Few actions, minimal compliance from Holder on Fast and Furious subpoena

Matthew Boyle | Investigative Reporter

A draft of a “contempt of Congress” citation House Republicans released on Thursday shows that Attorney General Eric Holder is still far from complying with a congressional subpoena over Operation Fast and Furious. And even within the categories of the subpoena where his Department of Justice has taken some action, Holder’s document production has been minimal.

Rep. Darrell Issa, who chairs the House Oversight committee, subpoenaed 22 categories of information about the evolving firearms scandal on Oct. 12. But according to Issa’s contempt of Congress citation draft, Holder hasn’t provided any documents reflecting 13 of those categories — including some that reference him personally.

In a briefing paper accompanying the drafted contempt citation, Issa said Holder hasn’t “completely fulfilled” any of the categories in which Justice has produced documents.

The DOJ has provided some, but not all, documents Issa subpoenaed that connect holder and 15 other high-ranking Justice officials 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.”

According to the draft contempt citation, in “late October 2011, the Department acknowledged that it had ‘already begun searches'” for those documents. But to date, Justice has not turned over any files connecting Holder and four other officials to the gun-walking scandal, the citation shows. Holder has produced “only two documents” related to another official and “very few” linked with two others.

David Ogden, a former Deputy Attorney General, is one official for whom Justice’s document production has been nonexistent. But Ogden was on record in early 2009 describing the genesis of what would later become Fast and Furious. As the Obama administration began to revamp Project Gunrunner, a Bush administration program aimed at combating drug cartels and trafficking, Ogden explained the program’s rationale during a March 24, 2009 press conference.

President Barack Obama, he said then, “has directed us to take action to fight these cartels, and Attorney General Holder and I are taking several new and aggressive steps as part of the administration’s comprehensive plan.” (RELATED: Full coverage of Operation Fast and Furious)

“DOJ’s Bureau of Alcohol, Tobacco, Firearms and Explosives [ATF] is increasing its efforts by adding 47 more employees and three new offices and $10 million of Recovery Act [stimulus] funds,” Ogden said of the new policies, “and redeploying 100 personnel to the Southwest Border in the next 45 days to fortify its Project Gunrunner, which is aimed at disrupting arms trafficking between the United States and Mexico.”

“ATF is doubling its presence in Mexico itself from 5 to 9 personnel working with the Mexicans specifically to facilitate gun tracing activity which targets the illegal weapons and their sources in the United States.”

Assistant Attorney General Ronald Weich wrote a Feb. 4, 2011 letter to Sen. Chuck Grassley that contained a provably false statement. “ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico,” he wrote.

The DOJ withdrew letter in late 2011 after acknowledging that statement was false.

Weich announced in late April that he plans to resign his DOJ post amid this and other scandals. In July he will become dean of the University of Baltimore School of Law.

Over the course of the congressional investigation into Operation Fast and Furious, Issa has obtained documents showing that former Acting Deputy Attorney General Gary Grindler, one of Holder’s closest deputies, was intimately aware of how Justice was enabling guns to disappear into Mexico during the program’s early stages.

But despite evidence including Grindler’s handwritten notes showing the depth of his knowledge, Holder continues to deny Grindler’s involvement.

“The Acting Director [of the ATF, Ken Melson] did not share tactical information with Mr. Grindler,” Holder told Issa during a Dec. 8, 2011 House Judiciary Committee hearing. Earlier in the hearing, Issa had produced documents showing that this later claim was false.

Assistant Attorney General Lanny Breuer, another close Holder deputy and the head of the DOJ’s Criminal Division, admitted he was partially responsible for Operation Fast and Furious during his November 2011 testimony before the Senate Judiciary Committee. It was later revealed that, as early as 2009, Breuer praised the gunwalking tactics used in the ill-fated operation

In emails congressional investigators uncovered, Breuer told Melson during the program’s formative stages that Fast and Furious and gunwalking were a “terrific idea.”

Documents and testimony have shown that like Ogden, Weich, Grindler and Breuer, each of the other DOJ officials who were the subject of Issa’s subpoenas played a major role in Operation Fast and Furious.

Issa’s draft contempt citation also addresses a second set of subpoenaed documents which Justice has only partially turned over to congressional investigators. This category refers to files and papers dated February 4, 2011 that show ATF “failed to interdict weapons that had been illegally purchased or transferred.”

Holder, Issa wrote, “has produced some documents responsive to this subpoena category.” It’s unclear how much or how little DOJ has supplied, and how far Holder is from complying fully with this demand from the legislative branch.

A third subpoena category featured in the contempt citation Issa has aimed at Holder concerns documents showing that “ATF broke off surveillance of weapons and subsequently became aware that those weapons entered Mexico.” Holder, he wrote, has produced some but not all of these documents that Congress has demanded.

Issa indicated that most of the documents DOJ has produced in response to these latter two subpoena categories “relate to earlier cases the Department has described as involving gunwalking.” This effort, he said, was intended to leverage media reports to taint the congressional investigation as partisan or to attack whistleblowers’ reputations.

“The Department produced these documents strategically, advancing its own narrative about why Fast and Furious was neither an isolated nor a unique program,” the contempt of Congress citation draft reads.

“It has attempted to accomplish this objective by simultaneously producing documents to the media and the Committee.”

The record shows that the Obama administration has worked to highlight Operation Wide Receiver, a Bush-era program similar in some respects to Operation Fast and Furious, to draw attention away from its own failed program.

While Wide Receiver failed in its mission to permit arms traffickers to cross the Mexican border and deliver guns to their destinations in a controlled fashion, ATF agents worked with Mexican law enforcement in that effort. Documents show it was Mexican law enforcement, not the ATF, which bungled the operation by losing track of the weapons once traffickers had crossed into Mexico with their illicit arms caches.

Issa wrote that Holder and his Justice Department have tried to evade responsibility for their actions by consciously blurring a broad line between Operation Fast and Furious and the Wide Receiver program — and at least two other similar Bush administration initiatives. But unlike with those earlier programs, documents and congressional testimony show that the Obama administration purposefully made no effort to work with Mexico while it permitted thousands of weapons to get into the hands of that nation’s most dangerous organized criminals.

One case that Issa described as a particularly vexing smokescreen involved U.S. authorities’ decision in 2010 to release an Arizona man accused of supplying grenades to Mexican drug traffickers. In that case, Jean Baptiste Kingery walked free without criminal charges after spending only a few hours in custody.

Officials from the U.S. Attorney’s office in Arizona have said they intended to turn Kingery into an informant, but lost track of him only weeks later. It later emerged that U.S. and Mexican authorities allowed him Kingery to cross the border into Mexico with hundreds of grenade parts. American law enforcement agents failed to track him to the border, and their Mexican counterparts allowed him to enter that country without incident.

Issa charged in his draft contempt citation that the Obama administration has made an effort to focus attention on the Kingery case because doing so attacks the reputations of whistleblowers in the Fast and Furious investigation.

But Holder has largely abandoned this strategy since CBS News’ Sharyl Attkisson reported last month on the Obama administration’s complicity in the episode involving the grenade parts.

Other categories of documents outlined in Issa’s subpoena have received similar short shrift, he wrote this week.

Issa, for instance, demanded copies of “[a]ll communications to or from William Newell, former Special Agent-in-Charge for ATF’s Phoenix Field Division,” during two different periods of time that figure in the chain of events Congress is investigating. The DOJ, he wrote, has failed to deliver any documents from one of those two periods, even though Holder’s staff has acknowledged that Justice understood the specific meaning of the request.

In another Justice lapse, Issa wrote, Holder has only partially complied with the subpoena’s requirements related to Fast and Furious-related documents and communications among six Justice officials — including Holder, Grindler, Breuer and former Arizona U.S. Attorney Dennis Burke.

Several months after Operation Fast and Furious first made news, Burke resigned his position.

Similarly, Congress sought copies of every communication sent or received on a total of nine days in 2009 and 2011 by five officials in Arizona. They included two Assistant U.S. Attorneys and the chief of their Arizona Criminal Division, along with an ATF agent and his supervisor. While Congress has received some of those documents, Issa’s draft contempt citation notes that “these documents do not pertain to the subject matter that the Department understands that the Committee is seeking.”

Issa said in January that Patrick Cunningham, the Criminal Division chief for the Arizona U.S. Attorney’s office, decided to invoke his the Fifth Amendment rights in order to avoid incriminating himself during a House oversight committee. He also was reportedly determined to avoid giving a sworn deposition to committee investigators.

It is “difficult to gauge the veracity of some of the Department’s claims” about Operation Fast and Furious, Issa wrote to Holder a few days later, without Cunningham’s testimony. Cunningham has since resigned his position in the DOJ.

Holder, Issa wrote this week in his draft contempt citation, has also come up short in his compliance with the committee’s subpoena for communications between Cunningham and three other current and former U.S. Attorneys and Assistant U.S. Attorneys. That subpoena category covered three days in December 2010, and named both Burke and Cunningham.

Issa’s draft contempt citation also made specific reference to Obama administration communications in Mexico. He wrote that Holder has not turned over all of the demanded documents showing messages between Justice officials and Carlos Pascual, the former U.S. Ambassador to Mexico, about firearms trafficking or about visits Breuer made to Mexico.

Holder, Issa’s committee now says, has only “produced approximately ten pages pursuant to this subpoena category,” and only did so for “strategic and public relations reasons.”

“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,” the draft contempt citation reads

“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.”

Issa made special mention of the reports and departmental memoranda about Operation Fast and Furious that Holder’s office received between November 2009 and September 2011. Those documents reportedly indicate that the attorney general was briefed on the failed gunwalking program throughout the course of the congressional investigation.

Congress, the subpoena read, demanded “[a]ll 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.”

Issa wrote that Holder has “produced some documents responsive to this subpoena category.” But several of those documents surfaced in early October 2011, many months after Congress began its investigation.

In response, Holder claimed he didn’t read the memos on the several occasions his office received them.

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