Bench Memos

Too Fast and Too Furious?

House Oversight and Government Reform Committee chairman Darrell Issa issued a memorandum and draft contempt report on Thursday making the case for holding Attorney General Eric Holder in contempt of Congress. The report details the Department of Justice’s stonewalling of the Fast and Furious “gunwalking” program investigation. Under the program, ATF officials actively allowed as many as 2,000 illegally purchased guns to flow into the hands of U.S.-based operatives of a Mexican drug cartel. In December of 2010, suspected illegal aliens killed U.S. Border Patrol agent Brian Terry in a firefight. Investigators found two AK-variant guns which they linked to the DOJ’s “gunwalking” program. This tragedy sparked the Oversight Committee’s current investigation.

Everyone agrees, as Secretary of Homeland Security Janet Napolitano put it, that the program involved “lots of mistakes” that “should never be repeated.” This makes the investigation, a joint operation with Senate Judiciary Committee Ranking member Chuck Grassley, important. The DOJ apparently doesn’t think so. Although the Oversight Committee received around 7,000 pages of evidence from the DOJ, the DOJ’s Inspector General actually collected around 71,000 more pages of evidence. Chairman Issa believes these evasions impede the development of necessary legislative reforms in light of Fast and Furious, and prevent the delivery of justice to those affected by the program, including Agent Terry’s family.

The report’s findings are very disturbing, and the investigation deserves praise for bringing these details to light.

The DOJ was slow to admitting fault with the program, too many times doing so only when confronted. After the death of the agent, the DOJ initially denied any wrongdoing. It took almost 10 months for the DOJ to rescind that determination, admitting that Fast and Furious was “fundamentally flawed” (memo, pp. 1–2). The report explains that whistleblowers provided most of the information, which was then used to confront those who were involved in Fast and Furious (memo, p. 7). Instead of helping investigators, “the Department has issued false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents, and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts” (memo, p. 9).

The DOJ, despite claiming that privilege protects certain documents, likely did not make a good-faith effort to help the investigation. It stretches credibility to believe that almost 90 percent of the documents disclosed to the inspector general were truly privileged and could not be protected with commonly employed means of securing sensitive information. The DOJ has not even filled out a privilege log detailing why they are withholding documents, which would at least provide a starting point to evaluate their claims (memo, p. 9).

Chairman Issa believes that part of this stonewalling may be to protect DOJ employees, including those who retaliated against whistleblowers of the program (memo, p. 14). He explains that “Senator Chuck Grassley asked Attorney General Holder to reveal the identity of a Justice Department official who had been caught participating in the leaking of documents to smear an ATF whistleblower. Instead of naming the official at the hearing, Holder decided to protect his identity and refused to answer the question” (memo, p. 14).

The DOJ’s response to Fast and Furious is just one of many reasons to question Eric Holder’s judgment as our nation’s top law-enforcement official. Hopefully, General Holder will cooperate with the Oversight Committee, and help Chairman Issa and Senator Grassley bring those responsible for the Fast and Furious debacle to justice. 

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