Politics & Policy

The IG Report and Holder

The inspector general indicts the DOJ and the ATF.

Eric Holder claims that the just-released Office of Inspector General report on Operation Fast and Furious vindicates his claims that he knew nothing about this reckless operation. He seems oblivious to the fact that the almost-500-page report is a damning indictment of his lack of leadership, supervision, and judgment.

Holder supposedly knew nothing about (and his senior leadership failed to alert him to) a major investigation that resulted in the death of a U.S. Border Patrol agent, hundreds of deaths in Mexico, and more than 2,000 weapons’ ending up in the hands of criminals there. It is a chilling comment on how badly the Justice Department is run today. As the attorney general, essentially the CEO of the Department of Justice, Holder is directly responsible for what the inspector general calls a “series of misguided strategies, tactics, errors in judgment, and management failures that permeated ATF Headquarters and the Phoenix Field Division, as well as the U.S. Attorney’s Office for the District of Arizona.”

In the report, the IG says he has “identified individuals ranging from line agents and prosecutors in Phoenix and Tucson to senior ATF officials in Washington, D.C., who bore a share of responsibility for ATF’s knowing failure . . . to interdict firearms illegally destined for Mexico, and for doing so without adequately taking into account the danger to public safety that flowed from this risky strategy.” He also found “failures by [DOJ] officials related to these matters, including failing to respond accurately to a Congressional inquiry about them.” The adjectives used in the IG report to describe the conduct and supervision of Operation Fast and Furious range from “significantly flawed” to “irresponsible.”

The report notes that none of the five deputy assistant attorneys general who reviewed the wiretap applications “identified any issues or raised any concerns about the information contained in the applications.” In fact, three of the DAAGs who agreed to be interviewed admitted that they did not read the agents’ supporting affidavits that were submitted with the wiretap applications. That documentation is essential to determining whether a wiretap application meets the factual and legal standards of the law.

Those affidavits, which contained information about firearms’ being trafficked into Mexico, should have “caused a prosecutor . . . particularly one who was already sensitive to the issue of ‘gun walking,’ to have questions about ATF’s conduct of the investigation.” That they were not reviewed by several DOJ officials who were tasked with doing so reflects a lapse of professionalism and competence.

When I was a counsel to the assistant attorney general for the Civil Rights Division, it was my job to review all of the reports and memoranda sent to the AAG on investigations and operations. If I had neglected to do so, I would have been severely derelict in my responsibilities. In fact, I would have been fired. And yet such dereliction of duty occurred under the direct supervision (or lack thereof) of Lanny Breuer, the assistant attorney general of the Criminal Division and a former Clinton-administration lawyer.

The IG also notes that while Holder received weekly reports on Operation Fast and Furious, his immediate subordinates, including the “the Attorney General’s Deputy Chief of Staff, the Acting Deputy Attorney General, and the leadership of the Criminal Division[,] failed to alert the Attorney General to significant information about or flaws in those investigations.”

Again, this is an astonishing finding and one that reflects poorly on Holder’s subordinates, including Lanny Breuer, as well as Holder’s supervision of them. It is their job to keep the attorney general advised about major investigations, prosecutions, and cases being conducted by the Justice Department. This would be particularly true of an operation that could affect our relations with another country.

The IG report asserts that the Bureau of Alcohol, Tobacco, Firearms, and Explosives never advised senior DOJ leadership of the gunwalking aspect of the operation. But even when, for example, Acting Deputy Attorney General Gary Grindler received an e-mail on December 17, 2010, informing him of the connection between Operation Fast and Furious and the two weapons found at the murder scene of Border Patrol agent Brian Terry, he took no action. He failed to notify his immediate superior, Eric Holder, or take any other steps whatsoever in response. Two weeks later he became Holder’s chief of staff.

Lanny Breuer also failed to inform the AG of the connection. It speaks poorly of Holder’s leadership and choice of personnel that there were so many glaring failures up and down the line in the Justice Department, from ATF line agents and prosecutors in Arizona all the way up to the senior leadership of DOJ that reports directly to Holder.

The report also makes it clear that DOJ senior officials misled Congress. It notes that Senator Chuck Grassley asked DOJ on April 13, 2011, whether the department stood by its February 4 assertion that the ATF did not knowingly “allow the sale of assault weapons to straw purchasers” who transferred the weapons into Mexico.

On May 2, DOJ told Senator Grassley that the ATF “did not knowingly permit straw buyers to take guns into Mexico.” The IG says that DOJ “should not have made this statement.” DOJ officials, including Deputy Attorney General James Cole, the No. 2 official in the department, tried to argue to the IG that this statement was literally true because they were distinguishing between the “ATF knowingly allowing firearms to go to Mexico versus negligently allowing firearms to go to Mexico.” This was a false distinction, because by May 2, senior DOJ officials “knew or should have known” that the “ATF had in many instances allowed straw purchasers to buy firearms knowing that a third party would be transporting them to Mexico.” Officials in the Office of the Deputy Attorney General “knew or should have known that they could not reaffirm the accuracy” of the February 4 letter.

DOJ compounded this problem when it sent Assistant Attorney General Ronald Weich (who resigned some time ago) to testify before Congress on June 15, 2011, where he similarly claimed that the “ATF doesn’t sanction or approve of the transfer of weapons to Mexico.” This suggests that James Cole sanctioned DOJ’s continuing to mislead Congress. He did not correct this until December.

In an interesting note on possible White House involvement, the report states that Kevin O’Reilly, a member of the National Security Council staff who corresponded with ATF agent Bill Newell about Operation Fast and Furious when it was ongoing, refused to be interviewed by the IG. The White House also refused to produce “any internal White House communications,” because it “is beyond the purview of the Inspector General’s Office.” Does anyone seriously doubt that O’Reilly would have cooperated with the IG if the White House had told him to do so?

Jason Weinstein, Lanny Breuer’s chief of staff in the Criminal Division, resigned when the IG report was released Wednesday, and Ken Melson, a former acting director of the ATF, retired. But there are many other officials in DOJ and the ATF who need to be disciplined or terminated for their conduct, starting with James Cole, the deputy attorney general who misled Congress for ten months.

As my colleague at the Heritage Foundation John Malcolm, a former prosecutor and deputy assistant attorney general in the Criminal Division, says, the IG report shows that many of the critics of this operation, such as Senator Grassley and Representative Darrell Issa, were correct in their assessments.

According to Malcolm, this was a “misguided investigation employing exceedingly risky tactics [that] was initiated and allowed to continue for months on end, with guns turning up at more and more crime scenes, while higher-ups within ATF and DOJ ignored the many red flags that emerged and failed to ask even rudimentary questions about what the heck was going on both during the investigation and prior to sending” information about the operation to Congress.

For veterans of the department, it is another illustration of how low the professionalism and competence of a once-great law-enforcement agency has fallen. And it shows just how dangerous DOJ can be when its power is misused and abused.

— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department.


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