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Fast and Furious Noose Tightens Around Justice Department

June 29th, 2012 - 2:33 pm

Explosive reports are now surfacing that Justice Department officials clearly knew about the Fast and Furious “gunwalking” tactic, in which the federal government — actually, a task force comprised of Justice Department agencies and led by ATF, a Justice Department agency — allowed upwards of 1400 illegally purchased firearms to be routed to violent Mexican drug gangs. This recklessness led, quite foreseeably, to the murder of at least one federal agent, Border Patrol Agent Brian Terry, and probably a second, Homeland Security Agent Jaime Zapata. There are reportedly also scores of victims in Mexico.

The reports, including this one from Stephen Dinan of the Washington Times, explain that this gunwalking information was contained in applications the Justice Department made to the court for wiretapping authorization beginning no later than March 2010 (i.e., over eight months before Agent Terry was killed). Readers of Ordered Liberty will not be surprised to hear this. As I explained in a post last week:

[T]here were wiretaps in the F&F investigation, and when the government seeks a wiretap, federal law requires it to explain what investigative tactics have been used in the case, an explanation that is vetted by top DOJ officials because the government cannot apply for the wiretap without the approval of the attorney general or his designee (a high Justice Department official) — it seems highly unlikely, assuming DOJ complied with wiretap law, that top Justice Department officials did not know about the gun-walking tactic until late in the game.

In fact, those who have been following the story here and elsewhere may recall that I started urging the wiretap applications as likely a fruitful source of evidence of the Justice Department’s awareness of gunwalking nearly a year ago (see, e.g., here and here). The required disclosures about investigative techniques are undoubtedly the reason why the Justice Department has stonewalled House Oversight Committee Chairman Darrell Issa’s demands that the wiretap applications be turned over.

Issa, however, has whistleblower sources inside DOJ. He’s thus been supplied with at least some of the application materials. He has now made some of that public. Though at least some of the documents are sealed, he published some of their contents during the House debate over the vote to hold Attorney General Eric Holder in contempt. That means he acted under the protection of the Constitution’s Speech and Debate Clause, which immunizes members of Congress for statements and acts connected to legislative activity.

The attorney general, of course, has adamantly denied that he and other top Obama DOJ officials were aware of the use of gunwalking in the Fast and Furious operation until weeks after Agent Terry’s murder. Indeed, in a letter to the Committee in March 2011 (about three months after Agent Terry’s murder), the Justice Department falsely denied that gunwalking had even been used. Holder subsequently “retracted” that falsehood. Moreover, as the public began to be educated about the federal law’s requirements for wiretapping applications, the Justice Department changed its story on that, too. It began claiming that, while it is true the wiretap applications were reviewed by DOJ’s office of enforcement operations, the Department’s top political appointees only perused “summaries” of the applications — which, it was implied, did not allude to gunwalking.

Having worked on and supervised numerous wiretapping investigations in eighteen years as a federal prosecutor in New York, I found these claims implausible. In my experience, the Justice Department reviews wiretap applications from the district U.S. attorney’s offices extremely carefully — Justice is mortally embarrassed if wiretap evidence gets suppressed due to misstatements, errors, or omissions in applications that the Justice Department headquarters has reviewed. Further, because wiretaps are resource-intensive and thus expensive and burdensome to conduct, they tend to be approved only in very important cases — the cases that get a lot of DOJ attention. Finally, Fast & Furious was an “OCDETF case”: the investigation qualified for extraordinary funding and resources under Justice’s Organized Crime Drug Enforcement Task Force — a coveted designation reserved for the Department’s most significant organized crime cases, the cases DOJ tracks most closely. (See here.)  It has been inconceivable to me that top DOJ officials would have been unaware of what was happening in Fast and Furious.

In any event, Chairman Issa’s disclosures, as reported by Mr. Dinan, appear to put the lie to much of what Holder and his minions have been claiming. That includes the bit about “summaries”; quite apart from the extreme unlikelihood that wiretap application summaries were top officials’ only source for Fast and Furious information, it appears that even the summaries describe the gunwalking tactic:

The summary of a March 2010 wiretap application shows that federal agents repeatedly lost track of guns they knew were being trafficked back to cartels in Mexico — a violation of Justice Department policy that should have raised red flags with top department officials who signed off on the wiretaps, said Mr. Issa, California Republican and chairman of the oversight committee that is looking into the operation. Mr. Issa introduced the summary as part of the House’s debate Thursday before lawmakers held a historic vote to to hold Attorney General Eric H. Holder Jr. in contempt of Congress.

Mr. Issa contends the wiretap application contradicts Mr. Holder’s claim that nothing in there would have shown gunwalking was going on. “The affidavit explicitly describes the most controversial tactic of all: abandoning surveillance of known straw purchasers, resulting in the failure to interdict arms,” Mr. Issa said in a letter he placed in the Congressional Record. It appears on pages H4409 through H4411 of Thursday’s official chronicle of its debates.

[Yes, that's right: All of these remarkable revelations happened yesterday, but we are just waking up to them now because, as observed here at Ordered Liberty yesterday, Republican leadership chose to go forward with yesterday's historic contempt finding -- the first ever against a sitting cabinet member -- on the day of the Obamacare ruling, when it was sure to get close to zero attention. Nice work, guys.]

Issa’s revelations, coupled with the contempt holding, will ratchet up the pressure on the Obama administration to quit stonewalling. The committee has been shown only a small fraction of the documents turned over to an internal DOJ inspector general. And, as noted here yesterday, DOJ officials this week — after repeatedly insisting they had already given Issa all relevant information — offered to show the committee more materials, but only on the absurd conditions that investigators not make copies and not take notes, an offer Issa wisely refused.

Also pressing is the question of why President Obama invoked executive privilege to obstruct the investigation if, as he insists, he had no knowledge of Fast and Furious until after Holder shut it down following Agent Terry’s death. It is true, of course, that if new disclosures confirm that the attorney general has been systematically misleading Congress, this will be very damaging to the president who chose Holder and has stood by him during this scandal. But that is nothing compared to the firestorm that would flow from any indications that the White House was clued in to Fast & Furious while the investigation was underway.

Stay tuned.

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