When you’re right, you’re right. I’m talking about Fast and Furious, the gun-walking operation the U.S. Department of Justice used (illegally if the Export Control Act still carries any weight) to funnel more than 2000 fully operational combat-ready guns and other serious weaponry across the U.S.-Mexico border and into the hands of cartel gang members.
The “covert op” nobody in Washington knew anything about, but that nevertheless allowed cartel assassins to use these weapons to gun down hundreds of innocent people, including U.S. law enforcement agents like Border Patrol Agent Brian Terry.
Almost ten months ago, in this very blog (“Brian Terry, Jesus Diaz, Dakota Meyer: Justice in 2012?”), this writer suggested that, the nearer we came to the election, the less would be said, and done, in regard to the plight of the Terry Family and their hope that, in the case of Fast and Furious, “justice would be done.”
From that January 3rd entry . . .
And then, as you know, there’s the election . . .another reason almost everyone would prefer Holder’s resignation as opposed to an investigation and possible prosecution of an African-American Attorney General who recently told the press that he believes racism, directed at him as well as the President of the United States, is what’s really fueling the controversy surrounding Operation Fast and Furious.
As agitated as GOP members of Congress may be, you can bet that Mitt Romney’s advisors, as well as counselors to other Republican aspirants, took note of Holder’s election salvo. They also understand that the issue most likely to wrench the White House away from its present occupant in 2012 is the economy–that starving beast slouching toward a freer and friendlier Wall Street. Why chance a Democratic ambush, an emotional distraction based on charges of racism (as Holder has already intimated), when you can focus on the green (not the environmental kind) and win clean? On a platform that includes easing credit (based, of course, on ‘lessons learned’), breaks for small business, ‘genuine’ trickle-down from ‘entrepreneurial opportunities,’ and more, more, more jobs?
Six months later, in July, the Iowa Republican seconded my analysis,
Iowa Senator Chuck Grassley has a prediction about the thousands of documents Congress has requested from the Justice Department regarding the Fast and Furious scandal. Knowing that the investigation could prove damaging to President Obama’s reelection hopes, Grassley doubts the administration that Obama claimed would be “the most transparent ever” will be very forthcoming.
“I think you’re not going to get any of the information that’s been subpoenaed until the day after the election,” Grassley told TheIowaRepublican.com . . . .
We assume Grassley is referencing a Romney victory.
In the meantime, Senator Chuck Grassley (R-IA) and Darrell Issa (R-Calif), who leads the Government Oversight and Reform Committee, have soldiered on in the effort to figure out how and why Fast and Furious materialized, spending almost two years demanding information about the gun-walking operation from the office of Attorney General Eric Holder, and issuing subpoenas to DOJ demanding tens of thousands of documents Holder’s office has stoutly refused to hand over.
When Holder ignored those subpoenas, Congress charged the Attorney General with both civil and criminal contempt —the latter charge one the U.S. Attorney for the District of Columbia, a Holder appointee, refused to pursue.
Impunity?
According to constitutional scholar Louis Fisher, writing in the National Journal of Law (October 25, 2012), the refusal of the U.S. attorney to advance with the contempt charge is a violation of law:
…the administration attempted to nullify the Holder contempt action by not following a statute that requires the U.S. attorney in the District of Columbia to take a contempt action to grand jury.
No matter. DOJ’s acrobatic evasions of congressional inquiry reached new heights after Congress voted the Attorney General in contempt–Holder’s supporter, President Obama, stepped in between his protégée and the House Committee on Oversight and Government Reform, informing the U.S,. Congress that the documents Issa’s committee had subpoenaed from DOJ were to received protection via Executive Privilege—by a presidential fiat that declared the material off-limits, even to the elected representatives of the American people.
Second Amendment advocates, who believe that Fast and Furious may have been a Keystone Kops attempt to substantiate claims on the part of the U.S. and Mexican Administrations that illegal gun sales in the U.S. are the root cause for more than 50,000 dead along the U.S.-Mexico border, went wild, as did many in the U.S. Congress and a lot of just plain folks who can’t figure out how weapons agents were ordered by superiors “not to follow” — weapons sent into Mexico without any kind of tracing devices affixed to them—can be said to have “accidentally,” or “inadvertently” gone missing.
Issa’s Committee hasn’t given up, however.
Right now Congress is calling on the federal courts to move forward with civil charges against the Attorney General.
DOJ is arguing such a move would be a waste of time and money, given its breezy definition of the civil charges as “politically” motivated.
But it’s far more complicated than the media makes out.
Let’s look at what many readers would call a “balanced” version of the story.
Peter Yost, Associated Press, October 16,
WASHINGTON (AP) — The Justice Department says federal courts should stay out of a political dispute between the Obama administration and Congress over documents in a botched law enforcement probe of gun trafficking. In court papers filed Monday night, the department is seeking dismissal of a lawsuit by a Republican-led House committee, which is demanding that Attorney General Eric Holder produce records about Operation Fast and Furious. The Justice Department says the Constitution does not permit the courts to resolve the political dispute between the executive branch and the House Oversight and Government Reform Committee. The political branches have a long history of resolving disputes over congressional requests without judicial intervention, the court filing said.
President Barack Obama has invoked executive privilege and the attorney general has been found in contempt of the House for refusing to turn over records that might explain what led the department to reverse course after initially denying that federal agents had used a controversial tactic called gun-walking in the failed law enforcement operation.
The tactic resulted in hundreds of illegally acquired weapons purchased at Arizona gun shops winding up in Mexico, where many of them were recovered from crime scenes. Two guns in Operation Fast and Furious were found on the U.S. side of the border at the scene of a shooting in which U.S. border agent Brian Terry was killed. In a Feb. 4, 2011, letter to Congress, the Justice Department said agents made every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico, an assertion that turned out to be incorrect. Ten months later, the department withdrew the letter.
Yost continues,
If the House lawsuit is allowed to go forward, “countless other suits by Congress are sure to follow, given the volume of document requests issued by the dozens of congressional committees that perform oversight functions,” the Justice Department’s court filing stated. “This case thus illustrates vividly why the judiciary must defer to the time-tested political process for resolution of such disputes.” In a statement Tuesday, House committee chairman Darrell Issa, R-Calif., said the Justice Department is advancing arguments that have already been rejected by the federal judiciary. Four years ago, a federal judge rejected the George W. Bush administration’s position that senior presidential advisers could not be forced to testify to the House Judiciary Committee. The decision was regarded as vindication of Congress’s investigative powers. But the ruling also said that Congress’ authority to compel testimony from executive branch officials was not unlimited.
In the dispute involving Operation Fast and Furious, the House asked the court to reject a claim by the president asserting executive privilege, a legal position designed to protect certain internal administration communications from disclosure.
The failure of Holder and House Republicans to work out a deal on the documents led to votes in June that held the attorney general in civil and criminal contempt of Congress. In Fast and Furious, agents from the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives abandoned the agency’s usual practice of intercepting all weapons they believed to be illicitly purchased, often as soon as they were taken out of gun shops. Instead, the goal of the tactic known as “gun-walking” was to track such weapons to high-level arms traffickers who had long eluded prosecution, and to dismantle their networks. Federal agents lost track of many of the guns. The operation identified more than 2,000 illicitly purchased weapons, and some 1,400 of them have yet to be recovered.
Yost’s rendition is interesting for several reasons. First, he reports without dispute DOJ’s characterization of the investigation as “a political dispute.” Second, Yost defines “gun-walking” as a “controversial tactic,” as opposed to a rogue strategy or — given the absence of export licenses or exemptions to the Export Control Act — legal prerequisites to ATF’s allowing guns to walk — a criminal felony.
The same kind that put Oliver North on the hot seat in Iran-Contra.
Third, there’s this: “In a Feb. 4, 2011, letter to Congress, the Justice Department said agents made every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico, an assertion that turned out to be incorrect.” What is the distinction between this phrase — “turned out to be incorrect” — and its plainer translation, “turned out to be a lie”?
Finally, Yost’s statement that “the goal of the tactic known as ‘gun-walking’ was to track such weapons to high-level arms traffickers who had long eluded prosecution, and dismantle their networks,” is disingenuous in the extreme.
ATF had no means of tracing the weapons from the point they were allowed to disappear across the border until they were returned to ATF by Mexican authorities who retrieved the weapons at homicide sites.
In similar operations, specifically Bush’s Wide Receiver, agents were expected to keep their eyes glued to weapons (‘no going home’) until they could be interdicted before they fell into the hands of bad guys. Or alternative plans for interdiction down the road were in place and everyone was onboard. Or weapons were equipped with tracking devices. In Fast and Furious, none of these safeguards were in place. ATF merely entered the serial numbers of the weapons into its database and waited for Mexican authorities to return weapons bearing those serial numbers to them.
Why?
The too-simple-to-be-true answer: so they could verify that guns recently purchased at US gunshops (a direct, clean chain) had been used in the commission of cartel-linked violence on the Mexican side of the border.
Ask yourself this question: What end would such a process serve? The cartels have all the weapons they need—Direct Commercial Sales via the US State Department gone astray, weapons from Venezuela–without ATF sending 2000 pieces of ordnance (serial numbers duly noted) to the Sinaloa cartel.
Fact. ATF agents did not “lose track of many of the guns” — they were ordered by higher-ups, who would never have dared to issue such dictates without a thumbs-up from superiors all the way up the ladder, to abandon the weapons once they had traveled into Mexico. To allow them to disappear — on purpose.
Conspiracy theories?
Alex Newman, a reporter for The New American, is someone many readers tend to characterize as “extreme” merely because he just can’t let go of Fast and Furious, a diagnosis frighteningly in-tune with the advice of today’s ubiquitous “wellness community,” which holds that disturbing, argumentative, anxiety-producing, or socially offensive ‘to someone’ rumination (the refusal at some point to just forgeddabouid) is a sign of mental illness. Or a least a sign post in that direction.
What this says about those Israeli Nazi-hunters who drag former SS members out of hospices in Argentina to stand trial at an international criminal court, I don’t know, but I’m kind of leaning toward an aphorism I first heard from my own father, himself a member of the greatest generation: The wheels of justice grind slowly but finely.
Newman, writing on October 17, has a different take on the same set of facts, a perspective Administration supporters will almost certainly file away in that bulging folder marked “conspiracy theories ,”
As lawmakers seek to use federal courts to force disgraced Attorney General Eric Holder and the Justice Department to hand over documents on the deadly Fast and Furious gun-running scandal, the Obama administration filed a motion this week claiming that the judicial branch has no power to interfere. According to the Department of Justice, a ruling in favor of Congress and its oversight authority would violate so-called “executive privilege.” But lawmakers are not buying it.
While he is currently abusing his position to shield himself from prosecution, Holder famously became the first attorney general in U.S. history to be held in civil and criminal contempt of Congress in late June on a bipartisan vote. Lawmakers were upset over the administration’s ongoing coverup in which it refused to provide subpoenaed documents on Fast and Furious, the now-infamous federal scheme that put thousands of high-powered American weapons into the hands of Mexican drug cartels.
The article quotes DOJ,
“Disputes of this sort have arisen regularly since the founding,” the Justice Department claimed in the legal brief filed late Monday, asking the U.S. District Court for the District of Columbia to dismiss the lawsuit. “For just as long, these disputes have been resolved between the political branches through a constitutionally grounded system of negotiation, accommodation and self-help.” The filing also claimed the courts lack jurisdiction in the case.
The administration has unlawfully refused to hand over thousands of documents related to the scandal, repeatedly defying congressional subpoenas and flouting the authority of Congress. When it became clear that lawmakers would not back down in the effort to uncover the details of Fast and Furious, however, President Obama stepped in and claimed “executive privilege” to justify the coverup.
Congress responded with contempt charges and over 120 members of the House and Senate demanded Holder’s resignation. When that failed, lawmakers filed suit in federal court. Now the administration claims that even the judiciary does not have the authority to force the executive branch’s hand. Lawmakers trying to carry out their oversight responsibilities, though, say the Justice Department’s argument is absurd on its face.
“The Obama Administration’s argument should trouble Americans who believe the President and the federal government are not above the law,” said House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), who has been leading the charge for accountability. “In perpetuating a cover-up, through false and misleading statements that even the Justice Department’s own Inspector General found troubling, the Obama administration argued for months that it did not have to meet its legal obligations to a lawfully issued congressional subpoena.”
And this is Newman’s bottom line,
Incredibly, after purporting to have the authority to defy the American people’s elected representatives, the Obama administration is currently claiming that it is also above the courts, too. In other words, the executive branch is above the law, above Congress, above the courts, and accountable to nobody. Rep. Issa, however, says that reasoning will not fly.
Justice Department Inspector General Michael Horowitz recently released the results of his investigation into the scandal as well. While blasted by critics as a “joke” and a “whitewash,” the final report concluded by recommending that more than a dozen senior DOJ and ATF officials be considered for disciplinary measures.
However, according to the investigation, evidence that Holder knew his top officials were sending weapons to cartels was not found, though Horowitz did acknowledge that White House officials refused to cooperate with the investigation. Experts say the truth about the deadly scheme remains concealed, but that the operation must have been known to the White House and senior officials including Holder, Homeland Security Secretary Janet Napolitano, Secretary of State Hillary Clinton, and others.
Exactly.
It’s inconceivable, as I and many others have stated over the past year, that given the rigorous and complicated investigative protocols demanded of enforcement agencies that propose to run a covert operation, Fast and Furious could have materialized and been conducted “under the radar” for roughly two years without the knowledge of Eric Holder, Janet Napolitano, Hillary Clinton, and other top officials at the FBI, DEA, and the White House. Absolutely impossible.
If it is true, as DOJ’s OIG report asserts, that the entire gun-walking operation was the work of a handful of ATF managers working alone and on their own, these guys should either be promoted to the number one positions in federal law enforcement on the basis of their initiative and devil-take-the-hindmost leadership skills, or be sent immediately to a federal penitentiary on criminal charges too numerous to explore in this blog.
So, where are we—three days before the 2012 election?
And this is where it get’s interesting.
The Rest of the Story
Like most people who have invested some time in the ongoing saga tagged Fast and Furious, my first inclination would be to believe DOJ’s reaction to Congress’s push for the enforcement of civil charges against Holder would be short and simple. The heavy hand of power. Undisguised obstruction.
They’re already snuggled, warm and comfy, under the blanket of Executive Privilege.
But no. Call it over-confidence or maybe even revenge. The memorandum DOJ has filed in district court requesting dismissal of the House action — civil contempt — aims not only to unburden the Office of the Attorney General of this last pesky assault by Congress (think Thomas Beckett standing tall against Obama’s Henry II) but to go much further, limiting the scope and power, forever, of Congress’s many and varied investigative committees.
This is big.
On October 25, Louis Fisher published the following in the National Journal of Law, hardly a partisan outlet. And the author himself has some noteworthy credentials: “Louis Fisher is a scholar in residence at the Constitution Project. He served four decades in the Library of Congress as senior specialist in separation of powers at the Congressional Research Service and specialist in constitutional law at the Law Library. His books include The Politics of Executive Privilege (2004) and a recently completely treatise, The Law of the Executive Branch: Presidential Power, to be published by Oxford University Press.”
I know we’re wading into some pretty tall weeds here, and I could reference the Fisher’s article via a link. But I also know anyone who’s managed to get to this point is a serious investor in this issue.
So read on, hack your way through the dense jungle of text below, and let us know (see comment box) what you really think about what seems to be, at this point, not just an attempt to wiggle out of Fast and Furious, but to make sure that congressional committees are stripped of the investigative authority to go after government bigwigs after this debacle blows over.
DOJ’s brief on Fast and Furious: marginalizing committee investigations
By Louis Fisher
The National Law Journal
October 25, 2012After the House held Attorney General Eric Holder Jr. in contempt on June 28, it filed a civil suit in federal district court on August 13. The purpose is to enforce a subpoena issued by the Committee on Oversight and Government Reform, which requested documents for its investigation of “Operation Fast and Furious.” The House complaint charges obstruction by the Justice Department and a need to understand why it provided false information to Congress in a letter of February 4, 2011. Senator Charles Grassley (R-Iowa) had written to the acting director of the Bureau of Alcohol, Tobacco, and Firearms (ATF), asking whether the agency had allowed assault weapons to leave the United States and reach drug cartels in Mexico. The department told Grassley his allegations were “false.” Ten months later, the department retracted the letter and admitted that its response to Grassley contained “inaccuracies.” ATF had allowed approximately 2,000 guns to flow from the United States into Mexico.
On October 15, the Justice Department filed a memorandum in district court requesting that it dismiss the House action. DOJ’s brief contemplates a remarkably reduced role for committee investigations. In doing so, it relies heavily on Raines v. Byrd (1997), which involved the effort of one lawmaker—Senator Robert C. Byrd (D-W. Va.)—to challenge a statute that gave the president a line-item veto. The Supreme Court properly rejected lawsuits by members of Congress who vote on the losing side. Raines has no application to the constitutional authority of Congress to conduct oversight by depending on committees and subcommittees to discharge that legislative duty.
Fisher tells us what the media misses,
Undercutting committee authority
According to DOJ’s brief, the “Founders intended Congress to use the tools provided in the Constitution—rather than the federal courts—to obtain documents that Congress believes necessary to engage in oversight of the Executive Branch.” Of course legislative oversight is not “provided in the Constitution,” nor are committee subpoenas, the contempt power or even executive privilege. A legislative tool that is found in the Constitution is the power of the purse. Under the reasoning of the brief, a House committee seeking agency documents would have to work with the House and the Senate to add punitive language to an appropriations bill and have it enacted into law, perhaps by having to override a presidential veto.
Recourse to the full statutory process is reinforced throughout the brief, which warns about the difficulty of congressional demands from “its myriad committees.” DOJ prefers not to honor oversight by committees but to insist on the full legislative process and statutory controls. The brief identifies several congressional remedies. “It can tie up nominations” (available to the Senate but not the House), it “can legislate change within the Department of Justice” and “slash the budget in the area of concern”—again requiring statutory action. DOJ admits that the House “can hold—and has held—the Attorney General in contempt.” First, the contempt power is not expressly provided in the Constitution. Second, the administration attempted to nullify the Holder contempt action by not following a statute that requires the U.S. attorney in the District of Columbia to take a contempt action to grand jury.
DOJ suggests that Congress “can bring its case to the people through the electoral process” and can “make its case to the public.” It is unclear what those actions would be and why they would be effective in gaining access to agency documents. The brief lists other congressional powers that might be used: withhold funds, “override vetoes,” “decline to enact legislation, refuse to act on nominations, and adjourn.” How would any of those actions help a committee obtain documents for oversight purposes, particularly in a timely manner?
DOJ’s larger goal,
The brief claims that the House Oversight Committee rejected “the full panoply of tools Congress has used throughout two centuries of inter-Branch give-and-take.” In fact, the committee used the subpoena and contempt powers. DOJ asks the district court not to augment legislative powers “when Congress has chosen not to exercise them.” With Fast and Furious, House Oversight chose to exercise the powers of oversight, subpoenas, hearings and contempt. Oversight was also conducted by the House and Senate Judiciary Committees.
As to the February 4 letter, the brief states that the department “sought to provide a thorough and accurate response in a tight timeframe.” It is true that the department decided to issue the letter within a matter of days. After the department retracted the letter, it gave Congress 1,364 emails explaining how the letter was drafted. The emails make it clear that Main Justice chose to rely on self-serving statements from the ATF office in Phoenix rather than ask Grassley what documentation he possessed about gun-running. Instead of trying to provide a thorough and accurate response, the overriding motivation was to discredit Grassley and his allegations. The department argued it was appropriate to rely on Phoenix because it was “in a position to know.” It was also in a position to dissemble and deceive, which it proceeded to do. Rather than rely exclusively on Phoenix supervisors and the U.S. attorney’s office in Phoenix, Main Justice should have obtained information from ATF agents. They had accurate information about gun-running, as the department later admitted.
The brief emphasizes the importance of negotiation and accommodation between the two branches as the best method of settling information disputes: “The prudential bases for refusing jurisdiction are especially strong here, where substantial accommodation was continuing and has continued, and where Congress’s legitimate informational interests have been largely satisfied.” Instead of joint negotiation and mutual accommodation, the brief appears to offer a one-sided and conclusive determination. The department advises the court that “the accommodation process was continuing and has continued after the filing of this suit” and the department “remains open to further accommodation.” Given the tone, substance, and analysis of this brief, there is little reason for the House to expect additional accommodation from the administration.
Fisher’s article clearly outlines the stakes should DOJ’s motion to dismiss the civil charges against Holder prevail — the ensuing abrogation of congressional oversight authority.
The question, of course, is whether the district federal court will rule in favor of DOJ’s motion to dismiss.
We’ll know on November 6.
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