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Pleading the Fifth: Gunwalker Witness Refuses to Testify

Patrick J. Cunningham, chief of the Criminal Division of the U.S. Attorney’s Office in Arizona, is invoking his Fifth Amendment rights and declining to testify about Operation Fast and Furious in front of the House Committee on Oversight and Government Reform.


Fast and Furious is one of ten suspect “gunwalking” operations carried out by the Department of Justice — this operation armed the Sinaloa drug cartel with more than 2,000 weapons. Those firearms have been blamed in the deaths of at least 300 Mexican civilians, and two of those firearms were recovered at the scene of Border Patrol Agent Brian Terry’s murder in Peck Canyon, AZ.

Cunningham’s attorney Tobin Romero suggests his client is being scapegoated:

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly.”

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

“To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself.” Romero told [Congressman Darrell] Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.


Romero’s letter to the Oversight Committee points out that the gunwalking plot began in 2009, and notes that Cunningham did not join the U.S. Attorney’s Office in Arizona until months later, in 2010. Romero’s insistence that his client could not have been involved in the creation and approval of Fast and Furious seems like an airtight alibi. However, what he knew after he became chief of the Criminal Division of the U.S. Attorney’s Office in Arizona — and chose not to act upon — could indeed lead to administrative action or criminal charges.

Cunningham’s intention to broadly exercise his rights by providing nothing more than his name and title provoked a scathing response from Oversight Committee Chairman Darrell Issa:

The assertion of the Fifth Amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their Fifth Amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.

Coming a year after revelations about reckless conduct in Operation Fast and Furious were first brought to light, the assertion of the Fifth Amendment also raises questions about whether President Obama and Attorney General Holder have made a serious and adequate response to allegations raised by whistleblowers. Did Attorney General Holder really not know a senior Justice Department official fears criminal prosecution or is this just another example of him hiding important facts? The committee will continue to demand answers.


Cunningham’s defense seeks to portray him as an innocent man caught in a conflict between the legislative and executive branches of government. He also seems to be the designated “fall guy” in the Obama administration’s recent tactical shift.

Previously, administration officials claimed they were unaware of the gunwalking plot and had no involvement in it. That excuse fell apart when evidence was presented that Deputy Attorney General Gary Grindler, Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny Breuer, Assistant Attorney General Ronald Weich, ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Federal Bureau of Investigation (FBI) Director Robert Mueller, U.S. Attorney for the District of Minnesota/Chair of the Attorney General’s Advisory Committee/Acting ATF Director B. Todd Jones, and the top federal prosecutors in the Southwestern border states were all privy to information about Operation Fast and Furious.

The administration has since shifted to what can only be described as an “incompetence defense,” where they are asserting that rogue Phoenix operatives initiated the massive gunwalking plot without their supervisors in Washington, D.C., knowing anything about it — even as the “rogue” agents worked across directorships with DOJ, DHS, the IRS, and the required authorization of the State Department.

Attorney General Eric Holder’s defense seems to hinge upon the theory that he’s a detached boss more interested in pursuing heavily politicized racial justice schemes than enforcing the law or knowing what his direct reports are engaged in. One has to wonder about how serious the criminal crimes are that the attorney general is attempting to avoid by claiming gross incompetence.


It will be interesting to see if an immunity arrangement can be worked out for Mr. Cunningham so that he can share what he knows about Operation Fast and Furious.

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