RESOLUTION RECOMMENDING THAT THE HOUSE OF
REPRESENTATIVES FIND ERIC H. HOLDER, JR., ATTORNEY GENERAL,
U.S. DEPARTMENT OF JUSTICE,
IN CONTEMPT OF CONGRESS FOR REFUSAL TO
COMPLY WITH A SUBPOENA DULY ISSUED BY THE
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
R E P O R T
OF THE
COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
UNITED STATES HOUSE OF REPRESENTATIVES
The form of the resolution that the Committee on Oversight and Government Reform
would recommend to the House of Representatives for citing Eric H. Holder, Jr., Attorney
General, U.S. Department of Justice, for contempt of Congress pursuant to this report is as
follows:
Resolved, That Eric H. Holder, Jr., Attorney General of the United States, shall be found
to be in contempt of Congress for failure to comply with a congressional subpoena.
Resolved, That pursuant to 2 U.S.C. §§ 192 and 194, the Speaker of the House of
Representatives shall certify the report of the Committee on Oversight and Government
Reform, detailing the refusal of Eric H. Holder, Jr., Attorney General, U.S. Department
of Justice, to produce documents to the Committee on Oversight and Government
Reform as directed by subpoena, to the United States Attorney for the District of
Columbia, to the end that Mr. Holder be proceeded against in the manner and form
provided by law.
Resolved, That the Speaker of the House shall otherwise take all appropriate action to
enforce the subpoena.
1
Table of Contents
I. EXECUTIVE SUMMARY .............................................................................................. 2
II. AUTHORITY AND PURPOSE....................................................................................... 2
III. BACKGROUND ON THE COMMITTEE’S INVESTIGATION ............................... 4
IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF
THE DEPARTMENT OF JUSTICE .......................................................................................... 5
A. THE ATF PHOENIX FIELD DIVISION ..................................................................................... 5
B. THE UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF ARIZONA ........................ 7
C. ATF HEADQUARTERS .......................................................................................................... 7
D. THE CRIMINAL DIVISION ..................................................................................................... 9
1. Coordination with ATF ................................................................................................... 9
2. Wiretaps ........................................................................................................................ 10
E. THE OFFICE OF THE DEPUTY ATTORNEY GENERAL ........................................................... 11
V. THE COMMITTEE’S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY
GENERAL HOLDER ................................................................................................................ 12
A. EVENTS LEADING UP TO THE SUBPOENA ........................................................................... 13
B. SUBPOENA SCHEDULE REQUESTS ...................................................................................... 15
C. ATTEMPTS OF ACCOMMODATION BY THE COMMITTEE, LACK OF COMPLIANCE BY THE
JUSTICE DEPARTMENT ............................................................................................................... 23
1. In Camera Reviews ....................................................................................................... 24
2. Redacted Documents ..................................................................................................... 24
3. Privilege Log ................................................................................................................. 25
4. Assertions of Non-Compliance ..................................................................................... 26
5. Failure to Turn Over Documents .................................................................................. 39
VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE ............................ 41
VII. HISTORICAL PERSPECTIVES ON CONTEMPT ................................................... 42
A. PAST INSTANCES OF CONTEMPT ......................................................................................... 42
B. DOCUMENT PRODUCTIONS ................................................................................................. 44
2
I. Executive Summary
The Department of Justice has refused to comply with congressional subpoenas related to
Operation Fast and Furious, an Administration initiative that allowed around two thousand
firearms to fall into the hands of drug cartels and may have led to the death of a U.S. Border
Patrol Agent. The consequences of the lack of judgment that permitted such an operation to
occur are tragic.
The Department’s refusal to work with Congress to ensure that it has fully complied with
the Committee’s efforts to compel the production of documents and information related to this
controversy is inexcusable and cannot stand. Those responsible for allowing Fast and Furious to
proceed and those who are preventing the truth about the operation from coming out must be
held accountable for their actions.
Having exhausted all available options in obtaining compliance, the Chairman of the
Oversight and Government Reform Committee recommends that Congress find the Attorney
General in contempt for his failure to comply with the subpoena issued to him.
II. Authority and Purpose
An important corollary to the powers expressly granted to Congress by the Constitution is
the implicit responsibility to perform rigorous oversight of the Executive Branch. The U.S.
Supreme Court has recognized this Congressional power on numerous occasions. For example,
in McGrain v. Daugherty, the Court held that “the power of inquiry – with process to enforce it –
is an essential and appropriate auxiliary to the legislative function. . . . A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change, and where the legislative body does not itself possess
the requisite information – which not infrequently is true – recourse must be had to others who
do possess it.”
1
Further, in Watkins v. United States, Chief Justice Warren wrote for the
majority: “The power of Congress to conduct investigations is inherent in the legislative process.
That power is broad.”
2
Both the Legislative Reorganization Act of 1946 (P.L. 79-601), which directed House
and Senate Committees to “exercise continuous watchfulness” over Executive Branch programs
under their jurisdiction, and the Legislative Reorganization Act of 1970 (P.L. 91-510), which
authorized committees to “review and study, on a continuing basis, the application,
administration and execution” of laws, codify the oversight powers of Congress.
The Committee on Oversight and Government Reform is a standing committee of the
House of Representatives, duly established pursuant to the rules of the House of Representatives,
which are adopted pursuant to the Rulemaking Clause of the Constitution.
3
House Rule X grants
to the Committee broad oversight jurisdiction, including authority to “conduct investigations of
1
McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
2
Watkins v. United States, 354 U.S. 178, 187 (1957).
3
U.S. CONST., art. I, § 5, clause 2.
3
any matter without regard to clause 1, 2, 3, or this clause [of House Rule X] conferring
jurisdiction over the matter to another standing committee.”
4
The rules direct the Committee to
make available “the findings and recommendations of the committee . . . to any other standing
committee having jurisdiction over the matter involved.”
5
House Rule XI specifically authorizes the Committee to “require, by subpoena or
otherwise, the attendance and testimony of such witnesses and the production of such books,
records, correspondence, memoranda, papers, and documents as it considers necessary.”
6
The
rule further provides that the “power to authorize and issue subpoenas” may be delegated to the
Committee chairman.
7
The subpoenas discussed in this report were issued pursuant to this
authority.
The Committee’s investigation into actions by senior officials in the U.S. Department of
Justice and the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) in designing,
implementing, and supervising the execution of Operation Fast and Furious, and subsequently
providing false denials to Congress, is being undertaken pursuant to the authority delegated to
the Committee under House Rule X as described above.
The oversight and legislative purposes of the investigations are (1) to examine and
expose any possible malfeasance, abuse of authority, or violation of existing law on the part of
the executive branch with regard to the conception and implementation of Operation Fast and
Furious, and (2) based on the results of the investigation, to assess whether the conduct
uncovered may warrant additions or modifications to federal law and to make appropriate
legislative recommendations.
In particular, the Committee’s investigation has highlighted the need to obtain
information that will aid Congress in considering whether a revision of the statutory provisions
governing the approval of federal wiretap applications may be necessary. The major breakdown
in the process that occurred with respect to the Fast and Furious wiretap applications necessitates
careful examination of the facts before proposing a legislative remedy. Procedural
improvements may need to be codified in statute to mandate immediate action in the face of
highly objectionable information relating to operational tactics and details contained in future
applications.
The Committee’s investigation has called into question the ability of ATF to carry out its
statutory mission and the ability of the Department of Justice to adequately supervise it. The
information sought is needed to consider legislative remedies to restructure ATF as needed.
4
House Rule X, clause (4)(c)(2).
5
Id.
6
House Rule XI, clause (2)(m)(1)(B).
7
House Rule XI, clause (2)(m)(3)(A)(i).
4
III. Background on the Committee’s Investigation
In February 2011, the Oversight and Government Reform Committee joined Senator
Charles E. Grassley, Ranking Member of the Senate Committee on the Judiciary, in investigating
Operation Fast and Furious, a program conducted by ATF. On March 16, 2011, Chairman
Darrell Issa wrote to then-Acting ATF Director Kenneth E. Melson requesting documents and
information regarding Fast and Furious. Responding for Melson and ATF, the Department of
Justice did not provide any documents or information to the Committee by the March 30, 2011,
deadline. The Committee issued a subpoena to Melson the next day. The Department produced
zero pages of non-public documents pursuant to that subpoena until June 10, 2011, on the eve of
the Committee’s first Fast and Furious hearing.
On June 13, 2011, the Committee held a hearing entitled “Obstruction of Justice: Does
the Justice Department Have to Respond to a Lawfully Issued and Valid Congressional
Subpoena?” The Committee held a second hearing on June 15, 2011, entitled “Operation Fast
and Furious: Reckless Decisions, Tragic Outcomes.” The Committee held a third hearing on
July 26, 2011, entitled “Operation Fast and Furious: The Other Side of the Border.”
On October 11, 2011, the Justice Department informed the Committee its document
production pursuant to the March 31, 2011, subpoena was complete. The next day, the
Committee issued a detailed subpoena to Attorney General Eric Holder for additional documents
related to Fast and Furious.
On February 2, 2012, the Committee held a hearing entitled “Fast and Furious:
Management Failures at the Department of Justice.” The Attorney General testified at that
hearing.
The Committee has issued two staff reports documenting its initial investigative findings.
The first, The Department of Justice’s Operation Fast and Furious: Accounts of ATF Agents,
was released on June 14, 2011. The second, The Department of Justice’s Operation Fast and
Furious: Fueling Cartel Violence, was released on July 26, 2011.
Throughout the investigation, the Committee has made numerous attempts to
accommodate the interests of the Department of Justice. Committee staff has conducted
numerous meetings and phone conversations with Department lawyers to clarify and highlight
priorities with respect to the subpoenas. Committee staff has been flexible in scheduling dates
for transcribed interviews; agreed to review certain documents in camera; allowed extensions of
production deadlines; agreed to postpone interviewing the Department’s key Fast and Furious
trial witness; and narrowed the scope of documents the Department must produce to be in
compliance with the subpoena and to avoid contempt proceedings.
Despite the Committee’s flexibility, the Department has refused to produce certain
documents to the Committee. The Department has represented on numerous occasions that it
will not produce broad categories of documents. The Attorney General has continued to
withhold documents without any assertion of executive privilege by the President, and the
Department has not provided a privilege log delineating with particularity why certain
documents are being withheld.
5
The Department’s efforts at accommodation and ability to work with the Committee
regarding its investigation into Fast and Furious have been wholly inadequate. The Committee
requires the subpoenaed documents to meet its constitutionally mandated oversight and
legislative duties.
IV. Operation Fast and Furious: Breakdowns at All Levels of the Department of Justice
The story of Operation Fast and Furious is one of widespread dysfunction across
numerous components of the Department of Justice. This dysfunction allowed Fast and Furious
to originate and grow at a local level before senior officials at Department of Justice
headquarters ultimately approved and authorized it. The dysfunction within and among
Department components continues to this day.
A. The ATF Phoenix Field Division
In October 2009, the Office of the Deputy Attorney General (ODAG) in Washington,
D.C. promulgated a new strategy to combat gun trafficking along the Southwest Border. This
new strategy directed federal law enforcement to shift its focus away from seizing firearms from
criminals as soon as possible, and to focus instead on identifying members of trafficking
networks. The Office of the Deputy Attorney General shared this strategy with the heads of
many Department components, including ATF.
8
Members of the ATF Phoenix Field Division, led by Special Agent in Charge Bill
Newell, became familiar with this new strategy and used it in creating Fast and Furious. In mid-
November 2009, just weeks after the strategy was issued, Fast and Furious began. Its objective
was to establish a nexus between straw purchasers of firearms in the United States and Mexican
drug-trafficking organizations (DTOs) operating on both sides of the United States-Mexico
border. Straw purchasers are individuals who are legally entitled to purchase firearms for
themselves, but who unlawfully purchase weapons with the intent to transfer them to someone
else, in this case DTOs or other criminals.
During Fast and Furious, ATF agents used an investigative technique known as
“gunwalking” – that is, allowing illegally-purchased weapons to be transferred to third parties
without attempting to disrupt or deter the illegal activity. ATF agents abandoned surveillance on
known straw purchasers after they illegally purchased weapons that ATF agents knew were
destined for Mexican drug cartels. Many of these transactions established probable cause for
agents to interdict the weapons or arrest the possessors, something every agent was trained to do.
Yet, Fast and Furious aimed instead to allow the transfer of these guns to third parties. In this
manner, the guns fell into the hands of DTOs, and many would turn up at crime scenes. ATF
then traced these guns to their original straw purchaser, in an attempt to establish a connection
between that individual and the DTO.
8
E-mail from [Dep’t of Justice] on behalf of Deputy Att’y Gen. David Ogden to Kathryn Ruemmler, et al. (Oct. 26,
2009).
6
Federal Firearms Licensees (FFLs), who cooperated with ATF, were an integral
component of Fast and Furious. Although some FFLs were reluctant to continue selling
weapons to suspicious straw purchasers, ATF encouraged them to do so, reassuring the FFLs that
ATF was monitoring the buyers and that the weapons would not fall into the wrong hands.
9
ATF
worked with FFLs on or about the date of sale to obtain the unique serial number of each firearm
sold. Agents entered these serial numbers into ATF’s Suspect Gun Database within days after
the purchase. Once these firearms were recovered at crime scenes, the Suspect Gun Database
allowed for expedited tracing of the firearms to their original purchasers.
By December 18, 2009, ATF agents assigned to Fast and Furious had already identified
fifteen interconnected straw purchasers in the targeted gun trafficking ring. These straw
purchasers had already purchased 500 firearms.
10
In a biweekly update to Bill Newell, ATF
Group Supervisor David Voth explained that 50 of the 500 firearms purchased by straw buyers
had already been recovered in Mexico or near the Mexican border.
11
These guns had time-to-
crimes of as little as one day, strongly indicating straw purchasing.
12
Starting in late 2009, many line agents objected vociferously to some of the techniques
used during Fast and Furious, including gunwalking. The investigation continued for another
year, however, until shortly after December 15, 2010, when two weapons from Fast and Furious
were recovered at the murder scene of U.S. Border Patrol Agent Brian Terry.
Pursuant to the Deputy Attorney General’s strategy, in late January 2010 the ATF
Phoenix Field Division applied for Fast and Furious to become an Organized Crime Drug
Enforcement Task Force (OCDETF) case. In preparation for the OCDETF application process,
the ATF Phoenix Field Division prepared a briefing paper detailing the investigative strategy
employed in Fast and Furious. This document was not initially produced by the Department
pursuant to its subpoena, but rather was obtained by a confidential source. The briefing paper
stated:
Currently our strategy is to allow the transfer of firearms to continue to
take place, albeit at a much slower pace, in order to further the
investigation and allow for the identification of additional co-conspirators
who would continue to operate and illegally traffic firearms to Mexican
DTOs which are perpetrating armed violence along the Southwest
Border.
13
Fast and Furious was approved as an OCDETF case, and this designation resulted in new
operational funding. Additionally, Fast and Furious became a prosecutor-led OCDETF Strike
Force case, meaning that ATF would join with the Federal Bureau of Investigation, Drug
Enforcement Administration, Internal Revenue Service, and Immigrations and Customs
Enforcement under the leadership of the U.S. Attorney’s Office for the District of Arizona.
9
Transcribed Interview of Special Agent Peter Forcelli, at 53-54 (Apr. 28, 2011).
10
E-mail from Kevin Simpson, Intelligence Officer, Phoenix FIG, ATF, to David Voth (Dec. 18, 2009).
11
Id.
12
Id.
13
Phoenix Group VII, Phoenix Field Division, ATF, Briefing Paper (Jan. 8, 2010).
7
B. The United States Attorney’s Office for the District of Arizona
The U.S. Attorney’s Office for the District of Arizona led the Fast and Furious OCDETF
Strike Force. Although ATF was the lead law enforcement agency for Fast and Furious, its
agents took direction from prosecutors in the U.S. Attorney’s Office. The lead federal
prosecutor for Fast and Furious was Assistant U.S. Attorney Emory Hurley, who played an
integral role in the day-to-day, tactical management of the case.
14
Many ATF agents working on Operation Fast and Furious came to believe that some of
the most basic law enforcement techniques used to interdict weapons required the explicit
approval of the U.S. Attorney’s Office, and specifically from Hurley. On numerous occasions,
Hurley and other federal prosecutors withheld this approval, to the mounting frustration of ATF
agents.
15
The U.S. Attorney’s Office chose not to use other available investigative tools
common in gun trafficking cases, such as civil forfeitures and seizure warrants, during the
seminal periods of Fast and Furious.
The U.S. Attorney’s Office advised ATF that agents needed to meet unnecessarily strict
evidentiary standards in order to speak with suspects, temporarily detain them, or interdict
weapons. ATF’s reliance on this advice from the U.S. Attorney’s Office during Fast and Furious
resulted in many lost opportunities to interdict weapons.
In addition to leading the Fast and Furious OCDETF task force, the U.S. Attorney’s
Office was instrumental in preparing the wiretap applications that were submitted to the Justice
Department’s Criminal Division. Federal prosecutors in Arizona filed at least six of these
applications, each containing immense detail about operational tactics and specific information
about straw purchasers, in federal court after Department headquarters authorized them.
C. ATF Headquarters
Fast and Furious first came to the attention of ATF Headquarters on December 8, 2009,
just weeks after the case was officially opened in Phoenix. ATF’s Office of Strategic
Information and Intelligence (OSII) briefed senior ATF personnel about the case on December 8,
2009, discussing in detail a large recovery of Fast and Furious weapons in Naco, Sonora,
Mexico.
16
The next day, December 9, 2009, the Acting ATF Director first learned about Fast and
Furious and the large recovery of weapons that had already occurred.
17
The following week,
OSII briefed senior ATF officials about another large cache of Fast and Furious weapons that
had been recovered in Mexico.
18
14
Transcribed Interview of Special Agent in Charge William Newell, at 32-33 (June 8, 2011).
15
Transcribed Interview of Special Agent Larry Alt, at 94 (Apr. 27, 2011).
16
Interview with Lorren Leadmon, Intelligence Operations Analyst, Washington, D.C., July 5, 2011 [hereinafter
Leadmon Interview].
17
Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (May 4,
2011) (Questions for the Record of Hon. Eric H. Holder, Jr., Att’y Gen. of the U.S.).
18
Leadmon Interview, supra note 16.
8
On January 5, 2010, OSII presented senior ATF officials with a summary of all of the
weapons that could be linked to known straw purchasers in Fast and Furious. In just two
months, these straw purchasers bought a total of 685 guns. This number raised the ire of several
individuals in the room, who expressed concerns about the growing operation.
19
On March 5, 2010, ATF headquarters hosted a larger, more detailed briefing on
Operation Fast and Furious. David Voth, the Group Supervisor overseeing Fast and Furious,
traveled from Phoenix to give the presentation. He gave an extremely detailed synopsis of the
status of the investigation, including the number of guns purchased, weapons seizures to date,
money spent by straw purchasers, and organizational charts of the relationships among straw
purchasers and to members of the Sinaloa drug cartel. At that point, the straw purchasers had
bought 1,026 weapons, costing nearly $650,000.
20
ATF’s Phoenix Field Division informed ATF headquarters of large weapons recoveries
tracing back to Fast and Furious. The Phoenix Field Division had frequently forwarded these
updates directly to Deputy ATF Director Billy Hoover and Acting ATF Director Ken Melson.
21
When Hoover learned about how large Fast and Furious had grown in March 2010, he finally
ordered the development of an exit strategy.
22
This exit strategy, something Hoover had never
before requested in any other case, was a timeline for ATF to wind down the case.
23
Though Hoover commissioned the exit strategy in March, he did not receive it until early
May. The three-page document outlined a 30-, 60-, and 90-day strategy for winding down Fast
and Furious and handing it over to the U.S. Attorney’s Office for prosecution.
24
In July 2010, Acting Director Melson expressed concern about the number of weapons
flowing to Mexico,
25
and in October 2010 the Assistant Director for Field Operations, the
number three official in ATF, expressed concern that ATF had not yet halted the straw
purchasing activity in Fast and Furious.
26
Despite these concerns, however, the U.S. Attorney’s
Office continued to delay the indictments, and no one at ATF headquarters ordered the Phoenix
Field Division to simply arrest the straw purchasers in order to take them off the street. The
members of the firearms trafficking ring were not arrested until two weapons from Fast and
Furious were found at the murder scene of Border Patrol Agent Brian Terry.
19
Transcribed Interview of Deputy Ass’t Dir. Steve Martin, ATF, at 36 (July 6, 2011) [hereinafter Martin Tr.].
20
See generally “Operation the Fast and the Furious” Presentation, Mar. 5, 2010.
21
E-mail from Mark Chait to Kenneth Melson and William Hoover (Feb. 24, 2010) [HOGR 001426].
22
Transcribed Interview of William Hoover, ATF Deputy Director, at 9 (July 21, 2011).
23
Id. at 72.
24
E-mail from Douglas Palmer, Supervisor Group V, ATF, to William Newell, ATF (Apr. 27, 2010).
25
E-mail from Kenneth Melson to Mark Chait, et. al., (July 14, 2010) [HOGR 002084].
26
E-mail from Mark Chait to William Newell (Oct. 29, 2010) [HOGR 001890].
9
D. The Criminal Division
1. Coordination with ATF
In early September 2009, according to Department e-mails, ATF and the Department of
Justice’s Criminal Division began discussions “to talk about ways CRM [Criminal Division] and
ATF can coordinate on gun trafficking and gang-related initiatives.”
27
Early on in these
discussions, Lanny Breuer, Assistant Attorney General for the Criminal Division, sent an
attorney to help the U.S. Attorney’s Office in Arizona prosecute ATF cases. The first case
chosen for prosecution was Operation Wide Receiver, a year-long ATF Phoenix Field Division
investigation initiated in 2006, which involved several hundred guns being walked. The U.S.
Attorney’s Office in Arizona, objecting to the tactics used in Wide Receiver, had previously
refused to prosecute the case.
According to James Trusty, a senior official in the Criminal Division’s Gang Unit, in
September 2009 Assistant Attorney General Breuer was “VERY interested in the Arizona gun
trafficking case [Wide Receiver], and he is traveling out [to Arizona] around 9/21.
Consequently, he asked us for a ‘briefing’ on that case before the 21
st
rolls around.”
28
The next
day, according to Trusty, Breuer’s chief of staff “mentioned the case again, so there is clearly
great attention/interest from the front office.”
29
When the Criminal Division prosecutor arrived in Arizona, she gave Trusty her
impressions of the case. Her e-mail stated:
Case involves 300 to 500 guns . . . . It is my understanding that a lot of
these guns “walked”. Whether some or all of that was intentional is not
known.
30
Discussions between ATF and the Criminal Division regarding inter-departmental
coordination continued over the next few months. On December 3, 2009, the Acting ATF
Director e-mailed Breuer about this cooperation. He stated:
Lanny: We have decided to take a little different approach with regard to
seizures of multiple weapons in Mexico. Assuming the guns are traced,
instead of working each trace almost independently of the other traces
from the seizure, I want to coordinate and monitor the work on all of them
collectively as if the seizure was one case.
31
27
E-mail from Jason Weinstein to Lanny Breuer (Sept. 10, 2009) [HOGR 003378].
28
E-mail from James Trusty to Laura Gwinn (Sept. 2, 2009) [HOGR 003375].
29
E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) [HOGR 003376].
30
E-mail from Laura Gwinn to James Trusty (Sept. 3, 2009) [HOGR 003377].
31
E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 2009) [HOGR 003403].
10
Breuer responded:
We think this is a terrific idea and a great way to approach the
investigations of these seizures. Our Gang Unit will be assigning an
attorney to help you coordinate this effort.
32
Kevin Carwile, Chief of the Gang Unit, assigned an attorney, Joe Cooley, to assist ATF, and
Operation Fast and Furious was selected as a recipient of this assistance. Shortly after his
assignment, Cooley had to rearrange his holiday plans to attend a significant briefing on Fast and
Furious.
33
Cooley was assigned to Fast and Furious for the next three months. He advised the lead
federal prosecutor, Emory Hurley, and received detailed briefings on operational details.
Cooley, though, was not the only Criminal Division attorney involved with Fast and Furious
during this time period. The head of the division, Lanny Breuer, met with ATF officials about
the case, including Deputy Director Billy Hoover and Assistant Director for Field Operations
Mark Chait.
34
Given the initial involvement of the Criminal Division with Fast and Furious in the early
stages of the investigation, senior officials in Criminal Division should have been greatly
alarmed about what they learned about the case. These officials should have halted the program,
especially given their prior knowledge of gunwalking in Wide Receiver, which was run by the
same leadership in the same ATF field division.
On March 5, 2010, Cooley attended a briefing about Fast and Furious. The detailed
briefing highlighted the large number of weapons the gun trafficking ring had purchased and
discussed recoveries of those weapons in Mexico. According to Steve Martin, Deputy Assistant
Director in ATF’s Office of Strategic Intelligence and Information, everyone in the room knew
the weapons from Fast and Furious were being linked to a Mexican cartel.
35
Two weeks later, in
mid-March 2010, Carwile pulled Cooley off Fast and Furious, when the U.S. Attorney’s Office
informed him that it had the case under control.
36
2. Wiretaps
At about the same time, senior lawyers in the Criminal Division authorized wiretap
applications for Fast and Furious to be submitted to a federal judge. Fast and Furious involved
the use of seven wiretaps between March and July of 2010.
In a letter to Chairman Issa, the Deputy Attorney General acknowledged that the Office
of Enforcement Operations (OEO), part of the Justice Department’s Criminal Division, is
32
E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 2009) [HOGR 003403].
33
E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010) [HOGR 002832].
34
Meeting on “Weapons Seizures in Mexico w/ Lanny Breuer” at Robert F. Kennedy Building, Room 2107, Jan. 5,
2010, 10:00 AM [HOGR 001987].
35
Martin Tr. at 100.
36
E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010, 9:00 a.m.) [HOGR DOJ 2382].
11
“primarily responsible for the Department’s statutory wiretap authorizations.”
37
According to
the letter, lawyers in OEO review these wiretap packages to ensure that they “meet statutory
requirements and DOJ policies.”
38
When OEO completes its review of a wiretap package,
federal law provides that the Attorney General or his designee – in practice, a Deputy Assistant
Attorney General in the Criminal Division – reviews and authorizes it.
39
Each wiretap package
includes an affidavit which details the factual basis upon which the authorization is sought. Each
application for Fast and Furious included a memorandum from Assistant Attorney General
Breuer to Paul O’Brien, Director of OEO, authorizing the interception application.
40
The Criminal Division’s approval of the wiretap applications in Fast and Furious violated
Department of Justice policy. The core mission of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives is to “protect[] our communities from . . . the illegal use and trafficking of
firearms.”
41
The wiretap applications document the extensive involvement of the Criminal Division in
Fast and Furious. These applications were constructed from raw data contained in hundreds of
Reports of Investigation (ROI); the Department of Justice failed to produce any of these ROI in
response to the Committee’s subpoena. The Criminal Division authorized Fast and Furious
wiretap applications on March 10, 2010; April 15, 2010; May 6, 2010; May 14, 2010; June 1,
2010; and July 1, 2010. Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant
Attorney General Kenneth Blanco, and Deputy Assistant Attorney General John Keeney signed
these applications on behalf of Assistant Attorney General Lanny Breuer.
E. The Office of the Deputy Attorney General
The Office of the Deputy Attorney General (ODAG) maintained close involvement in
Operation Fast and Furious. In the Justice Department, ATF reports to the Deputy Attorney
General (DAG).
42
In practice, an official in the Office of the Deputy Attorney General is
responsible for managing the ATF portfolio. This official monitors the operations of ATF, and
raises potential ATF issues to the attention of the DAG.
43
During the pendency of Fast and
Furious, this official was Associate Deputy Attorney General Edward Siskel.
Officials in ODAG became familiar with Fast and Furious as early as March 2010. On
March 12, 2010, Siskel and then-Acting DAG Gary Grindler received an extensive briefing on
Fast and Furious during a monthly meeting with the ATF’s Acting Director and Deputy Director.
37
Letter from Dep Att’y Gen. James M. Cole Chairman Darrell Issa et al., at 6 (Jan. 27, 2012) [hereinafter Cole
Letter].
38
Id.
39
See 18 U.S.C. § 2516(1).
40
See, e.g., Memorandum from Lanny A. Breuer, Ass’t Att’y Gen., Criminal Division to Paul M. O’Brien, Director,
Office of Enforcement Operations, Criminal Division, Authorization for Interception Order Application, Mar. 10,
2010.
41
Bureau of Alcohol, Tobacco, Firearms, and Explosives, “ATF’s Mission,” http://www.atf.gov/about/mission (last
visited May 1, 2012).
42
USDOJ: About Department of Justice Agencies, available at http://www.justice.gov/agencies/index-org.html (last
visited May. 1, 2012).
43
Transcribed Interview of Acting Dir. Kenneth Melson, at 25 (July 4, 2011).
12
This briefing presented Grindler with overwhelming evidence of illegal straw purchasing during
Fast and Furious. The presentation included a chart of the names of the straw purchasers, 31 in
all, and the number of weapons they had acquired to date, 1,026.
44
Three of these straw
purchasers had already purchased over 100 weapons each, with one straw purchaser having
already acquired over 300 weapons. During this briefing, Grindler learned that buyers had paid
cash for every single gun.
45
A map of Mexico detailed locations of recoveries of weapons purchased through Fast and
Furious, including some at crime scenes.
46
The briefing also covered the use of stash houses
where weapons bought during Fast and Furious were stored before being transported to Mexico.
Grindler learned of some of the unique investigative techniques ATF was using during Fast and
Furious.
47
Despite receiving all of this information, then-Deputy Attorney General Gary
Grindler did not order Fast and Furious to be shut down, nor did he follow-up with ATF or his
staff about the investigation.
Throughout the summer of 2010, ATF officials remained in close contact with their
ODAG supervisors regarding Fast and Furious. Fast and Furious was a topic in each of the
monthly meetings between ATF and the DAG. ATF apprised Ed Siskel of significant recoveries
of Fast and Furious weapons, as well as of notable progress in the investigation, and Siskel
indicated to ATF that he was monitoring it.
48
In mid-December 2010, after Fast and Furious had
been ongoing for over a year, Grindler received more details about the program. On December
15, 2010, Border Patrol Agent Brian Terry was killed. Two Fast and Furious weapons were
recovered at the scene of his murder. Two days later, Associate Deputy Attorney General Brad
Smith sent Grindler and four ODAG officials an e-mail detailing the circumstances of Terry’s
murder and its connection to Fast and Furious.
49
Smith attached a four-page summary of the
Fast and Furious investigation.
V. The Committee’s October 12, 2011, Subpoena to Attorney General Holder
On October 12, 2011, the Committee issued a subpoena to Attorney General Eric Holder,
demanding documents related to the Department of Justice’s involvement with Operation Fast
and Furious. The subpoena was issued following six months of constant refusals by the Justice
Department to cooperate with the Committee’s investigation into Operation Fast and Furious.
44
“Operation the Fast and the Furious,” March 12, 2010 [HOGR 002820 – HOGR 002823].
45
Id.
46
Id.
47
Id.
48
E-mail from Edward N. Siskel to Mark R. Chait (July 14, 2010) [HOGR 002847].
49
E-mail from Assoc. Deputy Att’y Gen. Brad Smith to Deputy Att’y Gen. Gary Grindler, et al. (Dec. 17, 2010)
[HOGR 002875-002881].
13
A. Events Leading Up to the Subpoena
On March 16, 2011, Chairman Issa sent a letter to then-ATF Acting Director Ken Melson
asking for information and documents pertaining to Operation Fast and Furious.
50
Late in the
afternoon of March 30, 2011, the Department, on behalf of ATF and Melson, informed the
Committee that it would not provide any documents pursuant to the letter. The Committee
informed the Department it planned to issue a subpoena. On March 31, 2011, the Committee
issued a subpoena to Ken Melson for the documents.
On May 2, 2011, Committee staff reviewed documents the Department made available
for in camera review at Department headquarters. Many of these documents contained partial or
full redactions. Following this review, Chairman Issa wrote to the Department on May 5, 2011,
asking the Department to produce all documents responsive to the Committee’s subpoena
forthwith.
51
That same day, senior Department officials met with Committee staff and
acknowledged “there’s a there, there” regarding the legitimacy of the congressional inquiry into
Fast and Furious.
In spite of Chairman Issa’s May 5, 2011, letter, during the two months following the
issuance of the subpoena, the Department produced zero pages of non-public documents. On
June 8, 2011, the Committee again wrote to the Department requesting complete production of
all documents by June 10, 2011.
52
The Department responded on June 10, 2011, stating
“complete production of all documents by June 10, 2011, . . . is not possible.”
53
At 7:49 p.m.
that evening, just three days before a scheduled Committee hearing on the obligation of the
Department of Justice to cooperate with congressional oversight, the Department finally
produced its first non-public documents to the Committee, totaling 69 pages.
54
Over the next six weeks, through July 21, 2011, the Department produced an additional
1,286 pages of documents. The Department produced no additional documents until September
1, 2011, when it produced 193 pages of documents.
55
On September 30, 2011, the Department
produced 97 pages of documents.
56
On October 11, 2011, the Department produced 56 pages of
documents.
57
Early in the investigation, the Committee received hundreds of pertinent documents from
whistleblowers. Many of the documents the whistleblowers provided were not among the 2,050
pages that the Department had produced by October 11, 2011, demonstrating that the
Department was withholding materials responsive to the subpoena.
50
Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth Melson (Mar. 16, 2011) [hereinafter Mar. 16
Letter].
51
Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (May 5, 2011).
52
Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth Melson (June 8, 2011).
53
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (June 10, 2011).
54
Id.
55
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Sep. 1, 2011).
56
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles Grassley (Sep. 30,
2011).
57
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Oct. 11, 2011) [hereinafter Oct. 11 Letter].
14
The Committee requested additional documents from the Department as the investigation
proceeded during the summer of 2011. On July 11, 2011, Chairman Issa and Senator Grassley
wrote to the Attorney General requesting documents from twelve people in Justice Department
headquarters pertaining to Fast and Furious.
58
The Justice Department first responded to this
letter on October 31, 2011, nearly four months later.
59
On July 11, 2011, Chairman Issa and Senator Grassley sent a letter to the FBI requesting
documents relating to the FBI’s role in the Fast and Furious OCDETF investigation.
60
The letter
requested information and documents pertaining to paid FBI informants who were the target of
the Fast and Furious investigation. The FBI never produced any of the documents requested in
this letter.
On July 15, 2011, Chairman Issa and Senator Grassley sent a letter to the DEA requesting
documents pertaining to another target of the Fast and Furious investigation.
61
The DEA was
aware of this target before Fast and Furious became an OCDETF case, a fact that raises serious
questions about the lack of information-sharing among Department components. Though DEA
responded to the letter on July 22, 2011, it, too, did not provide any of the requested
documents.
62
On September 1, 2011, Chairman Issa and Senator Grassley wrote to the Acting U.S.
Attorney in Arizona requesting documents and communications pertaining to Fast and Furious.
63
As the office responsible for leading Fast and Furious, the Arizona U.S. Attorney’s Office
possesses a large volume of documents relevant to the Committee’s investigation. The
Department of Justice, on behalf of the U.S. Attorney’s Office for the District of Arizona, did not
respond to this letter until December 6, 2011, the eve of the Attorney General’s testimony before
the House Judiciary Committee.
64
On September 27, 2011, Chairman Issa and Senator Grassley sent a letter to the Attorney
General raising questions about information-sharing among Department components, the
Department’s cooperation with Congress, and FBI documents requested in the July 11, 2011,
letter to FBI Director Mueller.
65
To date, the Department has not responded to this letter.
58
Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder (July 11, 2011).
59
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Oct. 31, 2011) [hereinafter Oct. 31 Letter].
60
Letter from Chairman Darrell Issa and Senator Charles Grassley to FBI Dir. Robert Mueller (July 11, 2011)
[hereinafter Mueller Letter].
61
Letter from Chairman Darrell Issa and Senator Charles Grassley to DEA Adm’r Michele Leonhart (July 15,
2011).
62
Letter from DEA Adm’r Michele Leonhart to Chairman Darrell Issa and Senator Charles Grassley (July 22,
2011).
63
Letter from Chairman Darrell Issa and Senator Charles Grassley to Acting U.S. Att’y Ann Scheel (Sep. 1, 2011).
64
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles Grassley (Dec. 6, 2011)
[hereinafter Dec. 6 Letter].
65
Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder (Sep. 27, 2011).
15
The Department wrote to Chairman Issa on October 11, 2011, stating it had “substantially
concluded [its] efforts to respond to the Committee requests set forth in the subpoena and the
letter of June 8
th
.”
66
The letter further stated:
[O]ther documents have not been produced or made available for these
same reasons because neither redacting them nor making them available
for review (as opposed to production) was sufficient to address our
concerns. Our disclosure of the vast majority of the withheld material is
prohibited by statute. These records pertain to matters occurring before a
grand jury, as well as investigative activities under seal or the disclosure
of which is prohibited by law . . . we also have not disclosed certain
confidential investigative and prosecutorial documents, the disclosure of
which would, in our judgment, compromise the pending criminal
investigations and prosecution. These include core investigative and
prosecutorial material, such as Reports of Investigation and drafts of court
filings.
Finally . . . we have also withheld internal communications that were
generated in the course of the Department’s effort to respond to
congressional and media inquiries about Operation Fast and Furious.
These records were created in 2011, well after the completion of the
investigative portion of Operation Fast and Furious that the Committee has
been reviewing and after the charging decisions reflected in the January
25, 2011, indictments. Thus, they were not part of the communications
regarding the development and implementation of the strategy decisions
that have not been the focus of the Committee’s inquiry. . . Disclosure
would have a chilling effect on agency officials’ deliberations about how
to respond to inquiries from Congress or the media. Such a chill on
internal communications would interfere with our ability to respond as
effectively and efficiently as possible to congressional oversight
requests.
67
The following day, on October 12, 2011, after the Department announced its intention to
cease producing documents responsive to the Committee’s March 31, 2011, subpoena to Melson,
the Committee issued a subpoena to Attorney General Eric Holder demanding documents
relating to Fast and Furious.
B. Subpoena Schedule Requests
In the weeks following the issuance of the subpoena, Committee staff worked closely
with Department lawyers to provide clarifications about subpoena categories, and to assist the
Department in prioritizing documents for production. Committee and Department staff engaged
in discussions spanning several weeks to enable the Department to better understand what the
Committee was specifically seeking. During these conversations, the Committee clearly
66
Oct. 11 Letter, supra note 57.
67
Id.
16
articulated its investigative priorities as reflected in the subpoena schedule. The Department
memorialized these priorities with specificity in an October 31, 2011, e-mail from the Office of
Legislative Affairs.
68
Despite the Department’s acknowledgement that it understands what the Committee was
seeking, it has yet to provide a single document for 11 out of the 22 categories contained in the
subpoena schedule. The Department has not adequately complied with the Committee’s
subpoena, and it has unequivocally stated its refusal to comply with entire categories of the
subpoena altogether. In a letter to Chairman Issa on May 15, 2012, the Department stated that it
had delivered or made available for review documents responsive to 13 of the 22 categories of
the subpoena.
69
A review of each of the 22 schedule categories in the subpoena reflects the Department’s
clear understanding of the documents sought by the Committee for each category. Below is a
listing of each category of the subpoena schedule, followed by what the Department has
explained is its understanding of what the Committee is seeking for each category.
1. All communications referring or relating to Operation Fast and Furious, the Jacob
Chambers case, or any Organized Crime Drug Enforcement Task Force (OCDETF)
firearms trafficking case based in Phoenix, Arizona, to or from the following individuals:
a. Eric Holder, Jr., Attorney General;
b. David Ogden, Former Deputy Attorney General;
c. Gary Grindler, Office of the Attorney General and former Acting Deputy
Attorney General;
d. James Cole, Deputy Attorney General;
e. Lanny Breuer, Assistant Attorney General;
f. Ronald Weich, Assistant Attorney General;
g. Kenneth Blanco, Deputy Assistant Attorney General;
h. Jason Weinstein, Deputy Assistant Attorney General;
i. John Keeney, Deputy Assistant Attorney General;
j. Bruce Swartz, Deputy Assistant Attorney General;
k. Matt Axelrod, Associate Deputy Attorney General;
l. Ed Siskel, former Associate Deputy Attorney General;
m. Brad Smith, Office of the Deputy Attorney General;
n. Kevin Carwile, Section Chief, Capital Case Unit, Criminal Division;
o. Joseph Cooley, Criminal Fraud Section, Criminal Division; and,
p. James Trusty, Acting Chief, Organized Crime and Gang Section.
Department Response: In late October 2011, the Department acknowledged that it had
“already begun searches of some of the custodians listed here relating to Fast and
Furious, such as in response to the Chairman’s letter of 7/11/11.”
70
Still, it has produced
68
E-mail from Office of Leg. Affairs Staff, U.S. Dep’t of Justice, to Investigations Staff, H. Comm. on Oversight
and Gov’t Reform (Oct. 31, 2011) [hereinafter OLA e-mail].
69
Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa (May 15, 2012), at 4 [hereinafter May 15
Cole Letter].
70
OLA e-mail.
17
no documents since the issuance of the subpoena pursuant to subpoena categories 1(a),
1(b), 1(g), 1(i), and 1(k), only two documents pursuant to subpoena category 1(d), and
very few documents pursuant to subpoena category 1(j) and 1(l).
2. All communications between and among Department of Justice (DOJ) employees and
Executive Office of the President employees, including but not limited to Associate
Communications Director Eric Schultz, referring or relating to Operation Fast and
Furious or any other firearms trafficking cases.
Department Response: The Department acknowledged that the Committee identified
several people likely to be custodians of these documents.
71
Though the Department has
stated it has produced documents pursuant to this subpoena category, the Committee has
not found any documents produced by the Department responsive to this subpoena
category.
72
3. All communications between DOJ employees and Executive Office of the President
employees referring or relating to the President’s March 22, 2011, interview with Jorge
Ramos of Univision.
Department Response: The Department represented that it would “check on
communications with WH Press Office in the time period preceding the President’s
3/22/11 interview,” and that it had identified the most likely custodians of those
documents.
73
Nonetheless, it has produced no documents responsive to this subpoena
category. The Department has not informed the Committee that no documents exist
responsive to this schedule number.
4. All documents and communications referring or relating to any instances prior to
February 4, 2011, where the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) failed to interdict weapons that had been illegally purchased or transferred.
Department Response: The Department has produced some documents responsive to this
subpoena category.
5. All documents and communications referring or relating to any instances prior to
February 4, 2011, where ATF broke off surveillance of weapons and subsequently
became aware that those weapons entered Mexico.
Department Response: The Department has produced documents responsive to this
subpoena category.
Most of the responsive documents the Department has produced pursuant to the subpoena
pertain to categories 4 and 5 and relate to earlier cases the Department has described as
involving gunwalking. The Department produced these documents strategically,
71
Id.
72
May 15 Cole Letter, at 4.
73
Id.
18
advancing its own narrative about why Fast and Furious was neither an isolated nor a
unique program. It has attempted to accomplish this objective by simultaneously
producing documents to the media and the Committee.
6. All documents and communications referring or relating to the murder of Immigrations
and Customs Enforcement Agent Jaime Zapata, including, but not limited to, documents
and communications regarding Zapata’s mission when he was murdered, Form for
Reporting Information That May Become Testimony (FD-302), photographs of the crime
scene, and investigative reports prepared by the FBI.
Department Response: The Department “understand[s] that the Zapata family has
complained that they’ve been ‘kept in the dark’ about this matter” which necessitated this
subpoena category.
74
The Department “conferred with the U.S. Attorney’s Office . . .
which we hope will be helpful to them and perhaps address the concerns that are the basis
of this item.”
75
Though the Department has stated it has produced documents pursuant to
this subpoena category, the Committee has not found any documents produced by the
Department responsive to this subpoena category.
76
In late February 2012, press accounts revealed that prosecutors had recently sentenced a
second individual in relation to the murder of Immigration and Customs Enforcement
(ICE) Agent Jaime Zapata. One news article stated that “[n]obody was more astonished
to learn of the case than Zapata’s parents, who didn’t know that [the defendant] had been
arrested or linked to their son’s murder.”
77
Press accounts alleged that the defendant had
been “under ATF surveillance for at least six months before a rifle he trafficked was used
in Zapata’s murder” – a situation similar to what took place during Fast and Furious.
78
Despite this revelation, the Department failed to produce any documents responsive to
this subpoena category.
7. All communications to or from William Newell, former Special Agent-in-Charge for
ATF’s Phoenix Field Division, between:
a. December 14, 2010 to January 25, 2011; and,
b. March 16, 2009 to March 19, 2009.
Department Response: The Department has not produced any documents responsive to
subpoena category 7(b), despite its understanding that the Committee sought documents
pertaining “to communications with [Executive Office of the President] staff regarding
gun control policy” within a specific and narrow timeframe.
79
The Department has not
informed the Committee that no documents exist responsive to this schedule number.
74
Id.
75
Id.
76
May 15 Cole Letter, at 4.
77
Sharyl Attkisson, Second gun used in ICE agent murder linked to ATF undercover operation, (Feb. 22, 2012, 5:29
P.M.), http://www.cbsnews.com/8301-31727_162-57383089-10391695/second-gun-used-in-ice-agent-murder-
linked-to-atf-undercover-operation/.
78
Id.
79
OLA e-mail, supra note 68.
19
8. All Reports of Investigation (ROIs) related to Operation Fast and Furious or ATF
Case Number 785115-10-0004.
Department Response: Department representatives contended that this subpoena
category “presents some significant issues for” the Department due to current and
potential future indictments.
80
The Department has not produced any documents
responsive to this subpoena category. The Department has not informed the Committee
that no documents exist responsive to this schedule number.
9. All communications between and among Matt Axelrod, Kenneth Melson, and William
Hoover referring or relating to ROIs identified pursuant to Paragraph 8.
Department Response: The Department acknowledged its understanding that this request
specifically pertained to “emails Ken sent to Matt and Billy, expressing concerns, perhaps
in March 2011, [that] are core to [the Committee’s] work, and we’ll look at those.”
81
Still, it has produced no documents pursuant to this subpoena category. The Department
has not informed the Committee that no documents exist responsive to this schedule
number.
10. All documents and communications between and among former U.S. Attorney Dennis
Burke, Attorney General Eric Holder, Jr., former Acting Deputy Attorney General Gary
Grindler, Deputy Attorney General James Cole, Assistant Attorney General Lanny
Breuer, and Deputy Assistant Attorney General Jason Weinstein referring or relating to
Operation Fast and Furious or any OCDETF case originating in Arizona.
Department Response: The Department has produced some documents responsive to this
subpoena category.
A complete production of these documents is crucial to allow Congress to understand
how senior Department officials came to know that the February 4, 2011, letter to Senator
Grassley was false, why it took so long for the Department to withdraw the letter despite
months of congressional pressure to do so, and why the Department obstructed the
congressional investigation for nearly a year. These documents will show the reactions
of top officials when confronted with evidence about gunwalking in Fast and Furious.
The documents will also show whether these officials knew about, or were surprised to
learn of, the gunwalking. Additionally, these documents will reveal the identities of
Department officials who orchestrated various forms of retaliation against the
whistleblowers.
11. All communications sent or received between:
a. December 16, 2009 and December 18, 2009, and;
b. March 9, 2011, and March 14, 2011, to or from the following individuals:
80
Id.
81
Id.
20
i. Emory Hurley, Assistant U.S. Attorney, Office of the U.S. Attorney for
the District of Arizona;
ii. Michael Morrissey, Assistant U.S. Attorney, Office of the U.S. Attorney
for the District of Arizona;
iii. Patrick Cunningham, Chief, Criminal Division, Office of the U.S.
Attorney for the District of Arizona;
iv. David Voth, Group Supervisor, ATF; and,
v. Hope MacAllister, Special Agent, ATF.
Department Response: The Department acknowledged that it “will first search these
custodians for records re a) the Howard meeting in 12/09; and b) the ROI or memo that
was written during this time period relating to the Howard mtng in 12/09.”
82
Although
the Department has produced documents that are purportedly responsive to this category,
these documents do not pertain to the subject matter that the Department understands that
the Committee is seeking.
12. All communications sent or received between December 15, 2010 and December 17,
2010 to or from the following individuals in the U.S. Attorney’s Office for the District of
Arizona:
a. Dennis Burke, former United States Attorney;
b. Emory Hurley, Assistant United States Attorney;
c. Michael Morrissey, Assistant United States Attorney; and,
d. Patrick Cunningham, Chief of the Criminal Division.
Department Response: The Department understood that the Committee’s “primary
interest here is in the communications during this time period that relate to the Terry death
and, per our conversation, we will start with those.”
83
Although the Department has
produced some documents responsive to this subpoena category, it has not represented
that it has produced all responsive documents in this category.
13. All communications sent or received between August 7, 2009 and March 19, 2011,
between and among former Ambassador to Mexico Carlos Pascual; Assistant Attorney
General Lanny Breuer; and Deputy Assistant Attorney General Bruce Swartz.
Department Response: The Department acknowledged that it “understand[s] the
Committee’s focus here is Firearms Trafficking issues along the SW Border, not limited
to Fast & Furious.”
84
The Department has produced some documents responsive to this
subpoena category.
14. All communications sent or received between August 7, 2009 and March 19, 2011,
between and among former Ambassador to Mexico Carlos Pascual and any Department of
Justice employee based in Mexico City referring or relating to firearms trafficking
82
Id.
83
Id.
84
Id.
21
initiatives, Operation Fast and Furious or any firearms trafficking case based in Arizona,
or any visits by Assistant Attorney General Lanny Breuer to Mexico.
Department Response: The Department has produced only a handful of pages responsive
to this subpoena category, even though it “understand[s] that [the Committee] wants [the
Department] to approach this effort with efficiency.”
85
Despite the Committee’s request
for an efficient effort, the Department produced a key document regarding Attorney
General Lanny Breuer three and a half months after the subpoena was issued, after
several previous document productions, and long after Breuer testified before Congress
and could be questioned about the document. Given the importance of the contents of the
document and the request for an efficient effort on the part of the Department in this
subpoena category, it is inconceivable that the Department did not discover this
document months prior to its production. The Department’s actions suggest that it kept
this document hidden for strategic and public relations reasons.
15. Any FD-302 relating to targets, suspects, defendants, or their associates, bosses, or
financiers in the Fast and Furious investigation, including but not limited to any FD-302s
ATF Special Agent Hope MacAllister provided to ATF leadership during the calendar
year 2011.
Department Response: The Department “understand[s] that [the Committee’s] primary
focus here is the 5 FBI 302s that were provided to SA MacAllister, which she later gave
to Messrs. Hoover and Melson.”
86
Despite the specificity of this document request, the
Department has not produced any documents responsive to this schedule number. The
Department has not informed the Committee that no documents exist responsive to this
schedule number.
16. Any investigative reports prepared by the FBI or Drug Enforcement Administration
(DEA) referring or relating to targets, suspects, or defendants in the Fast and Furious case.
Department Response: The Department was “uncertain about the volume here,”
regarding the amount of documents, and pledged to “work[] on this [with] DEA and
FBI.”
87
Despite this pledge, it has produced no documents responsive to this subpoena
category. The Department has not informed the Committee that no documents exist
responsive to this schedule number.
17. Any investigative reports prepared by the FBI or DEA relating to the individuals
described to Committee staff at the October 5, 2011, briefing at Justice Department
headquarters as Target Number 1 and Target Number 2.
Department Response: The Department acknowledged that it “think[s] we understand
this item.”
88
Despite this understanding, it has produced no documents responsive to this
85
Id.
86
Id.
87
Id.
88
Id.
22
subpoena category. The Department has not informed the Committee that no documents
exist responsive to this schedule number.
18. All documents and communications in the possession, custody or control of the DEA
referring or relating to Manuel Fabian Celis-Acosta.
Department Response: The Department agreed to “start with records regarding
information that DEA shared with ATF about Acosta, which we understand to be the
focus of your interest in this item.”
89
Despite this understanding, the Department has
produced no documents responsive to this subpoena category. The Department has not
informed the Committee that no documents exist responsive to this schedule number.
19. All documents and communications between and among FBI employees in Arizona and
the FBI Laboratory, including but not limited to employees in the Firearms/Toolmark
Unit, referring or relating to the firearms recovered during the course of the investigation
of Brian Terry’s death.
Department Response: The Department’s understanding was that “[the Committee’s]
focus here is how evidence was tagged at the scene of Agent Terry’s murder, how
evidence was processed, how the FBI ballistics report was prepared and what it means.”
90
Despite this clear understanding, the Department has produced no documents responsive
to this subpoena category. The Department has not informed the Committee that no
documents exist responsive to this schedule number.
20. All agendas, meeting notes, meeting minutes, and follow-up reports for the Attorney
General’s Advisory Committee of U.S. Attorneys between March 1, 2009 and July 31,
2011, referring or relating to Operation Fast and Furious.
Department Response: This category asks for documents from the Attorney General’s
Advisory Committee within a clearly specified date range. Despite the fact that the
Department has acknowledged this category “is clear,” the Department has produced no
documents responsive to this subpoena category.
91
The Department has not informed the
Committee that no documents exist responsive to this schedule number.
21. All weekly reports and memoranda for the Attorney General, either directly or through the
Deputy Attorney General, from any employee in the Criminal Division, ATF, DEA, FBI,
or the National Drug Intelligence Center created between November 1, 2009 and
September 30, 2011.
Department Response: This category asks for weekly reports and memoranda to the
Attorney General from five different Department components “regarding ATF cases re
89
Id.
90
Id.
91
Id.
23
firearms trafficking.”
92
The Department has produced some documents responsive to this
subpoena category.
22. All surveillance tapes recorded by pole cameras inside the Lone Wolf Trading Co. store
between 12:00 a.m. on October 3, 2010 and 12:00 a.m. on October 7, 2010.
Department Response: This category asks for all ATF surveillance tapes from Lone
Wolf Trading Company between two specified dates in October 2010. Both the
Committee and the Department “understand a break-in occurred” at that time.
93
The
Department has produced no documents responsive to this subpoena category. The
Department has not informed the Committee that no documents exist responsive to this
schedule number.
C. Attempts of Accommodation by the Committee, Lack of Compliance by the
Justice Department
In public statements, the Department has maintained that it remains committed to
“work[ing] to accommodate the Committee’s legitimate oversight needs.”
94
The Department,
however, believes it is the sole arbiter of what is “legitimate.” In turn, the Committee has gone
to great lengths to accommodate the Department’s interests as an Executive Branch agency.
Unfortunately, the Department’s actions have not matched its rhetoric. Instead, it has chosen to
prolong the investigation and impugn the motives of the Committee. A statement the Attorney
General made at the February 2, 2012, hearing was emblematic of the Department’s posture with
respect to the investigation:
But I also think that if we are going to really get ahead here, if we are
really going to make some progress, we need to put aside the political
gotcha games in an election year and focus on matters that are extremely
serious.
95
This attitude with respect to a legitimate congressional inquiry has permeated the Department’s
ranks. Had the Department demonstrated a willingness to cooperate with this investigation from
the outset – instead of attempting to cover up its own internal mismanagement – this
investigation likely would have concluded well before the election year even began. The
Department has intentionally withheld documents for months, only to release a selected few on
the eve of the testimony of Department officials.
96
The Department has impeded the ability of a
92
Id.
93
Id.
94
Fast and Furious: Management Failures at the Department of Justice: Hearing Before the H. Comm. on
Oversight and Gov’t Reform, 112th Cong. (Feb. 2, 2012) (Statement of Hon. Eric H. Holder, Jr., Att’y Gen. of the
U.S.).
95
Id.
96
On Friday January 27, 2012, just days before the Attorney General testified before Congress, documents were
delivered to the Senate Judiciary Committee so late in the evening that a disc of files had to be slipped under the
door. This is not only an extreme inconvenience for congressional staff but also deprives staff of the ability to
review the materials in a timely manner.
24
co-equal branch of government to perform its constitutional duty to conduct Executive Branch
oversight. By any measure, it has obstructed and slowed the Committee’s work.
The Committee has been unfailingly patient in working with Department representatives
to obtain information the Committee requires to complete its investigation. The Department’s
progress has been unacceptably slow in responding to the October 12, 2011, subpoena issued to
the Attorney General. Complying with the Committee’s subpoena is not optional. Indeed, the
failure to produce documents pursuant to a congressional subpoena is a violation of federal
law.
97
Because the Department has not cited any legal authority as the basis for withholding
documents pursuant to the subpoena its efforts to accommodate the Committee’s constitutional
obligation to conduct oversight of the Executive Branch are incomplete.
1. In Camera Reviews
In an attempt to accommodate the Justice Department’s interests, Committee staff has
viewed documents responsive to the subpoena that the Department has identified as sensitive in
camera at Department headquarters. Committee staff has visited the Department on April 12,
May 4, June 17, October 12, and November 3, 2011, as well as on January 30 and February 27,
2012 to view these documents. Many of the documents made available for in camera review,
however, have been repetitive in nature. Many other documents seemingly do not contain any
sensitive parts that require them to be viewed in camera. Other documents are altogether non-
responsive to the subpoena.
Committee staff has spent dozens of hours at Department headquarters reviewing these
documents. In addition, the Department has identified hundreds of other sensitive documents
responsive to the subpoena, which it refuses to make available even for in camera review,
instead withholding them from the Committee altogether. The Committee has made these
accommodations to the Department at the expense of not being able to make these documents
available for review by Committee Members.
2. Redacted Documents
The Department has redacted varying portions of many of the documents it has produced.
These redactions purportedly protect ongoing criminal investigations and prosecutions, as well as
other sensitive data. The Department has so heavily redacted some documents produced to
Congress that they are unintelligible. There appears to be no objective, consistent criteria
delineating why some documents were redacted, only provided in camera, or withheld entirely.
On the evening of May 2, 2011, Department of Justice representatives notified the
Committee that the Department was planning to make approximately 400 pages of documents
97
2 U.S.C. § 192 states, in pertinent part:
Every person who having been summoned as a witness by the authority of either House
of Congress to give testimony or to produce papers upon any matter under inquiry before
. . . any committee of either House of Congress, willfully makes default . . . shall be
deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less
than $100 and imprisonment in a common jail for not less than one month nor more than
twelve months.
25
available for an in camera review at its headquarters.
98
Committee staff went to review those
documents on May 4, 2011, only to discover they were partially, or in some cases almost
completely, redacted. Since these documents were only made available pursuant to Committee’s
first subpoena and only on an in camera basis, redactions were inappropriate and unnecessary.
On June 14, 2011, the Department produced 65 pages of documents to the Committee in
a production labeled “Batch 4.”
99
Of these 65 pages, every single one was at least partially
redacted, 44 were completely redacted, and 61 had redactions covering more than half of the
page.
On July 18, 2011, after more than a month of discussions between Committee and
Department staff, the Department finally included a redaction code that identifies the reason for
each redaction within a document.
100
While the Department has used this redaction code in
subsequent document productions to the Committee, documents produced and redacted prior to
July 18, 2011, do not have the benefit of associated redaction codes for each redaction.
The Department has over-redacted certain documents. The Committee has obtained
many of these documents through whistleblowers and has compared some of them with those
produced by the Department. In some instances, the Department redacted more text than
necessary, making it unnecessarily difficult and sometimes impossible for the Committee, absent
the documents provided by whistleblowers, to investigate decisions made by Department
officials.
Further, any documents made available pursuant to the Committee’s subpoenas must not
have any redactions. To fully and properly investigate the decisions made by Department
officials during Fast and Furious, the Committee requires access to documents in their entirety.
The Department has not complied with this requirement.
The Committee does recognize the importance of privacy interests and other legitimate
reasons the Department has for redacting portions of documents produced to the Committee.
The Committee has attempted to accommodate the Department’s stated concerns related to
documents it believes are sensitive. The Committee intended to release 230 pages of documents
in support of its July 26, 2011, report entitled The Department of Justice’s Operation Fast and
Furious: Fueling Cartel Violence, and gave the Department an opportunity to suggest its own
redactions before the documents became public.
101
These actions are consistent with the
Committee’s willingness to accommodate the Department’s interests.
3. Privilege Log
Mindful of the Justice Department’s prerogatives as an Executive Branch agency, the
Committee has offered the opportunity for the Department to prepare a privilege log of
98
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (May 2, 2011).
99
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (June 14, 2011).
100
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (July 18, 2011).
101
E-mail from Office of Leg. Affairs Staff, U.S. Dep’t of Justice, to Staff, H. Comm. on Oversight and Gov’t
Reform (July 28, 2011).
26
documents responsive to the subpoena but withheld from production. A privilege log would
outline the documents withheld and the specific grounds for withholding. Such a log would
serve as the basis for negotiation between the Committee and the Department about prioritizing
the documents for potential production.
On January 31, 2012, Chairman Issa wrote to the Attorney General. He said:
Should you choose to continue to withhold documents pursuant to the
subpoena, you must create a detailed privilege log explaining why the
Department is refusing to produce each document. If the Department
continues to obstruct the congressional inquiry by not providing
documents and information, this Committee will have no alternative but to
move forward with proceedings to hold you in contempt of Congress.
102
On February 14, 2012, Chairman Issa again wrote to the Attorney General. He said:
We cannot wait any longer for the Department’s cooperation. As such
please specify a date by which you expected the Department to produce all
documents responsive to the subpoena. In addition, please specify a
Department representative who will interface with the Committee for
production purposes . . . This person’s primary responsibility should be to
identify for the Committee all documents the Department has determined
to be responsive to the subpoena but is refusing to produce, and should
provide a privilege log of the documents delineating why each one is
being withheld from Congress. Please direct this individual to produce
this log to the Committee without further delay.
103
On several occasions, Committee staff has asked the Department to provide such a privilege log,
including a listing, category-by-category, of documents the Department has located pursuant to
the subpoena and the reason the Department will not produce those documents. Despite these
requests, however, the Department has neither produced a privilege log nor responded to this
aspect of Chairman Issa’s letters of January 31, 2012 and February 14, 2012.
The Department has not informed the Committee that it has been unable to locate certain
documents. This suggests that the Department is not producing responsive documents in its
possession. Since the Department will not produce a privilege log, it has failed to make a good
faith effort to accommodate the Committee’s legitimate oversight interests.
4. Assertions of Non-Compliance
The Committee’s investigation into Operation Fast and Furious is replete with instances
in which the Justice Department has openly acknowledged it would not comply with the
Committee’s requests. These pronouncements began with the March 31, 2011, subpoena to the
102
Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Jan. 31, 2012) [hereinafter Jan. 31 Letter].
103
Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Feb. 14, 2012) (emphasis in original) [hereinafter
Feb. 14 Letter].
27
former Acting ATF Director, continued through the Committee’s October 12, 2011, subpoena to
the Attorney General, and persist to this day.
a) March 31, 2011, Subpoena
On March 16, 2011, Chairman Issa sent a letter to the then-Acting ATF Director
requesting documents about Fast and Furious.
104
As part of this request, Chairman Issa asked for
a “list of individuals responsible for authorizing the decision to ‘walk’ guns to Mexico in order to
follow them and capture a ‘bigger fish.’”
105
On the afternoon of March 30, 2011, the deadline
given in Chairman Issa’s letter, Department staff participated in a conference call with
Committee staff. During that call, Department staff expressed a lack of understanding over the
meaning of the word “list.”
106
Department officials further informed Committee staff that the
Department would not produce documents by the deadline and were uncertain when they would
produce documents in the future. Committee staff understood this response to mean the
Department did not intend to cooperate with the Committee’s investigation.
The next day Chairman Issa authorized a subpoena for the Acting ATF Director. The
following day, the Department wrote to Chairman Issa. Assistant Attorney General Ronald
Weich wrote:
As you know, the Department has been working with the Committee to
provide documents responsive to its March 16 request to the Bureau of
Alcohol, Tobacco, Firearms and Explosives. Yesterday, we informed
Committee staff that we intended to produce a number of responsive
documents within the next week. As we explained, there are some
documents that we would be unable to provide without compromising the
Department's ongoing criminal investigation into the death of Agent Brian
Terry as well as other investigations and prosecutions, but we would seek
to work productively with the Committee to find other ways to be
responsive to its needs.
107
Despite the Department’s stated intention to produce documents within the next week, it
produced no documents for over two months, until June 10, 2011. In the interim, the Department
made little effort to work with the Committee to define the scope of the documents required by
the subpoena.
On April 8, 2011, the Department wrote to Chairman Issa to inform the Committee that it
had located documents responsive to the subpoena. Assistant Attorney General Weich wrote that
the Department did not plan to share many of these materials with the Committee. His letter
stated:
104
Mar. 16 Letter, supra note 50.
105
Id.
106
Teleconference between Committee Staff and U.S. Dep’t of Justice Office of Leg. Affairs Staff (Mar. 30, 2011).
107
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 1, 2011).
28
To date, our search has located several law enforcement sensitive
documents responsive to the requests in your letter and the subpoena. We
have substantial confidentiality interests in these documents because they
contain information about ATF strategies and procedures that could be
used by individuals seeking to evade our law enforcement efforts. We are
prepared to make these documents, with some redactions, available for
review by Committee staff at the Department. They will bear redactions
to protect information about ongoing criminal investigations, investigative
targets, internal deliberations about law enforcement options, and
communications with foreign government representatives. In addition, we
notified Committee staff that we have identified certain publicly available
documents that are responsive. While our efforts to identify responsive
documents are continuing, many of your requests seek records relating to
ongoing criminal investigations. Based upon the Department's
longstanding policy regarding the confidentiality of ongoing criminal
investigations, we are not in a position to disclose such documents, nor
can we confirm or deny the existence of records in our ongoing
investigative files. This policy is based on our strong need to protect the
independence and effectiveness of our law enforcement efforts.
108
The letter cited prior Department policy in support its position of non-compliance:
We are dedicated to holding Agent Terry's killer or killers responsible
through the criminal justice process that is currently underway, but we are
not in a position to provide additional information at this time regarding
this active criminal investigation for the reasons set forth above. . . .
109
On June 14, 2011, after the Department had produced 194 pages of non-public
documents pursuant to the subpoena, the Department informed the Committee that it was
deliberately withholding certain documents:
As with previous oversight matters, we have not provided access to
documents that contain detailed information about our investigative
activities where their disclosure would harm our pending investigations
and prosecutions. This includes information that would identify
investigative subjects, sensitive techniques, anticipated actions, and other
details that would assist individuals in evading our law enforcement
efforts. Our judgments begin with the premise that we will disclose as
much as possible that is responsive to the Committee's interests, consistent
with our responsibilities to bring to justice those who are responsible for
the death of Agent Terry and those who violate federal firearms laws.
110
108
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 8, 2011).
109
Id.
110
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (June 14, 2011).
29
The June 14, 2011, letter arrived one day after the Committee held a hearing featuring
constitutional experts discussing the legal obligations of the Department to comply with a
congressional subpoena. The Department’s letter did not address the views expressed at the
hearing, instead reiterating its internal policy. The letter noted that the Department would not
provide access to documents discussing its use of “sensitive techniques” – even though these
techniques were central to the Committee’s investigation.
On July 5, 2011, Chairman Issa and Senator Grassley wrote to the Department about
serious issues involving the lack of information sharing among Department components, in
particular, between the FBI and DEA.
111
These issues raised the possibility that the Department
had been deliberately concealing information about Fast and Furious from the Committee,
including the roles of its component agencies. The next day, the Department responded. It
wrote:
Your letter raises concerns about the alleged role of other agencies in
matters that you say touch on Operation Fast and Furious. Chairman Issa's
staff previously raised this issue with representatives of the Department
and it is my understanding that discussions about whether and how to
provide any such sensitive law enforcement information have been
ongoing. . . .
112
On July 11, 2011, Chairman Issa and Senator Grassley wrote to the FBI requesting
information on the issue of information sharing within the Department. The letter included a
request for information relating to the murder of Immigrations and Customs Enforcement Agent
Jaime Zapata.
113
On August 12, 2011, the FBI responded. It wrote:
Your letter also asks for specific information related to the crime scene
and events leading to the murder of ICE Agent Jaime Zapata in Mexico on
February 15, 2011. As you know, crime scene evidence and the
circumstances of a crime are generally not made public in an ongoing
investigation. Furthermore, the investigative reports of an ongoing
investigation are kept confidential during the investigation to preserve the
integrity of the investigation and to ensure its successful conclusion. We
regret that we cannot provide more details about the investigation at this
time, but we need to ensure all appropriate steps are taken to protect the
integrity of the investigation.
114
The FBI did not provide any documents to the Committee regarding the information sharing
issues raised, though it did offer to provide a briefing to staff. It delivered that briefing nearly
two months later, on October 5, 2011.
111
Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder (July 5, 2011).
112
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles Grassley (July 6,
2011).
113
Mueller Letter, supra note 60.
114
Letter from Stephen Kelley, Ass’t Dir., FBI Office of Congressional Affairs, to Chairman Darrell Issa and
Senator Charles Grassley (Aug. 12, 2011).
30
On October 11, 2011, the Department wrote to Chairman Issa. The Department stated:
We believe that we have now substantially concluded our efforts to
respond to the Committee requests set forth in the subpoena and the letter
of June 8
th
.
115
The Department was well aware that the Committee was struggling to understand how the
Department created its February 4, 2011, letter to Senator Grassley, which the Committee
believed to contain false information. To that end, the Department stated:
As we have previously explained to Committee staff, we have also
withheld internal communications that were generated in the course of the
Department's effort to respond to congressional and media inquiries about
Operation Fast and Furious. These records were created in 2011, well
after the completion of the investigative portion of Operation Fast and
Furious that the Committee has been reviewing and after the charging
decisions reflected in the January 25, 2011, indictments. Thus, they were
not part of the communications regarding the development and
implementation of the strategy decisions that have been the focus of the
Committee's inquiry. It is longstanding Executive Branch practice not to
disclose documents falling into this category because disclosure would
implicate substantial Executive Branch confidentiality interests and
separation of powers principles. Disclosure would have a chilling effect
on agency officials' deliberations about how to respond to inquiries from
Congress or the media. Such a chill on internal communications would
interfere with our ability to respond as effectively and efficiently as
possible to congressional oversight requests.
116
The next day, the Committee issued a subpoena to Attorney General Holder.
b) October 12, 2011, Subpoena
On October 31, 2011, the Department produced its first batch of documents pursuant to
the Committee’s October 12, 2011, subpoena.
117
This production consisted of 652 pages. Of
these 652 pages, 116 were about the Kingery case, a case that the Department wanted to
highlight in an attempt to discredit some of the original Fast and Furious whistleblowers.
Twenty-eight additional pages were about an operation from the prior administration, the
Hernandez case, and 245 pages were about another operation from the prior administration,
Operation Wide Receiver.
Although the subpoena covered documents from the Hernandez and Wide Receiver
cases, their inclusion into the first production batch under the subpoena was indicative of the
115
Oct. 11 Letter, supra note 57.
116
Id.
117
Oct. 31 Letter, supra note 59.
31
Department’s strategy in responding to the subpoena. The Department briefed the press on these
documents at the same time as it produced them to the Committee. The Department seemed
more interested in spin control than in complying with the congressional subpoena. Sixty
percent of the documents in this first production were related to either Kingery, Hernandez, or
Wide Receiver, and therefore, unrelated to the gravamen of the Committee’s investigation into
Fast and Furious.
On December 2, 2011, shortly before the Attorney General’s testimony before the House
Judiciary Committee, the Department produced 1,364 pages of documents pertaining to the
creation of its February 4, 2011, letter.
118
Despite its statements in the October 11, 2011, letter,
the Department, through a letter from Deputy Attorney General James Cole, publicly admitted
under pressure its obvious misstatements, formally acknowledging that the February 4, 2011,
letter “contains inaccuracies.”
119
On December 13, 2011, on the eve of the Committee’s interview with Gary Grindler,
Chief of Staff to the Attorney General, the Department produced 19 pages of responsive
documents.
120
On January 5, 2012, the Department produced 482 pages of documents responsive to the
subpoena.
121
Of these 482 pages, 304 of them, or 63 percent, were related to the Wide Receiver
case. This production brought the total number of pages produced pursuant to Wide Receiver to
549, nearly 100 more than the Department had produced at that time regarding Fast and Furious
in three document productions.
On January 27, 2012 the Department produced 486 pages of documents pursuant to the
October 12, 2011, subpoena.
122
In its cover letter, the Department stated, “[t]he majority of
materials produced today are responsive to items 7, 11 and 12 of your October 11 subpoena.”
There are no documents in the production, however, responsive to items 7(b) or 11(b)(i-v).
The Department wrote in its January 27 cover letter:
We are producing or making available for review materials that are
responsive to these items, most of which pertain to the specific
investigations that we have already identified to the Committee. We are
not, however, providing materials pertaining to other matters, such as
documents regarding ATF cases that do not appear to involve the
inappropriate tactics under review by the Committee; non-ATF cases,
except for certain information relating to the death of Customs and Border
Protection Agent Brian Terry; administrative matters; and personal
records.
123
118
Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa and Senator Charles Grassley (Dec. 2, 2011).
119
Id.
120
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles Grassley (Dec. 13,
2011).
121
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Jan. 5, 2012).
122
Cole Letter, supra note 37.
123
Id.
32
The Department refused to produce documents pursuant to the subpoena regarding investigations
that it had not previously specified to the Committee, or investigations that “do not appear” to
involve inappropriate tactics. In doing so, the Department made itself the sole arbiter of the
Committee’s investigative interests, as well as of the use of “inappropriate” tactics. The
Department has prevented Congress from executing its constitutionally mandated oversight
function, preferring instead to self-regulate.
The October 12, 2011, subpoena, however, covers all investigations in which ATF failed
to interdict weapons that had been illegally purchased or transferred – not just those cases
previously identified by the Department. The subpoena does not give the Department the
authority to define which tactics are inappropriate. Rather, the language in sections 4 and 5 of
the subpoena schedule is clear. The Department’s refusal to cooperate on this front and only
produce documents about investigations that it had previously identified – documents that
support the Department’s press strategy – is in violation of its obligation to cooperate with
congressional oversight.
On January 31, 2012, Chairman Issa again wrote to the Attorney General, this time
asking that the Department produce all documents pursuant to the subpoena by February 9,
2012.
124
The following day, the Department responded. It stated:
Your most recent letter asks that we complete the production process
under the October 11, 2011, subpoena by February 9, 2012. The broad
scope of the Committee's requests and the volume or material to be
collected, processed and reviewed in response make it impossible to meet
that deadline, despite our good faith efforts. We will continue in good
faith to produce materials, but it simply will not be possible to finish the
collection, processing and review of materials by the date sought in your
most recent letter.
125
Yet, as discussed in Section V.B above, the Department was acutely aware in October 2011,
approximately three months earlier, exactly what categories of documents the Committee was
seeking. In response to the subpoena, the Department had, up to February 1, 2012, produced
more documents relating to a single operation years before Fast and Furious even began than it
had relating to Operation Fast and Furious itself.
On February 16, 2012, the Department produced 304 pages of documents pursuant to the
subpoena.
126
The production included nearly 60 pages of publicly available and previously
produced information, as well as other documents previously produced to the Committee.
On February 27, 2012, the Department produced eight pages pursuant to the subpoena.
127
These eight pages, given to the Committee by a whistleblower ten months earlier, were produced
124
Jan. 31 Letter, supra note 102.
125
Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa (Feb. 1, 2012) [hereinafter Feb. 1 Letter].
126
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Feb. 16, 2012) [hereinafter Feb. 16 Letter].
127
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Feb. 27, 2012).
33
only because a transcribed interview with a former Associate Deputy Attorney General was to
take place the next day.
On March 2, 2012, the Department produced 26 pages of documents pursuant to the
October 12, 2011, subpoena.
128
Five of these documents were about the Kingery. Fourteen
documents – over half of the production – related to Wide Receiver. Seven pages were duplicate
copies of a press release already produced to the Committee.
On March 16, 2012, the Department produced 357 pages of documents pursuant to the
subpoena. Three hundred seven of these pages, or 86 percent, related to the Hernandez and
Medrano cases from the prior Administration. Twenty other pages had been previously
produced by the Department, and seven pages were publicly available on the Justice
Department’s website.
On April 3, 2012, the Department produced 116 pages of documents pursuant to the
subpoena. Forty four of these pages, or 38 percent, related to cases other than Fast and Furious.
On April 19, 2012, the Department produced 188 pages of documents pursuant to the subpoena.
On May 15, 2012, the Department produced 29 pages of documents pursuant to the
subpoena. Ten of these pages, or 36 percent, related to cases other than Fast and Furious.
The Department has produced a total of 6,988 pages to the Committee to date.
129
Though
the Department recently stated that it has “provided documents to the Committee at least twice
every month since late last year,” the Department has not produced any documents to the
Committee in over 30 days.
130
c) Post-February 4, 2011, Documents
Many of the documents the October 12, 2011, subpoena requires were created or
produced after February 4, 2011. The Department first responded to Congress about Fast and
Furious on this date. The Department has steadfastly refused to make any documents created
after February 4, 2011, available to the Committee.
The Department’s actions following the February 4, 2011, letter to Senator Grassley are
crucial in determining how it responded to the serious allegations raised by the whistleblowers.
The October 12, 2011, subpoena covers documents that would help Congress understand what
the Department knew about Fast and Furious, including when and how it discovered its February
4 letter was false, and the Department’s efforts to conceal that information from Congress and
the public. Such documents would include those relating to actions the Department took to
silence or retaliate against Fast and Furious whistleblowers and to find out what had happened,
and how the Department assessed the culpability of those involved in the program.
128
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Mar. 2, 2012).
129
The most recent production by the Department, on May 15, 2012, ended with Bates number HOGR 006988.
130
May 15 Cole Letter, supra note 69.
34
The Attorney General first expressed the Department’s position regarding documents
created after February 4, 2011, in his testimony before the House Judiciary Committee on
December 8, 2011. In no uncertain terms, he stated:
[W]ith regard to the Justice Department as a whole – and I’m certainly a
member of the Justice Department – we will not provide memos after
February the 4th . . . e-mails, memos – consistent with the way in which
the Department of Justice has always conducted itself in its interactions.
131
He again impressed this point upon Committee Members later in the hearing:
Well, with the regard to provision of e-mails, I thought I’ve made it clear
that after February the 4th it is not our intention to provide e-mail
information consistent with the way in which the Justice Department has
always conducted itself.
132
The Department reiterated this position less than a week later in a December 14, 2011,
transcribed interview of Gary Grindler, the Attorney General’s Chief of Staff. Department
counsel broadened the Department’s position with respect to sharing documents created after
February 4, 2011, in refusing to allow Grindler to answer any questions relating to conversations
that he had with anyone in the Department regarding Fast and Furious after February 4, 2011.
Grindler stated:
What I am saying is that the Attorney General made it clear at his
testimony last week that we are not providing information to the
committee subsequent to the February 4th letter.
133
Department counsel expanded the position the Attorney General articulated regarding
documentary evidence at the House Judiciary Committee hearing to include testimonial evidence
as well.
134
Given the initial response by the Department to the congressional inquiry into Fast
and Furious, the comments by Department counsel created a barrier preventing Congress from
obtaining vital information about Fast and Furious.
The Department has maintained this position during additional transcribed interviews. In
an interview with Deputy Assistant Attorney General Jason Weinstein on January 10, 2012,
Department counsel prohibited him from responding to an entire line of questioning about his
interactions with the Arizona U.S. Attorney’s Office because it “implicates the post-February 4th
period.”
135
131
Oversight Hearing on the United States Department of Justice: Hearing Before the H. Comm. on the Judiciary,
112th Cong. (Dec. 8, 2011) (Test. of Hon. Eric H. Holder, Jr., Att’y Gen. of the U.S.).
132
Id.
133
Transcribed Interview of Gary Grindler, Chief of Staff to the Att’y Gen., at 22 (Dec. 14, 2011) [hereinafter
Grindler Tr.].
134
Id.
135
Transcribed Interview of Jason Weinstein, Deputy Ass’t Att’y Gen. at 177 (Jan. 10, 2012).
35
Understanding the post-February 4th period is critical to the Committee’s investigation.
Furthermore, documents from this period are responsive to the October 12, 2011, subpoena. For
example, following the February 4, 2011, letter, Jason Weinstein, at the behest of Assistant
Attorney General Breuer, prepared an analytical review of Fast and Furious.
136
Weinstein
interviewed Emory Hurley and Patrick Cunningham of the Arizona U.S. Attorney’s office as part
of this review.
137
The document that resulted from Weinstein’s analysis specifically discussed
issues relevant to the Committee’s inquiry. To date, the Department has not produced
documents related to Weinstein’s review to the Committee.
Chairman Issa has sent several letters urging the Department to produce documents
pertaining to the Fast and Furious from the post-indictment period, and raising the possibility of
contempt if the Attorney General chose not to comply. Initially, the Department refused to
produce any documents created after January 25, 2011, the date that the case was unsealed. On
November 9, 2011, Chairman Issa wrote to the Department:
Over the past six months, Senator Grassley and I have asked for this
information on many occasions, and each time we have been told it would
not be produced. This information is covered by the subpoena served on
the Attorney General on October 12, 2011, and I expect it to be produced
no later than Wednesday, November 16, at 5:00 p.m. Failure to comply
with this request will leave me with no other alternative than the use of
compulsory process to obtain your testimony under oath.
* * *
Understanding the Department’s actions after Congress started asking
questions about Fast and Furious is crucial. As you know, substantial
effort was expended to hide the actions of the Department from Congress
. . . I expect nothing less than full compliance with all aspects of the
subpoena, including complete production of documents created after the
indictments were unsealed on January 25, 2011.
138
On December 2, 2011, the Department produced documents pertaining to its February 4,
2011, response to Senator Grassley. When the Attorney General testified before Congress on
December 8, 2011, he created a new cutoff date of February 4, 2011, after which no documents
would be produced to Congress, despite the fact that such documents were covered by the
October 12, 2011, subpoena. In support of this position regarding post-February 4, 2011,
documents, in transcribed interviews, Department representatives have asserted a “separation of
powers” privilege without further explanation or citation to legal authority.
139
The Department
has not cited any legal authority to support this new, extremely broad assertion of privilege.
136
Transcribed Interview of Dennis K. Burke at 158-60 (Dec. 13, 2011).
137
Id. at 158-59.
138
Letter from Chairman Darrell Issa to Ass’t Att’y Gen. Ronald Weich (Nov. 9, 2011).
139
See, e.g., Grindler Tr. at 22.
36
On January 31, 2012, Chairman Issa wrote to the Attorney General about this new,
arbitrary date created by the Department, and raised the possibility of contempt:
In short, the Committee requires full compliance with all aspects of the
subpoena, including complete production of documents created after the
Department’s February 4, 2011, letter . . . . If the Department continues to
obstruct the congressional inquiry by not providing documents and
information, this Committee will have no alternative but to move forward
with proceedings to hold you in contempt of Congress.
140
The Department responded the following day. It said:
To the extent responsive materials exist that post-date congressional
review of this matter and were not generated in that context or to respond
to media inquiries, and likewise do not implicate other recognized
Department interests in confidentiality (for example, matters occurring
before a grand jury, investigative activities under seal or the disclosure of
which is prohibited by law, core investigative information, or matters
reflecting internal Department deliberations), we intend to provide
them.
141
The Department quoted from its October 11, 2011, letter, stating:
[A]s we have previously explained to Committee staff, we have also
withheld internal communications that were generated in the course of the
Department’s effort to respond to congressional and media inquiries about
Operation Fast and Furious. These records were created in 2011, well
after the completion of the investigative portion of Operation Fast and
Furious that the Committee has been reviewing and after the charging
decisions reflected in the January 25, 2011, indictments. Thus, they were
not part of the communications regarding the development and
implementation of the strategy decisions that have been the focus of the
Committee’s inquiry. It is longstanding Executive Branch practice not to
disclose documents falling into this category because disclosure would
implicate substantial Executive Branch confidentiality interests and
separation of powers principles. Disclosure would have a chilling effect
on agency officials’ deliberations about how to respond to inquiries from
Congress or the media. Such a chill on internal communications would
interfere with our ability to respond as effectively and efficiently as
possible to congressional oversight requests.
142
On February 14, 2012, Chairman Issa again wrote to the Department regarding post-
February 4, 2011, documents, and again raised the possibility of contempt:
140
Jan. 31 Letter, supra note 102.
141
Feb. 1 Letter, supra note 125.
142
Id.
37
Complying with the Committee’s subpoena is not optional. Indeed, the
failure to produce documents pursuant to a congressional subpoena is a
violation of federal law. The Department’s letter suggests that its failure
to produce, among other things, “deliberative documents and other
internal communications generated in response to congressional oversight
requests” is based on the premise that “disclosure would compromise
substantial separation of powers principles and Executive Branch
confidentiality interests.” Your February 4, 2011, cut-off date of
providing documents to the Committee is entirely arbitrary, and comes
from a “separation of powers” privilege that does not actually exist.
You cite no legal authority to support your new, extremely broad
assertion. To the contrary, as you know, Congress possesses the “power
of inquiry.” Furthermore, “the issuance of a subpoena pursuant to an
authorized investigation is . . . an indispensable ingredient of lawmaking.”
Because the Department has not cited any legal authority as the basis for
withholding documents, or provided the Committee with a privilege log
with respect to documents withheld, its efforts to accommodate the
Committee’s constitutional obligation to conduct oversight of the
Executive Branch are incomplete.
143
* * *
Please specify a date by which you expect the Department to produce all
documents responsive to the subpoena. In addition, please specify a
Department representative who will interface with the Committee for
production purposes. This individual should also serve as the conduit for
dealing with possible contempt proceedings, should the Department
continue to ignore the Committee’s subpoena.
144
On February 16, 2012, the Department responded. The response did not address the post-
February 4, 2011, documents, nor did it address the possibility of contempt. The Department’s
letter stated:
We have produced documents to the Committee on a rolling basis; since
late last year these productions have occurred approximately twice a
month. It is our intent to adhere to this rolling production schedule until
we have completed the process of producing all responsive documents to
which the Committee is entitled, consistent with the longstanding policies
of the Executive Branch across administrations of both parties. Moreover,
we intend to send a letter soon memorializing our discussions with your
staff about the status of our production of documents within the various
categories of the subpoena.
143
Feb. 14 Letter, supra note 103.
144
Id (emphasis in original).
38
Our efforts to cooperate with the Committee have been a significant
undertaking, involving a great deal of hard work by a large number of
Department employees. The Department has been committed to providing
the documents and information necessary to allow the Committee to
satisfy its core oversight interests regarding the use of inappropriate tactics
in Fast and Furious.
The Department, however, has yet to produce any documents pursuant to the subpoena
created after February 4, 2011. Despite warnings by Chairman Issa that the Committee would
initiate contempt if the Department failed to comply with the subpoena, the Department has
refused to produce documents.
d) Interview Requests
In addition to the October 12, 2011, subpoena, the Committee has requested to interview
key individuals in Operation Fast and Furious and related programs. The Committee
accommodated the Department’s request to delay an interview with Hope MacAllister, the lead
case agent for Operation Fast and Furious, despite her vast knowledge of the program. The
Committee agreed to this accommodation due to the Department’s expressed concern about
interviewing a key witness prior to trial.
Throughout the investigation, the Department has had an evolving policy with regard to
witnesses that excluded ever-broader categories of witnesses from participating in volunteer
interviews. The Department first refused to allow line attorneys to testify in transcribed
interviews, and then it prevented first-line supervisors from testifying. Next, the Department
refused to make Senate-confirmed Department officials available for transcribed interviews.
One such Senate-confirmed official, Assistant Attorney General Lanny Breuer, is a central focus
in the Committee’s investigation. On February 16, 2012, the Department retreated somewhat
from its position, noting in a letter to the Committee that it was “prepared to work with [the
Committee] to find a mutually agreeable date for [Breuer] to appear and answer the Committee’s
questions, whether or not that appearance is public.”
145
The Department has urged the
Committee to reconsider this interview request.
While the Department has facilitated a dozen interviews to avoid compulsory depositions,
there have been several instances in which the Department has refused to cooperate with the
Committee in scheduling interviews. The Department has stated that it would not make
available certain individuals that the Committee has requested to interview. On December 6,
2011, the Department wrote:
We would like to defer any final decisions about the Committee's request
for Mr. Swartz's interview until we have identified any responsive
documents, some of which may implicate equities of another agency. The
remaining employees you have asked to interview are all career employees
who are either line prosecutors or first- or second-level supervisors. James
145
Feb. 16 Letter, supra note 126.
39
Trusty and Michael Morrissey were first-level supervisors during the time
period covered by the Fast and Furious investigation, and Kevin Carwile
was a second-level supervisor. The remaining three employees you have
asked to interview - Emory Hurley, Serra Tsethlikai, and Joseph Cooley -
are line prosecutors. We are not prepared to make any of these attorneys
available for interviews.
146
The Department did, however, make Patrick Cunningham, Chief of the Criminal Division for the
U.S. Attorney’s Office in Arizona, available for an interview. The Committee had been
requesting to interview Cunningham since summer 2011. The Department finally allowed access
to Cunningham for an interview in December 2011. Cunningham chose to retain private counsel
instead of Department counsel. On January 17, 2012, Cunningham canceled his interview
scheduled for the Committee on January 19, 2012.
Chairman Issa issued a subpoena to Cunningham to appear for a deposition on January
24, 2012. In a letter dated January 19, 2012, Cunningham’s counsel informed the Committee
that Cunningham would “assert his constitutional privilege not to be compelled to be a witness
against himself.”
147
On January 24, 2012, Chairman Issa wrote to the Attorney General to
express that the absence of Cunningham’s testimony would make it “difficult to gauge the
veracity of some of the Department’s claims” regarding Fast and Furious.
148
On January 27, 2012, Cunningham left the Department of Justice. After months of
Committee requests, the Department finally made him available for an interview just before he
left the Department. The actions of the Department in delaying the interview and Cunningham’s
own assertion of the Fifth Amendment privilege delayed and denied the Committee the benefit of
his testimony.
5. Failure to Turn Over Documents
The Department has failed to turn over any documents pertaining to three main categories
contained in the October 12, 2011, subpoena.
a) Who at Justice Department Headquarters Should Have
Known of the Reckless Tactics
The Committee is seeking documents relating to who had access to information about the
objectionable tactics used in Operation Fast and Furious, who approved the use of these tactics,
and what information was available to those individuals when they approved the tactics.
Documents that whistleblowers have provided to the Committee indicate that those officials were
the senior officials in the Criminal Division, including Lanny Breuer and one of his top deputies,
Jason Weinstein.
146
Dec. 6 Letter, supra note 64.
147
Letter from Tobin Romero, Williams & Connolly LLP, to Chairman Darrell Issa (Jan. 19, 2012).
148
Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Jan. 24, 2012).
40
Documents in this category include those relating to the preparation of the wiretap
applications, as well as certain ATF, DEA, and FBI Reports of Investigation. Key decision
makers at Justice Department headquarters relied on these and other documents to approve the
investigation.
b) How the Department Concluded that Fast and Furious was
“Fundamentally Flawed”
The Committee requires documents from the Department relating to how officials learned
about whistleblower allegations and what actions they took as a result. The Committee is
investigating not just management of Operation Fast and Furious, but also the Department’s
efforts to slow and otherwise interfere with the Committee’s investigation.
For months after the congressional inquiry began, the Department refused to
acknowledge that anything improper occurred during Fast and Furious. At a May 5, 2011,
meeting with Committee staff, a Department representative first acknowledged that “there’s a
there, there.” The Attorney General acknowledged publicly that Fast and Furious was
“fundamentally flawed” on October 7, 2011. On December 2, 2011, the Department finally
admitted that its February 4, 2011, letter to Senator Grassley contained false information –
something Congress had been telling the Department for over seven months.
Documents in this category include those that explain how the Department responded to
the crisis in the wake of the death of U.S. Border Patrol Agent Brian Terry. These documents
will reveal when the Department realized it had a problem, and what actions it took to resolve
that problem. These documents will also show whether senior Department officials were
surprised to learn that gunwalking occurred during Fast and Furious, or if they already knew that
to be the case. These documents will also identify who at the Department was responsible for
authorizing retaliation against the whistleblowers. The documents may also show the
Department’s assignment of responsibility to officials who knew about the reckless conduct or
were negligent during Fast and Furious.
c) How the Inter-Agency Task Force Failed
The Organized Crime Drug Enforcement Task Force (OCDETF) program was created to
coordinate inter-agency information sharing. As early as December 2009, the DEA shared
information with ATF that should have led to arrests and the identification of the gun trafficking
network that Fast and Furious sought to uncover. The Committee has received information
suggesting that, after arrests were made one year later, ATF discovered that two Mexican drug
cartel associates at the top of the Fast and Furious network had been designated as national
security assets by the FBI, and at times have been paid FBI informants. Because of this
cooperation, these associates are considered by some to be unindictable.
Documents in this category will reveal the extent of the lack of information-sharing
among DEA, FBI, and ATF. Although the Deputy Attorney General is aware of this problem, he
has expressed little interest in resolving it.
41
VI. Additional Accommodations by the Committee
As discussed above in Section V.C.5, the Department has failed to turn over any
documents responsive to three main categories covered by the October 12, 2011, subpoena:
a) Who at Justice Department Headquarters Should Have Known of the Reckless
Tactics;
b) How the Department Concluded that Fast and Furious was “Fundamentally
Flawed”; and,
c) How the Inter-Agency Task Force Failed.
The Committee notified the Justice Department on multiple occasions that its failure to
produce any documents responsive to these three categories would force the Committee to begin
contempt proceedings against the Attorney General.
On May 18, 2012, Chairman Issa, along with Speaker John Boehner, Majority Leader
Eric Cantor, and Majority Whip Kevin McCarthy, wrote a letter to the Attorney General. As an
accommodation to the Department, the letter offered to narrow the scope of documents the
Department needed to provide in order to avoid contempt proceedings.
149
Documents in
category (c) are outside the scope of the narrowed request, and so the Department no longer
needed to produce them to avoid contempt proceedings, even though such documents are
covered by the October 12, 2011, subpoena.
The Committee also obtained copies of wiretap applications authorized by senior
Department officials during Operation Fast and Furious. These documents, given to the
Committee by whistleblowers, shined light on category (a). Still, many subpoenaed documents
under this category have been deliberately withheld by the Department. These documents are
critical to understanding who is responsible for failing to promptly stop Fast and Furious. The
Department has cited such documents as “core investigative” materials that pertain to “pending
law enforcement matters.”
150
To accommodate the Department’s interest in successfully
prosecuting criminal defendants in this case, the Committee is willing to accept production of
these documents after the current prosecutions of the 20 straw purchasers indicted in January
2011, have concluded at the trial level. This deferment should in no way be interpreted as the
Committee ceding its legitimate right to receive these documents, but instead solely as an
accommodation meant to alleviate the Department’s concerns about preserving the integrity of
the ongoing prosecutions.
In addition to deferring production of category (a) documents, the Committee is also
willing to view these documents in camera with limited redactions. These accommodations
represent a significant commitment on the part of the Committee to negotiating in good faith to
avoid contempt.
149
Letter from Speaker John Boehner et al. to Att’y Gen. Eric Holder (May 18, 2012).
150
May 15 Cole Letter, supra note 69.
42
Unlike documents in category (a), the Department has no legitimate interest in limiting
the Committee’s access to documents in category (b). On February 4, 2011, the Department
wrote a letter to Congress categorically denying that gunwalking had occurred. This letter was
false. Still, it was not withdrawn until December 2011. The Committee has a right to know how
the Department learned that gunwalking did in fact occur, and how it handled the fallout
internally. The deliberative process privilege is not recognized by Congress as a matter of law
and precedent. By sending a letter that contained false and misleading statements, the
Department forfeited any reasonable expectation that the Committee would accommodate its
interest in withholding deliberative process documents.
VII. Historical Perspectives on Contempt
Contempt proceedings in Congress date back over 215 years. These proceedings provide
Congress a valuable mechanism for adjudicating its interests. Congressional history is replete
with examples of the pursuit of contempt proceedings by House committees when faced with
strident resistance to their constitutional authority to exercise investigative power.
A. Past Instances of Contempt
Congress first exercised its contempt authority in 1795 when three Members of the House
charged two businessmen, Robert Randall and Charles Whitney, with offering bribes in
exchange for the passage of legislation granting Randall and his business partners several million
acres bordering Lake Erie.
151
This first contempt proceeding began with a resolution by the
House deeming the allegations were adequate “evidence of an attempt to corrupt,” and the House
reported a corresponding resolution that was referred to a special committee.
152
The special
committee reported a resolution recommending formal proceedings against Randall and Whitney
“at the bar of the House.”
153
The House adopted the committee resolution which laid out the procedure for the
contempt proceeding. Interrogatories were exchanged, testimony was received, Randall and
Whitney were provided counsel, and at the conclusion, on January 4, 1796, the House voted 78-
17 to adopt a resolution finding Randall guilty of contempt.
154
As punishment Randall was
“ordered [] to be brought to the bar, reprimanded by the Speaker, and held in custody until
further resolution of the House.”
155
Randall was detained until January 13, 1796, when the
House passed a resolution discharging him.
156
In contrast, Whitney “was absolved of any
wrongdoing,” since his actions were against a “member-elect” and occurred “away from the seat
of government.”
157
151
Todd Garvey & Alissa M. Dolan, Congressional Research Service, Congress’s Contempt Power: Law, History,
Practice, & Procedure, no. RL34097, Apr. 15, 2008 [hereinafter CRS Contempt Report].
152
Id.
153
Id.
154
Id.
155
Id.
156
Id.
157
Id; quoting Asher C. Hinds, Precedents of the House of Representatives, Sec. 1603 (1907).
43
Congressional records do not demonstrate any question or hesitation regarding whether
Congress possesses the power to hold individuals in contempt.
158
Moreover, there was no
question that Congress could punish a non-Member for contempt.
159
Since the first contempt
proceeding, numerous congressional committees have pursued contempt against obstinate
administration officials as well as private citizens who failed to cooperate with congressional
investigations.
160
Since the first proceeding against Randall and Whitney, House committees,
whether standing or select, have served as the vehicle used to lay the foundation for contempt
proceedings in the House.
161
On August 3, 1983, the House passed a privileged resolution citing Environmental
Protection Agency Administrator Anne Gorsuch Burford with contempt of Congress for failing
to produce documents to a House subcommittee pursuant to a subpoena.
162
This was the first
occasion the House cited a cabinet-level executive branch member for contempt of Congress.
163
A subsequent agreement between the House and the Administrator, as well as prosecutorial
discretion, was the base for not enforcing the contempt citation against Burford.
164
Within the past fifteen years the Committee on Oversight and Government Reform has
undertaken or prepared for contempt proceedings on multiple occasions. In 1998, Chairman Dan
Burton held a vote recommending contempt for Attorney General Janet Reno based on her
failure to comply with a subpoena issued in connection with the Committee’s investigation into
campaign finance law violations.
165
On August 7, 1998, the Committee held Attorney General
Reno in contempt by a vote of 24 to 18.
166
During the 110th Congress, Chairman Henry Waxman threatened and scheduled
contempt proceedings against several Administration officials.
167
Contempt reports were drafted
against Attorney General Michael B. Mukasey, Stephen L. Johnson, Administrator of the U.S.
Environmental Protection Agency, and Susan E. Dudley, Administrator of the Office of
Information and Regulatory Affairs (OIRA) in the White House Office of Management and
Budget. Business meetings to consider these drafts were scheduled.
168
Former Attorney General
Mukasey’s draft contempt report charged him with failing to produce documents in connection
to the Committee’s investigation of the release of classified information. According to their draft
contempt reports, Administrators Johnson and Dudley failed to cooperate with the Committee’s
158
Id.
159
Id. at 5.
160
Id. at 6.
161
Id. at 14.
162
Id.
163
Wm. Holmes Brown et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, 450
(2011).
164
Id. at 20, 22.
165
David E. Rosenbaum, Panel Votes to Charge Reno With Contempt of Congress, N.Y. TIMES (Aug. 7, 1998).
166
Id.
167
Laurie Kellman, Waxman Threatens Mukasey With Contempt Over Leak, U.S.A. TODAY (July 8, 2008); Richard
Simon, White House Says No to Congress’ EPA Subpoena, L.A. TIMES (June 21, 2008).
168
Press Release, Rep. Henry Waxman, Chairman Waxman Warns Attorney General of Scheduled Contempt Vote
(July 8, 2008) http://oversight-archive.waxman.house.gov/story.asp?ID=2067 (last visited Feb. 22, 2012); Press
Release, Rep. Henry Waxman, Chairman Waxman Schedules Contempt Vote (June 13, 2008) http://oversight-
archive.waxman.house.gov/story.asp?ID=2012 (last visited Feb. 22, 2012).
44
lengthy investigation into California’s petition for a waiver to regulate greenhouse gas emissions
from motor vehicles and the revision of the national ambient air quality standards for ozone.
Most recently, the House Judiciary Committee pursued contempt against former White
House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten.
169
On June 13,
2007, the Committee served subpoenas on Miers and Bolten.
170
After attempts at
accommodations from both sides, the Committee determined that Miers and Bolten did not
satisfactorily comply with the subpoenas. On July 25, 2007, the Committee voted, 22-17, to hold
Miers and Bolten in contempt of Congress.
On February 14, 2008, the full House, with most Republicans abstaining, voted to hold
Miers and Bolten in criminal contempt of Congress by a margin of 223-42.
171
One hundred
seventy-three Members of Congress did not cast a vote either in favor or against the
resolution.
172
All but nine Members who abstained were Republican.
173
Only three Republicans
supported the contempt resolution for Miers and Bolten.
174
This marked the first contempt vote
by Congress with respect to the Executive Branch since the Reagan Administration.
175
The
resolutions passed by the House allowed Congress to exercise all available remedies in the
pursuit of contempt.
176
The House Judiciary Committee’s action against Miers marked the first
time that a former administration official had ever been held in contempt.
177
B. Document Productions
The Department has refused to produce thousands of documents pursuant to the October
12, 2011, subpoena because it claims certain documents are Law Enforcement Sensitive, others
pertain to ongoing criminal investigations, and others relate to internal deliberative process. The
President has not claimed executive privilege over any documents pertaining to Fast and Furious.
During the past ten years the Committee on Oversight and Government Reform has
undertaken a number of investigations that resulted in strong opposition from the Executive
Branch regarding document productions. These investigations include regulatory decisions of
the Environmental Protection Agency (EPA), the leak of CIA operative Valerie Plame’s identity,
and the fratricide of Army Corporal Patrick Tillman. In all cases during the 110th Congress, the
Administration produced an overwhelming amount of documents, sheltering a narrow few by
asserting executive privilege.
In 2008, the Committee received or reviewed in camera all agency-level documents
related to the EPA’s decision regarding California’s request for a rule waiver, numbering
169
CRS Contempt Report at 54-55.
170
Id.
171
See H. Res. 982.
172
Id.
173
Id.
174
Id.
175
Philip Shenon, House Votes to Issue Contempt Citations, N.Y. TIMES (Feb. 15, 2008).
176
CRS Contempt Report at 54-55.
177
Id.
45
approximately 27,000 pages in total.
178
According to a Committee Report, the EPA withheld
only 32 documents related to the California waiver decision based on executive privilege. These
included notes of telephone calls or meetings in the White House “involving at least one high-
ranking EPA official and at least one high-ranking White House official.”
179
The White House
Counsel informed the Committee that these documents represented “deliberations at the very
highest level of government.”
180
During the Committee’s 2008 investigation into the Administration’s promulgation of
ozone standards, the EPA produced or allowed in camera review of over 35,000 pages of
documents. The President asserted executive privilege over a narrow set of documents,
encompassing approximately 35 pages. One such document included “talking points for the
EPA Administrator to use in a meeting with [the President].”
181
In furtherance of the Committee’s ozone regulation investigation, OIRA produced or
allowed in camera review of 7,500 documents.
182
Documents produced by EPA and OIRA
represented pre-decisional opinions of career scientists and agency counsel.
183
These documents
were sensitive because some, if not all, related to ongoing litigation.
184
The OIRA Administrator
withheld a certain number of documents that were communications between OIRA and certain
White House officials, and the President ultimately “claimed executive privilege over these
documents.”
185
Also during the 110th Congress, the Committee investigated the revelation of CIA
operative Valerie Plame’s identity in the news media. The Committee’s investigation was
contemporaneous with the Department of Justice’s criminal investigation into the leak of this
classified information – a situation nearly identical to the Committee’s current investigation into
Operation Fast and Furious.
Pursuant to the Committee’s investigation, the Justice Department produced FBI reports
of witness interviews, commonly referred to as “302s.” Specifically, documents reviewed by the
Committee staff during the Valerie Plame investigation included the following:
FBI interviews of federal officials who did not work in the White House,
as well as interviews of relevant private individuals . . . total of 224 pages
of records of FBI interview reports with 31 individuals, including
materials related to a former Secretary, Deputy Secretary, Undersecretary
[sic], and two Assistant Secretaries of State, and other former or current
178
H. Comm. on Oversight and Gov’t Ref. Minority Additional Views, EPA, OIRA Investigations & Exec. Privilege
Claims; Missed Opportunities by Majority to Complete Investigations, Oct. 22, 2008.
179
Id.
180
Id.
181
Id.
182
Id.
183
Id.
184
Id.
185
Id.
46
CIA and State Department officials, including the Vice President’s CIA
briefer.
186
To accommodate the Committee, the Department permitted in camera review of the following:
[D]ocuments include[ing] redacted reports of the FBI interview with Mr.
Libby, Andrew Card, Karl Rove, Condoleezza Rice, Stephen Hadley, Dan
Bartlett, and Scott McClellan and another 104 pages of additional
interview reports of the Director of Central Intelligence, and eight other
White House or Office of the Vice President officials.
187
The only documents the Justice Department declined to produce were the FBI 302s with respect
to the interviews of the President and the Vice President.
188
Ultimately, the Committee relented
in its pursuit of the President’s 302.
189
The Committee, however, persisted in its request for the
Vice President’s 302. As a result, the President asserted executive privilege over that particular
document.
190
The Committee specifically included “302s” in its October 12, 2011, subpoena to the
Attorney General regarding Fast and Furious. These subpoenaed “302s” do not include FBI
interviews with White House personnel, or even any other Executive Branch employee. Still, in
spite of past precedent, the Department has refused to produce those documents to the
Committee or to allow staff an in camera review.
In the 110th Congress, the Committee investigated the fratricide of Army Corporal
Patrick Tillman and the veracity of the account of the capture and rescue of Army Private Jessica
Lynch.
191
The Committee employed a multitude of investigative tools, including hearings,
transcribed interviews, and non-transcribed interviews. The Administration produced thousands
of documents.
192
The Committee requested the following:
[T]he White House produce all documents received or generated by any
official in the Executive Office of the President from April 22 until July 1,
2004, that related to Corporal Tillman. The Committee reviewed
approximately 1,500 pages produced in response to this request. The
documents produced to the Committee included e-mail communications
between senior White House officials holding the title of “Assistant to the
President.” According to the White House, the White House withheld
186
H. Comm. on Oversight and Gov’t Ref. Draft Report, U.S. House of Reps. Regarding President Bush’s Assertion
of Exec. Privilege in Response to the Comm. Subpoena to Att’y Gen. Michael B. Mukasey, http://oversight-
archive.waxman.house.gov/documents/20081205114333.pdf (last visited Mar. 5, 2012).
187
Id.
188
Id.
189
Id.
190
Id.
191
H. Comm. on Oversight and Gov’t Ref. Comm. Report, Misleading Information From the Battlefield: the
Tillman & Lynch Episodes, H. Rep. 110-858, Sept. 16, 2008.
192
Id.
47
from the Committee only preliminary drafts of the speech President Bush
delivered a the White House Correspondents’ Dinner on May 1, 2004.
193
The Department of Defense produced over 31,000 responsive documents, and the Committee
received an unprecedented level of access to documents and personnel.
194
The Oversight and Government Reform Committee’s investigations over the past five
years demonstrate ample precedent for the production of a wide array of documents from the
Executive Branch. In these investigations, the Committee received pre-decisional deliberative
regulatory documents, documents pertaining to ongoing investigations, and communications
between and among senior advisors to the President. The Committee’s October 12, 2011,
subpoena calls for many of these same materials, including 302s and deliberative documents.
Still, the Justice Department refuses to comply.
Further, the number of documents the Department has produced during the Committee’s
Fast and Furious investigation pales in comparison to those produced in conjunction with the
Committee’s prior investigations. In separate EPA investigations, the Committee received
27,000 documents and 35,000 documents respectively. In the Patrick Tillman investigation, the
Committee received 31,000 documents. Moreover, in the Valerie Plame investigation, the
Committee received access to highly sensitive materials despite the fact that the Justice
Department was conducting a parallel criminal investigation.
As of May 15, 2012, in the Fast and Furious investigation, in the light most favorable to
the Department of Justice, it has “provided the Committee over 7,600 pages of documents” – a
small fraction of what has been produced to the Committee in prior investigations and of what
the Department has produced to the Inspector General in this matter.
195
This small number
reflects the Department’s lack of cooperation since the Committee sent its first letter to the
Department about Fast and Furious on March 16, 2011.
193
Id.
194
Id.; The minority views by Hon. Tom Davis states that the Comm. received 50,000 pages of documents and
reviewed additional documents in camera.
195
Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (May 15, 2012).
