[House Report 112-546]
[From the U.S. Government Publishing Office]
112th Congress } { Report
2d Session } HOUSE OF REPRESENTATIVES { 112-546
=======================================================================
House Calendar No. 140
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
__________
REPORT
of the
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
together with
ADDITIONAL AND MINORITY VIEWS
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
June 22, 2012.--Referred to the House Calendar and ordered to be
printed
----------
U.S. GOVERNMENT PRINTING OFFICE
19-006 PDF WASHINGTON : 2012
C O N T E N T S
----------
Page
I. EXECUTIVE SUMMARY................................................2
II. AUTHORITY AND PURPOSE............................................2
III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION......................3
IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF THE
DEPARTMENT OF JUSTICE............................................4
A. The ATF Phoenix Field Division........................ 5
B. The United States Attorney's Office for the District
of Arizona........................................... 6
C. ATF Headquarters...................................... 7
D. THE Criminal Division................................. 8
1. Coordination with ATF............................. 8
2. Wiretaps.......................................... 10
E. The Office of the Deputy Attorney General............. 11
V. THE COMMITTEE'S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY GENERAL
HOLDER..........................................................12
A. Events Leading Up to the Subpoena..................... 12
B. Subpoena Schedule Requests............................ 14
C. Attempts of Accommodation by the Committee, Lack of
Compliance by the Justice Department................. 21
1. In Camera Reviews................................. 22
2. Redacted Documents................................ 22
3. Privilege Log..................................... 24
4. Assertions of Non-Compliance...................... 25
5. Failure to Turn Over Documents.................... 37
VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE......................38
VII. HISTORICAL PERSPECTIVES ON CONTEMPT.............................40
A. Past Instances of Contempt............................ 40
B. Document Productions.................................. 42
VIII.RULES REQUIREMENTS..............................................45
House Calendar No. 140
112th Congress Report
2d Session HOUSE OF REPRESENTATIVES 112-546
=======================================================================
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
_______
June 22, 2012.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Issa, from the Committee on Oversight and Government Reform,
submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
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\
---------------------------------------------------------------------------
\1\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
\2\Watkins v. United States, 354 U.S. 178, 187 (1957).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\3\U.S. CONST., art. I, 5, clause 2.
\4\House rule X, clause (4)(c)(2).
\5\Id.
---------------------------------------------------------------------------
House rule XI specifically authorizes the Committee to
``require, by subpoena or otherwise, the attendance and
testimony of such 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.
---------------------------------------------------------------------------
\6\House rule XI, clause (2)(m)(1)(B).
\7\House rule XI, clause (2)(m)(3)(A)(i).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\9\Transcribed Interview of Special Agent Peter Forcelli, at 53-54
(Apr. 28, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\E-mail from Kevin Simpson, Intelligence Officer, Phoenix FIG,
ATF, to David Voth (Dec. 18, 2009).
\11\Id.
\12\Id.
---------------------------------------------------------------------------
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 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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\14\Transcribed Interview of Special Agent in Charge William
Newell, at 32-33 (June 8, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\15\Transcribed Interview of Special Agent Larry Alt, at 94 (Apr.
27, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\16\Interview with Lorren Leadmon, Intelligence Operations Analyst,
Washington, D.C., July 5, 2011 [hereinafter Leadmon Interview].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\19\Transcribed Interview of Deputy Ass't Dir. Steve Martin, ATF,
at 36 (July 6, 2011) [hereinafter Martin Tr.].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\20\See generally ``Operation the Fast and the Furious''
Presentation, Mar. 5, 2010.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\24\E-mail from Douglas Palmer, Supervisor Group V, ATF, to William
Newell, ATF (Apr. 27, 2010).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\27\E-mail from Jason Weinstein to Lanny Breuer (Sept. 10, 2009)
[HOGR 003378].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\31\E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 2009) [HOGR
003403].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\33\E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010)
[HOGR 002832].
---------------------------------------------------------------------------
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 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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\35\Martin Tr. at 100.
\36\E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010,
9:00 a.m.) [HOGR DOJ 2382].
---------------------------------------------------------------------------
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 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
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 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 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 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 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
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 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 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 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
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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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 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 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 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-mischaracterizing-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.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]