Jun 22 2012

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Contempt, Executive Privilege and “Fast & Furious”

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It's Always the Cover Up

The law is  certain and exacting – providing a standard to govern conduct  – even as human nature is inherently fallible.  The tension between the two is only exacerbated when you add the congenital opportunism of politics.

There is no better, current example of this than Attorney General Eric Holder and his public record regarding Operation Fast and Furious.

Strip away the impressive exercise of institutional authority by both the President and by the House of Representatives this past week, get beyond the partisan talking points, and the “he said-she said,” and you have a classic case of Eric Holder falling into official Washington’s most durable trap: perjury.

To understand the fix the Attorney General is in, a time line of the operation and consequences is necessary.

Launched in 2009 in the Phoenix office of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), Fast and Furious was supposed to track high-powered weapons from their point of purchase in the United States to end-users in the Mexican drug cartels.

Unlike previous operations, where the ATF arrested the gun-walker and the cartel intermediary who took possession of the weapons, Fast & Furious allowed the weapons transfer to go forward, hoping to track the guns back to higher-ups in the cartels. Also, unlike previous operations, there was no notice or coordination with the Mexican government on the initiative.

Tragically, the bureau lost 2,500 weapons, some of which have been linked to crimes and deaths south of the border. Two of the guns turned up where a U.S. Border Patrol agent was slain.That agent, Brian Terry, was killed December 14, 2010, 10 miles away from the Mexican border, in Arizona.

ATF agents who had been critical of the operation and who had warned that the weapons could be responsible for future murders, possibly including Americans, reached out to the Justice Department after  Terry’s death, but received no response. The agents then reached out to Senator Charles Grassley (R-IA), essentially as whistle blowers.

Proving the old Washington adage that its not the crime but the cover-up that creates true scandal, the Justice Department’s first  public acknowledgement of Fast and Furious denied the obvious. On January 25, 2011, U.S. Attorney for the Arizona District, Dennis Burke, announced a 53-count indictment of 20 suspects for buying hundreds of guns intended for illegal export between September 2009 and December 2010. Newell, called Fast and Furious a “phenomenal case,” while denying that guns had been deliberately allowed to walk into Mexico.

On January 27, 2011, Senator Grassley wrote a letter to ATF Acting Director Ken Melson requesting information about the ATF-sanctioned sale of hundreds of firearms to “straw-purchasers.” A second letter from Grassley on January 31st accused the ATF of targeting whistle-blowers.

On February 4th,  Assistant Attorney General Ronald Weich wrote a response letter to Grassley.  Weich said claims “…that (the) ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them to Mexico [are] false. ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.”

So, within ten days of each other, the US Attorney for Arizona and the a ranking Justice Department official had together made false statements and provided false information to a US Senator.

Enter Attorney General Eric Holder.

Testifying before the House Judiciary Committee on May 3rd,  Holder said that he did not know who approved Fast and Furious, but that he had ordered an internal investigation of the operation by the Justice Department Inspector General. Holder also said he “probably heard about Fast and Furious for the first time over the last few weeks [of the May 3rd hearing].”

As Congress continued to investigate, a June 2011 report prepared jointly by the House and Senate flatly contradicted the officials statements from the Justice Department on the scope and purpose of Fast and Furious. The report found that ATF agents were told to stand down rather than interdict weapons, that the agents complained about the strategy and were ignored, and Fast and Furious had led to increased violence and death in Mexico.

In October 2011, documents were found showing that Attorney General Holder had been sent briefings on Fast and Furious as early as July 2010, contradicting his May statement that he had known about it for only a few weeks. In response, the Justice Department stated that Holder misunderstood the question from the committee; he had known about Fast and Furious, but he didn’t know the details of the tactics being used.

On November 8th, Holder stated for the first time in Congressional testimony that “gun-walking” was used in Fast and Furious. He remarked that the tactic is unacceptable, and that the operation was “flawed in its concept and flawed in its execution.” He further stated that his office had inaccurately described the program in previous letters sent to Congress, but that this was unintentional. Reiterating previous testimony, he said that he and other top officials had been unaware that the “gun-walking” tactic was being used. Holder stated that his staff had not showed him memos about the program, and he denied any personal wrongdoing.

Which brings us to the current impasse.

At issue are 1,300 pages of internal, pre-decisional documents that the Justice Department has refused to provide to congressional oversight committees that were generated in response to the fallout from Fast and Furious after February 4, 2011 – the day that the first Justice Department response was sent to Senator Grassley.

According to the Justice Department, the documents requested by the committees post-February 4th are not responsive to the main issue regarding decisions on Fast and Furious:

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.”

Congressional Republicans responded:

The Justice 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 whistle-blowers. 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 whistle-blowers and to find out what had happened, and how the Department assessed the culpability of those involved in the program.”

The fundamental challenge here is credibility.

For three years, it was the policy of the United States government to allow more than 2,000 high powered weapons to be smuggled into Mexico, for use by Mexican drug cartels, in the hope that senior cartel members could be implicated in gun running. The operation required ATF agents to stand by as felonies were being committed in transactions that would have a direct impact in another sovereign country, but without any notice whatsoever to the government of that sovereign power, Mexico.

The Justice Department would have you believe that all of this happened without any direct approval from any senior Justice Department officials, and without any significant review over the course of years, and that all of this occurred outside the purview of the Attorney General.

Indeed, in testimony before Congress on Fast and Furious, the only consistency in Eric Holder’s comments is his steadfast obliviousness to what was going on around him. And that characterization of the AG is at odds with his record.

This is the same AG, who during the time-frame of Fast and Furious sought to put Khalid Sheikh Mohammed on civil trial in NY; who cleared the Black Panthers of voter intimidation in a highly charged 2008 case; who has had time to sue Arizona over its immigration statute, helping enforce federal laws that Holder himself refuses to aggressively  implement; and who has had time to sue states that seek to establish a threshold of identity to preserve election integrity and weed out fraud.

We are asked to believe that this three-year operation of running guns across the border into a sovereign nation was never once the topic of discussion or follow up with the AG or his senior team. That a “rogue” office in Phoenix ran arms into another country without approval from above.

It simply does not pass the smell test.

The Justice Department is on solid ground when they deny documents related to ongoing prosecutions related to Fast and Furious, and to a lesser extent, those documents that are part of the IG’s investigation, which should be made available immediately after the conclusion of the investigation.

But Holder and Justice do not have a real leg to stand on in arbitrarily deciding that post-February 4th documents are beyond Congress’ purview. It is not up to Justice to decide what is material to Congress. And while it is absolutely true that providing internal, deliberative, pre-decisional information to Congress can have a chilling impact on the willingness of Executive branch staff to offer candid advice, by itself that standard is not enough to prevent production of the documents for Congress.

Acknowledging that fact, President Obama invoked Executive Privilege, but in so doing, the President has now, by accident or design, implicated himself.

The relevant passage of US v. Nixon is relevant here.

“…when a claim of Presidential privilege as to materials subpoenaed…is…not on the ground[s] that military or diplomatic secrets are implicated, but merely on the ground[s] of a generalized interest in confidentiality, the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence…in… the fundamental demands of due process of law in the fair administration of criminal justice.”

The Nixon case related specifically to a criminal proceeding, which is not (yet) the case here, but the principle involved in instructive. Executive Privilege is not absolute.

In Eric Holder’s case, after clear misstatements on the public record and under oath, it is simply insufficient to refuse to meet the terms of Congress’ subpoena because the materials are pre-decisional or potentially embarrassing.

The only real reason to withhold those documents then is to prevent introduction of information into the public record that conflicts with official statements. The perjury trap.

Had Holder and Justice been up front about this at the beginning, the political damage could have been mitigated or contained. Now, with the President involved, there is no way that the Administration can walk away without taking a significant hit, political or worse.

Fast and Furious was a tragedy.

But it is not done counting its victims.









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