As Head of the DOJ's Criminal Section in Phoenix Takes the Fifth, Arizona Launches State Investigation into Fast and Furious

The decision of the chief of the Criminal Division of the U.S. Attorney’s Office in Arizona to plead for his Fifth Amendment rights to avoid testifying about his involvement with Operation Fast and Furious is not sitting well with House Oversight and Government Reform Committee Chairman Darrell Issa.


“People do not take the Fifth when they’re working for the federal government and resign and get a lawyer if in fact they have nothing to hide,” Issa told Fox News this morning. “And this is someone who had a direct conduit to the top levels of justice, both Eric Holder and Lanny Breuer,” the attorney general and the head of the Justice Department’s criminal division, respectively.

Cunningham, chief of the Phoenix office’s criminal division within the U.S. Attorney’s office in Arizona, claims to have clean hands in his part in Fast and Furious — an operation run out of Arizona and coordinated with the state’s U.S. Attorney’s office that armed Mexican drug cartels linked to the death of Border Patrol agent Brian Terry.

“This individual clearly was part of the conduit of information so what we want to know [is] who knew what when we’re being told no one knew anything ever,” Issa said. “This is critical, and not having his honest testimony — I want him to protect himself from self-incrimination, but clearly he’s going further than that, he’s part of a broad cover-up where we’re going to be asking people above and below him more questions.”

I made a similar observation when talking with Cam Edwards on Cam and Company Monday night.


Patrick Cunningham’s attorney Tobin Romero insists in a letter to the House Oversight Committee that his client is a pawn caught in the middle of a power struggle between the Executive Branch and the Legislative Branch. The simple fact of the matter however, is that Cunningham refused to provide any information to Oversight beyond his name and title.

Presumably, Cunningham could provide considerable information about the functioning of the U.S. Attorney’s office in Phoenix and the structure and personnel involved in Operation Fast and Furious, without putting himself in any criminal jeopardy regarding his role as the Criminal Division head in the gun-walking plot. By pleading for blanket Fifth Amendment protection, Cunningham is presenting the image of a potential felon intent on denying investigators any possible shred of information that could uncover felonious actions within the Department of Justice (DOJ). A broad cover-up? It certainly seems not just possible, but probable.

Meanwhile, the Arizona legislature seems to have tired of the obstructionism of the Obama Administration, and has decided to launch their own investigation of Operation Fast and Furious to determine if DOJ officials committed felonies under Arizona state law. They intend to return their findings by the end of March, which would seem to impose some constraint on how much longer DOJ Inspector General Cynthia Schendar can delay publishing the IG’s findings.


The American Center for Law and Justice (ACLJ) came out with a statement in support of the Arizona legislature’s move.

“The state of Arizona’s decision to launch a probe into this botched program is clearly warranted and underscores the serious nature of what took place with this deadly federally-run law enforcement program,” said Jay Sekulow, Chief Counsel of the ACLJ. “Combined with a Congressional investigation that’s still underway, the Arizona probe represents an important opportunity to get to the bottom of what really happened with this flawed program. The Justice Department has been less than forthcoming about its role in the failed operation, and we’re hopeful the Arizona investigation will produce answers – something that both Arizona citizens and the American people deserve.”

The ACLJ has heard from more than 50,000 Americans nationwide urging President Obama and Attorney General Eric Holder to provide the truth about Operation Fast & Furious.

The results of the Arizona legislatures investigation will not itself lead to criminal charges, but any criminal evidence that is uncovered by the committee could be turned over to the State Attorney General, who could then order a criminal investigation based upon the evidence. One interesting possible avenue that state investigators may be able to plumb better than House investigators is any role that state and local law enforcement officers may have played in Operation Fast and Furious. While local and state law enforcement would not have been directly involved in the plot, they do work with the federal government fusion centers and may have had some access to information that the Justice Department would rather not have revealed.


Correction: The headline on this post originally pointed at the head of the DOJ’s Criminal Division, which is assistant attorney general Lanny Breuer, as invoking his fifth amendment rights against self-incrimination. However, Breuer did not take the fifth. We regret the error.


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