelly.
       Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, 
     Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, 
     Braley, Welch, Yarmuth, Murphy and Speier.

              Application of Law to the Legislative Branch

       Section 102(b)(3) of Public Law 104-1 requires a 
     description of the application of this bill to the 
     legislative branch where the bill relates to the terms and 
     conditions of employment or access to public services and 
     accommodations. The Report does not relate to employment or 
     access to public services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

       In compliance with clause 3(c)(1) of rule XIII and clause 
     (2)(b)(1) of rule X of the Rules of the House of 
     Representatives, the Committee's oversight findings and 
     recommendations are reflected in the descriptive portions of 
     this Report.

         Statement of General Performance Goals and Objectives

       In accordance with clause 3(c)(4) of rule XIII of the Rules 
     of the House of Representatives, the Committee states that 
     pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
     House of Representatives, the Report will assist the House of 
     Representatives in considering whether to cite Attorney 
     General Eric H. Holder, Jr. for contempt for failing to 
     comply with a valid congressional subpoena.

                   Constitutional Authority Statement

       The Committee finds the authority for this Report in 
     article 1, section 1 of the Constitution.

                     Federal Advisory Committee Act

       The Committee finds that the Report does not establish or 
     authorize the establishment of an advisory committee within 
     the definition of 5 U.S.C. App., Section 5(b).

                         Earmark Identification

       The Report does not include any congressional earmarks, 
     limited tax benefits, or limited tariff benefits as defined 
     in clause 9 of rule XXI.

 Unfunded Mandate Statement, Committee Estimate, Budget Authority and 
               Congressional Budget Office Cost Estimate

       The Committee finds that clauses 3(c)(2), 3(c)(3), and 
     3(d)(1) of rule XIII of the Rules of the House of 
     Representatives, sections 308(a) and 402 of the Congressional 
     Budget Act of 1974, and section 423 of the Congressional 
     Budget and Impoundment Control Act (as amended by Section 
     101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104-4) 
     are inapplicable to this Report. Therefore, the Committee did 
     not request or receive a cost estimate from the Congressional 
     Budget Office and makes no findings as to the budgetary 
     impacts of this Report or costs incurred to carry out the 
     report.


          CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

       This Report makes no changes in any existing federal 
     statute.

                            ADDITIONAL VIEWS

       Report of the Committee on Oversight and Government Reform

Resolution Recommending that the House of Representatives Find Eric H. 
Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt 
 of Congress for Refusal to Comply with a Subpoena Duly Issued by the 
              Committee on Oversight and Government Reform

       ``The Department of Justice's Operation Fast and Furious: 
     Accounts of ATF Agents'' Joint Staff Report, prepared for 
     Representative Darrell Issa, Chairman, House Committee on 
     Oversight and Government Reform, and Senator Charles 
     Grassley, Ranking Member, Senate Committee on the Judiciary.
       ``The Department of Justice's Operation Fast and Furious: 
     Fueling Cartel Violence'' Joint Staff Report, prepared for 
     Representative Darrell Issa, Chairman, House Committee on 
     Oversight and Government Reform, and Senator Charles 
     Grassley, Ranking Member, Senate Committee on the Judiciary.

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[[Page H4303]]

                             MINORITY VIEWS

       Report of the Committee on Oversight and Government Reform

Resolution Recommending that the House of Representatives Find Eric H. 
Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt 
 of Congress for Refusal to Comply with a Subpoena Duly Issued by the 
              Committee on Oversight and Government Reform

       On June 20, 2012, the Committee adopted on a strictly 
     party-line vote a report and resolution (hereinafter 
     ``Contempt Citation'') concluding that Attorney General Eric 
     H. Holder, Jr., the chief law enforcement officer of the 
     United States, should be held in contempt of Congress for 
     declining to produce certain documents pursuant to the 
     Committee's investigation of ``gunwalking'' during Operation 
     Fast and Furious and previous operations.
       Committee Democrats were unanimous in their opposition to 
     the Contempt Citation. These dissenting views conclude that 
     Congress has a Constitutional responsibility to conduct 
     vigorous oversight of the executive branch, but that holding 
     the Attorney General in contempt would be an extreme, 
     unprecedented action based on partisan election-year politics 
     rather than the facts uncovered during the investigation.
       These views find that the Committee failed to honor its 
     Constitutional responsibility to avoid unnecessary conflict 
     with the executive branch by seeking reasonable 
     accommodations when possible. The Committee flatly rejected a 
     fair and reasonable offer made by the Attorney General to 
     provide additional internal deliberative documents sought by 
     the Committee in exchange for a good faith commitment toward 
     resolving the contempt dispute. Instead, the Committee has 
     repeatedly shifted the goalposts in this investigation after 
     failing to find evidence to support its unsubstantiated 
     allegations.
       The Contempt Citation adopted by the Committee contains 
     serious and significant errors, omissions, and 
     misrepresentations. To address these inaccuracies, these 
     views hereby incorporate and attach the 95-page staff report 
     issued by Ranking Member Elijah Cummings in January 2012, 
     which provides a comprehensive analysis of the evidence 
     obtained during the Committee's investigation.

          I. The Committee's Actions Have Been Highly Partisan

       The Committee's contempt vote on June 20, 2012, was the 
     culmination of one of the most highly politicized 
     congressional investigations in decades. It was based on 
     numerous unsubstantiated allegations that targeted the Obama 
     Administration for political purposes, and it ignored 
     documented evidence of gunwalking operations during the 
     previous administration.
       During the Committee's 16-month investigation, the 
     Committee refused all Democratic requests for witnesses and 
     hearings. In one of the most significant flaws of the 
     investigation, the Chairman refused multiple requests to hold 
     a public hearing with Kenneth Melson, the former head of ATF, 
     the agency responsible for conducting these operations.\1\ 
     The Chairman's refusal came after Mr. Melson told Committee 
     investigators privately in July 2011 that he never informed 
     senior officials at the Justice Department about gunwalking 
     during Operation Fast and Furious because he was unaware of 
     it himself.\2\ Mr. Melson's statements directly contradict 
     the claim in the Contempt Citation that senior Justice 
     Department officials were aware of gunwalking because Mr. 
     Melson briefed Gary Grindler, then-Acting Deputy Attorney 
     General, in March 2010.\3\
       Despite promising that he would be ``investigating a 
     president of my own party because many of the issues we're 
     working on began on [sic] President Bush,'' the Chairman also 
     refused multiple requests for former Attorney General Michael 
     Mukasey to testify before the Committee or to meet with 
     Committee Members informally to discuss the origination and 
     evolution of gunwalking operations since 2006.\4\ Documents 
     obtained during the investigation indicate that Mr. Mukasey 
     was briefed personally on botched efforts to coordinate 
     firearm interdictions with Mexican law enforcement officials 
     in 2007 and was informed directly that such efforts would be 
     expanded during his tenure.\5\
       The Committee also failed to conduct interviews of other 
     key figures. For example, the Committee did not respond to a 
     request to interview Alice Fisher, who served as Assistant 
     Attorney General in charge of the Criminal Division from 2005 
     to 2008, about her role in authorizing wiretaps in Operation 
     Wide Receiver, or to a request to interview Deputy Assistant 
     Attorney General Kenneth Blanco, who also authorized wiretaps 
     in Operation Fast and Furious and still works at the 
     Department, but who was placed in his position under the Bush 
     Administration in April 2008.\6\ No explanation for these 
     refusals has been given.
       During the Committee business meeting on June 20, 2012, 
     every Democratic amendment to correct the Contempt Citation 
     by noting these facts was defeated on strictly party-line 
     votes.

  II. Holding the Attorney General in Contempt Would Be Unprecedented

       The House of Representatives has never in its history held 
     an Attorney General in contempt of Congress. The only 
     precedent referenced in the Contempt Citation for holding a 
     sitting Attorney General in contempt for refusing to provide 
     documents is this Committee's vote in 1998 to hold then-
     Attorney General Janet Reno in contempt during the campaign 
     finance investigation conducted by then-Chairman Dan 
     Burton.\7\
       Chairman Burton's investigation was widely discredited, and 
     the decision to hold the Attorney General in contempt was 
     criticized by editorial boards across the country as ``a 
     gross abuse of his powers as chairman of the committee,'' \8\ 
     a ``fishing expedition,'' \9\ ``laced with palpable political 
     motives,'' \10\ and ``showboating.'' \11\ That action was so 
     partisan and so widely discredited that Newt Gingrich, who 
     was then Speaker, did not bring it to the House Floor for a 
     vote.\12\
       Similarly, numerous commentators and editorial boards have 
     criticized Chairman Issa's recent actions as ``a monstrous 
     witch hunt,'' \13\ ``a pointless partisan fight,'' \14\ and 
     ``dysfunctional Washington as usual.'' \15\

   III. The Committee Has Held the Attorney General to an Impossible 
                                Standard

       For more than a year, the Committee has held the Attorney 
     General to an impossible standard by demanding documents he 
     is prohibited by law from producing.
       One of the key sets of documents demanded during this 
     investigation has been federal wiretap applications submitted 
     by law enforcement agents in order to obtain a federal 
     court's approval to secretly monitor the telephone calls of 
     individuals suspected of gun trafficking.
       The federal wiretapping statute, which was passed by 
     Congress and signed by President Lyndon B. Johnson on June 
     19, 1968, provides for a penalty of up to five years in 
     prison for the unauthorized disclosure of wiretap 
     communications and prohibits the unauthorized disclosure of 
     wiretap applications approved by federal judges, who must 
     seal them to protect against their disclosure.\16\ The 
     statute states:

       Each application for an order authorizing or approving the 
     interception of a wire, oral, or electronic communication 
     under this chapter shall be made in writing upon oath or 
     affirmation to a judge of competent jurisdiction. 
     Applications made and orders granted under this chapter shall 
     be sealed by the judge.\17\

       Similarly, in 1940, Congress passed a statute giving the 
     Supreme Court the power to prescribe rules of pleading, 
     practice, and procedure in criminal cases.\18\ In 1946, the 
     modern grand jury secrecy rule was codified as Rule 6(e) of 
     the Federal Rules of Criminal Procedure, which provides for 
     criminal penalties for disclosing grand jury information.\19\
       The Department has explained this to the Committee 
     repeatedly, including in a letter on May 15, 2012:

       Our disclosure to this oversight Committee of some material 
     sought by the October 11 subpoena, such as records covered by 
     grand jury secrecy rules and federal wiretap applications and 
     related information, is prohibited by law or court 
     orders.\20\

       Despite these legal prohibitions, the Chairman continued to 
     threaten to hold the Attorney General in contempt for 
     protecting these documents. He also publicly accused the 
     Attorney General of a ``cover-up,'' \21\ claimed he was 
     ``obstructing'' the Committee's investigation,\22\ asserted 
     that he is willing to ``deceive the public,'' \23\ and stated 
     on national television that he ``lied.'' \24\

   IV. The Documents at Issue in the Contempt Citation Are Not About 
                               Gunwalking

       The documents at issue in the Contempt Citation are not 
     related to the Committee's investigation into how gunwalking 
     was initiated and utilized in Operation Fast and Furious.
       Over the past year, the Department of Justice has produced 
     thousands of pages of documents, the Committee has 
     interviewed two dozen officials, and the Attorney General has 
     testified before Congress nine times.
       In January, Ranking Member Cummings issued a comprehensive 
     95-page staff report documenting that Operation Fast and 
     Furious was in fact the fourth in a series of gunwalking 
     operations run by ATF's Phoenix field division over a span of 
     five years beginning in 2006. Three prior operations--
     Operation Wide Receiver (2006-2007), the Hernandez case 
     (2007), and the Medrano case (2008)--occurred during the Bush 
     Administration. All four operations were overseen by the same 
     ATF Special Agent in Charge in Phoenix.\25\
       The Committee has obtained no evidence that the Attorney 
     General was aware that gunwalking was being used. To the 
     contrary, as soon as he learned of its use, the Attorney 
     General halted it, ordered an Inspector General 
     investigation, and implemented significant internal reform 
     measures.\26\
       After finding no evidence of wrongdoing by the Attorney 
     General, the Committee's investigation shifted to focusing on 
     a single letter sent by the Department's Office of 
     Legislative Affairs to Senator Charles Grassley on February 
     4, 2011. This letter initially denied allegations that ATF 
     ``knowingly allowed the sale of assault weapons to a straw 
     purchaser who then transported them into Mexico'' and stated 
     that ``ATF makes every effort to interdict weapons that have 
     been purchased illegally and prevent their transportation to 
     Mexico.'' \27\
       The Department has acknowledged that its letter was 
     inaccurate and has formally withdrawn it. On December 2, 
     2011, the Department wrote that ``facts have come to light 
     during the course of this investigation that

[[Page H4304]]

     indicate that the February 4 letter contains inaccuracies.'' 
     \28\
       Acknowledging these inaccuracies, the Department also 
     provided the Committee with 1,300 pages of internal 
     deliberative documents relating to how the letter to Senator 
     Grassley was drafted. These documents demonstrate that 
     officials in the Office of Legislative Affairs who were 
     responsible for drafting the letter did not intentionally 
     mislead Congress, but instead relied on inaccurate assertions 
     and strong denials from officials ``in the best position to 
     know the relevant facts: ATF and the U.S. Attorney's Office 
     in Arizona, both of which had responsibility for Operation 
     Fast and Furious.'' \29\
       Despite receiving these documents explaining how the letter 
     to Senator Grassley was drafted, the Committee moved the 
     goalposts and demanded additional internal documents created 
     after February 4, 2011, the date the letter to Senator 
     Grassley was sent. It is unclear why the Committee needs 
     these documents. This narrow subset of additional documents--
     which have nothing to do with how gunwalking was initiated in 
     Operation Fast and Furious--is now the sole basis cited in 
     the Contempt Citation for holding the Attorney General in 
     contempt.\30\

V. The Committee Refused a Good Faith Offer by the Attorney General for 
                          Additional Documents

       The Committee failed to honor its Constitutional 
     responsibility to avoid unnecessary conflict with the 
     Executive Branch by seeking reasonable accommodations when 
     possible. On the evening before the Committee's contempt 
     vote, the Attorney General met with Chairman Issa, Ranking 
     Member Cummings, Senator Grassley, and Senator Patrick Leahy. 
     The Attorney General offered to take the following steps in 
     response to the Committee's demands for additional documents. 
     Specifically, the Attorney General:

       (1) offered to provide additional internal deliberative 
     Department documents, created even after February 4, 2011;
       (2) offered a substantive briefing on the Department's 
     actions relating to how they determined the letter contained 
     inaccuracies;
       (3) agreed to Senator Grassley's request during the meeting 
     to provide a description of the categories of documents that 
     would be produced and withheld; and
       (4) agreed to answer additional substantive requests for 
     information from the Committee.

       The Attorney General noted that his offer included 
     documents and information that went even beyond those 
     demanded in the Committee's subpoena. In exchange, the 
     Attorney General asked the Chairman for a good faith 
     commitment to work towards a final resolution of the contempt 
     issue.\31\
       Chairman Issa did not make any substantive changes to his 
     position. Instead, he declined to commit to a good faith 
     effort to work towards resolving the contempt issue and 
     flatly refused the Attorney General's offer.
       There is no question that the Constitution authorizes 
     Congress to conduct rigorous investigations in support of its 
     legislative functions.\32\ The Constitution also requires 
     Congress and the executive branch to seek to accommodate each 
     other's interests and to avoid unnecessary conflict. As the 
     D.C. Circuit has held:

       [E]ach branch should take cognizance of an implicit 
     constitutional mandate to seek optimal accommodation through 
     a realistic evaluation of the needs of the conflicting 
     branches in the particular fact situation.\33\

       Similarly, then-Attorney General William French Smith, who 
     served under President Ronald Reagan, observed:

       The accommodation required is not simply an exchange of 
     concessions or a test of political strength. It is an 
     obligation of each branch to make a principled effort to 
     acknowledge, and if possible to meet, the legitimate needs of 
     the other branch.\34\

VI. The Committee's Decision To Press Forward With Contempt Led to the 
           Administration's Assertion of Executive Privilege

       After the Chairman refused the Attorney General's good 
     faith offer--and it became clear that a Committee contempt 
     vote was inevitable--the President asserted executive 
     privilege over the narrow category of documents still at 
     issue. The Administration made clear that it was still 
     willing to negotiate on Congress' access to the documents if 
     contempt could be resolved.
       On June 20, 2012, Deputy Attorney General James Cole wrote 
     to the Chairman to inform the Committee that ``the President, 
     in light of the Committee's decision to hold the contempt 
     vote, has asserted executive privilege over the relevant 
     post-February 4 documents.'' \35\ An accompanying letter from 
     Attorney General Holder described the documents covered by 
     the privilege as limited to ``internal Department `documents 
     from after February 4, 2011, related to the Department's 
     response to Congress.' '' \36\
       Claims by House Speaker John Boehner and others that the 
     Administration's assertion of executive privilege raises 
     questions about the President's personal knowledge of 
     gunwalking reflect a misunderstanding of the scope of the 
     privilege asserted.\37\ Regarding the narrow subset of 
     documents covered by the assertion, the letter from Attorney 
     General explained:

       They were not generated in the course of the conduct of 
     Fast and Furious. Instead, they were created after the 
     investigative tactics at issue in that operation had 
     terminated and in the course of the Department's deliberative 
     process concerning how to respond to congressional and 
     related media inquiries into that operation.\38\

       The Attorney General's letter also explained the 
     Administration's legal rationale for invoking executive 
     privilege over internal deliberative Justice Department 
     documents, citing opinions from former Attorneys General 
     Michael B. Mukasey, John Ashcroft, William French Smith, and 
     Janet Reno, as well as former Solicitor General and Acting 
     Attorney General Paul D. Clement.\39\ The letter also quoted 
     the Supreme Court in United States v. Nixon, writing:

       The threat of compelled disclosure of confidential 
     Executive Branch deliberative material can discourage robust 
     and candid deliberations, for ``[h]uman experience teaches 
     that those who expect public dissemination of their remarks 
     may well temper candor with a concern for appearances and for 
     their own interests to the detriment of the decisionmaking 
     process.'' . . . Thus, Presidents have repeatedly asserted 
     executive privilege to protect confidential Executive Branch 
     deliberative materials from congressional subpoena.\40\

    VII. The Committee Failed To Responsibly Consider the Executive 
                          Privilege Assertion

       Despite requests from several Committee Members, the 
     Committee did not delay or postpone the business meeting in 
     order to responsibly examine the Administration's assertion 
     of executive privilege and determine whether it would be 
     appropriate to continue contempt proceedings against the 
     Attorney General.
       Instead of following the example of previous Committee 
     Chairmen who put off contempt proceedings in order to conduct 
     a serious and careful review of presidential assertions of 
     executive privilege, Chairman Issa stated that ``I claim not 
     to be a constitutional scholar'' and proceeded with the 
     contempt vote.\41\
       In contrast, former Committee Chairman Henry Waxman put off 
     a contempt vote after President George W. Bush asserted 
     executive privilege in the investigation into the leak of the 
     covert status of CIA operative Valerie Plame.\42\ He took the 
     same course of action after President Bush asserted executive 
     privilege over documents relating to the Environmental 
     Protection Agency's ozone regulation on the same day as a 
     scheduled contempt vote. At the time, he stated:

       I want to talk with my colleagues on both sides of the 
     aisle about this new development. I want to learn more about 
     the assertion and the basis for this assertion of the 
     executive privilege.\43\

       Although the Committee ultimately disagreed with the 
     validity of President Bush's assertions of executive 
     privilege, in neither case did the Committee go forward with 
     contempt proceedings against the officials named in the 
     contempt citations.
       Similarly, Rep. John Dingell, as Chairman of the Energy and 
     Commerce Committee during that Committee's 1981 investigation 
     into the Department of Interior, received an assertion of 
     executive privilege from the Reagan Administration regarding 
     documents pertaining to the administration of the Mineral 
     Lands Leasing Act.\44\ Before proceeding to contempt, the 
     Committee held two separate hearings on the executive 
     privilege assertion, and the Committee invited the Attorney 
     General to testify regarding his legal opinion supporting the 
     claim of executive privilege.\45\

   VIII. The Investigation Has Been Characterized by Unsubstantiated 
                                 Claims

       The Committee's investigation of ATF gunwalking operations 
     has been characterized by a series of unfortunate and 
     unsubstantiated allegations against the Obama Administration 
     that turned out to be inaccurate.
       For example, during an interview on national television on 
     October 16, 2011, the Chairman accused the Federal Bureau of 
     Investigation (FBI) of concealing evidence of the murder of 
     Agent Brian Terry by hiding a ``third gun'' found at the 
     murder scene.\46\ The FBI demonstrated quickly that this 
     claim was unsubstantiated.\47\ Although the Chairman admitted 
     during a subsequent hearing that ``we do go down blind alleys 
     regularly,'' no apology was issued to the law enforcement 
     agents that were accused of a cover-up.\48\
       At the same time, the Chairman has defended the previous 
     Administration's operations as ``coordinated.'' \49\ In 
     response to a question about gunwalking during the Bush 
     Administration, the Chairman stated:

       We know that under the Bush Administration there were 
     similar operations, but they were coordinated with Mexico. 
     They made every effort to keep their eyes on the weapons the 
     whole time.\50\

       To the contrary, the staff report issued by Ranking Member 
     Cummings on January 31, 2012, documents at least three 
     operations during the previous Administration in which 
     coordination efforts were either non-existent or severely 
     deficient.\51\
       In addition, the Chairman has stated repeatedly that senior 
     Justice Department officials were ``fully aware'' of 
     gunwalking in Operation Fast and Furious.\52\ After 
     conducting two dozen transcribed interviews, none of the 
     officials and agents involved said

[[Page H4305]]

     they informed the Attorney General or other senior Department 
     officials about gunwalking in Operation Fast and Furious. 
     Instead, the heads of the agencies responsible for the 
     operation--ATF and the U.S. Attorney's Office--told Committee 
     investigators just the opposite, that they never informed 
     senior Department officials about gunwalking in Operation 
     Fast and Furious because they were unaware of it.\53\
       Finally, the Chairman has promoted an extreme conspiracy 
     theory that the Obama Administration intentionally designed 
     Operation Fast and Furious to promote gunwalking. He stated 
     in December 2011 that the Administration ``made a crisis and 
     they are using this crisis to somehow take away or limit 
     people's second amendment rights.'' \54\ This offensive claim 
     has also been made by Rush Limbaugh and other conservative 
     media personalities during the course of the investigation. 
     For example, on June 20, 2011, Mr. Limbaugh stated:

       The real reason for Operation Gunrunner or Fast and 
     Furious, whatever they want to call it now, the purpose of 
     this was so that Obama and the rest of the Democrats can 
     scream bloody murder about the lack of gun control in the 
     U.S., which is causing all the murders in Mexico. This was a 
     setup from the get-go.\55\

       Another conservative commentator stated that ``their 
     political agenda behind this entire thing was to blame 
     American gun shops for cartel violence in America in order to 
     push an anti-Second Amendment, more regulations on these gun 
     shops.'' \56\ Yet another one stated:

       This was purely a political operation. You send the guns 
     down to Mexico, therefore you support the political narrative 
     that the Obama administration wanted supported. That all 
     these American guns are flooding Mexico, they're the cause of 
     the violence in Mexico, and therefore we need draconian gun 
     control laws here in America.\57\

       As recently as this month, Committee Member John Mica 
     repeated this claim on Fox News. On June 15, 2012, he stated:

       People forget how all this started. This administration is 
     a gun control administration. They tried to put the violence 
     in Mexico on the blame of the United States. So they 
     concocted this scheme and actually sending our federal 
     agents, sending guns down there, and trying to cook some 
     little deal to say that we have got to get more guns under 
     control.\58\

       There is no evidence to support this conspiracy theory. To 
     the contrary, the documents obtained and interviews conducted 
     by the Committee demonstrate that gunwalking began in 2006, 
     was used in three operations during the Bush Administration, 
     and was a misguided tactic utilized by the ATF field division 
     in Phoenix.\59\


                                 NOTES

       \1\ Letter from Rep. Elijah E. Cummings, Ranking Member, 
     House Committee on Oversight and Government Reform, to Rep. 
     Darrell E. Issa, Chairman, House Committee on Oversight and 
     Government Reform (Oct. 28, 2011).
       \2\ House Committee on Oversight and Government Reform, 
     Transcribed Interview of Kenneth E. Melson (July 4, 2011).
       \3\ House Committee on Oversight and Government Reform, 
     Report of the Committee on Oversight and Government Reform on 
     Resolution Recommending that the House of Representatives 
     Find Eric H. Holder, Jr., Attorney General, U.S. Department 
     of Justice, in Contempt of Congress for Refusal to Comply 
     with a Subpoena Duly Issued by the Committee on Oversight and 
     Government Reform, at 11 (June 14, 2012) (``Contempt 
     Citation'').
       \4\ The Daily Rundown, MSNBC (Nov. 3, 2010) (online at 
     http://videocafe.crooksandliars.com/david/darrell-issa-
obama-must-answer-several-hundr); Letter from Rep. Elijah E. 
     Cummings, Ranking Member, House Committee on Oversight and 
     Government Reform, to Rep. Darrell E. Issa, Chairman, House 
     Committee on Oversight and Government Reform (June 5, 2012); 
     Letter from Rep. Elijah E. Cummings, Ranking Member, House 
     Committee on Oversight and Government Reform, to Rep. Darrell 
     E. Issa, Chairman, House Committee on Oversight and 
     Government Reform (Feb. 2, 2012); Letter from Rep. Elijah E. 
     Cummings, Ranking Member, House Committee on Oversight and 
     Government Reform, to Rep. Darrell E. Issa, Chairman, House 
     Committee on Oversight and Government Reform (Nov. 4, 2011).
       \5\ Department of Justice, Meeting of the Attorney General 
     with Mexican Attorney General Medina Mora (Nov. 16, 2007).
       \6\ Letter from Rep. Elijah E. Cummings, Ranking Member, 
     House Committee on Oversight and Government Reform, to Rep. 
     Darrell E. Issa, Chairman, House Committee on Oversight and 
     Government Reform (June 5, 2012).
       \7\ House Committee on Government Reform and Oversight, 
     Contempt of Congress: Refusal of Attorney General Janet Reno 
     to Produce Documents Subpoenaed By the Government Reform and 
     Oversight Committee, 105th Cong. (1998) (H. Rept. 105-728).
       \8\ The Contempt Citation, Washington Post (Sept. 22, 
     1998).
       \9\ Buck Stops With Reno; Appointing an Independent Counsel 
     in Campaign Contribution Case: That Decision is Reno's Alone 
     to Make on the Basis of Her Information and Her 
     Interpretation of the Law, Los Angeles Times (Aug. 6, 1998).
       \10\ Tell Him No, Ms. Reno!, Miami Herald (Aug. 6, 1998).
       \11\ Give Reno Some Room, St. Petersburg Times (Aug. 6, 
     1998).
       \12\ Congressional Research Service, Congressional Contempt 
     Power and the Enforcement of Congressional Subpoenas: Law, 
     History, Practice, and Procedure (May 8, 2012).
       \13\ Juan Williams, Issa's Monstrous Witch Hunt, The Hill 
     (May 14, 2012).
       \14\ A Pointless Partisan Fight, New York Times (June 20, 
     2012).
       \15\ Holder Contempt Vote is Dysfunctional Washington as 
     Usual, Baltimore Sun (June 21, 2012). See also Eugene 
     Robinson, GOP Witch Hunt for Eric Holder Reflects Bigger 
     Problem, Washington Post (June 21, 2012); Paul Barrett, In 
     Contempt of Government Reform, Businessweek (June 20, 2012); 
     Dana Milbank, Republicans' Attempt to Hold Holder in Contempt 
     is Uphill Battle, Washington Post (June 20, 2012) (describing 
     the ``contemptible antics'' of the Committee's contempt 
     proceedings); Sandra Hernandez, Partisan Politics Plague 
     Probe of `Fast and Furious,' Los Angeles Times (``Issa's 
     demand loses some of its credibility and lapses into 
     political theater when he threatens Atty. Gen. Eric H. Holder 
     Jr. with criminal contempt for failing to cooperate'') (Mar. 
     29, 2012).
       \16\ The White House, Statement by the President Upon 
     Signing the Omnibus Crime Control and Safe Streets Act of 
     1968 (June 19, 1968); 18 U.S.C. 2511(4)(a) (providing that 
     violators ``shall be fined under this title or imprisoned not 
     more than five years, or both''); 18 U.S.C. 2511(1)(e) 
     (covering any person who ``intentionally discloses, or 
     endeavors to disclose, to any other person the contents of 
     any wire, oral, or electronic communication, intercepted by 
     means authorized'' under this chapter).
       \17\ 18 U.S.C. 2518(1), 2518(8).
       \18\ Sumner Courts Act, Pub. L. No. 76-675, 54 Stat. 688 
     (1940).
       \19\ Fed. R. Crim. Pro. 6(e)(7) (providing that a knowing 
     violation of Rule 6 ``may be punished as a contempt of 
     court''); 18 U.S.C. 401(3) (providing that a ``court of the 
     United States shall have power to punish by fine or 
     imprisonment, or both, at its discretion, such contempt of 
     its authority'').
       \20\ Letter from James M. Cole, Deputy Attorney General, 
     Department of Justice, to Rep. Darrell E. Issa, Chairman, 
     House Committee on Oversight and Government Reform (May 15, 
     2012).
       \21\ Letter from Rep. Darrell E. Issa, Chairman, House 
     Committee on Oversight and Government Reform, to Eric H. 
     Holder, Jr., Attorney General, Department of Justice (Jan. 
     31, 2012).
       \22\ Letter from Rep. Darrell E. Issa, Chairman, House 
     Committee on Oversight and Government Reform, to Eric H. 
     Holder, Jr., Attorney General, Department of Justice (Oct. 9, 
     2011).
       \23\ Letter from Rep. Darrell E. Issa, Chairman, House 
     Committee on Oversight and Government Reform, to Eric H. 
     Holder, Jr., Attorney General, Department of Justice (Jan. 
     31, 2012).
       \24\ On the Record with Greta Van Susteren, Fox News (June 
     7, 2012) (online at www.foxnews.com/on-air/on-the-record/
2012/06/08/issas-fast-and-furious-frustration-
bubbles-over-holders-truth-not-consistent-facts?page=2).
       \25\ Minority Staff, House Committee on Oversight and 
     Government Reform, Fatally Flawed: Five Years of Gunwalking 
     in Arizona (Jan. 2012) (online at http://democrats.
oversight.house.gov/index.php?option=com_ 
     content&task=view&id=5575& Itemid=104).
       \26\ Id.; House Committee on the Judiciary, Testimony of 
     Eric H. Holder, Jr., Attorney General, Department of Justice, 
     Oversight of the United States Department of Justice (June 7, 
     2012).
       \27\ Letter from Ronald Weich, Assistant Attorney General, 
     Office of Legislative Affairs, Department of Justice, to Sen. 
     Charles E. Grassley, Ranking Member, Senate Committee on the 
     Judiciary (Feb. 4, 2011).
       \28\ Letter from James M. Cole, Deputy Attorney General, 
     Department of Justice, to Rep. Darrell E. Issa, Chairman, 
     House Committee on Oversight and Government Reform, et al. 
     (Dec. 2, 2011).
       \29\ Id.
       \30\ Contempt Citation, at 41-42.
       \31\ Id.
       \32\ Congressional Research Service, Congressional 
     Oversight Manual (June 10, 2011).
       \33\ United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 
     1977).
       \34\ 5 Op. Off. Legal Counsel. 27, 31 (1981).
       \35\ Letter from James M. Cole, Deputy Attorney General, 
     Department of Justice, to Rep. Darrell E. Issa, Chairman, 
     House Oversight and Government Reform (June 20, 2012).
       \36\ Letter from Eric H. Holder, Jr., Attorney General, 
     Department of Justice, to Barack H. Obama, President (June 
     19, 2012) (quoting Letter from Rep. Darrell E. Issa, 
     Chairman, House Committee on Oversight and Government Reform, 
     to Eric H. Holder, Jr., Attorney General, Department of 
     Justice (June 13, 2012)).
       \37\ Fast and Furious: How President Obama and John Boehner 
     Got to the Brink, Politico (June 22, 2012) (quoting Speaker 
     John A. Boehner as stating that the ``decision to invoke 
     executive privilege is an admission that White House 
     officials were involved in decisions that misled the Congress 
     and have covered up the truth''); House Committee on 
     Oversight and Government Reform, Business Meeting (June 20, 
     2012) (quoting Rep. James Lankford as stating ``we weren't 
     even aware that the President was engaged in the 
     deliberations'' and Rep. Jason E. Chaffetz stating

[[Page H4306]]

     that the assertion means that the President ``somehow was 
     personally involved'').
       \38\ Letter from Eric H. Holder, Jr., Attorney General, 
     Department of Justice, to Barack H. Obama, President (June 
     19, 2012) (quoting Letter from Rep. Darrell E. Issa, 
     Chairman, House Committee on Oversight and Government Reform, 
     to Eric H. Holder, Jr., Attorney General, Department of 
     Justice (June 13, 2012)).
       \39\ Letter from Eric H. Holder, Jr., Attorney General, 
     Department of Justice, to Barack H. Obama, President (June 
     19, 2012) (quoting Letter from Michael B. Mukasey, Attorney 
     General, Department of Justice, to George W. Bush, President 
     (June 19, 2008); Letter from Paul D. Clement, Solicitor 
     General and Acting Attorney General, Department of Justice, 
     to George W. Bush, President (June 27, 2007); Letter from 
     John D. Ashcroft, Attorney General, Department of Justice, to 
     George W. Bush, President (Dec. 10, 2001); 23 Op. Off. Legal 
     Counsel 1, 1-2 (1999) (opinion of Attorney General Janet W. 
     Reno); 5 Op. Off. Legal Counsel 27,29-31 (1981) (opinion of 
     Attorney General William French Smith)).
       \40\ Letter from Eric H. Holder, Jr., Attorney General, 
     Department of Justice, to Barack H. Obama, President (June 
     19, 2012) (citing United States v. Nixon, 418 U.S. 683, 705 
     (1974)).
       \41\ House Committee on Oversight and Government Reform, 
     Statement of Chairman Darrell E. Issa, Business Meeting (June 
     20, 2012).
       \42\ House Committee on Oversight and Government Reform, 
     Report Regarding President Bush's Assertion of Executive 
     Privilege in Response to the Committee Subpoena to Attorney 
     General Michael B. Mukasey, 110th Cong. (2008).
       \43\ House Committee on Oversight and Government Reform, 
     Statement of Chairman Henry A. Waxman, Hearing on the Johnson 
     and Dudley Contempt of Congress Resolutions, 110th Cong. 
     (June 20, 2008).
       \44\ House Committee on Energy and Commerce, Congressional 
     Proceedings Against Interior Secretary James G. Watt for 
     Withholding Subpoenaed Documents And For Failure to Answer 
     Questions Relating to Reciprocity Under the Mineral Lands 
     Leasing Act, 97th Cong. (Sept. 30, 1982) (H. Rept. 97-898).
       \45\ Id.
       \46\ Face the Nation, CBS News (Oct. 16, 2011) (online at 
     www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
       \47\ Justice Department Accuses Issa of 
     ``Mischaracterizing'' Evidence in Probe of Operation Fast and 
     Furious, Fox News (Oct. 17, 2011) (online at www.foxnews.com/
politics/2011/10/17/justice-department-accuses-issa-
ischaracterizing-evidence-in-probe-operation/
#ixzz1xiMQtvoh).
       \48\ House Committee on Oversight and Government Reform, 
     Hearing on Operation Fast and Furious: Management Failures at 
     the Department of Justice (Feb. 2, 2012).
       \49\ Face the Nation, CBS News (Oct. 16, 2011) (online at 
     www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
       \50\ Id.
       \51\ Minority Staff, House Committee on Oversight and 
     Government Reform, Fatally Flawed: Five Years of Gunwalking 
     in Arizona (Jan. 2012) (online at http://democrats.
oversight.house.gov/index.php?option=com_ 
     content&task=view&id=5575&Itemid=104).
       \52\ The Roger Hedgecock Show (Nov. 21, 2011) (online at 
     www.youtube.com/watch?v=pGYUxuBNxk0).
       \53\ House Committee on Oversight and Government Reform, 
     Transcribed Interview of Kenneth E. Melson (July 4, 2011); 
     House Committee on Oversight and Government Reform, 
     Transcribed Interview of Dennis K. Burke (Aug. 18, 2011).
       \54\ Hannity, Fox News (Dec. 8. 2011) (online at http://
video.foxnews.com/v/1317212270001/holder-on-the-hot-seat-
over-fast_furious).
       \55\ The Rush Limbaugh Show (June 20, 2011) (online at 
     www.rushlimbaugh.com/daily/2011/06/20/on_the_ 
     cutting_edge_we_covered_ the_ 
     fast_and_furious_story_in_march).
       \56\ O'Reilly Factor, Fox News (Apr. 16, 2012) (online at 
     www.foxnews.com/on-air/oreilly/2012/04/17/will-fast-and-
furious-hurt-obamas-re-election-chances).
       \57\ American Newsroom, Fox News (Mar. 12, 2012) (online at 
     http://video.foxnews.com/v/1502683781001/tea-party-turning-
up-the-heat-on-fast_furious).
       \58\ Hannity, Fox News (June 15, 2012) (online at http://
video.foxnews.com /v/1691933147001).
       \59\ Minority Staff, House Committee on Oversight and 
     Government Reform, Fatally Flawed: Five Years of Gunwalking 
     in Arizona (Jan. 2011) (online at http://democrats.oversight.
house.gov/images/stories/minority_report_ 13112.pdf)

     Elijah E. Cummings.
     Carolyn B. Maloney.
     Wm. Lacy Clay.
     Eleanor Holmes-Norton.
     Danny K. Davis.
     John F. Tierney.
     Stephen F. Lynch.
     Christopher Murphy.
     Mike Quigley.
     Dennis J. Kucinich.
     Edolphus Towns.
     Gerald E. Connolly.
     Peter Welch.
     John Yarmuth.
     Jackie Speier.

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[[Page H4402]]

  Mr. ISSA. Mr. Speaker, by direction of the Committee on Oversight and 
Government Reform, I call up the resolution (H. Res. 711) recommending 
that the House of Representatives find Eric H. Holder, Jr., Attorney 
General, U.S. Department of Justice, in contempt of Congress for 
refusal to comply with a subpoena duly issued by the Committee on 
Oversight and Government Reform.
  The Clerk read the title of the resolution.
  The SPEAKER pro tempore. Pursuant to House Resolution 708, the 
resolution is considered read and shall be debatable for 50 minutes, 
equally divided and controlled by the chair and ranking minority member 
of the Committee on Oversight and Government Reform or their designees.
  The text of the resolution is as follows:

                              H. Res. 711

       Resolved, That Eric H. Holder, Jr., Attorney General of the 
     United States, shall be found to be in contempt of Congress 
     for failure to comply with a congressional subpoena.
       Resolved, That pursuant to 2 U.S.C. 192 and 194, the 
     Speaker of the House of Representatives shall certify the 
     report of the Committee on Oversight and Government Reform, 
     detailing the refusal of Eric H. Holder, Jr., Attorney 
     General, U.S. Department of Justice, to produce documents to 
     the Committee on Oversight and Government Reform as directed 
     by subpoena, to the United States Attorney for the District 
     of Columbia, to the end that Mr. Holder be proceeded against 
     in the manner and form provided by law.
       Resolved, That the Speaker of the House shall otherwise 
     take all appropriate action to enforce the subpoena.

  The SPEAKER pro tempore. After debate on the resolution, it shall be 
in order to consider a motion to refer if offered by the gentleman from 
Michigan (Mr. Dingell) or his designee which shall be debatable for 10 
minutes equally divided and controlled by the proponent and an 
opponent.
  The gentleman from California (Mr. Issa) and the gentleman from 
Maryland (Mr. Cummings) each will control 25 minutes.
  The Chair recognizes the gentleman from California.


                             General Leave

  Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
and insert extraneous materials into the Record for both resolutions 
made in order under the rule.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. ISSA. Mr. Speaker, I yield myself 2 minutes.
  I never thought that we would be here today. I never thought this 
point would come. Throughout 18 months of investigation, through 
countless areas of negotiations in order to get the minimum material 
necessary to find out the facts behind Fast and Furious and the murder 
of Border Patrol Agent Brian Terry, I always believed that, in time, we 
would reach an accommodation sufficient to get the information needed 
for the American people while at the same time preserving the ongoing 
criminal investigations.
  I am proud to say that our committee has maintained the ability for 
the Justice Department to continue their ongoing prosecutions. Neither 
the majority nor the minority has allowed any material to become public 
to compromise that. However, the facts remain--in Fast and Furious, the 
Department of Justice permitted the sale of more than 2,000 weapons 
that fell into the hands of the Mexican drug cartels, which was both 
reckless and inexcusable. And it clearly was known by people, both 
career professionals and political appointees, from the lowliest 
members on the ground in Phoenix to high-ranking officials in the 
Department of Justice. But that's not what we're here for today.
  Today we are here on a very narrow contempt, one that the Speaker of 
the House, in his wisdom and assistance, has helped us to fashion. Let 
it be clear: we still have unanswered questions on a myriad of areas 
related to Operation Fast and Furious. But today we are only here to 
determine how, over the 10 months from the time in which the American 
people and the Congress of the United States were lied to, given 
false--literally the reverse statement, that ``no guns were allowed to 
walk'' during those 10 months before the Justice Department finally 
owned up and recognized that they had to come clean that, in fact, Fast 
and Furious was all about gunwalking.
  The Department of Justice maintained a series of documents. Many of 
these documents are believed to be communications between and with the 
very individuals at the heart of the decision to go forward with Fast 
and Furious. Therefore, we have focused our limited contempt on those 
documents. If our committee is able to receive the documents in 
totality that show who brought about the dishonest statement to 
Congress and who covered it up for 10 months, we believe that will 
allow us to backtrack to the individuals who ultimately believed in 
Fast and Furious, facilitated Fast and Furious, and ultimately made it 
responsible for Brian Terry's death.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. ISSA. I yield myself an additional 15 seconds.
  I won't read everything that's in my opening statement. But I will 
read just one more thing.
  These words were said on the House floor in 2008 when Speaker Pelosi 
supported contempt. She said:

       Congress has the responsibility of oversight of the 
     executive branch. I know that Members on both sides of the 
     aisle take that responsibility very seriously. Oversight is 
     an institutional obligation to ensure against abuse of power. 
     Subpoena authority is a vital tool for that oversight.

  Speaker Pelosi, 2008.
  I reserve the balance of my time.
  Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
  Today, Mr. Speaker, is a historic day in many ways. On the one hand, 
in a landmark decision by Chief Justice John Roberts, the Supreme Court 
upheld the health care bill, ensuring that millions of American 
families will finally have access to effective and affordable health 
care.
  On the other hand, Republican leaders of the House of Representatives 
are about to plunge into the history books as some of the most extreme 
and partisan ever. Rather than working together in a bipartisan way to 
create jobs and help our Nation's economic recovery, they're rushing to 
the floor under emergency procedures with a contempt resolution that is 
riddled with errors and is motivated by partisan politics.
  When I first heard about the allegations of gunwalking at ATF, I was 
outraged. I fully supported our committee's goals of finding out how it 
started, how it was used, and how it may have contributed to the death 
of Border Patrol Agent Brian Terry. I made a personal commitment, which 
I will keep, to the Terry family to conduct a responsible and thorough 
inquiry.
  But today's contempt vote is a culmination of one of the most highly 
politicized and reckless congressional investigations in decades. After 
receiving thousands of pages of documents from the Justice Department, 
conducting two dozen transcribed interviews, and hearing testimony from 
the Attorney General nine times, here are the facts:
  First, the committee has obtained no evidence that the Attorney 
General authorized, condoned, or knew about gunwalking. Chairman Issa 
admitted this just yesterday before the Rules Committee. We've seen no 
evidence that the Attorney General lied to Congress or engaged in a 
coverup. We've seen no evidence that the White House had anything to do 
with the gunwalking operations--Chairman Issa admitted this on FOX News 
Sunday this past weekend.
  Democrats wanted a real investigation. But Chairman Issa refused 10 
different requests to hold a hearing with the director of ATF, the 
agency that ran these misguided operations. Let me say that again. 
During this entire investigation, no Member of the House has been able 
to pose a single question to the head of ATF at a public hearing.
  How could you have a credible investigation of gunwalking at ATF and 
never hold a single hearing with the leadership of the agency in 
charge? The answer is, you can't.
  Based on the documents, we now know that gunwalking, in fact, started 
in 2006. Yesterday, Chairman Issa said this about the misguided 
operations during the Bush administration: ``They were all flops. They 
were all failures.''
  The committee has obtained documentary evidence that former Attorney 
General Mukasey was personally

[[Page H4403]]

briefed on these botched interdiction efforts during his tenure and 
that he was told they would be expanded. Chairman Issa refused to call 
Mr. Mukasey for a hearing or even for a private meeting. During our 
committee's year and a half investigation, the chairman refused every 
single Democratic request for a witness.
  Instead of taking any of these reasonable steps as part of a credible 
and even-handed investigation to determine facts, House Republican 
leaders rushed this resolution to the floor only 1 week after it was 
voted out of committee. In contrast, during the last Congress, House 
leaders continued to negotiate for 6 months to try to avoid contempt in 
the United States Attorneys investigation.
  Mr. Speaker, some of my colleagues on the other side seem almost 
giddy about today's vote. After turning this investigation into an 
election year witch hunt, they have somehow convinced the Speaker to 
take it to the floor.

                              {time}  1440

  And they are finally about to get the prize they have been seeking 
for more than a year: holding the Attorney General of the United States 
of America in contempt.
  They may view today's vote as a success, but in reality, it is a sad 
failure--a failure of House leadership, a failure of our constitutional 
obligations, and a failure of our responsibilities to the American 
people.
  I reserve the balance of my time.
  Mr. ISSA. I yield 3 minutes to the gentleman from Pennsylvania, the 
distinguished Congressman Meehan, a former U.S. attorney in that 
district.
  Mr. MEEHAN. Thank you, Mr. Chairman.
  Mr. Speaker, this is not about politics, though there are some who 
want to suggest that it is because if they yell loud enough and long 
enough, it will deflect the truth of the matter. Frankly, it's not 
about ``gotcha.'' As a former prosecutor myself, the Attorney General 
personifies the pursuit of justice, and I want to see him do well. But 
it is about accountability.
  Agent Brian Terry is dead, protecting our border, and 563 days later, 
the Terry family still does not know why it occurred. What they do know 
is that the very agency that initiated Fast and Furious, the Department 
of Justice under Attorney General Eric Holder, called the operation 
``fatally flawed.'' And then the wagons got circled.
  It's about the separation of powers. As uncomfortable as it may be, 
at times it's a fundamental tenet and a strength of our democracy that 
Congress is given not just the power, but the responsibility, to 
exercise its duty of oversight over the Executive, especially when, by 
their own admission, things have gone glaringly wrong.
  Because the Justice Department has stubbornly resisted the legitimate 
inquiries of Congress over Operation Fast and Furious, there's so much 
we do not know. But because whistleblowers within the Department of 
Justice were outraged at mischaracterizations, there's a great deal 
that we do know.
  What we do know is that we have been dealing with a systematic effort 
to deflect attention away from the decisions and the determinations 
that were made at the highest levels of the Department of Justice, 
where information was brought directly to individuals at the highest 
levels of the Department of Justice, information that was contained in 
wiretap affidavits that lay out in explicit detail the matters related 
to Fast and Furious.
  Mr. Speaker, there is a famous quotation in the Department of Justice 
about the responsibility of the Attorney General not being to win 
cases, but to assure that justice is pursued and retained.
  Mr. Speaker, it is incumbent and a responsibility on this House to do 
what is required to do in this circumstance and to support the request 
that we be given the documents to obtain the facts that will allow us 
to draw the conclusions which I believe will allow us to get to the 
bottom of this level.
  Mr. CUMMINGS. Mr. Speaker, I yield 2 minutes to the distinguished 
gentleman from Illinois (Mr. Quigley).
  Mr. QUIGLEY. Those bringing this contempt vote say they want to talk 
about gunwalking and how to stop it. Okay, let's have that 
conversation.
  They say they want to stop gun trafficking and keep our ATF agents 
safe. Well, then let's properly fund the ATF, which has the same number 
of agents since 1970.
  They say they want to stop gun trafficking. Well, then appoint a 
permanent ATF Director, which the agency hasn't had in 6 years.
  They say they want to stop gun trafficking. Well, then let's pass 
some laws which actually deter straw purchasers. Straw purchasers can 
currently buy thousands of AK-47s, lie on their paperwork, and the 
penalty is equivalent to a moving violation.
  They say they want to stop gun trafficking. Well, then let's give the 
agents in the field what they've been asking for: the ability to track 
multiple purchases of long guns. These long guns include AK-47s, 
variant assault weapons, and .50 caliber semiautomatic sniper rifles, 
the weapons of choice for international drug cartels.
  They say they want to stop gun trafficking. Well, then let's close 
the gun show loophole which currently allows anyone to purchase any gun 
they want without background check. Felons, domestic violence abusers, 
those with severe mental illness, even those on the terrorist watch 
list can currently walk into a gun show and purchase any gun they want.
  Yes, 2,000 guns were allowed to walk to Mexico, but the truth is tens 
of thousands of guns flow across our border every year because of those 
lax gun laws. But those bringing this contempt vote don't want to have 
this conversation, and they aren't serious about stopping gun 
trafficking. They simply want to embarrass the administration, even 
though the committee's 16-month investigation found no evidence the 
Attorney General knew about gunwalking, even though there was no 
evidence of White House involvement in gunwalking, all of which 
Chairman Issa admitted on national TV last week.

  So if we're going to talk about gun trafficking, let's be clear: this 
is about politics, not safety.
  Mr. ISSA. Mr. Speaker, the minority knows that, in fact, this 
contempt is all about the Attorney General's refusal to turn over 
documents, not whether or not it was his lieutenants or he that 
personally was involved in Fast and Furious.
  With that, I yield 2 minutes to the distinguished former chairman of 
the Judiciary Committee, the gentleman from Wisconsin (Mr. 
Sensenbrenner).
  Mr. SENSENBRENNER. Mr. Speaker, this isn't about politics. This is 
about the Constitution, and it's about Congress's mandate to do 
oversight over both the executive and judicial branches of government.
  The President is asserting executive privilege to attempt to shield 
these documents, and he is relying on a type of privilege called the 
deliberative process privilege. However, that privilege disappears when 
Congress is investigating evidence of wrongdoing.
  In 1997, the U.S. Court of Appeals for the District of Columbia 
Circuit wrote, in part:

       Moreover, the privilege disappears altogether when there is 
     any reason to believe government misconduct occurred.

  In another case that was decided by the First Circuit in 1995, it 
says that the grounds that shielding internal government deliberations 
in this context does not serve ``the public's interest in honest, 
effective government.''
  There's been misconduct that's already a matter of public record in 
two instances. The Justice Department wrote Senator Grassley in January 
of 2011 saying that the ATF-sanctioned gunwalking across the border was 
false, and it took them 9 months to retract that letter. So they misled 
Congress, and then 9 months later they said, Oops, maybe we did mislead 
Congress and we'll withdraw the letter. And in May 2011, the Attorney 
General testified before the Judiciary Committee that he first heard of 
Operation Fast and Furious a few weeks before the hearing. Over 6 
months later, he conceded that he should have said ``a few months.''
  Now, this very clearly shows that Congress has got the obligation to 
get to the bottom of this and that the assertion of executive privilege 
by the President and the Attorney General is not based in law. We ought 
to go ahead and do our job and do our oversight. It's too bad that the 
Justice Department has decided to try to obstruct Congress' ability to 
do it.

[[Page H4404]]

  Pass the resolution.
  Mr. CUMMINGS. I yield 2 minutes to a member of the committee, the 
gentleman from Virginia (Mr. Connolly).
  Mr. CONNOLLY of Virginia. Mr. Speaker, the 112th Congress is on the 
verge of becoming the first in the history of the country to hold a 
sitting Cabinet member in contempt, cementing its legacy as the most 
partisan House of Representatives perhaps of all time. When they say 
it's not about politics, you can be sure it's about politics.
  The majority's irresponsible and unprecedented contempt vote brings 
dishonor to this House, which has become so clouded in judgment, so 
besotted with rancor and partisanship, that it's incapable of 
addressing a fundamental separation of powers conflict in a serious and 
fair fashion.
  In refusing to engage in good-faith negotiations with the Department 
of Justice and the Attorney General, the majority has exposed this 
contempt citation for what it really is: an extraordinarily shameful 
political witch hunt aimed at trashing an honorable man.

                              {time}  1450

  It is unacceptable that we are rushing to the floor this 
unprecedented contempt resolution. Yesterday, Ranking Member Cummings 
sent a letter to the Speaker highlighting 100 errors, omissions, and 
mischaracterizations of fact contained in the contempt citation itself, 
rushed out of our committee last week on a party-line vote.
  Although some of the contempt citation's flaws are simply misleading, 
others are significant legal deficiencies and may contain factual 
errors that call into question the very validity of the contempt 
citation itself.
  For example, on pages 4 and 5, the contempt citation charges that 
senior officials at the Department of Justice headquarters ``ultimately 
approved and authorized'' Operation Fast and Furious. However, the 
contempt citation fails to mention that the committee has uncovered no 
evidence that DOJ officials, including the Attorney General, ever 
approved or authorized gunwalking in Operation Fast and Furious. In 
fact, the authorization originated at the ATF office in Phoenix, 
Arizona, not at DOJ headquarters in Washington.
  On pages 16, 17, 19, 20, 21, 22, 25, 26, and 27, the contempt 
citation charges DOJ with not producing a series of documents that the 
chairman only recently acknowledged the Department is prohibited by law 
from providing due to the potential impact on ongoing prosecutions.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CUMMINGS. I yield the gentleman an additional 15 seconds.
  Mr. CONNOLLY of Virginia. In fact, he had to amend his own subpoenas 
to delete documents in this very category. But his contempt citation 
has not caught up with his most recent version of his subpoena.
  Clearly, the majority has not taken the necessary time to properly 
weigh this very serious charge. Regrettably, this deeply flawed and 
shoddy contempt citation is emblematic of the majority's reckless rush 
to judgment throughout this political prosecution.
  I have been deeply troubled by the tone and tenor of some of the very 
hostile questioning and the utter and complete contempt and lack of 
respect given to the Attorney General of the United States.
  When this chapter of congressional history is written, it will not be 
a brave, shining moment. It will be seen for what it is: a craven, 
crass, partisan move that brings dishonor to this body.
  Mr. ISSA. I now yield 1 minute to the very distinguished and always 
participating member of the committee, the gentlewoman from New York 
(Ms. Buerkle).
  Ms. BUERKLE. Mr. Speaker, I thank the chairman for his steadfast work 
on behalf of truth in trying to get to the bottom of Fast and Furious.
  Mr. Speaker, Syracuse, New York, in the heart of my district, is 
roughly 2,500 miles from Rio Rico, Arizona, where U.S. Border Patrol 
Agent Brian Terry was tragically shot and killed by an AK-47 assault 
rifle that the United States knowingly allowed into the hands of a 
suspected gun trafficker, yet every time I'm home, it is the issue 
first and foremost on the minds of my constituents. I listen to their 
calls, to their emails, and at our town halls. They want to know what 
happened, who knew what, and when did they know it. They ask me, they 
ask Washington, they ask the Department of Justice: How could the 
United States Government, the pillar of hope and freedom, have allowed 
for this, for one of their own representatives, one of their own good 
guys, to be so helplessly gunned down by a suspected criminal?
  Mr. Speaker, I'm embarrassed to say that after 562 days, I still 
don't have an answer for them.
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. ISSA. I yield the gentlelady an additional 10 seconds.
  Ms. BUERKLE. Mr. Speaker, I ask: Is this the hope that Americans are 
supposed to believe in out of the supposedly most-transparent 
government in the history of our Nation?
  It is my hope, Mr. Speaker, that the district court judge will see 
through the Attorney General's contempt of Congress after it is passed 
in the House today. However, we must not be mistaken, even if the 
Attorney General is prosecuted, the case is not closed. We must not 
forget that guns leaked through this program claimed lives.
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. ISSA. I yield the gentlelady an additional 10 seconds.
  Ms. BUERKLE. Mr. Speaker, after today's vote, we must continue our 
efforts to find more answers than there are questions relating to this 
administration's catastrophic Fast and Furious. The American people 
deserve to know those answers, and the family of Border Patrol Agent 
Brian Terry do as well.
  Mr. CUMMINGS. Mr. Speaker, I yield the gentleman from Missouri (Mr. 
Clay) 2 minutes, a member of the committee.
  Mr. CLAY. Mr. Speaker, as a member of the Oversight Committee, I know 
that the gunwalking operations conducted by the ATF under both the 
previous and current administrations were absolutely wrong. But the 
leadership of this House is focused on shameful election-year political 
posturing instead of the real issue.
  The Justice Department, long ago, ended the practice of allowing 
these guns to ``walk'' across the border, putting communities in Mexico 
at great risk. But the same people who have relentlessly pursued a 
baseless, partisan attack on Attorney General Holder and the President 
have ignored the desperate pleas of the Mexican Government--to 
strengthen American gun laws and curb the gun trafficking that gave 
rise to the strategy in the first place.
  But focusing on the real issue would take time away from their 
playing politics with their oversight authority. Those on the other 
side of the aisle claim to be concerned about powerful assault weapons 
crossing the border into Mexico illegally, but how can they be 
completely fine with those same powerful assault weapons being sold 
right here in this country legally, putting our communities at even 
greater risk?
  This is nothing more than a political witch hunt. The disgraceful 
posturing that I witnessed at last week's markup has been continued on 
the floor today. I agree that it never should have come to this, but we 
are here debating this resolution solely because of the majority. They 
created the scandal and produced a showdown during an election season 
just to smear an honorable, dedicated public servant and to embarrass 
his boss.
  I urge my colleagues to reject this nakedly partisan abuse of power.
  Mr. ISSA. Mr. Speaker, it is now my honor to yield 1 minute to the 
distinguished Speaker of the House, the gentleman from Ohio (Mr. 
Boehner).
  Mr. BOEHNER. I thank my colleague for yielding.
  It's important for the American people to know how we got here and to 
know the facts of this case.
  The Congress asked the Justice Department for the facts related to 
Fast and Furious and the events that led to the death of U.S. Border 
Patrol Agent Brian Terry. The Justice Department did not provide the 
facts and the information that we've requested. Instead, the 
information came from people outside the Department, people who wanted 
to do the right thing.

[[Page H4405]]

  In addition to not providing the information, the administration 
admitted misleading Congress, actually retracting a letter it had sent 
10 months earlier.
  I think all Members understand this is a very serious matter. The 
Terry family wants to know how this happened, and they have every right 
to have their answers. And the House needs to know how this happened, 
and it's our constitutional duty to find out.
  So the House Oversight and Government Reform Committee issued a 
lawful and narrowly tailored subpoena. We've been patient, giving the 
Justice Department every opportunity to comply so we can get to the 
bottom of this for the Terry family. We showed more than enough good 
faith, but the White House has chosen to invoke executive privilege. 
That leaves us no other options. The only recourse left to the House is 
to continue seeking the truth and to hold the Attorney General in 
contempt of Congress.
  Now, I don't take this matter lightly. I, frankly, hoped it would 
never come to this. The House's focus is on jobs and on the economy. 
But no Justice Department is above the law, and no Justice Department 
is above the Constitution, which each of us has sworn an oath to 
uphold.
  So I ask the Members of this body to come together and to support 
this resolution so we can seek the answers that the Terry family and 
the American people deserve.
  Mr. CUMMINGS. I yield myself 1 minute.
  I want to say in response to the Speaker, we, too, are all saddened 
by the tragic death of Border Patrol Agent Brian Terry who gave his 
life in service to his country on December 15, 2010.

                              {time}  1500

  But, Mr. Speaker, despite what my colleagues have claimed, this 
contempt vote is not about getting documents that show how gunwalking 
was initiated and utilized in Operation Fast and Furious.
  Now, the only documents in dispute are the documents created after 
Fast and Furious ended and after Brian Terry's death, but we pledge to 
continue to find all the answers with regard to the death of Brian 
Terry.
  With that, I yield 2 minutes to the distinguished gentleman from 
Massachusetts (Mr. Lynch), a member of the committee.
  Mr. LYNCH. Mr. Speaker, I would add that we have 31 Democrats that 
signed a letter to the Department of Justice and to the White House in 
the aftermath of Agent Terry's death to fully cooperate in this 
investigation. However, I rise in strong opposition to this contempt 
resolution.
  While criticism of the Department of Justice for oversight of the so-
called ``gunwalking'' operations--conducted during both the Bush 
administration and the current administration--may be warranted, a 
finding of contempt against the sitting Attorney General of the United 
States is most certainly not.
  In determining whether this House should hold our highest-ranking 
national law enforcement officer in contempt of Congress, let us 
remember that up until last week the majority of our committee had been 
demanding the production of documents that our Attorney General is 
legally prohibited from disclosing and that has caused much of the 
delay here. In other words, Mr. Holder would have broken the law and 
likely compromised existing criminal prosecutions if he adhered to the 
majority's unreasonable request for materials that related to ongoing 
criminal investigations, Federal wiretap communications under judicial 
seal, and documents also subject to grand jury secrecy rules.
  Let us also be mindful that we are considering the extent of 
cooperation, or noncooperation, of an Attorney General who has appeared 
before Congress on nine separate occasions, whose Justice Department 
has produced over 7,600 pages of documents to oversight investigators 
and who continues to offer significant accommodations in response to 
extraordinary and ever-changing requests for information.
  Meanwhile, the majority continues to deny any and all Democratic 
requests to publicly question, under oath, law enforcement officials, 
including former Director of the ATF, Ken Melson, the head of the very 
Agency that ran the gunwalking operations such as Fast and Furious.
  Accordingly, it's become quite clear that what began as a legitimate 
and compelling oversight committee investigation into Operation Fast 
and Furious has deteriorated into an unfortunate example of politics 
and partisanship at their worst.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CUMMINGS. I yield the gentleman another 15 seconds.
  Mr. LYNCH. In closing, I urge my colleagues on both sides of the 
aisle to oppose this contempt resolution.
  Mr. ISSA. Mr. Speaker, I now yield 1 minute to the gentleman from 
Michigan (Mr. Walberg).
  Mr. WALBERG. Mr. Speaker, there is no joy in today's action; but the 
fact remains, 18 months after U.S. Border Patrol Agent Brian Terry was 
murdered, the Justice Department has failed to hold anybody accountable 
for the mistakes of Operation Fast and Furious.
  As a member of the Oversight and Government Reform Committee, I have 
witnessed firsthand the stonewalling by the Department of Justice and 
Attorney General Holder. At every question, the Justice Department has 
refused to acknowledge what they know about the gunwalking tactics that 
led to Agent Terry's death. Most recently, they have hid behind the 
President's erroneous claims of executive privilege, an action the 
President denounced as lacking transparency when he was campaigning. 
The Department has stood in open defiance of Congress' moral and 
constitutional obligation to conduct oversight of this affair.
  The family of Agent Terry deserves to know who approved Fast and 
Furious. They have the right to know who had the power to stop this 
program before he was murdered, and they need an explanation as to why 
the Department of Justice took 9 months to withdraw their false denial 
that they had ever let guns walk into Mexico.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. ISSA. I yield the gentleman an additional 15 seconds.
  Mr. WALBERG. To some on the other side of the aisle, it seems fine 
that the people who authorized this operation still work within the 
Department of Justice. I don't agree. They'd rather play politics than 
uphold Congress' right to investigate.
  Today's vote is about accountability. It's about making sure another 
2,000 firearms don't end up in the hands of Mexican drug cartels. And 
it's about bringing closure to the Terry family.
  I urge my colleagues to support this resolution and honor the memory 
of Brian Terry.
  Mr. CUMMINGS. Mr. Speaker, I yield 4 minutes to the distinguished 
gentleman from Maryland (Mr. Hoyer).
  Mr. HOYER. Mr. Speaker, this is a sad day for the House of 
Representatives. It is an irresponsible day for the House of 
Representatives. It is a day in which the majority party asked us to 
take an action that has never been taken in the history of America--
never once--holding a Cabinet officer in contempt of the Congress.
  Now, there have been previous contempt citations--some promoted by 
Democratic committees and some promoted by Republican committees. The 
average time between committee action and consideration on the floor of 
this House is 87 days; time to reflect on an extraordinarily important 
action with consequences beyond the knowledge of anybody sitting here 
today.
  Now, I want to tell the chairman, with all due respect, I think this 
investigation has been extraordinarily superficial. I think the 
chairman has failed to call witnesses that could in fact give relevant, 
cogent testimony on the issues to bear. That ought to be done. That is 
why I will strongly support the motion of the gentleman from Michigan 
(Mr. Dingell), who has served here longer than any of the rest of us 
and who is one of the strongest gun control rights supporters in this 
Congress.
  What his motion says is: let us reflect. Let us bring thoughtful 
judgment. Let us not, every time that there is the opportunity, choose 
confrontation over cooperation and consensus. That has been the history 
of this Congress, confrontation over consensus every time, and America 
is suffering because of it.

[[Page H4406]]

  I ask my friends on the Republican side of the aisle--who know me to 
be a bipartisan Member of this body who believes in this institution 
and who cares about its actions and the precedent that they will set--
don't do this. Vote for this motion to refer. Give the chairman the 
opportunity he should have taken before to have a full hearing, calling 
former Attorney General Mukasey, calling the former head of the ATF, 
calling agents who were personally involved in this proceeding.
  I venture to say that there are very few Members who will vote on 
this issue who have read the committee proceedings, very few Members 
who have read the minority report or the majority report. Yet they're 
about to take a historic vote to do what has never been done by any 
Congress--111 Congresses. Do not take this action.
  This is not about Republicans or Democrats. This is about our 
Constitution, our country, our respect for a Nation of laws, not of 
men. That's what this vote is about. We ought not to be voting as 
Republicans and Democrats; we ought to be voting as Americans, 
Americans committed to justice and fair process.

                              {time}  1510

  I regret that I do not believe this committee has followed that. I 
believe that the political motivations behind this resolution are clear 
and pose a clear and present danger to this Nation.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. CUMMINGS. I yield the gentleman an additional 30 seconds.
  Mr. HOYER. I want to thank the gentleman from Maryland, my colleague 
and my friend, for his leadership on this effort.
  When we vote on this referral, let us vote as Americans, as I said, 
not as a partisan issue. You may have the Attorney General in the 
future. It's not the question of the party of the Attorney General. It 
is the question of whether or not this Congress is going to provide for 
equal treatment of all Attorney Generals and all Cabinet officers.
  Let us vote for this motion to refer and give the committee the 
opportunity it should take, and let us vote down this motion that 
should fail, and let us vote down these motions for contempt, and let 
us thoughtfully consider the equities of this issue.
  Mr. ISSA. Mr. Speaker, it is now my honor to yield 1 minute to the 
gentleman from Arizona (Mr. Gosar), an active participant, and from the 
district from which this event sprung.
  Mr. GOSAR. Mr. Speaker, finding Attorney General Eric Holder, Jr. in 
contempt of Congress is long overdue, but welcome news for the American 
people, and especially for Arizonans.
  As I explained in my recent statement, Mr. Holder has shown his 
contempt and utter disdain for our constitutional rights, our border, 
Arizonans and all Americans; 115 Members of Congress agree that 
Americans lack confidence in Mr. Holder and his Department. Every 
Member of Congress should do their constitutional duty and hold the 
Attorney General to be in contempt today.
  The people of Arizona, California, New Mexico, and Texas, who deal 
with the unsecured borders and violent Mexican cartels on a regular 
basis, now must also live in fear of these firearms.
  Some have said that these charges against Attorney General Eric 
Holder are racially motivated, and I couldn't disagree more. The 
violent cartels armed by our government have no regard for party ID or 
race. Throughout our Nation and, specifically, in Arizona, folks from 
all political parties and all races are now living in danger of this 
lethal violence due to the actions of this administration.
  Make no mistakes about it, today's vote is to deliver justice and 
accountability for the Brian Terry family and the over 300 Mexicans who 
have died as a result of Fast and Furious. Time's up.
  Mr. CUMMINGS. I yield 30 seconds to the gentleman from Maryland (Mr. 
Hoyer).
  Mr. HOYER. I thank the gentleman for yielding.
  On November 1, 2009, our Speaker stood on this floor, outraged about 
the process. We, too, are outraged about this process, and let me quote 
the Speaker:

       We will not stand for this. And I would ask my House 
     Republican colleagues and those who believe that we should be 
     here protecting the American people, protecting our 
     Constitution, not vote on this bill. Let's just get up and 
     leave.

  My colleagues may well follow that advice.
  Mr. ISSA. I yield myself 10 seconds, and have no doubt that the 
gentleman will walk off the floor. But his motion is asking us also to 
delay, into an election, getting an answer for the Terry family. I know 
that is not the wise course, and I strongly support that we do this 
today.
  With that, I yield 1 minute to the gentleman from Idaho (Mr. 
Labrador).
  Mr. LABRADOR. Mr. Speaker, I stand with a heavy heart in support of 
today's contempt resolution. It puts us another step closer to holding 
the Attorney General accountable for this severely flawed operation and 
his failure to cooperate with Congress.
  The Attorney General has not only failed to produce all the relevant 
documents; he has misled this Congress and thereby prevented us from 
uncovering the truth. So how can the Members of the minority say that 
an investigation is superficial when we don't even have all the 
documents?
  When the Attorney General was before the Committee on Oversight last 
year, I brought to light his historical pattern of willful ignorance. I 
highlighted his lack of knowledge when under oath. He knows nothing, he 
says nothing, and he seeks for nothing. Never in my life have I met a 
man more unconcerned with the search for the truth.
  I've since become even more disturbed by the depth to which Mr. 
Holder and his allies will sink to stonewall justice.
  Yes, this is an unprecedented day, I agree with you. But not until 
now have we had an Attorney General have to retract so many statements 
made to the Congress of the United States, the duly elected 
Representatives of the people of the United States.
  Let us vote to support this motion for contempt.
  Mr. CUMMINGS. Mr. Speaker, may I inquire as to how much time both 
sides have.
  The SPEAKER pro tempore. The gentleman from Maryland has 6\1/4\ 
minutes remaining. The gentleman from California has 11\1/4\ minutes 
remaining.
  Mr. CUMMINGS. I yield 2 minutes to the gentlewoman from New York 
(Mrs. Maloney).
  Mrs. MALONEY. Mr. Speaker, the family of Brian Terry deserves our 
respect, our condolences and our best efforts to finish the mission, to 
put an end to gun violence on the southern border. But instead of going 
after gun violence, this investigation has gone after the man that 
tried to stop the gun violence, the Attorney General.
  Chairman Issa has acknowledged that Attorney General Holder did not 
know about the gunwalking operation. He has acknowledged that the 
President and the White House did not know about the gunwalking 
operation. Both the White House and the Attorney General have 
acknowledged that the gunwalking operation was a tragic mistake, that 
it was badly executed, and that it originated under the Bush 
administration.
  It was Attorney General Holder that terminated the program and 
requested an extensive investigation of the operation and how it was 
conducted. And the documents that they're now requesting in this ``vast 
and spurious'' investigation have absolutely nothing to do with 
gunwalking.
  If they were really interested in discovering the truth, the 
committee would have called Kenneth Melson, head of the ATF, as a 
witness. The chairman refused 10 different requests for a hearing with 
Mr. Melson--10 requests.
  Republicans have not granted one single Democratic witness request in 
16 months. Not one.
  This is not about discovering the truth. This is about politics. This 
has become an obsessive political vendetta, pursuing a political agenda 
in a season of unusually ugly politics.
  If they were serious about ending gun violence, they would do what 
many ATF agents have suggested and put some teeth in the law; and that 
is why I authored, with my colleagues, a bill to make gun trafficking a 
Federal offense and strengthen penalties for straw purchases.

[[Page H4407]]

  This unprecedented contempt citation is politics at its worst and why 
this body is held in such low esteem by the public now.
  Mr. ISSA. Mr. Speaker, I place in the Record at this time the 
statement by the Terry family regarding Congressman John Dingell's 
criticism of the contempt vote.


   Terry Family Statement With Regard to Congressman John Dingell's 
                       Criticism of Contempt Vote

       On Wednesday, Representative John Dingell invoked the Terry 
     family name while saying he would not back the contempt 
     resolutions but instead wants the Oversight and Government 
     Reform Committee to conduct a more thorough investigation 
     into Operation Fast and Furious.
       Congressman Dingell represents the district in Michigan 
     where Brian Terry was born and where his family still 
     resides, but his views don't represent those of the Terry 
     family. Nor does he speak for the Terry family. And he has 
     never spoken to the Terry family.
       His office sent us a condolence letter when Brian was 
     buried 18 months ago. That's the last time we heard from him.
       A year ago, after the House Oversight and Reform Committee 
     began looking into Operation Fast and Furious, one of Brian's 
     sisters called Rep. Dingell's office seeking help and 
     answers. No one from his office called back.
       Mr. Dingell is now calling for more investigation to be 
     conducted before the Attorney General can be held in contempt 
     of Congress.
       The Terry family has been waiting for over 18 months for 
     answers about Operation Fast and Furious and how it was 
     related to Brian's death. If Rep. Dingell truly wants to 
     support the Terry family and honor Brian Terry, a son of 
     Michigan, he and other members of congress will call for the 
     Attorney General to immediately provide the documents 
     requested by the House Oversight and Government Reform 
     Committee.

  Mr. ISSA. Mr. Chairman, I'm sure that the gentlelady from New York 
recognizes that the right of a minority hearing has not been exercised, 
and that would have answered the questions, as they are well aware, 
about bringing Kenneth Melson before the committee. That would be their 
right. They did not exercise their right.
  I yield 1 minute to the gentleman from Florida (Mr. Mica), the senior 
member of the committee.
  Mr. MICA. I thank the gentleman for yielding.
  When the Founding Fathers created our government and established the 
committees in Congress, they had authorizing committees and they had 
appropriating committees. In 1808, the predecessor of this committee 
was established for a fundamental reason, and that's to make certain 
that programs and funding were properly executed and used by agencies 
created by Congress.
  Congress created the law that created the Department of Justice. 
Congress funded the programs that are under the Department of Justice. 
It's our responsibility to investigate when things go wrong. And things 
went wrong. An agent of the United States was murdered with weapons 
which were funded by the agency that we created.
  All we have asked for is the documents. All we want are the facts, 
and we have been thwarted. Eric Holder, Attorney General of the United 
States, the highest judicial enforcement officer of the United States, 
has been in contempt, is in contempt, and is showing contempt for the 
Congress and the responsibility under the Constitution of this 
important committee of Congress.
  I urge adoption of the contempt resolution against the Attorney 
General.

                              {time}  1520

  Mr. CUMMINGS. Mr. Speaker, I yield 2 minutes to the gentleman from 
California (Mr. Schiff).
  Mr. SCHIFF. I thank the gentleman for yielding.
  I rise in strong opposition to these contempt resolutions.
  I spent 6 years as an assistant U.S. attorney, and I have great 
admiration and respect for the hardworking men and women of the 
Department. I have great respect for our Attorney General, who I think 
has been a superb Attorney General and is a man of great integrity. I, 
like most Americans, would like to know about the facts of Fast and 
Furious, about the problem of guns crossing our border, about the 
horrendous violence to the south of our border. But what we do today 
will shed no light on that.
  What we do today will not improve the situation in terms of gun 
violence that has claimed the lives of tens of thousands of Mexican 
citizens and that has claimed the lives of an increasing number of 
Americans. What we are doing today is simply a partisan abuse of the 
contempt power. Thirteen percent of the American people think highly of 
Congress, and today those 13 percent are wondering why. What we do will 
cause no injury to the Department, but it will cause great injury to 
this House.
  The Justice Department, after providing 8,000 documents and extensive 
testimony, is now being required to turn over privileged materials; and 
like all administrations before it, it has reluctantly used executive 
privilege to respectfully refuse to provide materials it cannot 
provide. So now we are here, bringing a contempt motion against the 
Attorney General, who our committee chairman acknowledges was not aware 
of Fast and Furious. They don't expect any documents to show he was 
aware of Fast and Furious. Yet we are going to hold this Cabinet 
official in contempt?
  That is an outrageous abuse of the contempt power. What will happen 
when this Congress actually needs to use the contempt power for a 
legitimate purpose? Will anyone still recognize it?
  I urge the Speaker to withdraw this motion as, indeed, Speaker 
Gingrich withdrew the motion in his day and let the parties work it 
out. We both know, Democrats and Republicans, how this will end. It 
will end with a settlement in court months or years from now and with 
the Department's providing the same documents it's offering to provide 
today. Let's end this partisan exercise now.
  Mr. ISSA. I yield myself 15 seconds.
  I respect my colleague from California, as we came in to Congress 
together some 12 years ago; but the fact is he talked about everything 
except the fact that Congress was lied to in a false letter and follow-
up statement. Ten months went by. We're only asking for the information 
related to the false statements made to Congress during that 
intervening period and nothing more.
  I reserve the balance of my time.
  Mr. CUMMINGS. I yield 1 minute to the gentlewoman from California, 
the minority leader, Ms. Pelosi.
  Ms. PELOSI. I thank the gentleman for yielding.
  I commend him for his extraordinary patriotism, for his commitment to 
upholding our oath of office to protect and defend the Constitution, 
and for recognizing full well the congressional role of oversight of 
all branches of government. I think we all share the view that Congress 
has a legitimate role to play in oversight; thus, your committee has so 
much jurisdiction, and I respect that.
  I think we also all agree--I think we all very, very much agree--that 
we are very sad and seek justice for the family of Border Patrol Agent 
Brian Terry. His loss is a tragedy for all who knew him, for all of us 
who care about him. We offer our condolences to his family. So sad. But 
that's not what we are here to debate, what we agree upon.
  What we are here to debate is something very, very large because it 
is a major disagreement between the two sides of the aisle here--and 
I'm sorry to say that--about what our responsibilities are to the 
Constitution of the United States. The Constitution requires Congress 
and the executive branch to avoid unnecessary conflict and to seek 
accommodations that serve both their interests. That's how the 
Constitution guides us.
  As Attorney General William French Smith, who served under President 
Ronald Reagan, said:

       The accommodation required is not simply an exchange of 
     concessions or a test of political strength. It is an 
     obligation of each branch to make a principled effort to 
     acknowledge and, if possible, to meet the legitimate needs of 
     the other branch.

  Mr. Speaker, on the floor today, the Republicans in Congress are not 
making a principled effort to acknowledge or to meet the legitimate 
needs of the other branch. What they are doing is exploiting a very 
unfortunate circumstance for reasons that I cannot even characterize, 
so I won't; but I will say this without any fear of contradiction:
  The basic premise that this debate is predicated on today is a false 
premise. It is factually not true. In how many more ways can I say 
that? So we have

[[Page H4408]]

a debate predicated on a false premise. What can that lead to that has 
any good outcome? It is a situation in which we have a contempt of 
Congress resolution against a sitting Cabinet member, which is the 
first time in the over-200-year history of our country that this has 
ever happened. Again, what is the motivation?
  Secondly--and that's why I quoted the Constitution--this motion is 
not a principled effort to resolve the issue. If it were, we would not 
be able to measure in hours and days, not even weeks, the rush--the 
railroading--of a resolution of contempt of Congress that the 
Republicans passed last week and are bringing this week to the House 
floor.
  I say this because I took considerable heat myself when we brought 
contempt charges against two staff people at the White House--Josh 
Bolton and Harriet Miers--4\1/2\ years ago. We were asking for some 
papers. We got nothing, as I said to my friends, not even a wrapper of 
a piece of gum. Nothing. Stonewalled. Nothing. Yet, at the time, our 
chairman of the Judiciary Committee, Mr. Conyers, and our House 
leadership, Mr. Hoyer and others, kept saying, Find a way. Exhaust 
every remedy so that we do not have to take this action of bringing a 
contempt charge to the floor of the House.
  For over 200 days, we tried, we tried, we tried to resolve the 
situation. When we could not, we brought it to the floor--two staff 
people at the White House--which is in stark contrast to the rush of 
one week to the next for an unsubstantiated--not even factual--charge 
against the Attorney General of the United States.
  It may just be a coincidence--I don't know--that the Attorney General 
of the United States, the chief legal officer of our country, has a 
responsibility to fight voter suppression, which is going on in our 
country; has refused to defend the constitutionality of DOMA because he 
doesn't believe it's constitutional; or has some major disagreements on 
immigration, which fall under the enforcement of immigration law.

                              {time}  1420

  It may just be a coincidence that those are part of his 
responsibilities, or maybe it isn't. But the fact is is that the chief 
legal officer of our country and his staff have to spend enormous 
psychic and intellectual energy and time dealing with this unprincipled 
effort on the part of the Republicans.
  Just when you think you have seen it all, just when you think they 
couldn't possibly go any further over the edge, they come up with 
something like this. It's stunning. It really is. I don't mean that in 
meaning it's beautiful. It's stunning. It stops you in your tracks 
because you say: How far will they go? Have they no limits? Apparently, 
not.
  The temptation is to say: Let's just ignore the whole thing, to not 
dignify what they're doing by even being present on the floor when they 
do this heinous act, the first time in the history of our country, to 
bring contempt against a Cabinet officer. You would think they'd be 
more careful about what they say. But being careful about what they say 
is apparently not part of their agenda.
  I know in our caucus there is a mixed response to this. They're 
acting politically; we should act politically. We shouldn't vote on 
this; I want to vote ``no.'' I think Members have to make their own 
decision about that. I'm very moved by the efforts of our Congressional 
Black Caucus to say that they're going to walk out on this. Perhaps 
that's the best approach for us to take. How else can we impress upon 
the American people, without scaring them, about what is happening 
here?
  What is happening here? What is happening here is shameful. What is 
happening here is something that we all have an obligation to speak out 
against. Because I'm telling you it is Eric Holder today, and it's 
anybody else tomorrow on any charge they can drum up.
  As has been said, the fact is that the papers that they have seen, 
they know are exculpatory. That means there is no blame on the Attorney 
General, and they know that. That's why they don't want to bring those 
responsible for this before their committee, and that's why I commend 
Chairman Dingell for his leadership in the motion that he will bring to 
the floor momentarily, a motion of referral, so that we can get to the 
bottom of this, so that we can see how this happened, so that we can 
offer some solace to Brian Terry's family, and so that we can have some 
sense of decency about what should happen on the floor of the House.
  It seems to me the more baseless the charge, the higher up they want 
to go with the contempt. The less they have to say that is real, the 
higher up they want to bring the contempt charge.
  I have always tried to make it a habit of not questioning the 
motivation of people. They believe what they believe, we believe what 
we believe, and we act upon our beliefs. It always interested me that 
in this Congress somebody can bring something to the floor that is not 
true. But if I were to call someone a misrepresenter of that 
information, my words would be taken down. So I guess that gives them 
liberty to say anything because it's in the form of a motion.
  Let's make sure that we all take responsibility for doing the right 
thing by not letting there be an abuse of power, an abuse of this floor 
of the House, an abuse of the time of the executive branch, an abuse of 
the time of a member of the Cabinet who has serious responsibilities to 
our country.
  I urge my colleagues to do what they want as far as walking off. I 
myself had said that I was coming to this floor to vote against this 
resolution. I thought it was so wrong that there was no question to 
take the opportunity to vote ``no.'' But listening to the debate, it is 
almost unbelievable. Not that what they're saying is believable, but 
unbelievable that they would say it.
  I say to those who have a doubt about how they want to proceed, that 
instead of doing what I said before, which was just to come and treat 
this as a resolution before the Congress and express my ``no,'' after 
listening to the unconscionable presentation, I want to join my CBC 
colleagues in boycotting the vote when we have the walkout after we 
have the debate over Mr. Dingell's motion.
  We all take our responsibilities seriously here, and one of them 
first and foremost is to support, uphold, and defend the Constitution 
of the United States. That Constitution requires the Congress and the 
executive branch--as I began--to avoid unnecessary conflict and seek 
accommodation to serve both interests, the executive branch and the 
legislative branch. We are not upholding that aspect of the 
Constitution here.
  I urge my colleagues to vote ``no,'' or a ``no'' vote, but to 
seriously reject. Let's hope that this will not be repeated. But I'm 
telling you, it's Eric Holder one day, and you don't know who it is the 
next because of the frivolousness with which they treat a 
serious responsibility of the House of Representatives. It's appalling.

  Mr. ISSA. As I know the former Speaker of the House knows, the 
Attorney General is being held in contempt as the custodian of the 
records for refusing to deliver them, and not because we got to choose 
how far up or not to go.
  With that, I yield 1 minute to the gentleman from Utah (Mr. 
Chaffetz).
  Mr. CHAFFETZ. Mr. Speaker, Leader Pelosi seriously questioned our 
motivations here. Let me be crystal clear what my motivation is. We 
have a dead United States agent. We have more than 200 dead people in 
Mexico. We have more than 2,000 weapons that were knowingly and 
willfully given to the drug cartels. More than 1,000 of those weapons 
are still missing. Most of them are AK-47s. We have a duly issued 
subpoena that has not been responded to.
  On February 4, 2011, on Department of Justice letterhead, they 
presented the United States Congress a letter that was a lie. It took 
them nearly 9 to 10 months to provide that information and say, Whoops, 
sorry. That's not good enough.
  This is not about Eric Holder. This is about the Department of 
Justice and justice in the United States of America. I would hearken 
back to the June 3, 2011, letter that 31 brave Democrats sent to the 
White House. I will read part of this. And remember, this is about a 
year ago:

       It is equally troubling that the Department of Justice has 
     delayed action and withheld information from congressional 
     inquiries.

                              {time}  1540

  He went on to say:


[[Page H4409]]


       While the Department of Justice can and should continue its 
     investigation, those activities should not curtail the 
     ability of Congress to fulfill its oversight duty. We urge 
     you to instruct the Department of Justice to promptly provide 
     complete answers to all congressional inquiries.

  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. ISSA. I yield the gentleman an additional 15 seconds.
  Mr. CHAFFETZ. Nothing's changed in over a year. But I will tell you 
this: Brian Terry doesn't have answers. You don't have answers. I don't 
have answers. I want all the facts. That's what we're asking for today, 
the facts, all of them.
  Mr. CUMMINGS. I will remind the gentleman that all of this started 
under President Bush.
  I reserve the balance of my time.
  Mr. ISSA. I would recognize myself for 10 seconds.
  The distinguished gentleman from Maryland can have an opinion, but he 
can't have his facts.
  Fast and Furious was an OCDETF operation that began under President 
Obama and Attorney General Holder. No ifs, no ands, no buts. And I 
would trust that the gentleman would no longer make statements that 
would be less than truthful.
  And I reserve the balance of my time.
  Mr. CUMMINGS. I yield myself 15 seconds.
  Again, the gentleman puts out statements in search of facts.
  I reserve the balance of my time.
  Mr. ISSA. With that, I yield 1 minute to the distinguished gentleman 
from Indiana (Mr. Burton), the former chairman of the Oversight 
Committee.
  Mr. BURTON of Indiana. I thank the gentleman for yielding.
  There has been a lot of hyperbole and a lot of repetition, but a lot 
of the things that have been said haven't really been factual. So let's 
look at the facts:
  Brian Terry was murdered. Hundreds of people have been murdered in 
Mexico with guns that went across the border. The Justice Department 
said in February of 2011 that they had no knowledge about this, and 
then 10 months later, they admitted they lied. Now they said they 
didn't know, and then they said they did. I don't know what you call 
that, but to me, it's a lie.
  Then Chairman Issa tried again and again to get information so we 
could get to the bottom of this, like the 32 Democrats wanted, and they 
refused. He sent subpoenas; they refused. They hid behind this being an 
ongoing investigation and they couldn't give those documents. We got a 
fraction of the documents that should have been given to us, but they 
wouldn't do that.
  Issa met with the Attorney General's people to try to come to some 
conclusion, some kind of a resolution of this so we wouldn't have to 
move the contempt citation; nothing, absolutely nothing.
  And then finally, at the 11th hour, when we knew that we were going 
to have to move with the contempt citation, the President of the United 
States issues an executive order claiming executive privilege. 
Something is funny.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. ISSA. I yield the gentleman an additional 30 seconds.
  Mr. BURTON of Indiana. Something is wrong. There's just no question. 
Something is being hidden from the Congress and the American people. 
And no matter how much is being said here tonight, the fact of the 
matter is we aren't getting the information.
  A Border Patrol agent has been killed, maybe two. Hundreds of people 
have been killed in Mexico with American guns that our government knew 
were going across that border. The Attorney General has not been giving 
us the information. The Justice Department has been hiding it from the 
Congress and the American people, and the President has claimed 
executive privilege. If that doesn't tell you something, nothing will.
  Mr. CUMMINGS. I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I would inquire of how much time is remaining.
  The SPEAKER pro tempore. The gentleman from California has 6\1/2\ 
minutes remaining. The gentleman from Maryland has 1\1/4\ minutes 
remaining.
  Mr. ISSA. I thank the Speaker.
  I submit the following:

         House of Representatives,


                                        Committee on Oversight

                                        and Government Reform,

                                     Washington, DC, May 24, 2012.
     Hon. Elijah E. Cummings,
     Ranking Member, Committee on Oversight and Government Reform, 
         House of Representatives, Washington, DC.
       Dear Ranking Member Cummings: Last February, I joined 
     Senator Grassley in investigating Operation Fast and Furious, 
     the reckless and fundamentally flawed program conducted by 
     the Phoenix Field Division of the Bureau of Alcohol, Tobacco, 
     Firearms, and Explosives (ATF). As you know, during Fast and 
     Furious, ATF agents let straw purchasers illegally acquire 
     hundreds of firearms and walk away from Phoenix gun stores. 
     The misguided goal of this operation was to allow the U.S.-
     based associates of a Mexican drug cartel to acquire firearms 
     so they could be traced back to the associates once the 
     firearms were recovered at crime scenes. On December 15, 
     2010, two guns from the Fast and Furious operation were the 
     only ones found at the scene of U.S. Border Patrol Agent 
     Brian Terry's murder.


  An Organized Crime Drug Enforcement Task Force (0CDETF) Wiretap Case

       Operation Fast and Furious got its name when it became an 
     official Department of Justice Organized Crime Drug 
     Enforcement Task Force (OCDETF) Strike Force case. The OCDETF 
     designation resulted in funding for Fast and Furious from the 
     Justice Department's headquarters in Washington, D.C. The 
     Strike Force designation meant that it would not be run by 
     ATF, but would instead create a multi-agency task force led 
     by the U.S. Attorney's Office. The designation also meant 
     that sophisticated law enforcement techniques such as the use 
     of federal wire intercepts, or wiretaps, would be employed. 
     Federal wiretaps are governed by Title III of the Omnibus 
     Crime Control and Safe Streets Act, and are sometimes 
     referred to as ``T-IIIs.''
       The use of federal wire intercepts requires a significant 
     amount of case-related information to be sent to senior 
     Department officials for review and approval. All 
     applications for federal wiretaps are authorized under the 
     authority of the Assistant Attorney General for the Criminal 
     Division. In practice, a top deputy for the Assistant 
     Attorney General has final sign-off authority before the 
     application is submitted to a federal judge for approval. 
     This deputy must ensure that the wiretap application meets 
     statutory requirements and Justice Department policy. The 
     approval process includes a certification that the wiretap is 
     necessary because other investigative techniques have been 
     insufficient. Therefore, making such a judgment requires a 
     review of operational tactics. Since gunwalking was an 
     investigative technique utilized in Fast and Furious, then 
     either top deputies in the Criminal Division knew about the 
     tactics employed as part of their effort to establish legal 
     sufficiency for the application, or they approved the wiretap 
     applications in a manner inconsistent with Department 
     policies.
       From the beginning, ATF was transparent about its strategy. 
     An internal ATF briefing paper used in preparation for the 
     OCDETF application process explained as much:
       Currently our strategy is to allow the transfer of firearms 
     to continue to take place, albeit at a much slower pace, in 
     order to further the investigation and allow for the 
     identification of co-conspirators who would continue to 
     operate and illegally traffic firearms to Mexican DTOs which 
     are perpetrating armed violence along the Southwest Border.

                           *   *   *   *   *

       The ultimate goal is to secure a Federal T-III audio 
     intercept to identify and prosecute all co-conspirators of 
     the DTO. . . .
       Tracking the illegally-purchased guns after they left the 
     premises of Federal Firearms Licensees (FFLs) would allow ATF 
     and federal prosecutors to build a bigger case, one aimed at 
     dismantling what was believed to be a complex firearms 
     trafficking network. The task force failed, however, to track 
     the firearms. Instead, according to the testimony of ATF 
     agents, their supervisors ordered them to break off 
     surveillance shortly after the guns left the gun stores or 
     were transferred to unknown third parties. Many of the 
     firearms purchased were next seen at crime scenes on both 
     sides of the border.


      The Fast and Furious Gun Trafficking Network Was Not Complex

       We now know the gun trafficking ring that Fast and Furious 
     was designed to target was relatively straightforward. It 
     involved approximately 40 straw purchasers; a money-man, 
     Manuel Celis-Acosta (Acosta), and; two figures tied to 
     Mexican cartels. Acosta and the cartel figures were the top 
     criminals targeted by ATF and the U.S. Attorney's Office.
       On January 19, 2011, 20 suspects were indicted, including 
     Acosta and 19 of his straw buyers. In all, it is believed 
     that the Fast and Furious network purchased approximately 
     2,000 firearms. An internal ATF document dated March 29, 
     2011, shows that of the indicted defendants, only a select 
     few purchased the majority of the firearms, and nearly all of 
     the purchases occurred after ATF knew that these defendants 
     were straw purchasers working with Acosta. These four 
     indicted defendants alone illegally purchased nearly 1,300 
     firearms: Uriel Patina (720), Sean Steward (290), Josh Moore 
     (141), and Alfredo Celis (134).


                     The Goals of Our Investigation

       A central aim of our investigation has been to find out why 
     and how such a dangerous

[[Page H4410]]

     plan could have been conceived, approved, and implemented. 
     Who in ATF and the Justice Department knew about the volume 
     of guns being purchased? Who approved of the case at various 
     stages as it unfolded? Under whose authority did this occur? 
     Who could have--and should have--stopped it? By closely 
     examining this disastrous program, our Committee hopes to 
     prevent similar reckless operations from using dangerous 
     tactics like gunwalking ever again. Our investigation also 
     aims to determine what legislative actions might be necessary 
     to ensure that such a program will not happen again.


   The Department's Failure to Comply with the Committee's Subpoenas

       Our Committee is still entitled to thousands of documents 
     responsive to our subpoenas. These documents will undoubtedly 
     shed more light on the misguided tactics used in Operation 
     Fast and Furious. If the Justice Department changes course 
     and complies with the Committee's subpoenas, some of these 
     documents will cover the targets of an FBI investigation of 
     the individuals who were the link between the drug cartels 
     and the Fast and Furious firearms trafficking ring. Other 
     documents will chronicle the Department's response to 
     allegations of whistleblowers following Agent Terry's death 
     and how it shifted its position from the outright denial that 
     there was any misconduct to the Department's formal 
     withdrawal of its false statement in December 2011.
       Most importantly, as you are well aware, we are still 
     waiting for documents relating to the individuals who 
     approved the tactics employed in Fast and Furious. In his 
     recent letter to me, Deputy Attorney General James Cole 
     asserted that such documents ``will not answer the question'' 
     of what senior officials were in fact notified of the 
     unacceptable tactics used in Fast and Furious. This statement 
     is deeply misleading. We are aware of specific documents that 
     lay bare the fact that senior officials in the Department's 
     Criminal Division who were responsible for approving the 
     applications in support of the Fast and Furious wiretap 
     authorization requests were indeed made aware of these 
     questionable tactics. Cole's letter goes on to state that 
     ``Department leadership was unaware of the inappropriate 
     tactics used in Fast and Furious until allegations about 
     those tactics were made public in early 2011.'' That 
     statement is even more misleading and utterly false. The 
     information provided to senior officials in the affidavits 
     accompanying the wiretaps includes copious details of the 
     reckless investigative techniques involved. Senior department 
     leaders were not only aware of these tactics. They approved 
     them.


             Wiretap Application Obtained by the Committee

       The Committee has obtained a copy of a Fast and Furious 
     wiretap application, dated March 15, 2010. The application 
     includes a memorandum dated March 10, 2010, from Assistant 
     Attorney General of the Criminal Division Lanny A. Breuer to 
     Paul M. O'Brien, Director, Office of Enforcement Operations, 
     authorizing the wiretap application on behalf of the Attorney 
     General. The memorandum from Breuer was marked specifically 
     for the attention of Emory Hurley, the lead federal 
     prosecutor for Operation Fast and Furious.
       In response to your personal request, I am enclosing a copy 
     of the wiretap application. Please take every precaution to 
     treat it carefully and responsibly. I am hopeful that it will 
     assist you in understanding the information brought to the 
     attention of senior officials in the Criminal Division 
     charged with reviewing the contents of the applications to 
     determine if they were legally sufficient and conformed to 
     Justice Department policy. The information is as vast as it 
     is specific. This wiretap application, signed by Deputy 
     Assistant Attorney General Kenneth Blanco under the authority 
     of his supervisor, Assistant Attorney General Breuer, 
     provides new insight into who knew--or should have known--
     what and when in Operation Fast and Furious.
       To assist you in better understanding the facts, I 
     appreciate the opportunity to provide relevant and necessary 
     context for some of the information in this wiretap 
     application. Due to the sensitivity of the document, 
     individual targets and suspects will be referred to with 
     anonymous designations. You will notice, however, that the 
     individuals referred to in the wiretap application are well-
     known to our investigation. Although senior Department 
     officials authorized this application on March 15, 2010, a 
     mere four months after the investigation began, it contains a 
     breathtaking amount of detail.
       The detailed information about the operational tactics 
     contained in the applications raises new questions about 
     statements of senior Justice Department officials, including 
     the Attorney General himself. Before the Senate Judiciary 
     Committee on November 8, 2011, the Attorney General 
     testified:
       I don't think the wiretap applications--I've not seen--I've 
     not seen them. But I don't know--I don't have any information 
     that indicates that those wiretap applications had anything 
     in them that talked about the tactics that have made this 
     such a bone of contention and have legitimately raised the 
     concern of members of Congress, as well as those of us in the 
     Justice Department. I--I'd be surprised if the tactics 
     themselves about gun walking were actually contained in 
     those--in those applications. I have not seen them, but I 
     would be surprise[d] [if that] were the case.
       At a hearing before our Committee on February 2, 2012, the 
     Attorney General also denied that any information relating to 
     tactics appeared in the wiretap affidavits. He testified:
       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.
       Contrary to the Attorney General's statements, the enclosed 
     wiretap affidavit contains clear information that agents were 
     willfully allowing known straw buyers to acquire firearms for 
     drug cartels and failing to interdict them--in some cases 
     even allowing them to walk to Mexico. In particular, the 
     affidavit explicitly describes the most controversial tactic 
     of all: abandoning surveillance of known straw purchasers, 
     resulting in the failure to interdict firearms.
       The Justice Department's Office of Enforcement Operations 
     reviews the wiretap applications to ensure that they are both 
     legally sufficient and conform to Justice Department policy. 
     Deputy Attorney General James M. Cole has verified this 
     understanding. In a letter he sent to Congress on January 27, 
     2012, he stated that the Department's ``lawyers help AUSAs 
     and trial attorneys ensure that their wiretap packages meet 
     statutory requirements and DOJ policies. When Assistant 
     Attorney General Breuer testified last November about the 
     wiretap approval process, however, he stated:
       [The role of the reviewers and the role of the deputy in 
     reviewing Title Three applications is only one. It is to 
     insure that there is legal sufficiency to make an application 
     to go up on a wire, and legal sufficiency to petition a 
     federal judge somewhere in the United States that we believe 
     it is a credible request. But we cannot--those now 22 lawyers 
     that I have who review this in Washington--and it used to 
     only be seven--can not and should not replace their judgment, 
     nor can they, with the thousands of prosecutors and agents 
     all over the country. Theirs is a legal analysis; is there a 
     sufficient basis to make this request.
       Assistant Attorney General Breuer failed to acknowledge 
     that before a wiretap application can be authorized, it must 
     adhere to Justice Department policy. Yet, the operational 
     tactics included in the enclosed wiretap application--
     including abandoning surveillance and not interdicting 
     firearms--violate Department policy. According to Deputy 
     Attorney General Cole, operations allowing guns to cross the 
     border do indeed violate Department policy. In an e-mail he 
     sent to southwest border U.S. Attorneys on March 9, 2011, 
     Deputy Attorney General Cole stated, ``I want to reiterate 
     the Department's policy: We should not design or conduct 
     undercover operations which include guns crossing the 
     border.''
       The Committee understands the limitations of the Office of 
     Enforcement Operations function. Nevertheless, when presented 
     with alarming details such as those contained in this 
     application, a sensible lawyer--vested with the important 
     responsibility of recommending to the Assistant Attorney 
     General whether a wiretap should be authorized--must raise 
     the alarm. Senior officials reviewing the application for 
     legal sufficiency and/or whether Justice Department policy 
     was followed, however, failed to identify major problems that 
     these manifold facts suggested.


 March 2010 Wiretap Application States the Main Suspect Had Intent to 
    Acquire Firearms for the Purpose of Transporting Them to Mexico

       According to the wiretap application obtained by the 
     Committee, as early as December 2009, the task force had 
     identified the main suspect in Fast and Furious (Target 1), a 
     figure well-known to our investigation. The affidavit 
     provides transcripts of entire conversations obtained through 
     a prior DEA wire intercept. These conversations demonstrate 
     that key suspects in Operation Fast and Furious were running 
     a firearms trafficking ring. In one conversation that took 
     place on December 11, 2009, Unknown Person 1 asks, ``Can you 
     hold them [firearms] for me there for a little while there?'' 
     Target 1 responds, ``Well it's that I do not want to have 
     them at home, dude, because there is a lot of . . . uh, it's 
     too much heat at my house.'' Unknown Person 1 then asked 
     where he could store the firearms and Target 1 responds, 
     ``[m]ake arrangements with that guy [Straw Purchaser X], call 
     him back and make arrangements with him.'' The affidavit 
     acknowledges that while monitoring the DEA target telephone 
     numbers, law enforcement officers intercepted calls that 
     demonstrated that Target 1 was conspiring to purchase and 
     transport firearms for the purpose of trafficking the 
     firearms from the United States to Mexico.


 March 2010 Wiretap Application States that Nearly 1,000 Firearms had 
     Already Been Purchased, and that Many Were Recovered in Mexico

       The Probable Cause section of the affidavit shows that ATF 
     was aware that from September 2009 to March 15, 2010, Target 
     I acquired at least 852 firearms valued at approximately 
     $500,000 through straw purchasers. As of March 15, 2010, 
     twenty-one straw purchasers had been identified. Between 
     September 23, 2009, and January 27, 2010, 139 firearms 
     purchased by these straw

[[Page H4411]]

     purchasers were recovered--81 of which were in Mexico. These 
     recoveries occurred one to 49 days after their purchase in 
     Arizona.


 March 2010 Wiretap Application Describes How Smugglers were Bringing 
                          Firearms into Mexico

       The wiretap affidavit details that agents were well aware 
     that large sums of money were being used to purchase a large 
     number of firearms, many of which were flowing across the 
     border. For example, in the span of one month, Straw 
     Purchaser Z bought 241 firearms from just three cooperating 
     FFL,s. Of those, at least 57 guns were recovered shortly 
     thereafter either in the possession of others or at crime 
     scenes on both sides of the border. The wiretap affidavit 
     even shows that ATF agents knew the tactics the smugglers 
     were using to bring the guns into Mexico.
       According to the affidavit: The potential interceptees 
     conspire with each other and others known to illegally 
     traffic firearms to Mexico. The potential interceptees 
     purchase firearms in Arizona and transport them to Mexico or 
     a location in close proximity of the United States/Mexico 
     border. The potential interceptees deliver the firearms to 
     individual(s) both known and unknown who then transport them 
     into Mexico and/or the potential interceptees transport the 
     firearms across the border and deliver them to customers both 
     known and unknown.
       The fact that ATF knew that Target 1 had acquired 852 
     firearms and had the present intent to move them to Mexico 
     should have prompted Department officials to act. Department 
     officials should have ensured that the firearms were 
     interdicted immediately and that law enforcement took steps 
     to disrupt any further straw purchasing and trafficking 
     activities by Target 1. Similarly, by way of example, if 
     Criminal Division attorneys were reviewing a wiretap 
     affidavit that showed that human trafficking was taking place 
     for the purpose of forcing humans into slavery, the attorneys 
     should act to make sure such a practice would not continue. 
     Accordingly, Target l's activities should have provoked an 
     immediate response by the Criminal Division to shut him and 
     his network down.


March 2010 Wiretap Application Contains Details of Dropped Surveillance

       The wiretap affidavit also describes firearms purchases by 
     individual straw purchasers. For example, Straw Purchaser Y 
     purchased five AK-47 type firearms on December 10, 2009, and 
     surveillance units observed Straw Purchaser Y travel from the 
     FFL where he made the purchase to Target l's residence. The 
     next day, surveillance units observed Straw Purchaser Y 
     purchase an additional 21 AK-47 type firearms, and within an 
     hour, arrive at Target l's home.
       On December 8, 2009, agents observed Straw Purchaser Z 
     purchase 20 AK-47 type firearms. While Straw Purchaser Z was 
     making this purchase, Z saw a commercial delivery truck 
     arrive at the gun store with a shipment of an additional 20 
     AK-47 type firearms. Straw Purchaser Z then told FFL 
     employees that he wanted to purchase those additional 
     firearms. Later that same day, Straw Purchaser Z returned to 
     the FFL to buy them. After Straw Purchaser Z left the FFL 
     with the firearms, Phoenix police officers conducted a 
     vehicle stop on Straw Purchaser Z's vehicle and identified 
     two of the passengers as Straw Purchaser Z and Target 1. The 
     officers observed the firearms in the bed of the truck and 
     asked the subjects about the firearms. Straw Purchaser Z told 
     them he had purchased the firearms and they belonged to him. 
     ATF agents continued surveillance until the vehicle arrived 
     at Target l's residence.
       The very next day, nine of these firearms were recovered 
     during a police stop of a third person in Douglas, Arizona, 
     on the U.S.-Mexico border. Five days later, Straw Purchaser Z 
     bought another 43 firearms from an FFL. On December 24, 2009, 
     Straw Purchaser Z bought even more firearms, purchasing 40 
     AK-47 type rifles from an FFL. All of these rifles were 
     recovered on January 13, 2010, in El Paso, Texas, near the 
     U.S./Mexico border. Although the individual found in 
     possession of all these guns provided the first name of the 
     purchaser, agents did not arrest the individual or the 
     purchaser.
       Though the wiretap application states that agents were 
     conducting surveillance of known straw purchasers, none of 
     these weapons were interdicted. No arrests were made.


March 2010 Wiretap Details How Fast and Furious Firearms Had Been Found 
                       at Crime Scenes in Mexico

       The wiretap affidavit also details the very sort ``time-to-
     crime'' for many of the firearms purchased during Fast nd 
     Furious. For example, on November 6, 2009, November 12, 2009, 
     and November 14, 2009, Straw Purchaser Y purchased a total of 
     25 AK-47 type firearms from an FFL in Arizona. On November 
     20, 2009--just eight days later--Mexican officials recovered 
     17 of these firearms in Naco, Sonora, Mexico. Another straw 
     purchaser, Straw Purchaser Q, purchased a total of 17 AK-47 
     type firearms from an FFL on November 3, 2009, November 10, 
     2009, and November 12, 2009. Then, on December 9, 2009, 
     Mexican officials recovered 11 of these firearms in Mexicali, 
     Baja California, Mexico, along with approximately 421 
     kilograms of cocaine, 60 kilograms of methamphetamine, 48 
     additional firearms, 392 ammunition cartridges, $2 million in 
     U.S. currency, and $800,000 in Mexican currency.
       Once again, although ATF was aware of these facts, no one 
     was arrested, and ATF failed to even approach the straw 
     purchasers. Upon learning these details through its review of 
     this wiretap affidavit, senior Justice Department officials 
     had a duty to stop this operation. Further, failure to do so 
     was a violation of Justice Department policy.


              Straw Purchasers Had Meager Financial Means

       The affidavit provides details of the straw purchasers' 
     financial records. As of March 15, 2010, just four straw 
     purchasers had spent $373,206 in cash on firearms. Yet, these 
     same straw purchasers had only minimal earnings in Fiscal 
     Year (FY) 2009. Straw Purchaser Q earned $214 per week, while 
     Straw Purchaser Y earned only $188 per week. Straw Purchaser 
     Z earned $9,456.92 during FY 2009, and Straw Purchaser X did 
     not report any income whatsoever.

------------------------------------------------------------------------
                                      Money spent on
               Name                 firearms by  3/15/  FY 2009 income*
                                            10
------------------------------------------------------------------------
Straw Purchaser Y.................           $128,580             $9,776
Straw Purchaser Q.................             64,929             11,128
Straw Purchaser X.................             39,663      None reported
Straw Purchaser Z.................            140,034              9,456
                                   -------------------
    Total.........................           $373,206
------------------------------------------------------------------------
*Incomes based on weekly incomes detailed in wiretap application.

     These straw purchasers did not have the financial means to 
     spend tens of thousands of dollars each on guns. Yet, ATF 
     allowed them to continue acquiring firearms without 
     approaching them to inquire how they were able to obtain the 
     funds to do so. ATF also failed to alert the FFLs with this 
     information so that they could make more fully informed 
     decisions as to whether to continue selling to these straw 
     purchasers.


                               Conclusion

       The wiretap affidavit reveals a remarkable amount of 
     specific information about Operation Fast and Furious. The 
     affidavit reveals that the Justice Department has been 
     misrepresenting important facts to Congress and withholding 
     critical details about Fast and Furious from the Committee 
     for months on end. As the primary investigative arm of 
     Congress, our Committee has a responsibility to demand 
     answers from the Department and continue the investigation 
     until we get all the facts.
           Sincerely,
                                                     Darrell Issa.
                                                         Chairman.

  Mr. ISSA. I now yield 1 minute to the gentleman from Oklahoma (Mr. 
Lankford).
  Mr. LANKFORD. Mr. Speaker, this is a truly sad day. This is not 
stunning, as I have heard. This is a deliberative process that we've 
tried to work through.
  We have a border agent that's been killed. We have hundreds of 
Mexicans that have been killed. And the fingerprints on all of that go 
straight back to an operation that was done by the Federal Government. 
This is a moment to get all of the facts, to get it on the table, find 
out what happened, and to get it done.
  Now, we started with a subpoena process, over 22 different 
categories. We narrowed that down to one. How do we get the documents 
from the time of February 4 of last year, when the Department of 
Justice told us one thing, and December, when they said, Oops, and 
changed their story? We found out that they had not told us the truth. 
And in that time period when they stalled, stalled, stalled, stalled, 
we just want the information on that. How did this occur?
  This is essential because Phoenix ATF had a plan, Fast and Furious. 
It was then approved by the U.S. attorney in that area, and then went 
up the food chain to the Department of Justice, where it was signed 
off. This is not irrelevant. It is essential that we know the process 
of how this was done. If we're going to fix this problem, we've got to 
know the facts. Instead, they're being withheld.
  Mr. CUMMINGS. I will continue to reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, as a point of inquiry, do I have the right to 
close?
  The SPEAKER pro tempore. The gentleman from California has the right 
to close.
  Mr. ISSA. Then I will reserve my right to close.
  Mr. CUMMINGS. Does the gentleman have any further requests for time?
  Mr. ISSA. No, I do not.
  Mr. CUMMINGS. Mr. Speaker, as the Democratic leader said, there is no 
doubt that the Constitution gives Congress the right and responsibility 
to investigate. But the Constitution also requires something else. It 
requires Congress and the executive branch to avoid unnecessary 
conflict and deceit, accommodations that serve both of their interests.
  In this case, the Attorney General has testified nine times. He has 
provided thousands of pages of documents. He has provided 13 pages of 
deliberative

[[Page H4412]]

internal documents, and he is willing to provide even more to me, the 
recent demands of Chairman Issa.
  But House Republican leaders are not honoring their constitutional 
obligations. In fact, they are running in the wrong direction as 
quickly as possible. It is fundamentally wrong to vote in favor of this 
resolution at this time when the Attorney General has been working with 
the House in good faith. I believe this action will undermine the 
standing of the House, will cement the Speaker's legacy, and will be 
recorded by history as a discredit to this institution.
  With that, I yield back the balance of my time.
  Mr. ISSA. I yield myself such time as I may consume.
  Mr. Speaker, there's been a lot of talk about the documents that the 
Attorney General couldn't give us. These documents, documents under 
seal, would be an example of documents that we should not see, except 
in camera, and we've taken great care to ensure that no one outside 
Members of Congress and key staff have ever looked at them.
  But I've looked at them, and what I know is that these documents, 
read by any person of ordinary learning, make it very clear that these 
wiretap applications were read and signed by individuals in the 
Department of Justice in Washington. And if you read them, you knew 
they were gunwalking. People will tell you differently. I give you my 
word: You read this, you know they were letting guns go to Mexico. They 
knew who the buyers were, who the intermediaries were, who the 
recipients were, and, most importantly, where they ended up. And there 
are reports in here, as part of the evidence given to judges in order 
to get wiretaps--there is evidence that they knew that, in fact, 
weapons had already ended up in Mexico.
  That's before Brian Terry was killed. That's how Fast and Furious 
could have been stopped. That's how people could have been warned. In 
fact, that's at a time in which ATF agents in Mexico City, if they 
punched in the serial number of a weapon found there, they got an 
erroneous, an error. They did not get meaningful information because 
that was being blocked--not by ATF, per se, but by the Department of 
Justice under the auspices of the U.S. attorney and his bosses.

                              {time}  1550

  Now you're going to hear that this began under President Bush and 
Attorney General Mukasey. I'm going to tell you that's just false. What 
happened in previous administrations with some of the same local ATF 
agents was they exercised extremely bad judgment. They did things and 
pushed on programs that I believe were poorly conceived and poorly 
manned and as a result they lost track of weapons repeatedly. That 
happened. And it was wrong. The U.S. attorney at the time even declined 
prosecutions because of failed techniques.
  All of these were shut down during the Bush administration. President 
Bush can take no credit for it. He didn't know it. As far as I know, 
the Attorney General didn't know. And anyone who saw the record of that 
should say: This was wrong-minded. But during this administration, 
during the time in which the Attorney General and his key lieutenants, 
including Lanny Breuer, were in charge, they reopened the prosecutions 
from a failed program called Wide Receiver and they opened Fast and 
Furious.
  Now I'm the second child in a family. I have an older brother. I 
learned at a very young age you in fact cannot, when you do something 
wrong, say: My brother Billy did it. It doesn't work that way. You're 
responsible for what you do wrong, whether it happened before your 
watch or not. This happened on the Attorney General's watch.
  But that's not why we're here today. We're here because when we asked 
legitimate questions about Brian Terry's murder, about Fast and 
Furious, we were lied to. We were lied to repeatedly and over a 10-
month period. The fact is that is what we're here for. The American 
people want to know if you give false testimony to Congress.
  The minority leader talked about, Why is there such a hurry? Why was 
there a 10-month delay? I was sworn in just a few days before this 
investigation began, and now we're nearing an election. We don't want 
to have this during an election. We want to have resolution for the 
Terry family.
  The important thing is, we know enough to know that we have people 
who have told us under penalty of criminal prosecution--they have told 
Congress and their employees certain documents exist. And we've asked 
for those documents. And we've been denied them. We can't bring Kenneth 
Melson back in in good faith and say, Well, we've got to get them in 
front of our committee, if in fact there's documents he says exist. And 
they do, and they will not be given to us. We want to have those so we 
can ask the best questions.
  You've heard earlier that in fact we've denied somehow due process to 
the minority. My ranking member is very capable, and has asked for 
minority days; in other words, hearings exclusively for him. He chose 
not to do it. When we were having the local ATF and other individuals 
in early on, all of whom worked for this government, he didn't even ask 
for any. It wasn't until we asked to have the Attorney General come in, 
based on these false statements and final retraction, that he suddenly 
wanted a previous Attorney General, who happened to say, No, I don't 
want to come. So on that particular day we would have had to subpoena 
him to get him in. I have no objection to having the former Attorney 
General in. I believe that on his watch and his predecessor's watch and 
his predecessor's watch and for a very long time we have not done a 
good job of overseeing the actions of field agents when it comes to 
guns.
  But, again, we're here today, for the first time in over 200 years, 
to deal with an Attorney General who has flat-out refused to give the 
information related to lies and a coverup exclusively within his 
jurisdiction. That's what we're voting on.
  I urge a ``yes'' vote on the contempt on behalf of the Terry family.
  I yield back the balance of my time.
  The SPEAKER pro tempore. All time for debate on the resolution has 
expired.


                            Motion to Refer

  Mr. DINGELL. I have a motion at the desk.
  The SPEAKER pro tempore. The Clerk will report the motion to refer.
  The Clerk read as follows:

       Mr. Dingell of Michigan moves to refer the resolution, H. 
     Res. 711, to the Committee on Oversight and Government Reform 
     with instructions to:
       (1) Hold a bipartisan public hearing with testimony from 
     Kenneth Melson, the former Acting Director of the Bureau of 
     Alcohol, Tobacco, Firearms, and Explosives during Operation 
     Fast and Furious.
       (2) Hold a bipartisan public hearing with testimony from 
     William Hoover, the former Acting Deputy Director of the 
     Bureau of Alcohol, Tobacco, Firearms, and Explosives during 
     Operation Fast and Furious.
       (3) Hold a bipartisan public hearing with testimony from 
     former Attorney General Michael Mukasey, who, according to 
     documents produced to the committee, was informed during his 
     tenure that, although efforts to coordinate firearm 
     interdictions with Mexican law enforcement officials in 2007 
     ``have not been successful'', the ``ATF would like to 
     expand'' such efforts.
       (4) Conduct a bipartisan transcribed interview of Alice 
     Fisher, who served as the Assistant Attorney General for the 
     Criminal Division of the Department of Justice from 2005 to 
     2008, about her role in authorizing wiretaps in Operation 
     Wide Receiver.
       (5) Conduct a bipartisan transcribed interview of Kenneth 
     Blanco, who serves as Deputy Assistant Attorney General at 
     the Department of Justice and also authorized wiretaps in 
     Operation Fast and Furious.
       (6) Take such further actions as the committee, with full 
     bipartisan consultation, deems appropriate to assure a 
     thorough and vigorous investigation of this matter.

  The SPEAKER pro tempore. Pursuant to House Resolution 708, the 
gentleman from Michigan (Mr. Dingell) and a Member opposed each will 
control 5 minutes.
  The Chair recognizes the gentleman from Michigan.
  Mr. DINGELL. I yield myself 4 minutes.
  (Mr. DINGELL asked and was given permission to revise and extend his 
remarks.)
  Mr. DINGELL. I rise to offer this motion to refer so that this 
investigation can focus on the real issues at hand and to get the 
facts.
  I begin by expressing my respect and affection for the chairman of 
the committee, Mr. Issa. I want to see a proper investigation and the 
facts gotten about serious misbehavior and utter incompetence at the 
Bureau of Alcohol,

[[Page H4413]]

Tobacco, and Firearms and Explosives, called the ATF. This is a 
tragedy.
  I have had the entirety of the motion read so that we can understand 
what a real investigation is. I didn't roll off the cabbage wagon 
yesterday, Mr. Speaker. I chaired committees for over 20 or 30 years, 
and I have conducted more investigations than any man in this 
particular body. It is clear that the events here were characterized by 
dishonest, evasive, and deceitful activities on the part of ATF 
personnel.
  I want to find out what has happened. This is not the first time I've 
crossed swords with ATF and this is not the first time I have found 
them engaged in shameful, illegal, and improper behavior. In one 
instance, I caught them raiding the home of an individual. They shot 
him in the brain and they pitched his wife, in her underpants, out into 
the hall.
  Operation Fast and Furious was a highly irresponsible operation that 
never should have occurred. People on both sides of this aisle agree to 
that. The American people want the answers and they deserve to have a 
proper, thorough, and bipartisan investigation that gets them the 
truth. My constituent Brian Terry wants the truth from the grave, and 
his families asks that we get the truth. With God as my judge, they 
deserve it, and they shall have it if I can get it for them.
  I have shared scores of investigations and hearings over 50 years on 
wrongdoing which have collected hundreds of millions of dollars 
wrongfully taken from our people and have caught more than a few 
serious wrongdoers, who have paid proper penalties for their 
wrongdoing.
  These investigations were always bipartisan, with both sides of the 
aisle actively participating and fully informed. The actions of the 
committee were unanimously conducted and supported by Members on both 
sides of the aisle. What we see before us does not follow that model, 
and it brings no respect to this body. As someone who holds the 
institution here in the highest regard, I find this to be most 
troubling.
  Instead of going after the real answers and getting the facts about 
what happened at ATF, the majority of the committee has engaged in what 
appears to be a partisan political witch hunt, with the Attorney 
General as its target. Over the 16-month investigation, Democrats were 
not permitted to call a single witness to testify. So much for 
bipartisanship. The American people deserve better than this, Mr. 
Speaker. They deserve a legitimate inquiry based on facts which all 
Members of this body can support.

                              {time}  1600

  This is not a Second Amendment question. I have defended the Second 
Amendment more than any Member of this body, and I am a past member of 
the board of directors of NRA and a life member of that body. We 
deserve, and the American people deserve, a legitimate inquiry based on 
the facts.
  It seems to me there's a simple way to resolve this dispute. First, 
adopt the resolution. Then see to it that the Attorney General produces 
the documents that are currently at issue, and I will actively support 
the gentleman and see to it that those facts and documents are 
presented.
  Second, the House Republicans should give a good-faith commitment to 
work towards resolving the contempt fight. If the documents in fact are 
consistent with the Attorney General's testimony that he never 
authorized or approved or knew about gunwalking, then I think we should 
consider the matter of contempt resolved.
  The SPEAKER pro tempore. The time of the gentleman has expired.
  Mr. DINGELL. I reserve the balance of my time.
  Mr. ISSA. Mr. Speaker, I claim time in opposition.
  The SPEAKER pro tempore. The gentleman from California is recognized 
for 5 minutes.
  Mr. ISSA. Mr. Speaker, I yield myself 1 minute.
  I respect the gentleman from Michigan, the dean of the House, but 
you're just wrong. There were plenty of opportunities for the minority 
to ask for witnesses. They chose not to except at one hearing, and then 
they wanted the former Attorney General. They did not avail themselves 
of the procedures allowing them to have a hearing even though they know 
how to do it and have done it.
  But more importantly, when you say you represent Brian Terry, you do 
not. The Terry family issued this statement, referring to Congressman 
Dingell:

       His views don't represent those of the Terry family. Nor 
     does he speak to the Terry family. And he has never spoken to 
     the Terry family.

  Secondly:

       His office sent us a condolence letter when Brian was 
     buried 18 months ago. That's the last time we heard from him.

  Third:

       A year ago, after the Oversight and Government Reform 
     Committee began its work, one of Brian's sisters called 
     Representative Dingell's office seeking help and answers. No 
     one from his office called back.

  Lastly:

       If Rep. Dingell truly wants to support the Terry family and 
     honor Brian Terry, a son of Michigan, he and other Members of 
     Congress will call for the Attorney General to immediately 
     provide the documents requested by the House Oversight and 
     Government Reform Committee.

  I reserve the balance of my time.
  Mr. DINGELL. I yield myself the balance of my time.
  Well, I was aware of this. I have communicated with the family my 
sorrow at their loss, and my office is setting up a meeting with the 
Terry family as soon as I can get back to Michigan.
  My motion here would ensure that the witnesses the minority has 
requested, including the former Director of ATF during the time of this 
operation, are called for a full, open public hearing to ensure that 
the American people get the whole story.
  I'm not here solely representing the interests of the Terry family. 
I'm here representing the interests of the whole country and all of the 
800,000 people that I serve in the 15th District of Michigan.
  As I've said on a number of occasions in the last year, Congress has 
two choices in their decisionmaking: we can work together and get 
something done, or we can play political football. I choose to get 
something done, which is why I have offered a resolution. And if you 
have listened to what I had read by the Clerk, you will observe that it 
says we want a full, thorough, bipartisan investigation. That's the way 
the matter should be done. And Members on this side will support the 
findings of that investigation if the chairman of that committee will 
permit this kind of undertaking to be begun.

  I would observe this very interesting fact. The contempt resolution 
is going to give the same instructions to the same fellow who is under 
contempt. He will simply put it in his pocket, and we will find that 
this body has been weakened in its dealings with the executive branch.
  I yield back the balance of my time.
  Mr. ISSA. Mr. Speaker, I now yield all remaining time to the 
gentleman from South Carolina (Mr. Gowdy), an experienced prosecutor, 
to close.
  The SPEAKER pro tempore. The gentleman from South Carolina is 
recognized for 4 minutes.
  Mr. GOWDY. Mr. Speaker, I thank the chairman.
  This is a sad day, Mr. Speaker, for those of us who respect the rule 
of law as the foundation of this Republic, for those of us who proudly 
worked for the Department of Justice, for those of us who believe the 
same rules apply to everyone regardless of whether they live simple 
lives of peace and quiet or whether they live and work in the towers of 
power, prestige, and authority. The same rules apply to everyone. It is 
the greatness of this country, Mr. Speaker. It is the greatness, the 
elegance, the simplicity of a woman who is blindfolded holding nothing 
but a set of scales and a sword.
  The chief law enforcement official for this country is on the eve of 
being held in contempt of Congress because he refuses to follow the 
law. He refuses to allow Congress to find the truth, the whole truth. 
For those of you who want a negotiation, a compromise, an extraordinary 
accommodation, to use the Attorney General's words, for those of you 
who want to plea bargain, my question to you is simply this: Will you 
settle for 75 percent of the truth? Is 50 percent of the truth enough 
for you? Is a third? Or do you want it all? Because if you want all the 
truth, then you want all the documents.
  If you've ever sat down, Mr. Speaker, with the parents who have lost 
a child

[[Page H4414]]

who has been murdered--and some of my colleagues on both sides of the 
aisle have been there--it is a humbling, emotional, life-altering 
experience. All they want is the truth. They want answers. They want 
justice, and they don't want part of it. They want all of it. And I 
will not compromise, Mr. Speaker, when it comes to finding the truth.
  Congress is right to pursue this no matter where it takes us. No 
matter which administration was in power and no matter what the facts 
are, we are right to pursue this. And we are wrong if we settle for 
anything less than all the facts.
  To my colleagues who are voting ``no,'' Mr. Speaker, let me ask this: 
Can you tell me, can you tell the American people why the Department of 
Justice approved this lethal, fatally flawed operation?
  To those of you who are voting ``no,'' can you tell the American 
people how the tactic of gunwalking was sanctioned?
  To those of you who are voting ``no,'' can you tell Brian Terry's 
family and friends how a demonstrably false letter was written on 
Department of Justice letterhead on February 4, and where would we be 
if we accepted that letter at face value? A letter written on 
Department of Justice letterhead, that is not just another political 
Cabinet agency. It is emblematic of what we stand for as a country--
truth, justice, the equal application of law to everyone. That letter 
was written on America's stationery. That is what the Department of 
Justice is, and it was dead wrong. And where would we be if we took 
their word for it?
  Our fellow citizens have a right to know the truth, and we have an 
obligation to fight for it, Mr. Speaker, the politics be damned. We 
have a right to fight for it.
  I wish the Attorney General would give us the documents. I would 
rather have the documents than have this vote on contempt of Congress. 
But we cannot force him to do the right thing, and that does not 
relieve us of the responsibility for us to do the right thing. Even if 
the heavens may fall, Mr. Speaker, I want the truth. I want all of it. 
We should never settle for less than all of it, and we have to start 
today.
  Mr. BRALEY of Iowa. Mr. Speaker, I opposed the contempt of Congress 
resolution today because I don't want political games or partisan 
politics to stand in the way of a serious effort to find the truth.
  The best place to resolve this dispute isn't on the floor of the 
House in an election year, but in a federal court where both sides can 
present their cases and the debate won't turn into a political circus.
  I've been disappointed by the failure of both House Republicans and 
the Justice Department to find a practical way to get the American 
people the full details of this tragedy without compromising existing 
court orders and other national security concerns. An American was 
murdered and we owe it to his family and the public to get to the 
bottom of what happened.
  Mr. YOUNG of Alaska. Mr. Speaker, I've been very disturbed to hear 
today that it's inappropriate for the National Rifle Association to 
take a position on this resolution.
  It should be clear to everyone that as a long-time NRA board member, 
I take a back seat to no one on Second Amendment issues. On this 
resolution, I can tell you that it is entirely appropriate for the NRA 
to take a position.
  We are here today because Congress has a duty to hold our government 
accountable. We have a duty to ensure those in charge protect the 
public and the Constitution. Congress was misled when Administration 
officials initially briefed the appropriate Congressional committees. 
The U.S. Attorney General's office denied knowledge of a gun walking 
operation after whistleblowers reported troubling allegations. However, 
they later admitted certain officials with the Attorney General's 
office did have knowledge at the time Congress initially reviewed 
allegations of gun walking.
  I am deeply troubled by reports the ATF forced law abiding gun 
dealers to do something they knew was wrong--to sell guns to 
individuals they normally would not sell to. The Administration 
designed this outrageous program to reportedly reduce gun violence 
along our SW border. And an innocent American Border Patrol agent paid 
the ultimate price for this ill-conceived plan.
  There are those who believe that there were ulterior motives at play. 
We already know about at least three e-mails from ATF officials 
discussing how they could use information from ``Fast and Furious'' to 
make the case for a new gun control proposal--the Obama 
administration's proposal to impose a new--and, I believe, illegal--
reporting requirement on dealers who sell multiple long guns to 
individuals in the southwest border states. The administration has 
defended that rule in court, and by their logic there's no reason it 
couldn't be expanded to all guns in all states.
  That would be a system of national gun registration. And that makes 
this a Second Amendment issue.
  We as elected lawmakers must have all relevant facts to hold whoever 
approved Operation Fast and the Furious accountable. I stand with my 
colleagues here today who believe that the Oversight Committee has been 
denied all relevant evidence on who approved this terrible operation. 
The Oversight Committee's investigation has been thorough. The 
committee has followed the evidence in pursuit of the truth, not in 
pursuit of a political agenda. What brings us here today is the fact 
that this effort has been stonewalled by this Justice Department and 
this White House. The American people deserve to know the truth. The 
family of Border Patrol agent Brian Terry deserves to know the truth. 
Members of Congress deserve to know the truth. Today's vote will bring 
us one step closer to learning the truth.
  Mr. THORNBERRY. Mr. Speaker, it is unfortunate that the House must 
vote on whether to hold the Attorney General in contempt for refusing 
to produce documents in his Department. The underlying facts are 
disturbing and tragic, leading to the death of a Border Patrol officer 
and several hundred people in Mexico. The Attorney General should work 
with Congress to understand what went wrong rather than to withhold 
information and attempt to thwart the investigation.
  The power of Congress to investigate and conduct oversight of federal 
agencies has been well established throughout our history. The late 
claim of Executive Privilege made here, on the other hand, is not 
consistent with precedent or previous court rulings. One can only 
conclude that the Attorney General, perhaps on the instruction of the 
President, is trying to prevent Congress and the American people from 
learning the truth.
  Mr. HOLT. Mr. Speaker, the resolution before us today is an 
illegitimate, politically motivated smear campaign.
  Never in the history of the House has a U.S. Attorney General been 
held in contempt. What makes this resolution particularly outrageous is 
that there is absolutely no basis for it.
  The Attorney General has testified repeatedly about Operation Fast & 
Furious. The Justice Department has turned over thousands of pages of 
relevant records about this incident. None of that matters to the 
majority. Neither does the fact that these kinds of operations were 
undertaken by the Bush administration. And the majority does not want 
the public to know that not a single witness was allowed to testify 
before the House Oversight & Government Reform Committee about past 
``gun walking'' episodes in the Bush administration. That's why this 
resolution and the Oversight Committee's ``hearings'' into Fast & 
Furious are not about ``gun walking''--they are about election year 
politics.
  Rather than dealing with the substantive issue of illegal guns and 
how to reduce violent gun-related crime, today we have a political 
stunt that does nothing to solve the problem that cost the life of a 
federal agent. Mr. Speaker, the public see this for what it is: a 
politically motivated legislative lynching--and those who support this 
illegitimate resolution will have to answer for it to the voters.
  Ms. RICHARDSON. Mr. Speaker, I rise in strong and unyielding 
opposition to resolution recommending that the House find Attorney 
General Eric Holder in contempt of Congress. This unprecedented 
resolution, which was passed out of committee on a party-line vote, is 
nothing more than an attempt by the majority Republican leadership to 
divert attention from its failure to address the real challenges facing 
our country.
  The hard working and hard pressed people of the 37th Congressional 
District of California did not send me here to waste precious floor 
time debating this frivolous and partisan resolution. They want us to 
work together to create jobs for the unemployed, make education 
affordable, health care available, and protect the social safety net of 
Medicare, Social Security, Medicaid, and assistance programs to 
vulnerable families.
  I oppose the resolution before us for several reasons:
  1. The resolution relates to a document request involving allegations 
of ``gunwalkng'' in an ATF operation known as ``Operation Fast and 
Furious,'' but the documents now involved are completely unrelated to 
how ``gunwalking'' was utilized in the operation.
  2. Over the past year, the Justice Department provided thousands of 
pages of responsive documents to the Oversight and Government Reform 
Committee and has made dozens of officials available for interviews and 
hearings, and the Attorney General has testified before Congress nine 
times on this topic.

[[Page H4415]]

  3. The Committee's investigation identified no evidence that the 
Attorney General or senior Department officials were aware of 
gunwalking in Fast and Furious. To the contrary, as soon as the 
Attorney General became aware of the tactic, he put a halt to it, 
ordered an IG investigation, and instituted internal reform measures.
  4. The House of Representatives has never held an Attorney General in 
contempt. The only precedent cited in the Issa contempt resolution is a 
committee contempt vote that took place in the 1990's against former 
Attorney General Janet Reno. That action was so widely discredited that 
Speaker Gingrich chose not to bring it to the floor for a vote.
  5. During this investigation, the Committee refused every Democratic 
request for a hearing witness, including the head of ATF--the agency 
that actually ran the operation. This is not the way to conduct an 
oversight investigation unless you are interested in partisan political 
ploys instead of learning the facts.
  Mr. Speaker, I must say that am offended that Attorney General 
Holder, a man of unimpeachable integrity and one who has served this 
nation with distinction for many years, has been subjected to such 
demeaning treatment by some in the majority. Even though Attorney 
General Holder has been forthright and forthcoming, some in this body 
accuse him of a cover-up or claim he has been obstructive. He has even 
been called a ``liar'' on national television. These unfounded charges 
are beyond the pale and reflect more on those who have uttered them 
that they do our Attorney General, the honorable Eric Holder.
  I oppose this politically inspired resolution and urge my colleagues 
to join me.
  Mr. REYES. Mr. Speaker, I rise today to express my opposition to the 
majority's decision to force a contempt vote on the floor. I want to 
mention the following points for the record.
  There is no evidence that the attorney general authorized, condones, 
or knew about ``gun walking.'' Chairman Darrell Issa admitted this 
yesterday before the Rules Committee.
  There is no evidence that the attorney general lied to Congress or 
engaged in a cover-up. Chairman Issa also admitted this yesterday.
  There is no evidence that the White House had anything to do with 
``gun walking'' operations. Chairman Issa admitted this on Fox News on 
Sunday.
  Democrats wanted a real investigation, but Chairman Issa refused TEN 
different requests from Democrats for a hearing with Ken Melson, the 
former Director of ATF--the agency in charge.
  Chairman Issa said this yesterday about ``gun walking'' operations 
under the Bush Administration: ``They were all flops. They were all 
failures.'' Yet, he has refused all Democratic requests to interview 
Bush Administration officials about their rules.
  Despite finding no evidence that Attorney General Holder knew about 
``gun walking'', the Committee has obtained documentary evidence 
showing that former Attorney General Mukasey was personally briefed on 
botched interdiction efforts during the Bush Administration and he was 
told that they would be expanded during his tenure. Chairman Issa has 
refused to call on Mukasey for a hearing.
  Republicans have not granted a single Democratic witness request 
during the entire 16 month so-called investigation. This has been a 
credible process.
  As soon as Attorney General Holder learned about ``gun walking'', he 
immediately halted it and ordered an IG investigation.
  In closing Mr. Speaker, I think the worst part is that the tragic 
death of a U.S. Border Patrol agent is being politicized and used as a 
way to score cheap political points. This is especially disappointing 
to me. As a former Border Patrol Agent and Sector Chief with 26\1/2\ 
years of law enforcement experience on the U.S.-Mexico Border, I expect 
that this body show more respect and more focus.
  Instead of using this tragedy as a political ploy, this body needs to 
see this as a learning opportunity and a wake-up call. We must take 
action and provide ATF with the needed resources and tools it needs to 
tackle the issue of gun trafficking. I hope that this Congress is able 
to move on to enact the critical reforms needed to more effectively 
combat this threat---and I will gladly work with my colleagues on both 
sides of the aisle on that particular effort.
  Ms. JACKSON LEE of Texas. Mr. Speaker, I rise today to oppose H. Res 
708, ``Resolution recommending that the House of Representatives find 
Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, in 
contempt of Congress for refusal to comply with a subpoena duly issued 
by the Committee on Oversight and Government Reform.''
  Holding a sitting Attorney General in contempt would be 
unprecedented. In our Nation's history the House of Representatives has 
never held a sitting Attorney General in contempt of Congress.
  In 1998, the then Chair of the House Oversight Committee led a vote 
to hold then Attorney General Janet Reno in contempt of Congress.
  Attorney General Reno was also accused of withholding documents; 
however, the then Speaker of the House Newt Gingrich elected not to 
bring the Contempt Citation to the Floor. Attorney General Reno and 
House leadership were able to resolve their difference without holding 
our Nation's highest law enforcement officer in contempt. Today's 
conflict can also be resolved without holding Attorney General Holder 
in contempt.
  I firmly believe and I am joined by at least 65 other colleagues who 
believe that the Attorney General is acting in good faith based upon 
his actions over the course of the past 15 months.
  The Attorney General has testified before Congress no less than nine 
times in the last 15 months and has made himself available for meetings 
with Members of Congress. Further, the Department of Justice has 
cooperated with Congressional inquiries into this matter and is willing 
to continue to engage in discussions with Congressional leadership and 
others.
  As of today, the Attorney General has produced more than 7,600 pages 
of documents as part of 47 separate productions, including sensitive 
law enforcement materials related to the pending prosecution of the 
defendants in the underlying Fast and Furious case.
  Attorney General Holder has consistently expressed his willingness to 
find a resolution to the issues surrounding the narrow list of 
documents for which he is being cited.
  Holding the Nation's top law-enforcement officer in contempt of 
Congress would be a drastic, disproportionate action on the part of 
this body.
  A contempt citation should be an act of last resort, after lengthy 
preliminary procedures, negotiations, gathering of evidence through 
other methods, appeals to potential intercessors and intermediaries.
  Contempt Citations have been extraordinarily rare which is evidenced 
by the fact that the House has declared just four people in contempt 
over the last three decades. For these reasons and more we request that 
you elect not to bring the Contempt Citation to the Floor this 
Thursday.
  Mr. Speaker, I delivered a letter to you that was signed by 65 
Members of this body stating the same, that this destructive piece of 
legislation should not be brought to the Floor today. It appears that 
this is nothing more than destructive election-year politics pure and 
simple. It is Republicans following through on their threats to use 
their authority to try to damage this Administration, politically, and 
this Attorney General, specifically, who has placed an emphasis on 
enforcing civil rights, voting rights and defending our justice system 
and the rule of law.
  This kind of divisive politics hurts Americans who want their leaders 
focused on fixing real problems they face every day and hurts law 
enforcement agents who are putting their lives at risk in ongoing 
investigations that could be compromised by the Committee's political 
fishing expedition.
  Congress has the answers to its questions about who designed this 
flawed operation and who authorized it--they just don't like it so they 
have ignored the evidence they received last year which shows this was 
a tactic that was designed and employed in the field and it dates back 
to the previous Administration.
  This Attorney General is the one who put a stop to the tactic, called 
for an independent investigation and instituted reforms and personnel 
changes to ensure it doesn't happen again.
  The Department has made extraordinary efforts to accommodate Congress 
by turning over almost 8,000 documents--including all the documents 
that relate to the tactics in this flawed investigation and the other 
flawed investigations that occurred in Arizona in the previous 
administration.
  The Department has even turned over internal deliberative material to 
answer the Committee's questions and the AG offered to provide 
additional deliberative documentation to resolve the subpoena, but the 
Committee rejected that offer.
  The documents at issue now are after-the-fact--they have nothing to 
do with the flawed tactics in any of the investigations dating back to 
the Bush Administration or who designed, approved or employed them.
  The resolution relates to a document request involving allegations of 
``gunwalking'' in an ATF operation known as ``Operation Fast and 
Furious,'' which came to light when two weapons involved in the 
operation were recovered at the murder scene of Border Patrol Agent 
Brian Terry.
  However, the documents now at issue are completely unrelated to how 
``gunwalking'' there is a question about whether gun-waling existed was 
utilized in the operation. Over the past year, the Justice Department 
has provided thousands of pages of documents to the Oversight and 
Government Reform Committee and has made dozens of officials available 
for interviews and hearings, and the Attorney

[[Page H4416]]

General has testified before Congress nine times on this topic. The 
evidence demonstrated that Fast and Furious was in fact the fourth in a 
series of gunwalking operations run out of the ATF field division in 
Phoenix over a span of five years beginning in 2006 during the Bush 
Administration.
  The investigation identified no evidence that the Attorney General or 
senior Department officials were aware of gunwalking in Fast and 
Furious. To the contrary, as soon as the Attorney General became aware 
of the tactic, he put a halt to it, ordered an IG investigation, and 
instituted internal reform measures.
  The House of Representatives has never held an Attorney General in 
contempt. The only precedent cited in the Issa contempt resolution is a 
committee contempt vote that took place in the 1990's held by then-
Chairman Dan Burton against former Attorney General Janet Reno. That 
action became so widely discredited that Speaker Gingrich chose not to 
bring it to the Floor for a vote.
  The current contempt debate no longer focuses on any documents 
relating to how gunwalking was initiated and utilized in Operation Fast 
and Furious. Since Republicans could identify no wrongdoing by the 
Attorney General, the Committee shifted just last week to focus 
exclusively on a single letter sent by the Department's Office of 
Legislative Affairs to Senator Charles Grassley on February 4, 2011, 
initially denying allegations of gunwalking. The Department has already 
acknowledged that its letter was inaccurate, has withdrawn the letter, 
and has provided the Committee with more than 1,300 pages of documents 
relating to how it was drafted.
  These documents show that Department staffers who drafted the letter 
did not intentionally mislead Congress, but instead relied on 
inaccurate assurances from ATF leaders and officials in Arizona who ran 
the operation. Despite these good faith efforts, House Republicans 
chose to move forward with a contempt resolution anyway.
  Moving the goalposts again, the Committee is now demanding additional 
internal deliberative documents created even after the Grassley letter 
was sent. The Attorney General offered to provide them last week in 
exchange for a good faith commitment to move toward resolution of the 
contempt fight, but Chairman Issa flatly refused. When it became clear 
that contempt was inevitable, the Administration asserted executive 
privilege over this narrow category of deliberative Department 
documents, while indicating at the same time that it remains willing to 
continue negotiations.
  The Issa contempt resolution is nothing more than a politically 
motivated, election-year ploy. During this investigation, the Committee 
refused every Democratic request for a hearing witness, including the 
head of ATF--the agency that actually ran the operation.
  Chairman Issa has acknowledged that ``we do go down blind alleys 
regularly'' and has made numerous unfounded claims, including accusing 
the FBI agents of concealing a ``third gun'' from the scene of Agent 
Terry's murder--a claim that the FBI quickly demonstrated to be 
completely unfounded.
  Ms. McCOLLUM. Mr. Speaker, today the House is voting on a Republican-
Tea Party witch hunt intended to destroy an honorable man's character. 
This resolution of contempt targeting Attorney General Eric Holder is a 
shameful and shameless abuse of power by the majority party. The only 
reason this unprecedented attack is taking place on the House floor 
today, against our country's first African American Attorney General, 
is because the Tea Party Republican majority is pandering to birthers, 
NRA members and other extremist obsessed with defeating President 
Obama.
  Attorney General Eric Holder has my full support and I reject this 
transparent political abuse of power.
  I am strongly opposed to the House Republican resolution to hold 
Attorney General Eric Holder in contempt of Congress for failing to 
turn over documents pertaining to sensitive and on-going law 
enforcement activities to the House Oversight and Government Reform 
Committee.
  The committee request is for documents related to Operation Fast and 
Furious, conducted by the Bureau of Alcohol, Tobacco, Firearms, and 
Explosives (ATF), which allowed the straw purchase of firearms in 
pursuit of prosecutions of gun smugglers. Two of the illegally 
purchased AK-47 assault weapons were found at the scene of a gun battle 
that resulted in the killing of U.S. Border Patrol agent Brian Terry on 
December 15, 2010. In his effort to cooperate with Chairman Darrell 
Issa, Attorney General Holder has provided the Oversight Committee with 
more than 7,600 pages of documents and participated in nine 
congressional hearings.
  In 2006, under the Bush Administration, the ATF's Arizona office used 
the tactic of ``gun walking'' to allow guns to remain on the street 
after a potentially illegal sale to build a bigger case rather than 
interdicting them immediately. President Bush's attorney general, 
Michael Mukasey, received a briefing paper on November 16, 2007 on ATF 
cooperation with Mexico on ``controlled deliveries'' of weapons 
smuggling. The House Oversight Committee has failed to call any Bush 
Administration officials to testify on this matter.
  This week, in Politico, a senior Republican House aide is quoted as 
saying, ``The contempt of Holder is a dog whistle to the right-wing tea 
party community, saying that we are representing them . . . this is a 
way to say we're going after this administration, holding them 
accountable.''
  Further proof of the blatantly political nature of the Holder 
contempt vote is the decision by the National Rifle Association (NRA) 
to ``score'' the vote as part of their legislative report card to their 
membership. The NRA has long championed allowing the proliferation of 
assault weapons previously banned on American streets and sold over the 
counter, like the AK-47s found at Agent Terry's murder scene.
  This entire episode is a stain on the reputation of this Republican 
led House of Representatives. It is appalling to know that the politics 
of personal destruction is the top policy priority of this Tea Party 
controlled House.
  Again, I want to state my strong support for Attorney General Holder 
and the Obama Administration's efforts to cooperate with this on-going 
congressional investigation.
  The SPEAKER pro tempore. All time for debate on the motion to refer 
has expired.
  Pursuant to House Resolution 708, the previous question is ordered on 
the motion to refer.
  The question is on the motion to refer.
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. DINGELL. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 9 of rule XX and House 
Resolution 708, this 15-minute vote on the motion to refer will be 
followed by 5-minute votes on a motion to recommit, if offered; 
adoption of the resolution, if ordered; motion to suspend on H.R. 1447, 
if ordered; and motion to suspend on H.R. 3173, if ordered.
  The vote was taken by electronic device, and there were--yeas 172, 
nays 251, not voting 9, as follows:

                             [Roll No. 440]

                               YEAS--172

     Ackerman
     Andrews
     Baca
     Baldwin
     Barber
     Bass (CA)
     Becerra
     Berkley
     Berman
     Bishop (GA)
     Bishop (NY)
     Blumenauer
     Bonamici
     Boswell
     Brady (PA)
     Braley (IA)
     Brown (FL)
     Butterfield
     Capps
     Capuano
     Carnahan
     Carney
     Carson (IN)
     Castor (FL)
     Chu
     Cicilline
     Clarke (MI)
     Clarke (NY)
     Clay
     Cleaver
     Clyburn
     Cohen
     Connolly (VA)
     Conyers
     Cooper
     Costa
     Costello
     Courtney
     Critz
     Crowley
     Cuellar
     Cummings
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     DeLauro
     Deutch
     Dicks
     Dingell
     Doggett
     Doyle
     Edwards
     Ellison
     Engel
     Eshoo
     Farr
     Fattah
     Filner
     Frank (MA)
     Fudge
     Garamendi
     Gonzalez
     Green, Al
     Green, Gene
     Grijalva
     Gutierrez
     Hahn
     Hanabusa
     Hastings (FL)
     Heinrich
     Higgins
     Himes
     Hinchey
     Hinojosa
     Hirono
     Holden
     Holt
     Honda
     Hoyer
     Israel
     Jackson Lee (TX)
     Johnson (GA)
     Kaptur
     Keating
     Kildee
     Kind
     Kucinich
     Langevin
     Larsen (WA)
     Larson (CT)
     Lee (CA)
     Levin
     Lewis (GA)
     Lipinski
     Loebsack
     Lofgren, Zoe
     Lowey
     Lujan
     Lynch
     Maloney
     Markey
     Matsui
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McNerney
     Meeks
     Michaud
     Miller (NC)
     Miller, George
     Moore
     Moran
     Murphy (CT)
     Nadler
     Neal
     Olver
     Pallone
     Pascrell
     Pastor (AZ)
     Pelosi
     Perlmutter
     Peters
     Pingree (ME)
     Polis
     Price (NC)
     Quigley
     Rangel
     Reyes
     Richardson
     Richmond
     Rothman (NJ)
     Roybal-Allard
     Ruppersberger
     Rush
     Sanchez, Linda T.
     Sanchez, Loretta
     Sarbanes
     Schakowsky
     Schiff
     Schrader
     Schwartz
     Scott (VA)
     Scott, David
     Serrano
     Sewell
     Sherman
     Shuler
     Sires
     Slaughter
     Smith (WA)
     Speier
     Stark
     Sutton
     Thompson (CA)
     Thompson (MS)
     Tierney
     Tonko
     Towns
     Tsongas
     Van Hollen
     Velazquez
     Visclosky
     Wasserman Schultz
     Waters
     Watt
     Waxman
     Welch
     Wilson (FL)
     Woolsey
     Yarmuth

                               NAYS--251

     Adams
     Aderholt
     Akin
     Alexander
     Altmire
     Amash
     Amodei
     Austria
     Bachmann
     Bachus
     Barletta
     Barrow
     Bartlett
     Barton (TX)
     Bass (NH)
     Benishek
     Berg
     Biggert
     Bilbray
     Bilirakis
     Black
     Blackburn
     Bonner
     Bono Mack
     Boren
     Boustany
     Brady (TX)
     Brooks
     Broun (GA)
     Buchanan
     Bucshon
     Buerkle
     Burgess
     Burton (IN)
     Calvert
     Camp

[[Page H4417]]


     Campbell
     Canseco
     Cantor
     Capito
     Carter
     Cassidy
     Chabot
     Chaffetz
     Chandler
     Coble
     Coffman (CO)
     Cole
     Conaway
     Cravaack
     Crawford
     Crenshaw
     Culberson
     Davis (KY)
     Denham
     Dent
     DesJarlais
     Diaz-Balart
     Dold
     Donnelly (IN)
     Dreier
     Duffy
     Duncan (SC)
     Duncan (TN)
     Ellmers
     Emerson
     Farenthold
     Fincher
     Fitzpatrick
     Flake
     Fleischmann
     Fleming
     Flores
     Forbes
     Fortenberry
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Gardner
     Garrett
     Gerlach
     Gibbs
     Gibson
     Gingrey (GA)
     Gohmert
     Goodlatte
     Gosar
     Gowdy
     Granger
     Graves (GA)
     Graves (MO)
     Griffin (AR)
     Griffith (VA)
     Grimm
     Guinta
     Guthrie
     Hall
     Hanna
     Harper
     Harris
     Hartzler
     Hastings (WA)
     Heck
     Hensarling
     Herger
     Herrera Beutler
     Hochul
     Huelskamp
     Huizenga (MI)
     Hultgren
     Hunter
     Hurt
     Issa
     Jenkins
     Johnson (IL)
     Johnson (OH)
     Johnson, Sam
     Jones
     Jordan
     Kelly
     King (IA)
     King (NY)
     Kingston
     Kinzinger (IL)
     Kissell
     Kline
     Labrador
     Lamborn
     Lance
     Landry
     Lankford
     Latham
     LaTourette
     Latta
     LoBiondo
     Long
     Lucas
     Luetkemeyer
     Lummis
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Marino
     Matheson
     McCarthy (CA)
     McCaul
     McClintock
     McCotter
     McHenry
     McIntyre
     McKeon
     McKinley
     McMorris Rodgers
     Meehan
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Mulvaney
     Murphy (PA)
     Myrick
     Neugebauer
     Noem
     Nugent
     Nunes
     Nunnelee
     Olson
     Owens
     Palazzo
     Paul
     Paulsen
     Pearce
     Pence
     Peterson
     Petri
     Pitts
     Platts
     Poe (TX)
     Pompeo
     Posey
     Price (GA)
     Quayle
     Rahall
     Reed
     Rehberg
     Reichert
     Renacci
     Ribble
     Rigell
     Rivera
     Roby
     Roe (TN)
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Rokita
     Rooney
     Ros-Lehtinen
     Roskam
     Ross (AR)
     Ross (FL)
     Royce
     Runyan
     Ryan (WI)
     Scalise
     Schilling
     Schmidt
     Schock
     Schweikert
     Scott (SC)
     Scott, Austin
     Sensenbrenner
     Sessions
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Southerland
     Stearns
     Stivers
     Sullivan
     Terry
     Thompson (PA)
     Thornberry
     Tiberi
     Tipton
     Turner (NY)
     Turner (OH)
     Upton
     Walberg
     Walden
     Walsh (IL)
     Walz (MN)
     Webster
     West
     Westmoreland
     Whitfield
     Wilson (SC)
     Wittman
     Wolf
     Womack
     Woodall
     Yoder
     Young (AK)
     Young (FL)
     Young (IN)

                             NOT VOTING--9

     Bishop (UT)
     Cardoza
     Hayworth
     Jackson (IL)
     Johnson, E. B.
     Lewis (CA)
     Napolitano
     Ryan (OH)
     Stutzman

                              {time}  1630

  Messrs. THOMPSON of Pennsylvania, WALDEN, Ms. JENKINS, Mrs. ROBY, 
Messrs. MURPHY of Pennsylvania, SCALISE, KINGSTON, and HALL changed 
their vote from ``yea'' to ``nay.''
  Mr. RICHMOND and Ms. LORETTA SANCHEZ of California changed their vote 
from ``nay'' to ``yea.''
  So the motion to refer was rejected.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore. The question is on the resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.


                             Recorded Vote

  Mr. GRIMM. Mr. Speaker, I demand a recorded vote.
  A recorded vote was ordered.
  The SPEAKER pro tempore. This is a 5-minute vote.
  The vote was taken by electronic device, and there were--ayes 255, 
noes 67, answered ``present'' 1, not voting 109, as follows:

                             [Roll No. 441]

                               AYES--255

     Adams
     Aderholt
     Akin
     Alexander
     Altmire
     Amash
     Amodei
     Austria
     Bachmann
     Bachus
     Barletta
     Barrow
     Bartlett
     Barton (TX)
     Bass (NH)
     Benishek
     Berg
     Biggert
     Bilbray
     Bilirakis
     Bishop (UT)
     Black
     Blackburn
     Bonner
     Bono Mack
     Boren
     Boswell
     Boustany
     Brady (TX)
     Brooks
     Broun (GA)
     Buchanan
     Bucshon
     Buerkle
     Burgess
     Burton (IN)
     Calvert
     Camp
     Campbell
     Canseco
     Cantor
     Capito
     Carter
     Cassidy
     Chabot
     Chaffetz
     Chandler
     Coble
     Coffman (CO)
     Cole
     Conaway
     Cravaack
     Crawford
     Crenshaw
     Critz
     Culberson
     Davis (KY)
     Denham
     Dent
     DesJarlais
     Diaz-Balart
     Dold
     Donnelly (IN)
     Dreier
     Duffy
     Duncan (SC)
     Duncan (TN)
     Ellmers
     Emerson
     Farenthold
     Fincher
     Fitzpatrick
     Flake
     Fleischmann
     Fleming
     Flores
     Forbes
     Fortenberry
     Foxx
     Franks (AZ)
     Frelinghuysen
     Gallegly
     Gardner
     Garrett
     Gerlach
     Gibbs
     Gibson
     Gingrey (GA)
     Gohmert
     Goodlatte
     Gosar
     Gowdy
     Granger
     Graves (GA)
     Graves (MO)
     Griffin (AR)
     Griffith (VA)
     Grimm
     Guinta
     Guthrie
     Hall
     Hanna
     Harper
     Harris
     Hartzler
     Hastings (WA)
     Hayworth
     Heck
     Hensarling
     Herger
     Herrera Beutler
     Hochul
     Huelskamp
     Huizenga (MI)
     Hultgren
     Hunter
     Hurt
     Issa
     Jenkins
     Johnson (IL)
     Johnson (OH)
     Johnson, Sam
     Jones
     Jordan
     Kelly
     Kind
     King (IA)
     King (NY)
     Kingston
     Kinzinger (IL)
     Kissell
     Kline
     Labrador
     Lamborn
     Lance
     Landry
     Lankford
     Latham
     Latta
     LoBiondo
     Long
     Lucas
     Luetkemeyer
     Lummis
     Lungren, Daniel E.
     Mack
     Manzullo
     Marchant
     Marino
     Matheson
     McCarthy (CA)
     McCaul
     McClintock
     McCotter
     McHenry
     McIntyre
     McKeon
     McKinley
     McMorris Rodgers
     Meehan
     Mica
     Miller (FL)
     Miller (MI)
     Miller, Gary
     Mulvaney
     Murphy (PA)
     Myrick
     Neugebauer
     Noem
     Nugent
     Nunes
     Nunnelee
     Olson
     Owens
     Palazzo
     Paul
     Paulsen
     Pearce
     Pence
     Peterson
     Petri
     Pitts
     Platts
     Poe (TX)
     Pompeo
     Posey
     Price (GA)
     Quayle
     Rahall
     Reed
     Rehberg
     Reichert
     Renacci
     Ribble
     Rivera
     Roby
     Roe (TN)
     Rogers (AL)
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Rokita
     Rooney
     Ros-Lehtinen
     Roskam
     Ross (AR)
     Ross (FL)
     Royce
     Runyan
     Ryan (WI)
     Scalise
     Schilling
     Schmidt
     Schock
     Schweikert
     Scott (SC)
     Scott, Austin
     Sensenbrenner
     Sessions
     Shimkus
     Shuster
     Simpson
     Smith (NE)
     Smith (NJ)
     Smith (TX)
     Southerland
     Stearns
     Stivers
     Stutzman
     Sullivan
     Terry
     Thompson (PA)
     Thornberry
     Tiberi
     Tipton
     Turner (NY)
     Turner (OH)
     Upton
     Walberg
     Walden
     Walsh (IL)
     Walz (MN)
     Webster
     West
     Westmoreland
     Whitfield
     Wilson (SC)
     Wittman
     Wolf
     Womack
     Woodall
     Yoder
     Young (AK)
     Young (FL)
     Young (IN)

                                NOES--67

     Baldwin
     Barber
     Berkley
     Berman
     Bishop (NY)
     Blumenauer
     Bonamici
     Braley (IA)
     Capps
     Cohen
     Connolly (VA)
     Cooper
     Costello
     Courtney
     Cuellar
     DeFazio
     DeLauro
     Deutch
     Dicks
     Dingell
     Doggett
     Eshoo
     Farr
     Green, Gene
     Heinrich
     Higgins
     Himes
     Hirono
     Holden
     Holt
     Langevin
     Larsen (WA)
     LaTourette
     Loebsack
     Lofgren, Zoe
     Lujan
     Lynch
     McDermott
     McNerney
     Michaud
     Miller (NC)
     Miller, George
     Moran
     Murphy (CT)
     Nadler
     Pastor (AZ)
     Perlmutter
     Quigley
     Rigell
     Rothman (NJ)
     Ryan (OH)
     Sanchez, Loretta
     Schrader
     Schwartz
     Sherman
     Shuler
     Slaughter
     Smith (WA)
     Speier
     Sutton
     Thompson (CA)
     Tierney
     Tsongas
     Visclosky
     Wasserman Schultz
     Waxman
     Welch

                        ANSWERED ``PRESENT''--1

       
     Lipinski
       

                            NOT VOTING--109

     Ackerman
     Andrews
     Baca
     Bass (CA)
     Becerra
     Bishop (GA)
     Brady (PA)
     Brown (FL)
     Butterfield
     Capuano
     Cardoza
     Carnahan
     Carney
     Carson (IN)
     Castor (FL)
     Chu
     Cicilline
     Clarke (MI)
     Clarke (NY)
     Clay
     Cleaver
     Clyburn
     Conyers
     Costa
     Crowley
     Cummings
     Davis (CA)
     Davis (IL)
     DeGette
     Doyle
     Edwards
     Ellison
     Engel
     Fattah
     Filner
     Frank (MA)
     Fudge
     Garamendi
     Gonzalez
     Green, Al
     Grijalva
     Gutierrez
     Hahn
     Hanabusa
     Hastings (FL)
     Hinchey
     Hinojosa
     Honda
     Hoyer
     Israel
     Jackson (IL)
     Jackson Lee (TX)
     Johnson (GA)
     Johnson, E. B.
     Kaptur
     Keating
     Kildee
     Kucinich
     Larson (CT)
     Lee (CA)
     Levin
     Lewis (CA)
     Lewis (GA)
     Lowey
     Maloney
     Markey
     Matsui
     McCarthy (NY)
     McCollum
     McGovern
     Meeks
     Moore
     Napolitano
     Neal
     Olver
     Pallone
     Pascrell
     Pelosi
     Peters
     Pingree (ME)
     Polis
     Price (NC)
     Rangel
     Reyes
     Richardson
     Richmond
     Roybal-Allard
     Ruppersberger
     Rush
     Sanchez, Linda T.
     Sarbanes
     Schakowsky
     Schiff
     Scott (VA)
     Scott, David
     Serrano
     Sewell
     Sires
     Stark
     Thompson (MS)
     Tonko
     Towns
     Van Hollen
     Velazquez
     Waters
     Watt
     Wilson (FL)
     Woolsey
     Yarmuth


                Announcement by the Speaker Pro Tempore

  The SPEAKER pro tempore (during the vote). There are 2 minutes 
remaining.

                              {time}  1639

  Mr. LaTOURETTE changed his vote from ``aye'' to ``no.''
  So the resolution was agreed to.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.

[[Page H4418]]



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