Fast and Furious and OCDETF
Whom is executive privilege protecting?

Eric Holder testifies before Congress on May 3, 2011.


Andrew C. McCarthy

Now let’s consider some of the information chairman Darrell Issa’s House investigating committee has gathered — much of it from whistleblowers, not Holder’s stonewallers.

Fast and Furious began in the fall of 2009, when agents in ATF’s Phoenix office developed their strategy — including the fateful gunwalking tactic — with the U.S. attorney. But things really got going in January 2010. It was then that the case became an OCDETF investigation. This does not just happen in the blink of an eye. It is a deliberate process. ATF and the U.S. attorney had to apply to Main Justice for OCDETF status. A case gets approval for funding — which can run well into the millions of dollars — only if senior Justice Department officials, after studying the formally submitted proposal, determine that the investigation has great promise.

The Obama Justice Department made exactly that determination. And this was no rubber stamp — it never is, given the number of agencies across the country competing over the OCDETF pot of gold. Chairman Issa’s most recent memo (dated May 3, 2012) explains that, to win its OCDETF designation, Fast and Furious was “reorganized as a Strike Force including agents from ATF, FBI, the Drug Enforcement Administration (DEA), and the Immigration and Customs Enforcement (ICE) component of the Department of Homeland Security.” Because of the investigation’s importance, a senior ATF agent (who later became a whistleblower) was transferred to Phoenix to help oversee the case.

The OCDETF designation enabled Fast and Furious investigators to use wiretaps. This is highly unusual in ATF-run cases — almost all federal wiretapping is done in investigations led by the FBI or the DEA. As noted above, wiretapping requires Main Justice approval. But that’s not all: As I’ve previously outlined, federal wiretap law mandates that the application to the court describe the investigative tactics that have been used in the investigation and explain why those tactics cannot achieve the investigation’s objectives without wiretapping. If the Fast and Furious wiretap applications complied with federal law, they must have described the gunwalking tactic. These applications cannot be submitted to a federal judge until they have been approved by Main Justice; they are submitted to the Department’s Office of Enforcement Operations, which screens them very carefully.

There is little doubt that the wiretap applications would show that senior DOJ officials were aware of the gunwalking tactic long before Agent Terry was gunned down on December 14, 2010. But that’s not the half of it. Bet your bottom dollar that gunwalking was discussed in the consideration of whether to make Fast and Furious an OCDETF case in the first place. OCDETF investigations, moreover, are carefully monitored by the Justice Department throughout, to ensure that the extraordinary flow of funding continues to be worthwhile. I’m wagering that senior DOJ officials — which is to say, Obama-administration political appointees — knew about the gunwalking for close to a year before Agent Terry’s death.

With that as background, consider this little-noticed paragraph from the Issa memo:

Washington-based Justice Department officials had earlier [in 2010] discussed bringing Attorney General Eric Holder to Phoenix for a triumphant press conference with Arizona U.S. Attorney Dennis Burke to herald the conclusion of the Department’s flagship firearms trafficking case. In the aftermath of Agent Terry’s death, the task of announcing indictments at a press conference fell to ATF Phoenix Division Special Agent in Charge William Newell and Burke. Holder did not attend.