[Congressional Record Volume 158, Number 99 (Thursday, June 28, 2012)]
[House]
[Pages H4164-H4175]
RELATING TO CONSIDERATION OF HOUSE REPORT 112-546 AND ACCOMPANYING
RESOLUTION, AND PROVIDING FOR CONSIDERATION OF HOUSE RESOLUTION 706,
AUTHORIZING COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM TO INITIATE OR
INTERVENE IN JUDICIAL PROCEEDINGS TO ENFORCE CERTAIN SUBPOENAS
Mr. NUGENT. Mr. Speaker, by direction of the Committee on Rules, I
call up House Resolution 708 and ask for its immediate consideration.
The Clerk read the resolution, as follows:
H. Res. 708
Resolved, That if House Report 112-546 is called up by
direction of the Committee on Oversight and Government
Reform: (a) all points of order against the report are waived
and the report shall be considered as read; and
(b)(1) an accompanying resolution offered by direction of
the Committee on Oversight and Government Reform shall be
considered as read and shall not be subject to a point of
order; and
(2) the previous question shall be considered as ordered on
such resolution to adoption without intervening motion or
demand for division of the question except: (i) 50 minutes of
debate equally divided and controlled by the chair and
ranking minority member of the Committee on Oversight and
Government Reform or their respective designees; (ii) after
conclusion of debate one motion to refer if offered by
Representative Dingell of Michigan or his designee which
shall be separately debatable for 10 minutes equally divided
and controlled by the proponent and an opponent; and (iii)
one motion to recommit with or without instructions. The
Chair may reduce the minimum time for electronic voting on
the question of adoption of the motion to recommit as though
pursuant to clause 9 of rule XX.
Sec. 2. Upon adoption of this resolution it shall be in
order without intervention of any point of order to consider
in the House the resolution (H. Res. 706) authorizing the
Committee on Oversight and Government Reform to initiate or
intervene in judicial proceedings to enforce certain
subpoenas. The resolution shall be considered as read. The
previous question shall be considered as ordered on the
resolution to adoption without intervening motion or demand
for division of the question except: (1) 20 minutes of debate
equally divided and controlled by the Majority Leader and the
Minority Leader or their respective designees; and (2) one
motion to recommit.
The SPEAKER pro tempore. The gentleman from Florida is recognized for
1 hour.
{time} 1230
Mr. NUGENT. Mr. Speaker, for the purpose of debate only, I yield the
customary 30 minutes to the gentleman from Massachusetts, my colleague
on the Rules Committee, Mr. McGovern, pending which I yield myself such
time as I may consume. During consideration of this resolution, all
time yielded is for the purpose of debate only.
General Leave
Mr. NUGENT. Mr. Speaker, I ask unanimous consent that all Members
have 5 legislative days in which to revise and extend their remarks.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Florida?
There was no objection.
Mr. NUGENT. Mr. Speaker, I rise today in support of this rule and the
underlying resolution it brings to the House floor.
The rule provides for consideration of two contempt of Congress
charges laid against Attorney General Eric Holder. You're going to hear
a lot of folks say how historic today is. That ``historic-ness'' is why
the rule provides for debate and separate votes on both contempt
charges. The rule also provides for a motion to refer the criminal
contempt charges, if offered by Mr. Dingell, as well as motions to
recommit both resolutions.
I don't assume to put words in his mouth, but I'm sure and I'm
willing to bet that Mr. McGovern is sitting over there getting ready to
tell me it's not enough time. I'm not going to disagree.
But as we all know, before we leave Friday evening to go to work in
our districts, we have a lot to get done here. We need to reauthorize
our Nation's highway and infrastructure systems. We need to save
college students and recent graduates from student loan interest rates
that are 2 days away from doubling. We need to move forward with the
open amendment process and finish considering the appropriations bill
to fund our transportation and housing programs. It's a lot to get done
in 2 days. And, frankly, if we didn't put a time limit on today's
contempt debate, we could spend days on end talking about nothing but
this one issue.
But beyond all of that--beyond floor schedules and expiring
authorizations, we're left with this truth: Border Patrol Agent Brian
Terry was shot on December 14, 2010, and died of those injuries the
next day. His family has been looking for answers about what led up to
and caused his death for over a year and a half. If we can do anything
to answer those questions, then we cannot and should not do anything to
make them wait any longer--not another month, not another day, not
another hour. Today, the House of Representatives is going to do what
we can to get those answers for the Terry family.
Thanks to whistleblowers at the Bureau of Alcohol, Tobacco, Firearms
and Explosives, Members of Congress were alerted to the fact that Agent
Terry was killed by guns--AK-47 assault rifles, specifically--that our
government allowed to walk into Mexico. When confronted with these
claims, the Justice Department denied the whistleblowers' claims. What
we now know all too well is just how right the whistleblowers were.
However, it took the Department of Justice 10 months after their first
denial, almost a year after Border Patrol Agent Terry's death, to
formally retract their denial about the reckless program that
contributed to the deaths of Agent Terry and hundreds of Mexican
citizens.
[[Page H4165]]
You know, I was a cop for almost 40 years and a sheriff for the last
10. As the head of a law enforcement agency, you have two options when
you make a mistake: you can hope it doesn't come out, and if it does,
you go into lockdown and deny, deny, deny; or you can get out in front
of it, admit you made a mistake, tell the American people you're going
to investigate, and then do everything you can to make sure that this
never happens again.
As sheriff, I found it was my moral imperative to always admit when
we'd been wrong, hold folks accountable, and make my agency better so
we wouldn't make the same mistake twice. It's the responsible thing to
do, and it takes away any sting of the possibility of a coverup.
That's not what DOJ did. They've gone the other route--hide, deny,
and stonewall.
They sent a letter with false information to Congress, the
institution that's constitutionally mandated with government oversight,
and it took them 10 months to retract that statement. It appears that
in those 10 months between lying and admitting the truth, members of
DOJ and the ATF colluded to intentionally cover up what happened. What
we're trying to figure out is if there really was a coverup, and we
need the information to determine the facts.
Yesterday at the Rules Committee, a couple of people mentioned
President Nixon and Watergate. And I agree, this is like the Watergate
scandal. But President Nixon didn't leave office because of the scandal
itself; he was forced to resign because of the coverup.
I said it last night and I'm willing to bet, Attorney General Holder
didn't know all the specifics about what was happening with Fast and
Furious, but when the facts started coming to light and congressional
investigators started looking for answers, he repeatedly kept us from
getting information we need. And that has kept the Terry family from
getting the closure they need.
Attorney General Holder is responsible for his agency, but he has
essentially given his top leadership a free pass.
Mr. Speaker, a law enforcement officer who was employed by the United
States Federal Government is dead. Somebody knows what happened to
result in his death, and the Justice Department and now President Obama
are refusing to release that information to Congress, to the American
public, and to Agent Terry's family.
This institution has a duty to oversee the executive branch and to
find out what happened. The answers are there. Attorney General Holder
knows the answers are there because he's the one who has the documents
that contain the answers we're looking for. He's the gatekeeper here,
and if he won't give us the information this institution needs to do
our duty, our constitutional duty, then we will use every legal and
constitutional tool that we have to get to it.
I've heard some people say this is all about politics. In my heart,
it's just the opposite. It couldn't be further from the truth. These
contempt charges aren't about politics. They aren't about Attorney
General Holder, President Obama, or anything else but this: a man died
serving his country, and we have a right to know what the Federal
Government's hand was in that.
It's clear this country somehow played a role in his death. We need
to root it out, find the cause, and make sure this never, ever happens
again. These votes today aren't about politics; they are about answers
that, at the very least, this country owes Agent Terry and his family.
President Obama promised his would be the most open administration in
history. When discussing executive privilege in the past, Attorney
General Holder has made it clear that the DOJ won't invoke the State
secrets privilege to conceal ``violations of the law'' or
``administrative error,'' avoid ``embarrassment,'' or to ``prevent or
delay the release of information.''
Unfortunately, that is exactly what has happened so far with Fast and
Furious. It is for this reason why the House today sees no other choice
other than to charge Attorney General Eric Holder with both civil and
criminal contempt of Congress charges.
I'm going to support both of these resolutions, Mr. Speaker, not
because it's the political thing to do, not because it's the easy thing
to do, but because it's the right thing to do.
And with that, I reserve the balance of my time.
Mr. McGOVERN. Mr. Speaker, I want to thank my friend, the gentleman
from Florida (Mr. Nugent), for yielding me the customary 30 minutes,
and I yield myself such time as I may consume.
(Mr. McGOVERN asked and was given permission to revise and extend his
remarks.)
Mr. McGOVERN. Mr. Speaker, this is a sad and deeply troubling day for
this House of Representatives. The Republican leadership of this body
is asking us to take the unprecedented and unjustified step of holding
a sitting Attorney General in contempt of Congress.
{time} 1240
They are doing so based on a completely partisan ``investigation.''
This is a witch hunt, pure and simple, Mr. Speaker, and it has no
place in this House. Eric Holder is a good and decent and honorable
public servant. He has reinvigorated the Justice Department, especially
on efforts to stop partisan voter suppression across the country.
I find it interesting that the Republican leadership has scheduled
this nonsense for the floor today when it is certain to be buried under
the avalanche of news and reaction to the Supreme Court's health care
decision and the highway bill and the student loan bill and everything
else. Is it possible that the Republican leadership doesn't really want
the American people seeing what the House is doing today? Why else
would they feel the need to rush this to the floor a mere week after
the House Oversight Committee voted along strictly partisan lines to
adopt the Republican contempt citation?
Let me say at the outset that there are certain things that all of
us, Democrats and Republicans alike, agree on. We all agree that the
death of Agent Terry was a terrible tragedy. We all agree that the ATF
field office's embrace of gunwalking--which began under the Bush
administration, by the way--was a terrible idea. We all agree that the
ATF should not have sent an erroneous letter to Senator Grassley in
2011. But the contempt resolution before us doesn't have anything to do
with any of that.
The Department of Justice has provided thousands and thousands of
documents about gunwalking. The Attorney General has testified nine
times. The Department has provided over 1,000 pages of documents about
the letter sent to Senator Grassley. So this isn't about getting to the
truth; this is about politics. It is about politics. This is about the
Republicans refusing to take ``yes'' for an answer. This is about doing
whatever it takes to attack the Obama administration no matter the
issue, no matter the cost.
During the committee's ``investigation,'' the Republican majority
refused all Democratic requests for witnesses and hearings, as well as
requests to interview any Bush administration appointees. All of them
were denied.
The Republicans refused Democratic requests to hold a hearing with
Ken Melson, the head of ATF. You know, if you're actually interested in
learning about an ATF operation, don't you think you would want to talk
to the leadership of the ATF?
Republicans refused Democratic requests to hold a hearing with former
Attorney General Mukasey, who was briefed on botched ATF operations in
2007. If you're actually interested in learning about these botched
operations, wouldn't you want to talk to the man who was briefed about
them?
I would hope that we would all agree that we should never take a step
like finding a sitting Attorney General in contempt lightly, and that
we should only do so based on accurate information. But Ranking Member
Cummings and his staff have found, in a very short time, 100 concerns,
omissions, and inaccuracies in the committee report that is the
foundation of this contempt resolution--100 inaccuracies and omissions
and concerns. Sadly, instead of getting answers to those questions,
this has been rushed to the floor.
Mr. Speaker, the American people expect us to address the issues that
matter most to them--issues like jobs and the economy and education and
health care--but the Republican majority refuses to listen. Instead,
they bring this
[[Page H4166]]
resolution to the floor, and then they wonder why Congress is so
unpopular.
What troubles me most, perhaps, is that under this Republican
majority, everything has to be a fight--everything. Everything has to
be a confrontation, everything has to be a showdown. And I get the
politics. I understand this is an election year. But this goes way, way
too far. It is just wrong.
I wish the Speaker of the House would have intervened here and kept
this off the floor. By moving forward today on this resolution, we
diminish the House of Representatives. This is not a happy day for this
institution.
I urge my colleagues to reject this rule and the underlying
resolutions, and I reserve the balance of my time.
Mr. NUGENT. Mr. Speaker, the gentleman from Massachusetts made a
statement. This is about a contempt citation because the Attorney
General has not provided all the information the committee has asked
for. Out of 140,000 pages--by his own testimony in front of Judiciary--
he's given a little over 7,000 pages. That's not reaching out and doing
the right thing.
Mr. Speaker, I yield 2 minutes to the gentleman from South Carolina
(Mr. Scott), a fellow Rules Committee member.
Mr. SCOTT of South Carolina. I thank the gentleman for the time.
Mr. Speaker, it seems to me that my friends on the left need some
clarification on why we are here this afternoon. This is not a good day
for America, and it is certainly still not a good day for the Terry
family.
My friends on the left continue to talk about this as if it were a
witch hunt--a witch hunt. We have a slain Border Patrol agent, and my
friends on the left want to politicize this by talking about a witch
hunt when in fact we all know that this, Mr. Speaker, is about justice.
This is about justice.
My friend on the left just said that we Republicans refuse to hear
``yes,'' we refuse to accept ``yes'' as an answer. Well, Mr. Speaker,
we want a ``yes'' for Kent Terry, we want a ``yes'' for Josephine
Terry, the parents of Brian Terry. We want a ``yes'' for the American
people. We want a ``yes'' as it relates to the integrity of the
process, and we want a ``yes'' for justice. And, Mr. Speaker, my
friends on the left continue to consistently say ``no.''
We are here, Mr. Speaker, for only two reasons. The first is because
United States Border Patrol Agent Brian Terry is dead because of a
Federal Government operation that allowed American guns to be walked
across the border in the hands of drug lords and cartels. We are here
today, Mr. Speaker, because the Department of Justice; the Attorney
General, Eric Holder; and now the President refuse to comply with
congressional subpoenas that will give us clarity on these questions,
give us clear answers for the Terry family and for the American people.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. NUGENT. I yield the gentleman an additional 1 minute.
Mr. SCOTT of South Carolina. We have been trying for 18 long months
to get to the bottom of this issue, and yet we are being stonewalled.
Yes, we hear that the Federal Government has provided 7,000-plus
pages; but, Mr. Speaker, there are over 100,000 pages that we have
requested. We are talking about a period from February 4, 2011, to
December 2011, where we were given false information. It is our
responsibility, it is our duty to find the truth for the American
people and the Terry family.
Let me close, Mr. Speaker, by simply saying, how are we supposed to
protect and ensure the safety of our Border Patrol agents in the future
if we do not know who allowed the guns to walk across the border? How
are we supposed to give Brian Terry's family any sense of closure, Mr.
Speaker? This is why we have no choice but to be here today. The
refusal of the Attorney General to provide answers regarding Brian
Terry's death leaves us no choice but to be here today.
Mr. McGOVERN. Mr. Speaker, let me yield myself such time as I may
consume before I yield to the gentleman from North Carolina.
Mr. Speaker, the last time Congress dealt with a contempt resolution
was in the case of Joshua Bolton and Harriet Miers. The period of time
between when the committee voted out the resolution and before there
was floor action was 6 months. The reason why there was time taken was
to make sure that we got it right.
This is less than a week. And I'm going to say to my friends on the
other side of the aisle that the minority staff has compiled a list of
100 inaccuracies--100 inaccuracies in the report that was the basis for
this contempt resolution--100--and they're rushing it to the floor. So
don't tell me this is not about politics. Don't tell me this is not a
witch hunt. It is exactly what it is.
Mr. Speaker, I'd like to yield 2 minutes to the gentleman from North
Carolina (Mr. Butterfield).
Mr. BUTTERFIELD. The gentleman from Massachusetts is absolutely
correct, this is a sad and troubling day.
What we see here today, Mr. Speaker, is nothing more than using the
Halls of Congress for extreme partisan political purposes.
{time} 1250
This case is all about a politically motivated confrontation with the
executive branch on a matter that does not even begin to rise to this
level.
This case is not about gunwalking. Those documents have been provided
and are not in dispute. The documents at issue are completely unrelated
to how gunwalking was initiated in Operation Fast and Furious. The
Department has produced thousands of pages of documents. The committee
has interviewed two dozen officials, and the Attorney General has
testified on nine occasions.
This is an election-year witch hunt. I say that to the gentleman from
South Carolina. This is an election-year witch hunt. During this 16-
month investigation, the committee refused all Democratic requests for
witnesses and hearings, as well as requests to interview any Bush
administration appointees.
Never in our Nation's history has the House of Representatives voted
to hold a sitting Attorney General or a Cabinet member in contempt.
What's different?
I will tell you what's different. It is the simple fact that
Republicans have a dogged determination to discredit and defeat this
President at all costs. Plain and simple, it's politics.
My Republican friends, do not use your majority to engage in a
political stunt. The integrity and legacy of this institution deserve
better than that. If you want to discredit and defeat this President,
you need to leave this floor and leave the C-SPAN cameras, and go out
and give it your best shot. This is not the place to do it.
When the history of this despicable proceeding is recorded, it will
be said that your actions were politically motivated to discredit and
defeat a President who has worked so hard over the past 3 years.
I encourage my colleagues to join me in refusing to vote for this
gimmick and walk to the steps of the Capitol and explain the
circumstances of this dark day. Do not vote for this resolution.
For those of you who choose to vote, I ask that you defeat the rule
and vote against these contempt resolutions.
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore. Members are reminded to direct their remarks
to the Chair.
Mr. NUGENT. Mr. Speaker, I yield myself as much time as I may
consume.
You know, it's amazing that my friends forget about history because
they referenced history in 2008 as related to House Resolution 979 and
House Resolution 980. And you know what they did?
They passed a rule and said it's hereby adopted. You never even had
discussion on the House floor like we're going to do today. Never had
debate on the House floor. They just passed it in the Rules Committee
and said, guess what, it's hereby adopted.
I yield such time as he may consume to the gentleman from California
(Mr. Issa), the chairman of the Committee on Oversight and Government
Reform.
Mr. ISSA. I place in the Record at this time the statement by the
Terry family concerning Congressman Dingell's criticism of the contempt
vote.
Terry Family Statement with Regard to Congressman John Dingell's
Criticism of Contempt Vote
On Wednesday, Representative John Dingell invoked the Terry
family name while saying he would not back the contempt
resolutions but instead wants the Oversight and
[[Page H4167]]
Government Reform Committee to conduct a more thorough
investigation into Operation Fast and Furious.
Congressman Dingell represents the district in Michigan
where Brian Terry was born and where his family still
resides, but his views don't represent those of the Terry
family. Nor does he speak for the Terry family. And he has
never spoken to the Terry family.
His office sent us a condolence letter when Brian was
buried 18 months ago. That's the last time we heard from him.
A year ago, after the House Oversight and Reform Committee
began looking into Operation Fast and Furious, one of Brian's
sisters called Rep. Dingell's office seeking help and
answers. No one from his office called back.
Mr. Dingell is now calling for more investigation to be
conducted before the Attorney General can be held in contempt
of Congress.
The Terry family has been waiting for over 18 months for
answers about Operation Fast and Furious and how it was
related to Brian's death. If Rep. Dingell truly wants to
support the Terry family and honor Brian Terry, a son of
Michigan, he and other Members of Congress will call for the
Attorney General to immediately provide the documents
requested by the House Oversight and Government Reform
Committee.
Mr. NUGENT. Mr. Speaker, I yield 2 minutes to the gentleman from
Florida (Mr. Ross).
Mr. ROSS of Florida. Mr. Speaker, today I rise to offer my support to
hold the Attorney General in contempt of Congress.
In December 2010, Border Patrol Agent Brian Terry was killed with a
gun that was allowed to walk across the border as a result of Operation
Fast and Furious.
Mr. Speaker, some, including this Attorney General and some of my
colleagues on the other side of the aisle, state that this operation
began in a previous administration. This is demonstrably false, and
nothing could be further from the truth.
While there was a program under the previous administration known as
Wide Receiver, the differences are quite stark. Under Wide Receiver,
weapons were tracked, the Mexican government was involved, and no one
died as a result of that operation. In fact, Operation Wide Receiver
ended in late 2007, nearly 2 years before Fast and Furious began and
nearly 9 months before this President was sworn into office.
Fast and Furious allowed guns to walk across the Mexican border with
no tracking, no involvement by Mexican officials. Over 2,000 firearms
disappeared across the border under this failed operation. Hundreds of
Mexicans are dead because of this failed operation.
An American hero and United States Marine, Agent Brian Terry, is dead
because of this failed operation. Agent Terry stood his ground and told
moms and dads across America that no one would hurt their children on
his watch. He stood up and took that responsibility.
To this day, no one, and I mean no one, in this administration has
had the guts to stand up and say, ``It was my fault.'' Attorney General
Holder has refused to comply with a congressional subpoena that was
issued in October of 2011.
I was a practicing attorney in the real world before I came to
Congress. In the real world, Americans are expected to comply with
subpoenas. Is the Attorney General any different? No, he is not.
Are we just supposed to take Mr. Holder's word that we have all the
information?
That may be how Washington works, Mr. Attorney General, but that is
not how Main Street works.
Mr. Attorney General, what are you hiding? What are you hiding from
the Brian Terry family? What are you hiding from the American public?
I've said it before and I will say it again: you can delegate
authority but you cannot delegate responsibility.
Mr. Speaker, the Attorney General can stonewall all he wants. The
Attorney General can misremember all he wants. But whether he likes it
or not, today responsibility will land on his desk.
Mr. Speaker, I applaud Chairman Issa for his steadfast leadership in
the pursuit of the truth. I applaud my colleagues on the other side of
the aisle who are putting the search of the truth before party.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. NUGENT. Mr. Speaker, I yield another 15 seconds to the gentleman
from Florida.
Mr. ROSS of Florida. Mr. Speaker, I applaud all of those, like Agent
Terry, who wear the uniform of the Armed Forces or stand on the border
and guard our Nation. Agent Terry knew a thing or two about duty. He
died while on duty.
It is now the duty of this Congress to hold those responsible and
accountable for this failed operation. We will not forget, and we will
always stand with you.
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore. Once again, Members are advised to direct
their remarks to the Chair.
Mr. McGOVERN. Mr. Speaker, I yield myself such time as I may consume.
My friend from Florida (Mr. Nugent) talked about obstructionism, and
I want to say a couple of words about that because I think this whole
process has obstructed justice.
During the committee's 16-month investigation, the committee refused
all Democratic requests for witnesses and hearings, which is
unprecedented. For instance, the committee refused to hold a public
hearing with Ken Melson, the head of ATF, the agency responsible for
this operation, after he told committee investigators privately that he
never informed senior department officials about gunwalking because he
was unaware of it.
The committee also refused a hearing, or even a private meeting, with
former Attorney General Mukasey, who was briefed on botched efforts to
coordinate interdictions with Mexico in 2007, and was informed directly
that these efforts would be expanded during his tenure; refused the
opportunity to have the Attorney General as a witness.
Mr. Speaker, this partisanship was demonstrated by the committee's
vote along strictly partisan lines to hold the Attorney General in
contempt and to vote along strictly partisan lines on every amendment.
This is about politics. This is not about the truth. This is not about
justice. This is about politics, and that is why this is such a sad day
for this institution.
Mr. Speaker, I yield 2 minutes to the gentleman from Vermont (Mr.
Welch).
Mr. WELCH. Mr. Speaker, I thank the gentleman from Massachusetts.
Mr. Speaker, the investigation that's being conducted by the
Committee on Oversight and Government Reform is a legitimate
investigation. But the recommendation to this House to hold the
Attorney General in contempt is reckless, irresponsible, unnecessary,
and will actually get in the way of the pursuit of truth.
Why do I say that?
If you're going to do an investigation, you have to begin at the
beginning, and the beginning of Fast and Furious and gunwalking began
in the Bush administration. There's no evidence that President Bush was
aware of it. There's some questions about what his Attorney General
knew, what and when.
But if you are sincerely interested in trying to find out what
happened, how it happened, how in the world do you not begin at the
beginning?
And despite that fact, the requests of many of us on the committee
who support an investigation, who support the use of a subpoena, who
support the aggressive right of Congress to get access to documents
that it needs, have been denied the opportunity to bring in witnesses
about what happened and how it happened during the Bush administration.
We've been denied the opportunity to bring in Attorney General
Mukasey, despite the fact that there was evidence that he was
personally briefed on the botched efforts to coordinate interdiction
with Mexican authorities. Then-Attorney General Mukasey was also told
that the ATF field office in Phoenix planned to expand these operations
during his tenure. So our question really quite simply is, begin at the
beginning.
That foundation of an open and exhaustive search is what this
committee, the Committee on Government Reform, owes to this House of
Representatives before it asks the Members of this House to vote on the
extraordinary measure of finding a sitting Attorney General in
contempt.
Secondly, we've got to do our job with care. The original subpoena
that went out and was there until the Friday before the Wednesday in
which we voted was demanding that the Attorney General turn over
documents that
[[Page H4168]]
would have been illegal for him to turn over--transcripts of the grand
jury.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. McGOVERN. I yield the gentleman an additional 15 seconds.
{time} 1300
Mr. WELCH. So transcripts of the grand jury, transcripts of wiretap
applications, which is not only a violation of the U.S. Code, but would
jeopardize law enforcement officials if that word got out. That is an
irresponsible and overbroad subpoena.
So the bottom line is to let the investigation continue, but let's
acknowledge that the job that the committee needs to do before it asks
for a vote of contempt has not been done.
Mr. NUGENT. Mr. Speaker, I yield 2 minutes to the gentleman from
Texas, Judge Poe.
Mr. POE of Texas. I thank the gentleman.
Mr. Speaker, we are here today because of an ill-conceived,
dangerous, illegal, gun-running scheme called Operation Fast and
Furious.
This operation has resulted in the death of at least one--maybe two--
Federal agents and in the deaths of hundreds of Mexican nationals; yet
we still cannot get a straight answer from the Justice Department as to
what happened. The Attorney General says he doesn't know who authorized
this nonsense, but he won't let Congress help him find out the facts.
In December of last year, Attorney General Holder testified before
the House Judiciary Committee and told me that Operation Fast and
Furious was ``flawed and reckless'' and that it was ``probably true''
that more people were going to die.
Now, isn't that lovely?
Why is the Attorney General being so obstinate? After months of
delay, delay, delay, today is the day of reckoning.
This administration claims to be the most transparent administration
in history. So why won't the administration let the American people
know what happened during Fast and Furious? What are they hiding?
This contempt resolution is about one thing. It's about finding out
how such a stealth and dangerous operation could ever be authorized by
the Government of the United States. Why would our government help
smuggle guns to our neighbor and put them in the hands of the enemy of
Mexico and the United States--the violent drug cartels?
And no wonder the Attorney General of Mexico wants those in the
United States who are responsible to be extradited to Mexico and tried
for those possible crimes. Mexico is more interested in Fast and
Furious than is our own government.
As a former judge, I can tell you that contempt is used as a last
resort to let individuals know they will comply with a lawful order
whether they like it or not. Even the Attorney General cannot evade the
law.
Time for America to find out the truth about gun smuggling to Mexico.
Time for a little transparency. Today is judgment day.
And that's just the way it is.
Mr. McGOVERN. Mr. Speaker, let me remind my friend that this
gunwalking program started under President Bush. And that's just the
way it is.
I would like to yield 15 seconds to the gentleman from Texas (Mr.
Gene Green).
Mr. GENE GREEN of Texas. Members, I'm from Texas. We believe it's our
constitutional right to own every gun that was ever made, and we don't
want to export them to anywhere--but this resolution is pure politics.
Mr. Speaker, today I rise in opposition to the 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.
In 2005, the Bureau of Alcohol, Tobacco, Firearms, and Explosives
(ATF) initiated Project Gunrunner that focused on stemming the flow of
firearms into Mexico. This would stop guns from being obtained by drug
cartels and criminal organizations that have killed thousands in Mexico
in recent years.
Part of Project Gunrunner was Operation Fast and Furious, which has
come under scrutiny over the past year due to reports that the ATF
allowed the sale of hundreds of assault weapons to suspected straw
purchasers, who then allegedly transported these weapons through the
Southwest and into Mexico. In December 2010, suspected firearms linked
to Operation Fast and Furious were found at the murder scene of Border
Patrol Agent Brian Terry.
This resolution is not about Project Gunrunner or Operation Fast and
Furious because the Department of Justice has produced thousands of
pages of documents, two dozen officials have been interviewed, and the
Attorney General has testified nine times, to show it was not
responsible for these operations. The Attorney General has continually
offered to provide even more information, including documents outside
of the Committee's original subpoena. The documents that are now at the
center of the resolution are completely unrelated to how Project
Gunrunner or Operation Fast and Furious were initiated.
This investigation is nothing more than a hyper-partisan, election-
year effort. The Committee vote was strictly along partisan lines and
every amendment passed or failed on party-line votes. During this
investigation, the Committee refused all Democratic requests for
witnesses and hearings, as well as requests to interview any Bush
Administration appointees.
Attorney General Eric Holder has produced sufficient evidence,
through thousands of pages of documents and testifying nine times
before the committee, to confirm that once he learned about Operation
Fast and Furious, he took action to bring it to a close. The denial of
Democratic requests to interview officials of the Bush Administration
on this matter only further proves this is strictly a partisan
political game to hold the first sitting Attorney General in contempt.
Mr. NUGENT. Mr. Speaker, I yield 2 minutes to a former law
enforcement officer who lost her husband in the line of duty, the
gentlewoman from Florida (Mrs. Adams).
Mrs. ADAMS. I am going to come to you from a different angle, one of
a law enforcement officer.
I served over 17 years as a law enforcement officer, and I worked
many undercover operations. As a law enforcement officer, you knew you
didn't give guns to bad guys. The drug cartels, they're bad guys. You
know if you let a gun walk with a bad guy that you're going to see that
gun whether it's at a crime scene, or you're going to be looking down
the barrel of it.
So when the Attorney General came to our committee, I asked him, Who
approved this operation? Why was it approved? And he just wouldn't
answer. He didn't know.
Okay. Well, what rises to the level of the Attorney General? If an
international operation that allows guns to walk to another country and
that are then used to kill one of our agents and that are used to kill
and maim their citizens doesn't rise to his level of approval, who
approved it?
This is something that is just normal procedure in any operation in a
law enforcement agency.
So now you have an Attorney General who won't tell us or can't tell
us who approved this international operation. You have others saying,
Well, this is something that started under another administration.
It didn't. That was a different operation, and they realized they
couldn't keep up with those guns, so they stopped it. When this one
started, it was flawed from the beginning. The Attorney General said it
was flawed from the beginning.
Yet we still have no answers. We don't have answers. The American
people don't have answers, and most importantly, the Terry family
doesn't have answers. That's just unacceptable.
I've heard from the other side of the aisle and from my colleagues
here today that this is political. This isn't political. To me, it's
personal. We have a law enforcement officer who was doing his job and
who was killed by a flawed operation that no one will take ownership of
in the Attorney General's Office; and the Attorney General, himself,
won't tell us what rises to the level of his knowing what's going on in
his agency if an international operation does not.
So I will tell you that it was not political when I started looking
into this and when we started looking into it. It is not political
today. The way that it became political was when there was asserted,
right before the gavel dropped in the committee, an executive
privilege.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. NUGENT. I yield the gentlelady an additional 15 seconds.
[[Page H4169]]
Mrs. ADAMS. I ask you today to approve this resolution. Bring some
credibility back to our Department of Justice. If this had happened in
another agency throughout this Nation and if one of our officers had
died and if the Department of Justice were involved in the
investigation, they would be asking for the same documents that we are
asking for.
Mr. McGOVERN. Mr. Speaker, let me just say to the gentlelady that if
she is interested in why the United States pursued this gunwalking
program, she should talk to the Attorney General under the Bush
administration, Attorney General Mukasey, when this thing started 5
years ago.
Unfortunately, notwithstanding the fact that the Democrats have asked
that he be called before the committee, the request has been denied.
She wants to know why this is political? The request for every single
witness that the Democrats asked to be brought before the committee was
denied, the request for every single witness.
That is unprecedented in this House in any committee, the fact that
the Democrats have been locked out of having any of their witnesses
come forward. This is not about gunwalking. This is not about finding
the terrible truth about what happened to Agent Terry. This is about
politics, plain and simple; and it diminishes this House.
I would like to yield 2 minutes to the gentlewoman from the District
of Columbia (Ms. Norton).
Ms. NORTON. I thank the gentleman for yielding.
Any doubt that today's contempt resolution is political was put to
rest when the NRA joined in to blowtorch vulnerable Democrats to vote
for contempt today.
The gun lobby is directly responsible for the gap in Federal law that
allowed the straw purchases of guns here that were taken to Mexico,
ultimately resulting in the tragic death of a border agent. Yet because
of a political mandate from the gun lobby, our committee spent no time
on the root cause of this tragedy. Instead, after the majority failed
to get the documents it requested that were under court seal and
documents related to ongoing investigations, it asked for internal
communications that no Republican or Democratic administration has ever
given up.
Instead of sparing no effort to give law enforcement the tools it
must have to protect our border agents, our committee has spared no
effort to get to today's contempt resolution over issues unrelated to
the tragic killing. After 16 months, the committee found no evidence
that the Attorney General or other top Justice Department officials
knew about the ATF gunwalking. And the committee resolutely refused to
hear from top ATF officials who said that they, in turn, had given the
Justice Department no such information.
{time} 1310
It is Attorney General Holder who stopped the gunwalking authorized
and started by the Bush administration. The contempt today, Mr.
Speaker, is for the truth.
Mr. NUGENT. Mr. Speaker, I just want to make it very clear that the
House rules of article XI talk about, specifically, j(1) as it relates
to the rights of the minority. But you have to ask for that. A majority
of the minority has to ask for it. It has to be focused on the issue at
hand. They were talking about issues as it related to, I guess, gun
ownership, and that was not germane to that issue.
With that, I yield 2 minutes to the gentleman from Arizona (Mr.
Quayle).
Mr. QUAYLE. I thank the gentleman for yielding.
Mr. Speaker, today's vote is long overdue. For months, my colleagues
and I have worked to uncover the truth about Operation Fast and
Furious, which cost the life of Border Patrol Agent Brian Terry in my
home State of Arizona.
Congressional efforts to get to the bottom of this tragedy and bring
accountability to those responsible were met with derision by Attorney
General Holder. At hearings, when we questioned Mr. Holder, he evaded.
When we requested documents, he obfuscated. When I questioned Mr.
Holder on June 8, he looked me in the eye and stated plainly that there
was nothing whatsoever in the wiretap applications that suggested the
existence of a gunwalking program. Yet, all I had to do was review
those same applications to see that what the attorney general had said
to me, my colleagues, and to the American people, was nothing but a
boldfaced lie. Mr. Speaker, I will repeat that again. It was a
boldfaced lie.
Today, let Congress' vote be a signal to Mr. Holder that dishonesty
on the part of administration officials will never be tolerated.
Today, let this vote be a signal to President Obama that the security
of the American people must always come before his own job security and
the job security of his Cabinet officials.
Let this vote be a reminder to Mr. Holder and to President Obama that
despite their executive overreach, there are, in fact, three coequal
branches of government.
Let this vote demonstrate that Congress has not forgotten its right
or its responsibility to provide oversight and to bring accountability.
I urge my colleagues to support the rule and the underlying
resolution.
Mr. McGOVERN. Mr. Speaker, my colleague from Florida (Mr. Nugent)
mentioned the issue of gun ownership as related to the witnesses that
the Democrats wanted to have appear before the committee. How inviting
the head of the ATF, which is responsible for Operation Fast and
Furious, or inviting the former Attorney General, who was briefed on
gunwalking and knew about it, how that has anything to do with gun
ownership--what that has to do with, Mr. Speaker, is getting to the
truth.
The minority has submitted a request for witnesses in writing and
even requested for a--which I guess they have the right to do--a day of
minority witnesses, which they were told they would not be granted that
day in a timely fashion.
This is about politics. This, by all measures, is about politics.
Again, the fact that we are doing this today, I think, diminishes the
House of Representatives.
I yield 2 minutes to the gentleman from New Jersey (Mr. Andrews).
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Mr. Speaker, every Member of this Chamber wants to get
to the bottom of the issue of the tragic death of Officer Terry. Every
Member of the Chamber wants to find out how the ATF and Justice
Department were run as related to that tragedy.
So the committee that's looking into this refused to hear the
testimony of the person running the ATF.
The committee that's looking into this refused to hear the testimony
of the Assistant Attorney General, who was responsible for the ATF and
talked about this with Attorney General Holder.
The committee that is responsible for this received thousands of
pages of documents from the Attorney General to try to get to the
bottom of the matter.
This procedure does violence to the American Constitution. Yes, we
have three separate branches. Those branches are designed to respect
each other's prerogatives. Those branches are designed to avoid a
constitutional confrontation and engage in one only when necessary.
In the 225-year history of this institution, there has never been a
vote like this before--never.
Is it because the Attorney General didn't turn over documents? He
turned over thousands of pages of documents.
Is it because the people that know about this issue haven't been made
available? To the contrary. The committee refused to hear the testimony
of the head of the ATF and the Assistant Attorney General.
This procedure diminishes the House. It vandalizes the Constitution.
It should not go forward.
Mr. NUGENT. Mr. Speaker, I yield 30 seconds to the gentleman from
Utah (Mr. Chaffetz).
Mr. CHAFFETZ. The record will reflect that in a bipartisan way, the
Acting Director of the ATF, the person that was actually appointed by
President Obama, was deposed by both Democrats and Republicans about a
year ago for 2 days around July 4. It was 2 days that he was deposed.
That record is there. It is crystal clear.
We were also denied, by the Department of Justice, to speak with
Lanny Breuer and Kenneth Blanco, two of the key central people at the
highest levels of the Department of Justice. To suggest that we were
given an opportunity to talk to them is patently false.
[[Page H4170]]
The final part I will make is you can't complain that Attorney
General Holder was here nine times between the House and the Senate
talking in part about Fast and Furious and then say that you never had
a Democratic witness.
Mr. McGOVERN. Mr. Speaker, we need to deal with facts in this debate
because this is an important matter.
The gentleman just talked about these hearings, these meetings with
the head of the ATF. The reality was that a year ago Republican staff
met with the head of the ATF on July 3 without notifying Democratic
staff. Democratic staff were invited to come on July 4. There were no
public hearings, and no Members were there.
Again, I'm not sure what the problem is with having the head of the
ATF come before the committee so the American people can hear what the
truth is and what the facts are. I don't know why that's such a big
deal. But to suggest that this was a bipartisan effort is just outright
false.
Mr. Speaker, at this time, I yield 2 minutes to the gentlewoman from
Maryland (Ms. Edwards).
Ms. EDWARDS. Mr. Speaker, the Republican majority is pursuing an
unprecedented and a partisan constitutional confrontation today, and
it's unnecessary.
The contempt resolution that's before the House is both disgraceful
and it really is demeaning to this House. It's being brought forth by
the other side simply to drag Attorney General Holder through the mud
and to publicly accuse him and the administration and, frankly, by
extension, the President of the United States, of a coverup, claiming
that our Attorney General was obstructing justice. Republicans even
went so far as to call him a liar on national television. This is
unheard of, it is hyperbolic, and it's disrespectful to the office and
disrespectful to this House.
The fact is that Chairman Issa and Republicans have continuously
moved the goalpost and disregarded the good intent and good faith shown
by the Attorney General, the Justice Department, and the President's
administration.
As has been said before, the Department of Justice has provided the
Congress with over 7,600 pages of documents and made numerous officials
available for testimony, but that's been rebuffed. Just last week, the
Attorney General offered to provide even more internal documents and
requested a show simply of good faith on the part of the Republican
majority that they wanted to resolve the contempt issue, but they
refused, choosing this constitutional confrontation instead. That's
because the Republicans, to be clear, are not interested in a
resolution. They're not looking to compromise. They're only looking to
score political points at the expense of the integrity of the House and
the good name of the President and the Attorney General.
So I would ask us to carefully consider what we're doing here today
and to raise into question what we're doing to this House, to the
institution, and to the Presidency. I would ask my colleagues on the
other side of the aisle to ask themselves whether the American people
want us to focus on their business, to focus on the business of moving
the country forward, or to simply play politics because you can't win
any other way.
It's a really simple proposition that's in front of us today. And I
would say to my colleagues on both sides of the aisle: it is time for
us to simply walk away from the nonsense that is not doing justice to
the American people.
Mr. Speaker, the Republican majority is pursuing an unprecedented and
partisan constitutional confrontation today.
The contempt resolution before this House is disgraceful and
demeaning to the House. It's been brought forth by the other side to
drag Attorney General Holder through the mud and publicly accuse him
and the Administration by extension the President of the U.S. of a
``cover-up'', claiming that Attorney General Holder was ``obstructing
justice.'' Republicans even went so far as to call him a ``liar'' on
national television--unheard of, blatantly hyperbolic, and
disrespectful to the office.
The fact is that Chairman Issa and the Republicans have continuously
moved the goalposts and disregarded the good faith shown by the
Attorney General, the Justice Department, and the President's
Administration.
All told, the Department of Justice has provided Congress with over
7,600 pages of documents and has made numerous high profile officials
available for public congressional testimony. The Attorney General
himself has answered questions at nine public hearings.
Last week, the Attorney General offered to provide even more internal
documents, including documents outside of Chairman Issa's subpoena. All
the Attorney General requested was a show of good faith on the part of
the Republican majority to resolve the contempt issue, but they
refused. That's because the Republicans are not looking to compromise.
They are looking simply to score political points at the expense of the
integrity of the House.
And so, on June 11th, Chairman Issa announced his intention to hold a
contempt vote. On June 20th, just nine short days later, Chairman Issa
called the vote after the President invoked executive privilege.
From George Washington to George W. Bush, Presidents of both
political parties have asserted executive privilege to protect the
confidentiality of certain kinds of executive branch information in
response to demands by Congress. In fact, dating back to President
Reagan, Presidents have asserted executive privilege 24 times.
In previous situations, Committee Chairman put off contempt
proceedings in order to conduct serious and careful review of
Presidential assertions of executive privilege. Then Oversight and
Government Reform Chairman Waxman put off a contempt vote after
President Bush asserted executive privilege in the Valarie Plame
investigation. Chairman Waxman did the same when President Bush
asserted the privilege relating to EPA ozone regulations--on the same
day as the contempt vote. Mr. Dingell, as Chair of the Energy and
Commerce Committee held two hearings before proceeding to a contempt
vote, after he received President Reagan's assertion of executive
privilege.
But on June 20th, after the invocation of executive privilege by
President Obama, and over the requests of several committee members to
delay action, Chairman Issa proceeded with the contempt vote.
One question that comes to my mind is why the rush? The Committee
recently ``completed'' a 16-month investigation, one in which the
committee refused all Democratic requests for hearings and even for a
single witness. Then one week and just seven days after the committee
reported out the contempt resolution on a party-line vote on June 20th,
the House today will vote on this privileged resolution.
The last time the House voted on contempt resolution against
executive branch officials was during an investigation in the Bush
administration into the firing of U.S. Attorneys. In that situation,
the House Judiciary Committee cited two officials for contempt of
Congress in July 2007. The full House did not actually consider and
vote on those contempt resolutions until eight months later in February
2008.
The Obama administration has argued that the documents in question in
this instance fall within the executive privilege because they have
been generated in the course of the deliberative process concerning the
Justice Department's response to Congressional oversight, not because
the President knew more about this matter than he admitted to or that
there was a conspiracy in the White House, as Chairman Issa falsely
asserts.
For some reason, the Republican majority feels that this is a
pressing issue. But I can think of a large list of other issues that I
feel that Americans would rather we address.
It is hard to imagine that the House Republican majority's actions
are anything else besides election-year politics designed to make this
administration look bad. This resolution will not create jobs, nor will
it strengthen our economic recovery. It is far past time to getting
around to solving the real problems that the American people sent each
of us here to resolve.
I urge my colleagues on both sides of the aisle to carefully consider
what we are about to do today. Never in our nation's history has the
House voted to hold a sitting Attorney General in contempt. I urge my
colleagues to vote down this partisan and political contempt
resolution.
{time} 1320
Mr. NUGENT. Mr. Speaker, I would like to inquire how much time
remains.
The SPEAKER pro tempore. The gentleman from Florida has 9\1/2\
minutes remaining. The gentleman from Massachusetts has 10 minutes
remaining.
Mr. NUGENT. I will continue to reserve the balance of my time.
Mr. McGOVERN. Mr. Speaker, I yield 2 minutes to the gentleman from
California (Mr. Schiff).
Mr. SCHIFF. I thank the gentleman for yielding.
I rise in strong opposition to this resolution. What began as a
legitimate investigation into an operation called
[[Page H4171]]
Fast and Furious has, unfortunately, degenerated into yet another
partisan political attack in an election year. And it's a shame this is
taking place for many reasons. First and foremost, because the American
people have a legitimate interest in getting to the bottom of the gun
violence that spills across our border, with the tens of thousands of
weapons made in America that end up in the hands of the cartels. But
instead of looking into that investigation, instead of finding out what
we can do about this gun violence, this has now become a fight over
documents, a fight that is completely unnecessary and unjustified.
The very documents that are at issue in this resolution were created
after this operation had long since been shut down. They will shed no
light on the operation. They will shed no light on what we can do to
stop this gun trafficking. But then that's not the goal. The goal here
is simply the fight.
The Justice Department has bent over backwards, produced thousands of
documents. The Attorney General has testified eight or nine times
before the House, has made every effort to cooperate in this
investigation, but the committee will not take ``yes'' for an answer
because that's not the goal. The fight is the goal.
And so we are here when we should be doing the Nation's business,
when we should be working on legislation to create jobs. Instead, we
are here in what is nothing less than a partisan brawl over nothing.
And you know how this will end? It will end months or years from now
with a settlement in Federal District Court in which the Justice
Department will provide the very same documents they have already
offered to provide. But we will have wasted our time; we will have
wasted our money; and we will have wasted the precious opportunity to
get the people's business done here in the House.
In case the majority hasn't noticed, we are in the midst of a very
difficult economy, where people are struggling to find work. They are
not struggling to find another partisan fight on the House floor. This
is something that cried out for resolution, but those cries were
ignored. I urge a ``no'' vote.
Mr. NUGENT. Mr. Speaker, I yield 2 minutes to the gentleman from Utah
(Mr. Chaffetz).
Mr. CHAFFETZ. Mr. Speaker, the reason I am so passionate about this
issue is that it's about openness, it's about transparency, it's about
the idea that there is no one person in our government that's above the
law; that when you have a duly issued subpoena, you comply with that
subpoena.
In fact, I would like to hearken back to the remarks by President
Obama as he took office. He said:
Let me say as simply as I can. Transparency and the rule of
law will be the touchstones of this presidency. I will also
hold myself, as President, to a new standard of openness. But
the mere fact that you have legal power to keep something
secret does not mean you should always use it.
He went on to say:
I expect members of my administration not simply to live up
to the letter but also the spirit of this law.
He went on to send something to all of the department heads. He said:
Government should not keep information confidential merely
because public officials might be embarrassed by disclosure,
because errors or failures might be revealed, or because of
speculative or abstract fears.
The President further said, relating to Fast and Furious:
There may be a situation here in which a serious mistake
was made, and if that's the case, we will find out, and we
will hold somebody accountable.
We have a dead Border Patrol agent. We have over 200 dead Mexican
people. We have a program that the Attorney General called
``fundamentally flawed.'' We have thousands of weapons that are
missing. We have a duty, an obligation to pursue this to the fullest
extent and to make sure that we have all those documents so we can make
sure that it never, ever happens again.
Now there are 140,000 documents, according to the Attorney General,
that deal with Fast and Furious. We've been given less than 8,000 of
those. Less than 8,000 of those. We deserve to have that.
Also, I will be submitting for the Record this statement from the
National Border Patrol Council. This is the AFL-CIO-oriented
organization of 17,000 Border Patrol members who call for the
resignation of Attorney General Holder. In fact, they say that it's ``a
slap in the face to all Border Patrol agents who serve this country''
and ``an utter failure of leadership at the highest levels of
government.''
``If Eric Holder were a Border Patrol agent and not the Attorney
General, he would have long ago been found unsuitable for government
employment and terminated.''
These are from the people on the front lines. We have an obligation
to get to the bottom of this.
[From the National Border Patrol Council, June 20, 2012]
NBPC Calls for the Resignation of Attorney General Eric Holder
June 18, 2012.--The union representing U.S. Border Patrol
agents called for the resignation of Attorney General Eric
Holder for his role in the ``Operation Fast and Furious'' gun
smuggling scandal that directly resulted in the murder of
Border Patrol Agent Brian Terry on December 15, 2010.
National Border Patrol Council President George E. McCubbin
III called the actions of the Attorney General Holder, ``A
slap in the face to all Border Patrol agents who serve this
country'' and ``an utter failure of leadership at the highest
levels of government.''
Border Patrol agents are indoctrinated from day one of
their training that integrity is their most important trait
as a Border Patrol agent and that without it they have little
use to the agency. Border Patrol agents are quickly
disciplined whenever they lie or show a lack of candor. The
standard that applies to these agents should at a minimum be
applied to those who lead them. ``If Eric Holder were a
Border Patrol agent and not the Attorney General, he would
have long ago been found unsuitable for government employment
and terminated.''
``The heroism that Border Patrol Agent Brian Terry
demonstrated on that cold night in the dessert of Arizona was
in keeping with the finest traditions of the United States
Border Patrol and will never be forgotten by those who patrol
this nation's borders. We cannot allow our agents to be
sacrificed for no gain and not hold accountable those who
approved the ill conceived `Operation Fast and Furious' '',
said McCubbin.
``The political shenanigans surrounding this scandal and
the passing of blame must stop.'' A Border Patrol agent
cannot accidentally step foot into Mexico without a myriad of
U.S. and Mexican government agencies being made aware, so
there is no possible way that this operation was conducted
without the knowledge and tacit approval of the Department of
Justice and the Obama administration.
Mr. McGOVERN. Mr. Speaker, I yield myself 15 seconds.
Mr. Speaker, if this is about openness, then why does the committee
have secret meetings where they lock Democrats out? If this is about
openness, then why won't they let any Democratic witnesses appear
before the committee?
And since there seems to be some confusion as to whether or not
Democrats actually formally requested witnesses, I will insert into the
Record a letter to the Honorable Darrell Issa on October 28, on
November 4, and on February 2, requesting witnesses, including the
former Attorney General Mukasey and Mr. Melson, the head of the ATF.
Committee on Oversight and Government Reform, House of
Representatives,
Washington, DC, October 28, 2011.
Hon. Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Dear Mr. Chairman: As I have stated repeatedly, I believe
Operation Fast and Furious was a terrible mistake with tragic
consequences. As I have also stated, I support a fair and
responsible investigation that follows the facts where they
lead, rather than drawing conclusions before evidence is
gathered or ignoring information that does not fit into a
preconceived narrative.
On several occasions over the past month, you have called
on Attorney General Eric Holder to appear before the House
Judiciary Committee to answer questions about when he first
became aware of the controversial tactics used in Operation
Fast and Furious. The Attorney General has now agreed to
testify before the House Judiciary Committee on December 8,
2011, when you will have another opportunity to question him
directly.
With respect to our own Committee's investigation, I do not
believe it will be viewed as legitimate or credible--and I do
not believe the public record will be complete--without
public testimony from Kenneth Melson, who served as the
Director of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF).
A hearing with Mr. Melson would help the Committee and the
American people better understand what mistakes were made in
Operation Fast and Furious, how these tactics originated, who
did and did not authorize them. and what steps are being
taken to ensure that they are not used again.
Our staffs have already conducted transcribed interviews
with Mr. Melson and the
[[Page H4172]]
former Deputy Director of ATF, William Hoover. During those
interviews, these officials expressed serious concerns about
the controversial tactics employed by the Phoenix Field
Division of ATF as part of this operation. They also raised
concerns about the manner in which the Department of Justice
responded to congressional inquiries.
Both officials also stated that they had not been aware of
the controversial tactics being used in Operation Fast and
Furious, had not authorized those tactics, and had not
informed anyone at the Department of Justice headquarters
about them. They stated that Operation Fast and Furious
originated within the Phoenix Field Division, and that ATF
headquarters failed to properly supervise it.
Since the Attorney General has now agreed to appear before
Congress in December, I believe Members also deserve an
opportunity to question Mr. Melson directly, especially since
he headed the agency responsible for Operation Fast and
Furious. My staff has been in touch with Mr. Melson's
attorney, who reports that Mr. Melson would be pleased to
cooperate with the Committee.
Thank you for your consideration of this request.
Sincerely,
Elijah E. Cummings,
Ranking Member.
____
Committee on Oversight and Government Reform, House of
Representatives,
Washington, DC, November 4, 2011.
Hon. Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Dear Mr. Chairman: I am writing to request that the
Committee hold a hearing with former Attorney General Michael
Mukasey in order to assist our efforts in understanding the
inception and development of so-called ``gun-walking''
operations over the past five years.
The Mukasey Memo
Documents obtained by the Committee indicate that Attorney
General Mukasey was briefed on November 16, 2007, on a
botched gun-walking operation by the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (ATF). A briefing paper
prepared for Attorney General Mukasey prior to a meeting with
Mexican Attorney General Medina Mora describes ``the first-
ever attempt to have a controlled delivery of weapons being
smuggled into Mexico by a major arms trafficker.'' The
briefing paper warns, however, that ``the first attempts at
this controlled delivery have not been successful.'' Despite
these failures, the briefing paper proposes expanding such
operations in the future. It states:
ATF would like to expand the possibility of such joint
investigations and controlled deliveries--since only then
will it be possible to investigate an entire smuggling
network, rather than arresting simply a single smuggler.
Attorney General Mukasey's briefing paper was prepared only
weeks after ATF officials had expressed serious concerns with
the failure of these tactics and claimed they were shutting
them down. After ATF officials discovered that firearms were
not being interdicted, William Hoover, then ATF's assistant
director of field operations, wrote an e-mail on October 5,
2007, to Carson Carroll, ATF's assistant director for
enforcement programs, stating:
I do not want any firearms to go South until further
notice. I expect a full briefing paper on my desk Tuesday
morning from SAC Newell [Special Agent in Charge William
Newell] with every question answered.
The next day, Special Agent in Charge Newell responded in
an e-mail, stating:
I'm so frustrated with this whole mess I'm shutting the
case down and any further attempts to do something similar.
We're done trying to pursue new and innovative initiatives--
it's not worth the hassle.
It is unclear from the documents what changed between
October 6, 2007, when Special Agent in Charge Newell
indicated that he was shutting down these operations, and
November 16, 2007, when Attorney General Mukasey was
presented with a proposal to expand them. The documents do
not indicate whether Attorney General Mukasey read this
briefing paper or how he responded to the proposal to expand
these operations.
Additional Gun-Walking Operations During the Bush Administration
Other documents obtained by the Committee indicate that the
officials who prepared the November 16, 2007, briefing paper
for Attorney General Mukasey were aware that it did not
disclose the full scope of previous gun-walking operations.
After reviewing the briefing paper, Mr. Carroll wrote an e-
mail to Mr. Hoover, stating: ``I am going to ask DOJ to
change `first ever'.'' He added: ``there have [been] cases in
the past where we have walked guns.''
Mr. Carroll's statement appears to be a reference to an
earlier operation in 2006 known as Operation Wide Receiver.
The documents obtained by the Committee do not indicate
whether Attorney General Mukasey was in fact informed about
this operation, which occurred a year earlier.
The documents obtained by the Committee appear to directly
contradict your claim on national television that gun-walking
operations under the previous Administration were well
coordinated. During an appearance on Face the Nation on
October 16, 2011, you asserted:
We know that under the Bush Administration there were
similar operations, but they were coordinated with Mexico.
They made every effort to keep their eyes on the weapons the
whole time.
Your assertion was particularly troubling since the
Committee obtained these e-mail exchanges in July, several
months before your appearance on Face the Nation.
Conclusion
Over the past year, you have been extremely critical of
Attorney General Eric Holder, arguing that he should have
known about the controversial tactics employed in these
operations. He has now agreed to your request to testify
before the House Judiciary Committee on December 8, 2011, to
answer additional questions about these operations.
Given the significant questions raised by the disclosures
in these documents, our Committee's investigation will not be
viewed as credible, even-handed, or complete unless we hear
directly from Attorney General Mukasey.
During a press appearance on Wednesday, you stated: ``Our
job for the American people is to make sure--since they say
they shouldn't walk guns and they did walk guns--is that we
know they'll never walk guns again.'' I completely agree with
this statement, and I believe my request will help us fulfill
our shared goal. Thank you for your consideration of this
request.
Sincerely,
Elijah E. Cummings,
Ranking Member.
____
Committee on Oversight and Government Reform, House of
Representatives,
Washington, DC, February 2, 2012.
Hon. Darrell E. Issa,
Chairman, Committee on Oversight and Government Reform, House
of Representatives, Washington, DC.
Dear Mr. Chairman: Given your statements at today's
hearing, I am writing to formally reiterate my previous
request for the Committee to hold a public hearing with
former Attorney General Michael Mukasey.
On November 4, 2011, I wrote to you requesting a public
hearing with Mr. Mukasey in order to assist the Committee's
efforts in understanding the inception and development of so-
called ``gunwalking'' operations over the past five years in
Arizona.
As I described in the letter, the Committee has now
obtained a briefing paper prepared for Mr. Mukasey prior to a
meeting with Mexican Attorney General Medina Mora. The
briefing paper describes efforts in 2007 by the Bureau of
Alcohol, Tobacco, Firearms and Explosives (ATF) to coordinate
interdiction efforts with Mexico after firearms crossed the
border. The briefing paper warns, however, that ``the first
attempts at this controlled delivery have not been
successful.'' Despite these failures, the briefing paper
proposes expanding such operations in the future. It states:
ATF would like to expand the possibility of such joint
investigations and controlled deliveries--since only then
will it be possible to investigate an entire smuggling
network, rather than arresting simply a single smuggler.
Since I sent the letter to you in November, the Committee
has not held a public hearing with Mr. Mukasey.
In addition to these documents, I issued a report this week
documenting that Operation Fast and Furious was actually the
fourth in a series of reckless operations run by the Phoenix
Field Division of ATF and the Arizona U.S. Attorney's Office
dating back to 2006 involving hundreds of weapons across two
administrations.
At today's hearing, several Members of the Committee
acknowledged that the documents obtained by the Committee do
not indicate that Mr. Mukasey approved gunwalking, just as
they do not indicate that Attorney General Holder approved
gunwalking. Nevertheless, these Members expressed their
belief that Mr. Mukasey's public testimony is necessary if
the Committee intends to conduct a thorough and evenhanded
investigation of this five-year history of gunwalking in
Arizona.
During an exchange with Committee Member Gerry Connolly at
today's hearing, you stated that you were open to all
requests for hearings relating to this investigation.
Attorney General Holder has now testified publicly six times
about these issues. It is only appropriate for the Committee
and the public to hear testimony from Mr. Mukasey at least
once.
Thank you for your consideration of this request.
Sincerely,
Elijah E. Cummings,
Ranking Member.
Mr. McGOVERN. I yield 2 minutes to the gentleman from Georgia (Mr.
Johnson).
Mr. JOHNSON of Georgia. Mr. Speaker, today we need to understand that
there are two classes of documents. The ones that relate to pending
criminal investigations, those are not discoverable or cannot be
distributed outside of the Justice Department under
[[Page H4173]]
penalty of U.S. law. You can get 5 years for doing that. You can't
expect the Attorney General to turn those over. The other class of
documents is internal communications. There may be some whiff of
discoverable information in those, but they're covered by executive
privilege. And you really don't know why the Attorney General has
invoked executive privilege on those issues, but we have to trust the
fact that there's good reason for that to be the case.
Now when you compare what has gone on today and over the last 7 days
with what happened the day that President Obama was sworn in, you can
understand why they're doing what they're doing today. You see, not
very long after President Obama was sworn in, we got word that Mitch
McConnell said that his mission was to make President Obama a one-term
President. And then we know that later on that afternoon, later that
evening, when everyone else was enjoying themselves at the Presidential
balls, there was a group of Congresspeople--leadership in the
Republican Party--that were scheming on how they were going to disrupt
and say ``no'' and obstruct everything that this President put forth.
So they have done that. They have done everything they can to make this
President look bad.
This is a manufactured crisis. It has no legal substance whatsoever.
This is just simply a cheap political stunt to bring disfavor upon the
President of the United States. And I ask my colleagues to not let us
sink to this level. It is the first time in history that any Cabinet
member has been found in contempt of Congress. This is truly saddening.
Mr. NUGENT. Mr. Speaker, I yield 90 seconds to the gentleman from
Oklahoma (Mr. Lankford).
Mr. LANKFORD. Mr. Speaker, I would have to concur. This is an
incredibly sad day. This administration that started talking about
transparency has now sunk to the level of actually concealing
documents.
Never has an Attorney General been held in contempt of Congress
because every other Attorney General has turned over documents to
Congress when they were requested. This Attorney General has not.
I would just compare this whole controversy with the Secret Service
scandal from several months ago. They put everything out, released all
the documents, walked through it. It was done. The GSA scandal,
released all the documents, held people accountable. It was done. ATF
even, when we started this investigation a year and a half ago, put all
their documents out, put all their people out, done.
As soon as we get to the Department of Justice, it's slow. It's
delay, it's delay, it's delay. The question is, Why? Why this matters
when we get to the Department of Justice documents? Because in the
Phoenix office, everything was organized in the Phoenix office, then
was approved by the U.S. attorney in the Phoenix area, and then went to
the Department of Justice--not to the head of ATF--but to the
Department of Justice, to DOJ and their leadership, to be approved.
{time} 1330
It is essential that we know what was done there and who did it in
the process. So this is not some ancillary thing that's added to it.
This is an important part of this process.
Now, there's all this obfuscation to say it's Bush's fault, this is
political, there's not enough witnesses. The essence of this particular
contempt deals with the documents that, on February 4 of last year, the
Department of Justice sent us a letter that said they had no idea about
this. And then by December, after all yearlong saying, No, we didn't
know, we didn't know, we didn't know, come back in December and say,
Oops, we did. It is what Eric Holder has called his evolving truth.
We want to know the facts of how it started here and went here.
There's 130,000 documents that they say they have. They have turned
over a little over 7,000 of those documents. This is not the
prerogative for them to continue to hold and conceal those documents.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. NUGENT. I yield the gentleman an additional 15 seconds.
Mr. LANKFORD. Fast and Furious has moved to slow and tedious. We have
got to have those documents to be able to finish up this investigation.
It should have long since been done.
Eric Holder told our chairman that he has these documents, but he's
using the documents as a bargaining chip to get a better deal. This is
not the prerogative when we have a subpoena.
We are not looking for some conflict with the administration. We're
looking to get to the facts.
Mr. McGOVERN. Mr. Speaker, I yield 1\1/2\ minutes to the gentleman
from Pennsylvania (Mr. Fattah).
Mr. FATTAH. I thank the gentleman.
I served for many years on the Oversight and Government Reform
Committee. I've been involved in a lot of these investigations over
time. I served for many years on the House Ethics Committee.
The Congress should be embarrassed about the conduct of this
investigation and the charade that brings us to the floor today. The
Attorney General can't provide these documents. The President has
protected them under executive order, executive privilege, which means
that the person who works for the President can't provide them to the
Congress. We all know that. So to take a decent man who's served his
country in almost every capacity--as a military veteran, as a U.S.
attorney here in D.C., as a judge--and to drag his name wrongfully
before this House, this majority, which clearly has lost its way--in
their pursuit of power, they have lost all sense of principle--this is
a disgraceful act.
But we will get through it. We are a big country, and the American
people will recognize the disservice that the Republican majority
brings to this floor today.
I wouldn't be surprised, at the end of the day, whether we couldn't
even find this Congress held in more contempt than it is now. I think
we're at a 9 percent approval rate. That's because of the actions of
this majority. And the public will have to take account of that as we
go forward.
Mr. NUGENT. I reserve the balance of my time.
Mr. McGOVERN. Mr. Speaker, I yield 2 minutes to the gentlelady from
California (Ms. Speier).
Ms. SPEIER. I thank the gentleman from Massachusetts.
This should be labeled ``Fast and Foolish'' or maybe ``Fast and
Fake.'' We are not talking about gunwalking here. We are doing nothing
to help the family of Brian Terry recover. What we're talking about are
interoffice emails between the administration executives in the AG's
office. I want everyone here to be willing to turn over all of their
interoffice emails.
But, more importantly, let's talk about whether there's precedence
for the assertion of executive privilege. And let me just point to a
number of cases when executive privilege was asserted for noninvolved
Presidential communications.
In October 1981, President Reagan asserted executive privilege over
internal deliberations within the Department of the Interior
concerning, interestingly enough, the Mineral Lands Leasing Act.
In October 1982, President Reagan asserted executive privilege over
internal EPA files concerning Superfund provisions.
In July 1986, President Reagan asserted executive privilege over
documents written by William Rehnquist when he was the head of the OLC
at DOJ.
In August 1991, President George H.W. Bush asserted executive
privilege over an internal Defense Department memorandum regarding an
aircraft development contract.
In December 2011, President George W. Bush asserted executive
privilege over internal Justice Department materials relating to
prosecutorial decisionmaking.
It has been done many, many times before by Republican Presidents.
What we are doing here is a travesty to this institution and to this
country.
Mr. NUGENT. I continue to reserve the balance of my time.
Mr. McGOVERN. Mr. Speaker, can I inquire of the gentleman from
Florida how many more speakers he has, because we have no more speakers
on this side but myself.
Mr. NUGENT. We have no more speakers.
Mr. McGOVERN. Mr. Speaker, I yield myself the balance of my time.
[[Page H4174]]
Mr. Speaker, there isn't a single person in this House who doesn't
honor the service of Agent Terry. There isn't a single person in this
House who does not want justice for Agent Terry's family--and the
truth. There isn't a single person in this House, I believe, who
doesn't want to get to the bottom of how gunwalking started and how
these operations were so terribly botched.
But every single attempt for an evenhanded investigation has been
thwarted by the Republican majority. There has not been an evenhanded
investigation. Every single witness that the Democrats requested to be
called before the committee was refused. Every single witness. It's
unprecedented.
Let me say that Eric Holder is a good and decent and honorable man.
He's doing an excellent job as Attorney General. He does not deserve
this. And this institution does not deserve this.
I say to my friends on the other side of the aisle: Do you really
want to go down this road? This is a race to the bottom. This is a
witch hunt. This is politics, pure and simple. It diminishes this House
of Representatives. We are better than this.
Does everything have to be a confrontation? Does everything have to
be in your face?
Now, you want to maintain your majority. I get it. You want to win
elections. That's understandable. But at what cost? Do we really need
to drag the House of Representatives down this road?
This is a stain on this House of Representatives. We should not be
here today. We should be talking about jobs and putting people back to
work and about making sure student loans don't double. But instead, we
are doing this.
This is so political and so blatantly partisan that I think the
American people are sickened by this. And as a number of people have
said, You want to know why the approval rating is so low? Watch the
videotape of this debate here today. We should be doing the peoples'
business.
This is not the peoples' business. This is not about getting to the
truth in the case of Agent Terry. This is a political maneuver to go
after this administration. And this has, unfortunately, become a trend
and a pattern in this Congress. We need to find a way to solve our
problems without always having these big confrontations.
So I urge my colleagues on the other side of the aisle, don't go down
this road. We urged the Speaker of the House yesterday to pull this
from the floor. This is wrong. Please defeat this rule.
I yield back the balance of my time.
Mr. NUGENT. Mr. Speaker, I yield myself such time as I may consume.
This is about Agent Terry, who gave his life for this country. This
is about what this government has done not to expose the truth but to
block the truth. This is about calling on the Attorney General to
follow the Constitution. It's about us following article I of the
Constitution in regards to our ability to have oversight.
I hear this stuff about witch hunt and about politics and it gets me
sick, because I will tell you this: as a former law enforcement
officer, we should be more worried about what lousy policies that
Attorney General Holder has covered up that caused the death of one of
our own in protecting this country. That's what this is all about. This
is about holding people accountable.
I hear a lot of things down here. But the rule of law, when I was
subpoenaed as a sheriff, we complied with the subpoena. I understand
that the Attorney General feels that he's above the law in regards to
the subpoena, and I understand the President's come in to protect him.
But we talk about this body and what the American people think. How
about we do the right thing, Mr. Speaker, and we move forward and do
the right thing in regards to all the Attorney General has to do is
comply with the subpoena. By saying that he's bent over backwards, I
would suggest to you that under 8,000 pages of documents out of 140,000
is not bending over backwards.
This is about our constitutional responsibility to provide oversight.
This is about our constitutional responsibility to make sure that the
Federal Government stays on track, that these executive branch
decisions that are made don't put more Americans at risk.
Nobody seems to care about the 200-plus Mexican nationals that have
been killed. Obviously, Mexico cares because they want to indict those
that were responsible for coming up with this failed idea.
{time} 1340
This is about Congress doing its constitutional responsibility,
holding hearings to find out what happened. And when the Federal
Government or branches of the Federal Government stand in the way and
obstruct, that's not the right thing to do. My friends on the other
side of the aisle should be more concerned that the Attorney General
has said to the Congress: Guess what, you don't matter.
Congress does matter. Congress has a constitutional responsibility,
Mr. Speaker, to do just that, to have oversight over the executive
branch, and the subpoena is a tool to allow us to do that. And,
unfortunately, this Attorney General feels he doesn't have to comply. I
beg to differ.
I think the American people--but more than that, the family of
Officer Terry--deserve to know what transpired and what the end of this
is. And I think that we should be protecting those law enforcement
officers that are out there today. In the United States of America,
they are going to be facing these same guns that were walked during
Fast and Furious. If you read the transcripts, hundreds--hundreds--of
guns walked. Some have been recovered in the United States. And,
unfortunately, some have been recovered in Mexico and have led to
deaths in Mexico. One has to wonder how many of those guns are going to
lead to deaths here in America.
You know, when I raised my hand, along with everybody else, it was to
support and defend the Constitution. When I raised my hand as a
sheriff, it was to support and defend the Constitution. And when
Officer Terry raised his hand, it was to support and defend the
Constitution and the laws of the United States of America.
We owe it to all of our law enforcement officers--Federal law
enforcement officers, in particular--on this issue, to make sure that
they're protected. And to all of our local law enforcement officers who
are going to be the first line of defense on the streets of our cities
and counties, they have a right to know what this Attorney General's
office and the leadership has done, not giving people a free pass
because it is expedient to do and because we really don't want to hear
what the absolute facts are. Let's just push the facts aside.
Those on the other side of the aisle really don't want to talk about
the facts. They want to talk about it is a witch hunt or it's politics.
The facts are clear. Officer Terry is dead. Officer Terry died
because weapons were allowed to walk from the United States under the
nose of the ATF and under the nose of the Attorney General's office
through an OCDETF case. Those are the facts.
I would suggest that we should find out how did that come to pass.
And then in regards to what was transpired and sent to Congress and
Members of Congress about the fact that it didn't really occur, and
then 10 months later, Oh, by the way, you know that memo we sent, it
wasn't correct; we did, in fact, allow guns to walk.
We put law enforcement officers of the United States of America at
risk because this Federal Government had a botched idea and a bad idea.
Mr. NUGENT. With that, I yield back the balance of my time, and I
move the previous question on the resolution.
The previous question was ordered.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. McGOVERN. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, this 15-
minute vote on House Resolution 708 will be followed by 5-minute votes
on suspending the rules and passing: H.R. 4251, if ordered; and H.R.
4005, if ordered.
The vote was taken by electronic device, and there were--yeas 254,
nays 173, not voting 5, as follows:
[[Page H4175]]
[Roll No. 437]
YEAS--254
Adams
Aderholt
Akin
Alexander
Amash
Amodei
Austria
Bachmann
Bachus
Barletta
Barrow
Bartlett
Barton (TX)
Bass (NH)
Benishek
Berg
Biggert
Bilbray
Bilirakis
Bishop (UT)
Black
Blackburn
Bonner
Bono Mack
Boren
Boswell
Boustany
Brady (TX)
Brooks
Broun (GA)
Buchanan
Bucshon
Buerkle
Burgess
Burton (IN)
Calvert
Camp
Campbell
Canseco
Cantor
Capito
Carter
Cassidy
Chabot
Chaffetz
Chandler
Coble
Coffman (CO)
Cole
Conaway
Cravaack
Crawford
Crenshaw
Culberson
Davis (KY)
Denham
Dent
DesJarlais
Diaz-Balart
Dold
Donnelly (IN)
Dreier
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Emerson
Farenthold
Fincher
Fitzpatrick
Flake
Fleischmann
Fleming
Flores
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gardner
Garrett
Gerlach
Gibbs
Gibson
Gingrey (GA)
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guinta
Guthrie
Hall
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Hayworth
Heck
Hensarling
Herger
Herrera Beutler
Hochul
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (IL)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Kelly
Kind
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kissell
Kline
Labrador
Lamborn
Lance
Landry
Lankford
Latham
LaTourette
Latta
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marino
Matheson
McCarthy (CA)
McCaul
McClintock
McCotter
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meehan
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mulvaney
Murphy (PA)
Myrick
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Owens
Palazzo
Paul
Paulsen
Pearce
Pence
Peterson
Petri
Pitts
Platts
Poe (TX)
Pompeo
Posey
Price (GA)
Quayle
Rahall
Reed
Rehberg
Reichert
Renacci
Ribble
Rigell
Rivera
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross (AR)
Ross (FL)
Royce
Runyan
Ryan (WI)
Scalise
Schilling
Schmidt
Schock
Schweikert
Scott (SC)
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stearns
Stivers
Stutzman
Sullivan
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner (NY)
Turner (OH)
Upton
Walberg
Walden
Walsh (IL)
Walz (MN)
Webster
West
Westmoreland
Whitfield
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Young (AK)
Young (FL)
Young (IN)
NAYS--173
Ackerman
Altmire
Andrews
Baca
Baldwin
Barber
Bass (CA)
Becerra
Berkley
Berman
Bishop (GA)
Bishop (NY)
Blumenauer
Bonamici
Brady (PA)
Braley (IA)
Brown (FL)
Butterfield
Capps
Capuano
Carnahan
Carney
Carson (IN)
Castor (FL)
Chu
Cicilline
Clarke (MI)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly (VA)
Conyers
Cooper
Costa
Costello
Courtney
Critz
Crowley
Cuellar
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
DeLauro
Deutch
Dicks
Dingell
Doggett
Doyle
Edwards
Ellison
Engel
Eshoo
Farr
Fattah
Filner
Frank (MA)
Fudge
Garamendi
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Hahn
Hanabusa
Hastings (FL)
Heinrich
Higgins
Himes
Hinchey
Hinojosa
Hirono
Holden
Holt
Honda
Hoyer
Israel
Jackson Lee (TX)
Johnson (GA)
Kaptur
Keating
Kildee
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lujan
Lynch
Maloney
Markey
Matsui
McCarthy (NY)
McCollum
McDermott
McGovern
McNerney
Meeks
Michaud
Miller (NC)
Miller, George
Moore
Moran
Murphy (CT)
Nadler
Napolitano
Neal
Olver
Pallone
Pascrell
Pastor (AZ)
Pelosi
Perlmutter
Peters
Pingree (ME)
Polis
Price (NC)
Quigley
Rangel
Reyes
Richardson
Richmond
Rothman (NJ)
Roybal-Allard
Ruppersberger
Rush
Ryan (OH)
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schrader
Schwartz
Scott (VA)
Scott, David
Serrano
Sewell
Sherman
Shuler
Sires
Slaughter
Smith (WA)
Speier
Stark
Sutton
Thompson (CA)
Thompson (MS)
Tierney
Tonko
Towns
Tsongas
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watt
Waxman
Welch
Wilson (FL)
Woolsey
Yarmuth
NOT VOTING--5
Cardoza
Forbes
Jackson (IL)
Johnson, E. B.
Lewis (CA)
{time} 1407
Ms. EDWARDS and Mr. COHEN changed their vote from ``yea'' to ``nay.''
Mr. DONNELLY of Indiana and Mrs. LUMMIS changed their vote from
``nay'' to ``yea.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
____________________
[Congressional Record Volume 158, Number 99 (Thursday, June 28, 2012)]
[House]
[Pages H4177-H4418]
{time} 1430
RECOMMENDING THAT ATTORNEY GENERAL ERIC HOLDER BE FOUND IN CONTEMPT OF
CONGRESS
Mr. ISSA. Mr. Speaker, by direction of the Committee on Oversight and
Government Reform, I call up the report (H.Rept. 112-546) to accompany
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.
The Clerk read the title of the report.
The SPEAKER pro tempore. Pursuant to House Resolution 708, the report
is considered read.
The text of the report is as follows:
The Committee on Oversight and Government Reform, having
considered this Report, report favorably thereon and
recommend that the Report be approved.
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.
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\
---------------------------------------------------------------------------
\1\ McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
\2\ Watkins v. United States, 354 U.S. 178, 187 (1957).
---------------------------------------------------------------------------
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 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\
---------------------------------------------------------------------------
\3\ U.S. CONST., art. I, 5, clause 2.
\4\ House rule X, clause (4)(c)(2).
\5\ Id.
---------------------------------------------------------------------------
House rule XI specifically authorizes the Committee to
``require, by subpoena or otherwise, the attendance and
testimony of such
[[Page H4178]]
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.
---------------------------------------------------------------------------
\6\ House rule XI, clause (2)(m)(1)(B).
\7\ House rule XI, clause (2)(m)(3)(A)(i).
---------------------------------------------------------------------------
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.
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 Department has
not provided a privilege log delineating with particularity
why certain documents are being withheld.
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
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.
---------------------------------------------------------------------------
\9\ Transcribed Interview of Special Agent Peter Forcelli, at
53-54 (Apr. 28, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ E-mail from Kevin Simpson, Intelligence Officer, Phoenix
FIG, ATF, to David Voth (Dec. 18, 2009).
\11\ Id.
\12\ Id.
---------------------------------------------------------------------------
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
[[Page H4179]]
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\
---------------------------------------------------------------------------
\13\ Phoenix Group VII, Phoenix Field Division, ATF, Briefing
Paper (Jan. 8, 2010).
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.
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\
---------------------------------------------------------------------------
\14\ Transcribed Interview of Special Agent in Charge William
Newell, at 32-33 (June 8, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\15\ Transcribed Interview of Special Agent Larry Alt, at 94
(Apr. 27, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\16\ Interview with Lorren Leadmon, Intelligence Operations
Analyst, Washington, D.C., July 5, 2011 [hereinafter Leadmon
Interview].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\19\ Transcribed Interview of Deputy Ass't Dir. Steve Martin,
ATF, at 36 (July 6, 2011) [hereinafter Martin Tr.].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\20\ See generally ``Operation the Fast and the Furious''
Presentation, Mar. 5, 2010.
---------------------------------------------------------------------------
NATF'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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\24\ E-mail from Douglas Palmer, Supervisor Group V, ATF, to
William Newell, ATF (Apr. 27, 2010).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\27\ E-mail from Jason Weinstein to Lanny Breuer (Sept. 10,
2009) [HOGR 003378].
---------------------------------------------------------------------------
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 21st 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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\30\ E-mail from Laura Gwinn to James Trusty (Sept. 3, 2009)
[HOGR 003377].
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\
---------------------------------------------------------------------------
\31\ E-mail from Kenneth Melson to Lanny Breuer (Dec. 3,
2009) [HOGR 003403].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\32\ E-mail from Lanny Breuer to Kenneth Melson (Dec. 4,
2009) [HOGR 003403].
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\
---------------------------------------------------------------------------
\33\ E-mail from Kevin Carwile to Jason Weinstein (Mar. 16,
2010) [HOGR 002832].
---------------------------------------------------------------------------
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
[[Page H4180]]
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\35\ Martin Tr. at 100.
\36\ E-mail from Kevin Carwile to Jason Weinstein (Mar. 16,
2010, 9:00 a.m.) [HOGR DOJ 2382].
---------------------------------------------------------------------------
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
``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\
---------------------------------------------------------------------------
\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. Sec. 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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\41\ Bureau of Alcohol, Tobacco, Firearms, and Explosives,
``ATF's Mission,'' http://www.atf.gov/about/mission (last
visited May 1, 2012).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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. 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\
---------------------------------------------------------------------------
\44\ ``Operation the Fast and the Furious,'' March 12, 2010
[HOGR 002820--HOGR 002823].
\45\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\46\ Id.
\47\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
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.
---------------------------------------------------------------------------
\50\ Letter from Chairman Darrell Issa to ATF Acting Dir.
Kenneth Melson (Mar. 16, 2011) [hereinafter Mar. 16 Letter].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\51\ Letter from Chairman Darrell Issa to Att'y Gen. Eric
Holder (May 5, 2011).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
[[Page H4181]]
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\60\ Letter from Chairman Darrell Issa and Senator Charles
Grassley to FBI Dir. Robert Mueller (July 11, 2011)
[hereinafter Mueller 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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\65\ Letter from Chairman Darrell Issa and Senator Charles
Grassley to Att'y Gen. Eric Holder (Sep. 27, 2011).
---------------------------------------------------------------------------
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 8th.'' \66\ The letter further stated:
---------------------------------------------------------------------------
\66\ Oct. 11 Letter, supra note 57.
[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\
---------------------------------------------------------------------------
\67\ Id.
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
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\
---------------------------------------------------------------------------
\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].
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\69\ Letter from Deputy Att'y Gen. James Cole to Chairman
Darrell Issa (May 15, 2012), at 4 [hereinafter May 15 Cole
Letter].
---------------------------------------------------------------------------
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 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).
---------------------------------------------------------------------------
\70\ OLA e-mail.
---------------------------------------------------------------------------
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
[[Page H4182]]
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\
---------------------------------------------------------------------------
\71\ Id.
\72\ May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\73\ Id.
---------------------------------------------------------------------------
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, 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\
---------------------------------------------------------------------------
\74\ Id.
\75\ Id.
\76\ May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\79\ OLA e-mail, supra note 68.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\80\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\81\ Id.
---------------------------------------------------------------------------
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:
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.
---------------------------------------------------------------------------
\82\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\83\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\84\ Id.
---------------------------------------------------------------------------
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 initiatives, Operation Fast and Furious
or
[[Page H4183]]
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.
---------------------------------------------------------------------------
\85\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\86\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\87\ Id.
---------------------------------------------------------------------------
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 subpoena category. The Department has not informed the
Committee that no documents exist responsive to this schedule
number.
---------------------------------------------------------------------------
\88\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\89\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\90\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\91\ Id.
---------------------------------------------------------------------------
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 firearms
trafficking.'' \92\ The Department has produced some
documents responsive to this subpoena category.
---------------------------------------------------------------------------
\92\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\93\ Id.
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\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.).
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\
---------------------------------------------------------------------------
\95\ Id.
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 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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
[[Page H4184]]
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
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.
---------------------------------------------------------------------------
\98\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (May 2, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\99\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (June 14, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\100\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (July 18, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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
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\
---------------------------------------------------------------------------
\102\ Letter from Chairman Darrell Issa to Att'y Gen. Eric
Holder (Jan. 31, 2012) [hereinafter Jan. 31 Letter].
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\
---------------------------------------------------------------------------
\103\ Letter from Chairman Darrell Issa to Att'y Gen. Eric
Holder (Feb. 14, 2012) (emphasis in original) [hereinafter
Feb. 14 Letter].
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 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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\107\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Apr. 1, 2011).
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:
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
[[Page H4185]]
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\
---------------------------------------------------------------------------
\108\ Letter from Ass't Atty'y Gen. Ronald Weich to Chairman
Darrell Issa (Apr. 8, 2011).
The letter cited prior Department policy in support of 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\
---------------------------------------------------------------------------
\109\ Id.
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\
---------------------------------------------------------------------------
\110\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Apr. 8, 2011).
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:
---------------------------------------------------------------------------
\111\ Letter from Chairman Darrell Issa and Senator Charles
Grassley to Att'y Gen. Eric Holder (July 5, 2011).
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\
---------------------------------------------------------------------------
\112\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa and Senator Charles Grassley (July 6, 2011).
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:
---------------------------------------------------------------------------
\113\ Mueller Letter, supra note 60.
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\
---------------------------------------------------------------------------
\114\ Letter from Stephen Kelley, Ass't Dir., FBI Office of
Congressional Affairs, to Chairman Darrell Issa and Senator
Charles Grassley (Aug. 12, 2011).
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.
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 8th.\115\
---------------------------------------------------------------------------
\115\ Oct. 11 Letter, supra note 57.
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\
---------------------------------------------------------------------------
\116\ Id.
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.
---------------------------------------------------------------------------
\117\ Oct. 31 Letter, supra note 59.
---------------------------------------------------------------------------
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
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\
---------------------------------------------------------------------------
\118\ Letter from Deputy Att'y Gen. James Cole to Chairman
Darrell Issa and Senator Charles Grassley (Dec. 2, 2011).
\119\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\120\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa and Senator Charles Grassley (Dec. 13, 2011).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\121\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Jan. 5, 2012).
---------------------------------------------------------------------------
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:
---------------------------------------------------------------------------
\122\ Cole Letter, supra note 37.
We are producing or making available for review materials
that are responsive to these
[[Page H4186]]
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\
---------------------------------------------------------------------------
\123\ Id.
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:
---------------------------------------------------------------------------
\124\ Jan. 31 Letter, supra note 102.
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\
---------------------------------------------------------------------------
\125\ Letter from Deputy Att'y Gen. James Cole to Chairman
Darrell Issa (Feb. 1, 2012) [hereinafter Feb. 1 Letter].
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.
---------------------------------------------------------------------------
\126\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Feb. 16, 2012) [hereinafter Feb. 16 Letter].
---------------------------------------------------------------------------
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 only because a transcribed interview with a former
Associate Deputy Attorney General was to take place the next
day.
---------------------------------------------------------------------------
\127\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Feb. 27, 2012).
---------------------------------------------------------------------------
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 case. 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.
---------------------------------------------------------------------------
\128\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (Mar. 2, 2012).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
(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.
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\
---------------------------------------------------------------------------
\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.).
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\
---------------------------------------------------------------------------
\132\ Id.
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\
---------------------------------------------------------------------------
\133\ Transcribed Interview of Gary Grindler, Chief of Staff
to the Att'y Gen., at 22 (Dec. 14, 2011) [hereinafter
Grindler Tr.].
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.
---------------------------------------------------------------------------
\134\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\135\ Transcribed Interview of Jason Weinstein, Deputy Ass't
Att'y Gen. at 177 (Jan. 10, 2012).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\136\ Transcribed Interview of Dennis K. Burke at 158-60
(Dec. 13, 2011).
\137\ Id. at 158-59.
---------------------------------------------------------------------------
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
[[Page H4187]]
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\
---------------------------------------------------------------------------
\138\ Letter from Chairman Darrell Issa to Ass't Att'y Gen.
Ronald Weich (Nov. 9, 2011).
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.
---------------------------------------------------------------------------
\139\ See, e.g., Grindler Tr. at 22.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\140\ Jan. 31 Letter, supra note 102.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\141\ Feb. 1 Letter, supra note 125.
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\
---------------------------------------------------------------------------
\142\ Id.
On February 14, 2012, Chairman Issa again wrote to the
Department regarding post-February 4, 2011, documents, and
---------------------------------------------------------------------------
again raised the possibility of contempt:
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\
---------------------------------------------------------------------------
\143\ Feb. 14 Letter, supra note 103.
* * * * *
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\144\ Id (emphasis in original).
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.
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.
---------------------------------------------------------------------------
\145\ Feb. 16 Letter, supra note 126.
---------------------------------------------------------------------------
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 Trusty and Michael Morrissey were first-
level supervisors during
[[Page H4188]]
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\
---------------------------------------------------------------------------
\146\ Dec. 6 Letter, supra note 64.
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
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.
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.
---------------------------------------------------------------------------
\149\ Letter from Speaker John Boehner et al. to Att'y Gen.
Eric Holder (May 18, 2012).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\150\ May 15 Cole Letter, supra note 69.
---------------------------------------------------------------------------
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.
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.
On June 20, 2012, minutes before the start of the
Committee's meeting to consider a resolution holding the
Attorney General in contempt, the Committee received a letter
from Deputy Attorney General James Cole claiming that the
President asserted executive privilege over certain documents
covered by the subpoena. The Committee has a number of
concerns about the validity of this assertion:
1. The assertion was transparently not a valid claim of
privilege given its last minute nature;
2. The assertion was obstructive given that it could have
and should have been asserted months ago, but was not until
literally the day of the contempt mark-up;
3. The assertion is eight months late. It should have been
made by October 25, 2011, the subpoena return date;
4. To this moment, the President himself has not indicated
that he is asserting executive privilege;
5. The assertion is transparently invalid in that it is not
credible that every document
[[Page H4189]]
withheld involves a ``communication[ ] authored or solicited
and received by those members of an immediate White House
adviser's staff who have broad and significant responsibility
for investigating and formulating the advice to be given the
President on the particular matter to which the
communications relate,''; \151\
---------------------------------------------------------------------------
\151\ In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir 1997).
---------------------------------------------------------------------------
6. The assertion is transparently invalid where the Justice
Department has provided no details by which the Committee
might evaluate the applicability of the privilege, such as
the senders and recipients of the documents;
7. Even if the privilege were valid as an initial matter,
which it is not, it certainly has been overcome here, as: (i)
the Committee has demonstrated a sufficient need for the
documents as they are likely to contain evidence important to
the Committee's inquiry and (ii) the documents sought cannot
be obtained any other way. The Committee has spent 16 months
investigating, talking to dozens of individuals, and
collecting documents from many sources. The remaining
documents are ones uniquely in the possession of the Justice
Department; and,
8. Without these documents, the Committee's important
legislative work will continue to be stymied. The documents
are necessary to evaluate what government reform is necessary
within the Justice Department to avoid the problems uncovered
by the investigation in the future.
The President has now asserted executive privilege. This
assertion, however, does not change the fact that Attorney
General Eric Holder Jr. is in contempt of Congress today for
failing to turn over lawfully subpoenaed documents explaining
the Department's role in withdrawing the false letter it sent
to Congress.
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. \152\ 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. \153\ The special committee reported a resolution
recommending formal proceedings against Randall and Whitney
``at the bar of the House.'' \154\
---------------------------------------------------------------------------
\152\ 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].
\153\ Id.
\154\ Id.
---------------------------------------------------------------------------
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. \155\ 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.'' \156\ Randall was detained until January 13, 1796,
when the House passed a resolution discharging him. \157\ In
contrast, Whitney ``was absolved of any wrongdoing,'' since
his actions were against a ``member-elect'' and occurred
``away from the seat of government.'' \158\
---------------------------------------------------------------------------
\155\ Id.
\156\ Id.
\157\ Id.
\158\ Id.: quoting Asher C. Hinds, Precedents of the House of
Representatives, Sec. 1603 (1907).
---------------------------------------------------------------------------
Congressional records do not demonstrate any question or
hesitation regarding whether Congress possesses the power to
hold individuals in contempt.\159\ Moreover, there was no
question that Congress could punish a non-Member for
contempt.\160\ 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.\161\ 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.\162\
---------------------------------------------------------------------------
\159\ Id.
\160\ Id. at 5.
\161\ Id. at 6.
\162\ Id. at 14.
---------------------------------------------------------------------------
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.\163\ This was the first occasion the House cited a
cabinet-level executive branch member for contempt of
Congress.\164\ 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.\165\
---------------------------------------------------------------------------
\163\ Id.
\164\ Wm. Holmes Brown et al., House Practice: A Guide to the
Rules, Precedents, and Procedures of the House, 450 (2011).
\165\ Id. at 20, 22.
---------------------------------------------------------------------------
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.\166\ On August 7, 1998, the
Committee held Attorney General Reno in contempt by a vote of
24 to 18.\167\
---------------------------------------------------------------------------
\166\ David E. Rosenbaum, Panel Votes to Charge Reno With
Contempt of Congress, N.Y. TIMES (Aug. 7, 1998).
\167\ Id.
---------------------------------------------------------------------------
During the 110th Congress, Chairman Henry Waxman threatened
and scheduled contempt proceedings against several
Administration officials.\168\ 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.\169\ 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
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.
---------------------------------------------------------------------------
\168\ 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).
\169\ 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).
---------------------------------------------------------------------------
Most recently, the House Judiciary Committee pursued
contempt against former White House Counsel Harriet Miers and
White House Chief of Staff Joshua Bolten.\170\ On June 13,
2007, the Committee served subpoenas on Miers and
Bolten.\171\ 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.
---------------------------------------------------------------------------
\170\ CRS Contempt Report at 54-55.
\171\ Id.
---------------------------------------------------------------------------
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.\172\ One hundred
seventy-three Members of Congress did not cast a vote either
in favor or against the resolution.\173\ All but nine Members
who abstained were Republican.\174\ Only three Republicans
supported the contempt resolution for Miers and Bolten.\175\
This marked the first contempt vote by Congress with respect
to the Executive Branch since the Reagan Administration.\176\
The resolutions passed by the House allowed Congress to
exercise all available remedies in the pursuit of
contempt.\177\ The House Judiciary Committee's action against
Miers marked the first time that a former administration
official had ever been held in contempt.\178\
---------------------------------------------------------------------------
\172\ See H. Res. 982.
\173\ Id.
\174\ Id.
\175\ Id.
\176\ Philip Shenon, House Votes to Issue Contempt Citations,
N.Y. TIMES (Feb. 15, 2008).
\177\ CRS Contempt Report at 54-55.
\178\ Id.
---------------------------------------------------------------------------
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.
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
approximately 27,000 pages in total.\179\ According to a
Committee Report, the EPA
[[Page H4190]]
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.'' \180\ The White House Counsel
informed the Committee that these documents represented
``deliberations at the very highest level of government.''
\181\
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\179\ 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.
\180\ Id.
\181\ Id.
---------------------------------------------------------------------------
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].''
\182\
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\182\ Id.
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In furtherance of the Committee's ozone regulation
investigation, OIRA produced or allowed in camera review of
7,500 documents.\183\ Documents produced by EPA and OIRA
represented pre-decisional opinions of career scientists and
agency counsel.\184\ These documents were sensitive because
some, if not all, related to ongoing litigation.\185\ 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.'' \186\
---------------------------------------------------------------------------
\183\ Id.
\184\ Id.
\185\ Id.
\186\ Id.
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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 CIA and State Department
officials, including the Vice President's CIA briefer.\187\
---------------------------------------------------------------------------
\187\ 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).
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.\188\
---------------------------------------------------------------------------
\188\ Id.
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.\189\ Ultimately, the
Committee relented in its pursuit of the President's
302.\190\ 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.\191\
---------------------------------------------------------------------------
\189\ Id.
\190\ Id.
\191\ Id.
---------------------------------------------------------------------------
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.\192\ The Committee employed a multitude of
investigative tools, including hearings, transcribed
interviews, and non-transcribed interviews. The
Administration produced thousands of documents.\193\ The
Committee requested the following:
---------------------------------------------------------------------------
\192\ 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.
\193\ Id.
[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 from the Committee only preliminary
drafts of the speech President Bush delivered at the White
House Correspondents' Dinner on May 1, 2004.\194\
---------------------------------------------------------------------------
\194\ Id.
The Department of Defense produced over 31,000 responsive
documents, and the Committee received an unprecedented level
of access to documents and personnel.\195\
---------------------------------------------------------------------------
\195\ Id.; The minority views by Hon. Tom Davis states that
the Comm. received 50,000 pages of documents and reviewed
additional documents in camera.
---------------------------------------------------------------------------
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.\196\ 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.
---------------------------------------------------------------------------
\196\ Letter from Ass't Att'y Gen. Ronald Weich to Chairman
Darrell Issa (May 15, 2012).
---------------------------------------------------------------------------
VIII. RULES REQUIREMENTS
Explanation of Amendments
Mr. Gowdy offered an amendment that updated the Committee's
Report to reflect that the President asserted the executive
privilege over certain documents subpoenaed by the Committee.
The amendment also updated the Report to include the
Committee's concerns about the validity of the President's
assertion of the executive privilege. The amendment was
agreed to by a recorded vote.
Committee Consideration
On June 20, 2012, the Committee on Oversight and Government
Reform met in open session with a quorum present to consider
a report of contempt against Eric H. Holder, Jr., the
Attorney General of the United States, for failure to comply
with a Congressional subpoena. The Committee approved the
Report by a roll call vote of 23-17 and ordered the Report
reported favorably to the House.
Roll Call Votes
The following recorded votes were taken during
consideration of the contempt Report:
1. Mr. Welch offered an amendment to add language to the
Executive Summary stating that contempt proceedings at this
time are unwarranted because the Committee has not met with
former Attorney General Michael Mukasey.
The amendment was defeated by a recorded vote of 14 Yeas to
23 Nays.
Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Lynch, Connolly, Quigley, Davis, Braley, Welch,
Murphy and Speier.
Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry,
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle,
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross,
Guinta, Farenthold and Kelly.
2. Mr. Lynch offered an amendment asking for an itemized
accounting of the costs associated with the Fast and Furious
investigation.
The amendment was defeated by a vote of 15 Yeas to 23 Nays.
Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Connolly, Quigley, Davis, Braley,
Welch, Murphy and Speier.
Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry,
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle,
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross,
Guinta, Farenthold and Kelly.
3. Ms. Maloney offered an amendment to add language to the
Executive Summary stating that contempt proceedings at this
[[Page H4191]]
time are unwarranted because the Committee has not held a
public hearing with the former head of the Bureau of Alcohol,
Tobacco, Firearms and Explosives, Kenneth Melson.
The amendment was defeated by a vote of 16 Yeas to 23 Nays.
Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis,
Braley, Welch, Murphy and Speier.
Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry,
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle,
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross,
Guinta, Farenthold and Kelly.
4. Mr. Gowdy offered an amendment that updated the
Committee's Report to reflect that the President asserted the
executive privilege over certain documents subpoenaed by the
Committee. The amendment also updated the Report to include
the Committee's concerns about the validity of the
President's assertion of the executive privilege. The
amendment was agreed to by a recorded vote.
The amendment was agreed to by a vote of 23 Yeas to 17
Nays.
Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry,
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle,
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross,
Guinta, Farenthold and Kelly.
Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis,
Braley, Welch, Yarmuth, Murphy and Speier.
5. The Resolution was favorably reported, as amended, to
the House, a quorum being present, by a vote of 23 Yeas to 17
Nays.
Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry,
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle,
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross,
Guinta, Farenthold and Kelly.
Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich,
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis,
Braley, Welch, Yarmuth, Murphy and Speier.
Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1 requires a
description of the application of this bill to the
legislative branch where the bill relates to the terms and
conditions of employment or access to public services and
accommodations. The Report does not relate to employment or
access to public services and accommodations.
Statement of Oversight Findings and Recommendations of the Committee
In compliance with clause 3(c)(1) of rule XIII and clause
(2)(b)(1) of rule X of the Rules of the House of
Representatives, the Committee's oversight findings and
recommendations are reflected in the descriptive portions of
this Report.
Statement of General Performance Goals and Objectives
In accordance with clause 3(c)(4) of rule XIII of the Rules
of the House of Representatives, the Committee states that
pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, the Report will assist the House of
Representatives in considering whether to cite Attorney
General Eric H. Holder, Jr. for contempt for failing to
comply with a valid congressional subpoena.
Constitutional Authority Statement
The Committee finds the authority for this Report in
article 1, section 1 of the Constitution.
Federal Advisory Committee Act
The Committee finds that the Report does not establish or
authorize the establishment of an advisory committee within
the definition of 5 U.S.C. App., Section 5(b).
Earmark Identification
The Report does not include any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
in clause 9 of rule XXI.
Unfunded Mandate Statement, Committee Estimate, Budget Authority and
Congressional Budget Office Cost Estimate
The Committee finds that clauses 3(c)(2), 3(c)(3), and
3(d)(1) of rule XIII of the Rules of the House of
Representatives, sections 308(a) and 402 of the Congressional
Budget Act of 1974, and section 423 of the Congressional
Budget and Impoundment Control Act (as amended by Section
101(a)(2) of the Unfunded Mandates Reform Act, P.L. 104-4)
are inapplicable to this Report. Therefore, the Committee did
not request or receive a cost estimate from the Congressional
Budget Office and makes no findings as to the budgetary
impacts of this Report or costs incurred to carry out the
report.
CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED
This Report makes no changes in any existing federal
statute.
ADDITIONAL VIEWS
Report of the Committee on Oversight and Government Reform
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
``The Department of Justice's Operation Fast and Furious:
Accounts of ATF Agents'' Joint Staff Report, prepared for
Representative Darrell Issa, Chairman, House Committee on
Oversight and Government Reform, and Senator Charles
Grassley, Ranking Member, Senate Committee on the Judiciary.
``The Department of Justice's Operation Fast and Furious:
Fueling Cartel Violence'' Joint Staff Report, prepared for
Representative Darrell Issa, Chairman, House Committee on
Oversight and Government Reform, and Senator Charles
Grassley, Ranking Member, Senate Committee on the Judiciary.
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MINORITY VIEWS
Report of the Committee on Oversight and Government Reform
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
On June 20, 2012, the Committee adopted on a strictly
party-line vote a report and resolution (hereinafter
``Contempt Citation'') concluding that Attorney General Eric
H. Holder, Jr., the chief law enforcement officer of the
United States, should be held in contempt of Congress for
declining to produce certain documents pursuant to the
Committee's investigation of ``gunwalking'' during Operation
Fast and Furious and previous operations.
Committee Democrats were unanimous in their opposition to
the Contempt Citation. These dissenting views conclude that
Congress has a Constitutional responsibility to conduct
vigorous oversight of the executive branch, but that holding
the Attorney General in contempt would be an extreme,
unprecedented action based on partisan election-year politics
rather than the facts uncovered during the investigation.
These views find that the Committee failed to honor its
Constitutional responsibility to avoid unnecessary conflict
with the executive branch by seeking reasonable
accommodations when possible. The Committee flatly rejected a
fair and reasonable offer made by the Attorney General to
provide additional internal deliberative documents sought by
the Committee in exchange for a good faith commitment toward
resolving the contempt dispute. Instead, the Committee has
repeatedly shifted the goalposts in this investigation after
failing to find evidence to support its unsubstantiated
allegations.
The Contempt Citation adopted by the Committee contains
serious and significant errors, omissions, and
misrepresentations. To address these inaccuracies, these
views hereby incorporate and attach the 95-page staff report
issued by Ranking Member Elijah Cummings in January 2012,
which provides a comprehensive analysis of the evidence
obtained during the Committee's investigation.
I. The Committee's Actions Have Been Highly Partisan
The Committee's contempt vote on June 20, 2012, was the
culmination of one of the most highly politicized
congressional investigations in decades. It was based on
numerous unsubstantiated allegations that targeted the Obama
Administration for political purposes, and it ignored
documented evidence of gunwalking operations during the
previous administration.
During the Committee's 16-month investigation, the
Committee refused all Democratic requests for witnesses and
hearings. In one of the most significant flaws of the
investigation, the Chairman refused multiple requests to hold
a public hearing with Kenneth Melson, the former head of ATF,
the agency responsible for conducting these operations.\1\
The Chairman's refusal came after Mr. Melson told Committee
investigators privately in July 2011 that he never informed
senior officials at the Justice Department about gunwalking
during Operation Fast and Furious because he was unaware of
it himself.\2\ Mr. Melson's statements directly contradict
the claim in the Contempt Citation that senior Justice
Department officials were aware of gunwalking because Mr.
Melson briefed Gary Grindler, then-Acting Deputy Attorney
General, in March 2010.\3\
Despite promising that he would be ``investigating a
president of my own party because many of the issues we're
working on began on [sic] President Bush,'' the Chairman also
refused multiple requests for former Attorney General Michael
Mukasey to testify before the Committee or to meet with
Committee Members informally to discuss the origination and
evolution of gunwalking operations since 2006.\4\ Documents
obtained during the investigation indicate that Mr. Mukasey
was briefed personally on botched efforts to coordinate
firearm interdictions with Mexican law enforcement officials
in 2007 and was informed directly that such efforts would be
expanded during his tenure.\5\
The Committee also failed to conduct interviews of other
key figures. For example, the Committee did not respond to a
request to interview Alice Fisher, who served as Assistant
Attorney General in charge of the Criminal Division from 2005
to 2008, about her role in authorizing wiretaps in Operation
Wide Receiver, or to a request to interview Deputy Assistant
Attorney General Kenneth Blanco, who also authorized wiretaps
in Operation Fast and Furious and still works at the
Department, but who was placed in his position under the Bush
Administration in April 2008.\6\ No explanation for these
refusals has been given.
During the Committee business meeting on June 20, 2012,
every Democratic amendment to correct the Contempt Citation
by noting these facts was defeated on strictly party-line
votes.
II. Holding the Attorney General in Contempt Would Be Unprecedented
The House of Representatives has never in its history held
an Attorney General in contempt of Congress. The only
precedent referenced in the Contempt Citation for holding a
sitting Attorney General in contempt for refusing to provide
documents is this Committee's vote in 1998 to hold then-
Attorney General Janet Reno in contempt during the campaign
finance investigation conducted by then-Chairman Dan
Burton.\7\
Chairman Burton's investigation was widely discredited, and
the decision to hold the Attorney General in contempt was
criticized by editorial boards across the country as ``a
gross abuse of his powers as chairman of the committee,'' \8\
a ``fishing expedition,'' \9\ ``laced with palpable political
motives,'' \10\ and ``showboating.'' \11\ That action was so
partisan and so widely discredited that Newt Gingrich, who
was then Speaker, did not bring it to the House Floor for a
vote.\12\
Similarly, numerous commentators and editorial boards have
criticized Chairman Issa's recent actions as ``a monstrous
witch hunt,'' \13\ ``a pointless partisan fight,'' \14\ and
``dysfunctional Washington as usual.'' \15\
III. The Committee Has Held the Attorney General to an Impossible
Standard
For more than a year, the Committee has held the Attorney
General to an impossible standard by demanding documents he
is prohibited by law from producing.
One of the key sets of documents demanded during this
investigation has been federal wiretap applications submitted
by law enforcement agents in order to obtain a federal
court's approval to secretly monitor the telephone calls of
individuals suspected of gun trafficking.
The federal wiretapping statute, which was passed by
Congress and signed by President Lyndon B. Johnson on June
19, 1968, provides for a penalty of up to five years in
prison for the unauthorized disclosure of wiretap
communications and prohibits the unauthorized disclosure of
wiretap applications approved by federal judges, who must
seal them to protect against their disclosure.\16\ The
statute states:
Each application for an order authorizing or approving the
interception of a wire, oral, or electronic communication
under this chapter shall be made in writing upon oath or
affirmation to a judge of competent jurisdiction.
Applications made and orders granted under this chapter shall
be sealed by the judge.\17\
Similarly, in 1940, Congress passed a statute giving the
Supreme Court the power to prescribe rules of pleading,
practice, and procedure in criminal cases.\18\ In 1946, the
modern grand jury secrecy rule was codified as Rule 6(e) of
the Federal Rules of Criminal Procedure, which provides for
criminal penalties for disclosing grand jury information.\19\
The Department has explained this to the Committee
repeatedly, including in a letter on May 15, 2012:
Our disclosure to this oversight Committee of some material
sought by the October 11 subpoena, such as records covered by
grand jury secrecy rules and federal wiretap applications and
related information, is prohibited by law or court
orders.\20\
Despite these legal prohibitions, the Chairman continued to
threaten to hold the Attorney General in contempt for
protecting these documents. He also publicly accused the
Attorney General of a ``cover-up,'' \21\ claimed he was
``obstructing'' the Committee's investigation,\22\ asserted
that he is willing to ``deceive the public,'' \23\ and stated
on national television that he ``lied.'' \24\
IV. The Documents at Issue in the Contempt Citation Are Not About
Gunwalking
The documents at issue in the Contempt Citation are not
related to the Committee's investigation into how gunwalking
was initiated and utilized in Operation Fast and Furious.
Over the past year, the Department of Justice has produced
thousands of pages of documents, the Committee has
interviewed two dozen officials, and the Attorney General has
testified before Congress nine times.
In January, Ranking Member Cummings issued a comprehensive
95-page staff report documenting that Operation Fast and
Furious was in fact the fourth in a series of gunwalking
operations run by ATF's Phoenix field division over a span of
five years beginning in 2006. Three prior operations--
Operation Wide Receiver (2006-2007), the Hernandez case
(2007), and the Medrano case (2008)--occurred during the Bush
Administration. All four operations were overseen by the same
ATF Special Agent in Charge in Phoenix.\25\
The Committee has obtained no evidence that the Attorney
General was aware that gunwalking was being used. To the
contrary, as soon as he learned of its use, the Attorney
General halted it, ordered an Inspector General
investigation, and implemented significant internal reform
measures.\26\
After finding no evidence of wrongdoing by the Attorney
General, the Committee's investigation shifted to focusing on
a single letter sent by the Department's Office of
Legislative Affairs to Senator Charles Grassley on February
4, 2011. This letter initially denied allegations that ATF
``knowingly allowed the sale of assault weapons to a straw
purchaser who then transported them into Mexico'' and stated
that ``ATF makes every effort to interdict weapons that have
been purchased illegally and prevent their transportation to
Mexico.'' \27\
The Department has acknowledged that its letter was
inaccurate and has formally withdrawn it. On December 2,
2011, the Department wrote that ``facts have come to light
during the course of this investigation that
[[Page H4304]]
indicate that the February 4 letter contains inaccuracies.''
\28\
Acknowledging these inaccuracies, the Department also
provided the Committee with 1,300 pages of internal
deliberative documents relating to how the letter to Senator
Grassley was drafted. These documents demonstrate that
officials in the Office of Legislative Affairs who were
responsible for drafting the letter did not intentionally
mislead Congress, but instead relied on inaccurate assertions
and strong denials from officials ``in the best position to
know the relevant facts: ATF and the U.S. Attorney's Office
in Arizona, both of which had responsibility for Operation
Fast and Furious.'' \29\
Despite receiving these documents explaining how the letter
to Senator Grassley was drafted, the Committee moved the
goalposts and demanded additional internal documents created
after February 4, 2011, the date the letter to Senator
Grassley was sent. It is unclear why the Committee needs
these documents. This narrow subset of additional documents--
which have nothing to do with how gunwalking was initiated in
Operation Fast and Furious--is now the sole basis cited in
the Contempt Citation for holding the Attorney General in
contempt.\30\
V. The Committee Refused a Good Faith Offer by the Attorney General for
Additional Documents
The Committee failed to honor its Constitutional
responsibility to avoid unnecessary conflict with the
Executive Branch by seeking reasonable accommodations when
possible. On the evening before the Committee's contempt
vote, the Attorney General met with Chairman Issa, Ranking
Member Cummings, Senator Grassley, and Senator Patrick Leahy.
The Attorney General offered to take the following steps in
response to the Committee's demands for additional documents.
Specifically, the Attorney General:
(1) offered to provide additional internal deliberative
Department documents, created even after February 4, 2011;
(2) offered a substantive briefing on the Department's
actions relating to how they determined the letter contained
inaccuracies;
(3) agreed to Senator Grassley's request during the meeting
to provide a description of the categories of documents that
would be produced and withheld; and
(4) agreed to answer additional substantive requests for
information from the Committee.
The Attorney General noted that his offer included
documents and information that went even beyond those
demanded in the Committee's subpoena. In exchange, the
Attorney General asked the Chairman for a good faith
commitment to work towards a final resolution of the contempt
issue.\31\
Chairman Issa did not make any substantive changes to his
position. Instead, he declined to commit to a good faith
effort to work towards resolving the contempt issue and
flatly refused the Attorney General's offer.
There is no question that the Constitution authorizes
Congress to conduct rigorous investigations in support of its
legislative functions.\32\ The Constitution also requires
Congress and the executive branch to seek to accommodate each
other's interests and to avoid unnecessary conflict. As the
D.C. Circuit has held:
[E]ach branch should take cognizance of an implicit
constitutional mandate to seek optimal accommodation through
a realistic evaluation of the needs of the conflicting
branches in the particular fact situation.\33\
Similarly, then-Attorney General William French Smith, who
served under President Ronald Reagan, observed:
The accommodation required is not simply an exchange of
concessions or a test of political strength. It is an
obligation of each branch to make a principled effort to
acknowledge, and if possible to meet, the legitimate needs of
the other branch.\34\
VI. The Committee's Decision To Press Forward With Contempt Led to the
Administration's Assertion of Executive Privilege
After the Chairman refused the Attorney General's good
faith offer--and it became clear that a Committee contempt
vote was inevitable--the President asserted executive
privilege over the narrow category of documents still at
issue. The Administration made clear that it was still
willing to negotiate on Congress' access to the documents if
contempt could be resolved.
On June 20, 2012, Deputy Attorney General James Cole wrote
to the Chairman to inform the Committee that ``the President,
in light of the Committee's decision to hold the contempt
vote, has asserted executive privilege over the relevant
post-February 4 documents.'' \35\ An accompanying letter from
Attorney General Holder described the documents covered by
the privilege as limited to ``internal Department `documents
from after February 4, 2011, related to the Department's
response to Congress.' '' \36\
Claims by House Speaker John Boehner and others that the
Administration's assertion of executive privilege raises
questions about the President's personal knowledge of
gunwalking reflect a misunderstanding of the scope of the
privilege asserted.\37\ Regarding the narrow subset of
documents covered by the assertion, the letter from Attorney
General explained:
They were not generated in the course of the conduct of
Fast and Furious. Instead, they were created after the
investigative tactics at issue in that operation had
terminated and in the course of the Department's deliberative
process concerning how to respond to congressional and
related media inquiries into that operation.\38\
The Attorney General's letter also explained the
Administration's legal rationale for invoking executive
privilege over internal deliberative Justice Department
documents, citing opinions from former Attorneys General
Michael B. Mukasey, John Ashcroft, William French Smith, and
Janet Reno, as well as former Solicitor General and Acting
Attorney General Paul D. Clement.\39\ The letter also quoted
the Supreme Court in United States v. Nixon, writing:
The threat of compelled disclosure of confidential
Executive Branch deliberative material can discourage robust
and candid deliberations, for ``[h]uman experience teaches
that those who expect public dissemination of their remarks
may well temper candor with a concern for appearances and for
their own interests to the detriment of the decisionmaking
process.'' . . . Thus, Presidents have repeatedly asserted
executive privilege to protect confidential Executive Branch
deliberative materials from congressional subpoena.\40\
VII. The Committee Failed To Responsibly Consider the Executive
Privilege Assertion
Despite requests from several Committee Members, the
Committee did not delay or postpone the business meeting in
order to responsibly examine the Administration's assertion
of executive privilege and determine whether it would be
appropriate to continue contempt proceedings against the
Attorney General.
Instead of following the example of previous Committee
Chairmen who put off contempt proceedings in order to conduct
a serious and careful review of presidential assertions of
executive privilege, Chairman Issa stated that ``I claim not
to be a constitutional scholar'' and proceeded with the
contempt vote.\41\
In contrast, former Committee Chairman Henry Waxman put off
a contempt vote after President George W. Bush asserted
executive privilege in the investigation into the leak of the
covert status of CIA operative Valerie Plame.\42\ He took the
same course of action after President Bush asserted executive
privilege over documents relating to the Environmental
Protection Agency's ozone regulation on the same day as a
scheduled contempt vote. At the time, he stated:
I want to talk with my colleagues on both sides of the
aisle about this new development. I want to learn more about
the assertion and the basis for this assertion of the
executive privilege.\43\
Although the Committee ultimately disagreed with the
validity of President Bush's assertions of executive
privilege, in neither case did the Committee go forward with
contempt proceedings against the officials named in the
contempt citations.
Similarly, Rep. John Dingell, as Chairman of the Energy and
Commerce Committee during that Committee's 1981 investigation
into the Department of Interior, received an assertion of
executive privilege from the Reagan Administration regarding
documents pertaining to the administration of the Mineral
Lands Leasing Act.\44\ Before proceeding to contempt, the
Committee held two separate hearings on the executive
privilege assertion, and the Committee invited the Attorney
General to testify regarding his legal opinion supporting the
claim of executive privilege.\45\
VIII. The Investigation Has Been Characterized by Unsubstantiated
Claims
The Committee's investigation of ATF gunwalking operations
has been characterized by a series of unfortunate and
unsubstantiated allegations against the Obama Administration
that turned out to be inaccurate.
For example, during an interview on national television on
October 16, 2011, the Chairman accused the Federal Bureau of
Investigation (FBI) of concealing evidence of the murder of
Agent Brian Terry by hiding a ``third gun'' found at the
murder scene.\46\ The FBI demonstrated quickly that this
claim was unsubstantiated.\47\ Although the Chairman admitted
during a subsequent hearing that ``we do go down blind alleys
regularly,'' no apology was issued to the law enforcement
agents that were accused of a cover-up.\48\
At the same time, the Chairman has defended the previous
Administration's operations as ``coordinated.'' \49\ In
response to a question about gunwalking during the Bush
Administration, the Chairman stated:
We know that under the Bush Administration there were
similar operations, but they were coordinated with Mexico.
They made every effort to keep their eyes on the weapons the
whole time.\50\
To the contrary, the staff report issued by Ranking Member
Cummings on January 31, 2012, documents at least three
operations during the previous Administration in which
coordination efforts were either non-existent or severely
deficient.\51\
In addition, the Chairman has stated repeatedly that senior
Justice Department officials were ``fully aware'' of
gunwalking in Operation Fast and Furious.\52\ After
conducting two dozen transcribed interviews, none of the
officials and agents involved said
[[Page H4305]]
they informed the Attorney General or other senior Department
officials about gunwalking in Operation Fast and Furious.
Instead, the heads of the agencies responsible for the
operation--ATF and the U.S. Attorney's Office--told Committee
investigators just the opposite, that they never informed
senior Department officials about gunwalking in Operation
Fast and Furious because they were unaware of it.\53\
Finally, the Chairman has promoted an extreme conspiracy
theory that the Obama Administration intentionally designed
Operation Fast and Furious to promote gunwalking. He stated
in December 2011 that the Administration ``made a crisis and
they are using this crisis to somehow take away or limit
people's second amendment rights.'' \54\ This offensive claim
has also been made by Rush Limbaugh and other conservative
media personalities during the course of the investigation.
For example, on June 20, 2011, Mr. Limbaugh stated:
The real reason for Operation Gunrunner or Fast and
Furious, whatever they want to call it now, the purpose of
this was so that Obama and the rest of the Democrats can
scream bloody murder about the lack of gun control in the
U.S., which is causing all the murders in Mexico. This was a
setup from the get-go.\55\
Another conservative commentator stated that ``their
political agenda behind this entire thing was to blame
American gun shops for cartel violence in America in order to
push an anti-Second Amendment, more regulations on these gun
shops.'' \56\ Yet another one stated:
This was purely a political operation. You send the guns
down to Mexico, therefore you support the political narrative
that the Obama administration wanted supported. That all
these American guns are flooding Mexico, they're the cause of
the violence in Mexico, and therefore we need draconian gun
control laws here in America.\57\
As recently as this month, Committee Member John Mica
repeated this claim on Fox News. On June 15, 2012, he stated:
People forget how all this started. This administration is
a gun control administration. They tried to put the violence
in Mexico on the blame of the United States. So they
concocted this scheme and actually sending our federal
agents, sending guns down there, and trying to cook some
little deal to say that we have got to get more guns under
control.\58\
There is no evidence to support this conspiracy theory. To
the contrary, the documents obtained and interviews conducted
by the Committee demonstrate that gunwalking began in 2006,
was used in three operations during the Bush Administration,
and was a misguided tactic utilized by the ATF field division
in Phoenix.\59\
NOTES
\1\ Letter from Rep. Elijah E. Cummings, Ranking Member,
House Committee on Oversight and Government Reform, to Rep.
Darrell E. Issa, Chairman, House Committee on Oversight and
Government Reform (Oct. 28, 2011).
\2\ House Committee on Oversight and Government Reform,
Transcribed Interview of Kenneth E. Melson (July 4, 2011).
\3\ House Committee on Oversight and Government Reform,
Report of the Committee on Oversight and Government Reform on
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, at 11 (June 14, 2012) (``Contempt
Citation'').
\4\ The Daily Rundown, MSNBC (Nov. 3, 2010) (online at
http://videocafe.crooksandliars.com/david/darrell-issa-
obama-must-answer-several-hundr); Letter from Rep. Elijah E.
Cummings, Ranking Member, House Committee on Oversight and
Government Reform, to Rep. Darrell E. Issa, Chairman, House
Committee on Oversight and Government Reform (June 5, 2012);
Letter from Rep. Elijah E. Cummings, Ranking Member, House
Committee on Oversight and Government Reform, to Rep. Darrell
E. Issa, Chairman, House Committee on Oversight and
Government Reform (Feb. 2, 2012); Letter from Rep. Elijah E.
Cummings, Ranking Member, House Committee on Oversight and
Government Reform, to Rep. Darrell E. Issa, Chairman, House
Committee on Oversight and Government Reform (Nov. 4, 2011).
\5\ Department of Justice, Meeting of the Attorney General
with Mexican Attorney General Medina Mora (Nov. 16, 2007).
\6\ Letter from Rep. Elijah E. Cummings, Ranking Member,
House Committee on Oversight and Government Reform, to Rep.
Darrell E. Issa, Chairman, House Committee on Oversight and
Government Reform (June 5, 2012).
\7\ House Committee on Government Reform and Oversight,
Contempt of Congress: Refusal of Attorney General Janet Reno
to Produce Documents Subpoenaed By the Government Reform and
Oversight Committee, 105th Cong. (1998) (H. Rept. 105-728).
\8\ The Contempt Citation, Washington Post (Sept. 22,
1998).
\9\ Buck Stops With Reno; Appointing an Independent Counsel
in Campaign Contribution Case: That Decision is Reno's Alone
to Make on the Basis of Her Information and Her
Interpretation of the Law, Los Angeles Times (Aug. 6, 1998).
\10\ Tell Him No, Ms. Reno!, Miami Herald (Aug. 6, 1998).
\11\ Give Reno Some Room, St. Petersburg Times (Aug. 6,
1998).
\12\ Congressional Research Service, Congressional Contempt
Power and the Enforcement of Congressional Subpoenas: Law,
History, Practice, and Procedure (May 8, 2012).
\13\ Juan Williams, Issa's Monstrous Witch Hunt, The Hill
(May 14, 2012).
\14\ A Pointless Partisan Fight, New York Times (June 20,
2012).
\15\ Holder Contempt Vote is Dysfunctional Washington as
Usual, Baltimore Sun (June 21, 2012). See also Eugene
Robinson, GOP Witch Hunt for Eric Holder Reflects Bigger
Problem, Washington Post (June 21, 2012); Paul Barrett, In
Contempt of Government Reform, Businessweek (June 20, 2012);
Dana Milbank, Republicans' Attempt to Hold Holder in Contempt
is Uphill Battle, Washington Post (June 20, 2012) (describing
the ``contemptible antics'' of the Committee's contempt
proceedings); Sandra Hernandez, Partisan Politics Plague
Probe of `Fast and Furious,' Los Angeles Times (``Issa's
demand loses some of its credibility and lapses into
political theater when he threatens Atty. Gen. Eric H. Holder
Jr. with criminal contempt for failing to cooperate'') (Mar.
29, 2012).
\16\ The White House, Statement by the President Upon
Signing the Omnibus Crime Control and Safe Streets Act of
1968 (June 19, 1968); 18 U.S.C. 2511(4)(a) (providing that
violators ``shall be fined under this title or imprisoned not
more than five years, or both''); 18 U.S.C. 2511(1)(e)
(covering any person who ``intentionally discloses, or
endeavors to disclose, to any other person the contents of
any wire, oral, or electronic communication, intercepted by
means authorized'' under this chapter).
\17\ 18 U.S.C. 2518(1), 2518(8).
\18\ Sumner Courts Act, Pub. L. No. 76-675, 54 Stat. 688
(1940).
\19\ Fed. R. Crim. Pro. 6(e)(7) (providing that a knowing
violation of Rule 6 ``may be punished as a contempt of
court''); 18 U.S.C. 401(3) (providing that a ``court of the
United States shall have power to punish by fine or
imprisonment, or both, at its discretion, such contempt of
its authority'').
\20\ Letter from James M. Cole, Deputy Attorney General,
Department of Justice, to Rep. Darrell E. Issa, Chairman,
House Committee on Oversight and Government Reform (May 15,
2012).
\21\ Letter from Rep. Darrell E. Issa, Chairman, House
Committee on Oversight and Government Reform, to Eric H.
Holder, Jr., Attorney General, Department of Justice (Jan.
31, 2012).
\22\ Letter from Rep. Darrell E. Issa, Chairman, House
Committee on Oversight and Government Reform, to Eric H.
Holder, Jr., Attorney General, Department of Justice (Oct. 9,
2011).
\23\ Letter from Rep. Darrell E. Issa, Chairman, House
Committee on Oversight and Government Reform, to Eric H.
Holder, Jr., Attorney General, Department of Justice (Jan.
31, 2012).
\24\ On the Record with Greta Van Susteren, Fox News (June
7, 2012) (online at www.foxnews.com/on-air/on-the-record/
2012/06/08/issas-fast-and-furious-frustration-
bubbles-over-holders-truth-not-consistent-facts?page=2).
\25\ Minority Staff, House Committee on Oversight and
Government Reform, Fatally Flawed: Five Years of Gunwalking
in Arizona (Jan. 2012) (online at http://democrats.
oversight.house.gov/index.php?option=com_
content&task=view&id=5575& Itemid=104).
\26\ Id.; House Committee on the Judiciary, Testimony of
Eric H. Holder, Jr., Attorney General, Department of Justice,
Oversight of the United States Department of Justice (June 7,
2012).
\27\ Letter from Ronald Weich, Assistant Attorney General,
Office of Legislative Affairs, Department of Justice, to Sen.
Charles E. Grassley, Ranking Member, Senate Committee on the
Judiciary (Feb. 4, 2011).
\28\ Letter from James M. Cole, Deputy Attorney General,
Department of Justice, to Rep. Darrell E. Issa, Chairman,
House Committee on Oversight and Government Reform, et al.
(Dec. 2, 2011).
\29\ Id.
\30\ Contempt Citation, at 41-42.
\31\ Id.
\32\ Congressional Research Service, Congressional
Oversight Manual (June 10, 2011).
\33\ United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir.
1977).
\34\ 5 Op. Off. Legal Counsel. 27, 31 (1981).
\35\ Letter from James M. Cole, Deputy Attorney General,
Department of Justice, to Rep. Darrell E. Issa, Chairman,
House Oversight and Government Reform (June 20, 2012).
\36\ Letter from Eric H. Holder, Jr., Attorney General,
Department of Justice, to Barack H. Obama, President (June
19, 2012) (quoting Letter from Rep. Darrell E. Issa,
Chairman, House Committee on Oversight and Government Reform,
to Eric H. Holder, Jr., Attorney General, Department of
Justice (June 13, 2012)).
\37\ Fast and Furious: How President Obama and John Boehner
Got to the Brink, Politico (June 22, 2012) (quoting Speaker
John A. Boehner as stating that the ``decision to invoke
executive privilege is an admission that White House
officials were involved in decisions that misled the Congress
and have covered up the truth''); House Committee on
Oversight and Government Reform, Business Meeting (June 20,
2012) (quoting Rep. James Lankford as stating ``we weren't
even aware that the President was engaged in the
deliberations'' and Rep. Jason E. Chaffetz stating
[[Page H4306]]
that the assertion means that the President ``somehow was
personally involved'').
\38\ Letter from Eric H. Holder, Jr., Attorney General,
Department of Justice, to Barack H. Obama, President (June
19, 2012) (quoting Letter from Rep. Darrell E. Issa,
Chairman, House Committee on Oversight and Government Reform,
to Eric H. Holder, Jr., Attorney General, Department of
Justice (June 13, 2012)).
\39\ Letter from Eric H. Holder, Jr., Attorney General,
Department of Justice, to Barack H. Obama, President (June
19, 2012) (quoting Letter from Michael B. Mukasey, Attorney
General, Department of Justice, to George W. Bush, President
(June 19, 2008); Letter from Paul D. Clement, Solicitor
General and Acting Attorney General, Department of Justice,
to George W. Bush, President (June 27, 2007); Letter from
John D. Ashcroft, Attorney General, Department of Justice, to
George W. Bush, President (Dec. 10, 2001); 23 Op. Off. Legal
Counsel 1, 1-2 (1999) (opinion of Attorney General Janet W.
Reno); 5 Op. Off. Legal Counsel 27,29-31 (1981) (opinion of
Attorney General William French Smith)).
\40\ Letter from Eric H. Holder, Jr., Attorney General,
Department of Justice, to Barack H. Obama, President (June
19, 2012) (citing United States v. Nixon, 418 U.S. 683, 705
(1974)).
\41\ House Committee on Oversight and Government Reform,
Statement of Chairman Darrell E. Issa, Business Meeting (June
20, 2012).
\42\ House Committee on Oversight and Government Reform,
Report Regarding President Bush's Assertion of Executive
Privilege in Response to the Committee Subpoena to Attorney
General Michael B. Mukasey, 110th Cong. (2008).
\43\ House Committee on Oversight and Government Reform,
Statement of Chairman Henry A. Waxman, Hearing on the Johnson
and Dudley Contempt of Congress Resolutions, 110th Cong.
(June 20, 2008).
\44\ House Committee on Energy and Commerce, Congressional
Proceedings Against Interior Secretary James G. Watt for
Withholding Subpoenaed Documents And For Failure to Answer
Questions Relating to Reciprocity Under the Mineral Lands
Leasing Act, 97th Cong. (Sept. 30, 1982) (H. Rept. 97-898).
\45\ Id.
\46\ Face the Nation, CBS News (Oct. 16, 2011) (online at
www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
\47\ Justice Department Accuses Issa of
``Mischaracterizing'' Evidence in Probe of Operation Fast and
Furious, Fox News (Oct. 17, 2011) (online at www.foxnews.com/
politics/2011/10/17/justice-department-accuses-issa-
ischaracterizing-evidence-in-probe-operation/
#ixzz1xiMQtvoh).
\48\ House Committee on Oversight and Government Reform,
Hearing on Operation Fast and Furious: Management Failures at
the Department of Justice (Feb. 2, 2012).
\49\ Face the Nation, CBS News (Oct. 16, 2011) (online at
www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
\50\ Id.
\51\ Minority Staff, House Committee on Oversight and
Government Reform, Fatally Flawed: Five Years of Gunwalking
in Arizona (Jan. 2012) (online at http://democrats.
oversight.house.gov/index.php?option=com_
content&task=view&id=5575&Itemid=104).
\52\ The Roger Hedgecock Show (Nov. 21, 2011) (online at
www.youtube.com/watch?v=pGYUxuBNxk0).
\53\ House Committee on Oversight and Government Reform,
Transcribed Interview of Kenneth E. Melson (July 4, 2011);
House Committee on Oversight and Government Reform,
Transcribed Interview of Dennis K. Burke (Aug. 18, 2011).
\54\ Hannity, Fox News (Dec. 8. 2011) (online at http://
video.foxnews.com/v/1317212270001/holder-on-the-hot-seat-
over-fast_furious).
\55\ The Rush Limbaugh Show (June 20, 2011) (online at
www.rushlimbaugh.com/daily/2011/06/20/on_the_
cutting_edge_we_covered_ the_
fast_and_furious_story_in_march).
\56\ O'Reilly Factor, Fox News (Apr. 16, 2012) (online at
www.foxnews.com/on-air/oreilly/2012/04/17/will-fast-and-
furious-hurt-obamas-re-election-chances).
\57\ American Newsroom, Fox News (Mar. 12, 2012) (online at
http://video.foxnews.com/v/1502683781001/tea-party-turning-
up-the-heat-on-fast_furious).
\58\ Hannity, Fox News (June 15, 2012) (online at http://
video.foxnews.com /v/1691933147001).
\59\ Minority Staff, House Committee on Oversight and
Government Reform, Fatally Flawed: Five Years of Gunwalking
in Arizona (Jan. 2011) (online at http://democrats.oversight.
house.gov/images/stories/minority_report_ 13112.pdf)
Elijah E. Cummings.
Carolyn B. Maloney.
Wm. Lacy Clay.
Eleanor Holmes-Norton.
Danny K. Davis.
John F. Tierney.
Stephen F. Lynch.
Christopher Murphy.
Mike Quigley.
Dennis J. Kucinich.
Edolphus Towns.
Gerald E. Connolly.
Peter Welch.
John Yarmuth.
Jackie Speier.
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Mr. ISSA. Mr. Speaker, by direction of the Committee on Oversight and
Government Reform, I call up the resolution (H. Res. 711) 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.
The Clerk read the title of the resolution.
The SPEAKER pro tempore. Pursuant to House Resolution 708, the
resolution is considered read and shall be debatable for 50 minutes,
equally divided and controlled by the chair and ranking minority member
of the Committee on Oversight and Government Reform or their designees.
The text of the resolution is as follows:
H. Res. 711
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.
The SPEAKER pro tempore. After debate on the resolution, it shall be
in order to consider a motion to refer if offered by the gentleman from
Michigan (Mr. Dingell) or his designee which shall be debatable for 10
minutes equally divided and controlled by the proponent and an
opponent.
The gentleman from California (Mr. Issa) and the gentleman from
Maryland (Mr. Cummings) each will control 25 minutes.
The Chair recognizes the gentleman from California.
General Leave
Mr. ISSA. Mr. Speaker, I ask unanimous consent that all Members may
have 5 legislative days within which to revise and extend their remarks
and insert extraneous materials into the Record for both resolutions
made in order under the rule.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from California?
There was no objection.
Mr. ISSA. Mr. Speaker, I yield myself 2 minutes.
I never thought that we would be here today. I never thought this
point would come. Throughout 18 months of investigation, through
countless areas of negotiations in order to get the minimum material
necessary to find out the facts behind Fast and Furious and the murder
of Border Patrol Agent Brian Terry, I always believed that, in time, we
would reach an accommodation sufficient to get the information needed
for the American people while at the same time preserving the ongoing
criminal investigations.
I am proud to say that our committee has maintained the ability for
the Justice Department to continue their ongoing prosecutions. Neither
the majority nor the minority has allowed any material to become public
to compromise that. However, the facts remain--in Fast and Furious, the
Department of Justice permitted the sale of more than 2,000 weapons
that fell into the hands of the Mexican drug cartels, which was both
reckless and inexcusable. And it clearly was known by people, both
career professionals and political appointees, from the lowliest
members on the ground in Phoenix to high-ranking officials in the
Department of Justice. But that's not what we're here for today.
Today we are here on a very narrow contempt, one that the Speaker of
the House, in his wisdom and assistance, has helped us to fashion. Let
it be clear: we still have unanswered questions on a myriad of areas
related to Operation Fast and Furious. But today we are only here to
determine how, over the 10 months from the time in which the American
people and the Congress of the United States were lied to, given
false--literally the reverse statement, that ``no guns were allowed to
walk'' during those 10 months before the Justice Department finally
owned up and recognized that they had to come clean that, in fact, Fast
and Furious was all about gunwalking.
The Department of Justice maintained a series of documents. Many of
these documents are believed to be communications between and with the
very individuals at the heart of the decision to go forward with Fast
and Furious. Therefore, we have focused our limited contempt on those
documents. If our committee is able to receive the documents in
totality that show who brought about the dishonest statement to
Congress and who covered it up for 10 months, we believe that will
allow us to backtrack to the individuals who ultimately believed in
Fast and Furious, facilitated Fast and Furious, and ultimately made it
responsible for Brian Terry's death.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. ISSA. I yield myself an additional 15 seconds.
I won't read everything that's in my opening statement. But I will
read just one more thing.
These words were said on the House floor in 2008 when Speaker Pelosi
supported contempt. She said:
Congress has the responsibility of oversight of the
executive branch. I know that Members on both sides of the
aisle take that responsibility very seriously. Oversight is
an institutional obligation to ensure against abuse of power.
Subpoena authority is a vital tool for that oversight.
Speaker Pelosi, 2008.
I reserve the balance of my time.
Mr. CUMMINGS. Mr. Speaker, I yield myself such time as I may consume.
Today, Mr. Speaker, is a historic day in many ways. On the one hand,
in a landmark decision by Chief Justice John Roberts, the Supreme Court
upheld the health care bill, ensuring that millions of American
families will finally have access to effective and affordable health
care.
On the other hand, Republican leaders of the House of Representatives
are about to plunge into the history books as some of the most extreme
and partisan ever. Rather than working together in a bipartisan way to
create jobs and help our Nation's economic recovery, they're rushing to
the floor under emergency procedures with a contempt resolution that is
riddled with errors and is motivated by partisan politics.
When I first heard about the allegations of gunwalking at ATF, I was
outraged. I fully supported our committee's goals of finding out how it
started, how it was used, and how it may have contributed to the death
of Border Patrol Agent Brian Terry. I made a personal commitment, which
I will keep, to the Terry family to conduct a responsible and thorough
inquiry.
But today's contempt vote is a culmination of one of the most highly
politicized and reckless congressional investigations in decades. After
receiving thousands of pages of documents from the Justice Department,
conducting two dozen transcribed interviews, and hearing testimony from
the Attorney General nine times, here are the facts:
First, the committee has obtained no evidence that the Attorney
General authorized, condoned, or knew about gunwalking. Chairman Issa
admitted this just yesterday before the Rules Committee. We've seen no
evidence that the Attorney General lied to Congress or engaged in a
coverup. We've seen no evidence that the White House had anything to do
with the gunwalking operations--Chairman Issa admitted this on FOX News
Sunday this past weekend.
Democrats wanted a real investigation. But Chairman Issa refused 10
different requests to hold a hearing with the director of ATF, the
agency that ran these misguided operations. Let me say that again.
During this entire investigation, no Member of the House has been able
to pose a single question to the head of ATF at a public hearing.
How could you have a credible investigation of gunwalking at ATF and
never hold a single hearing with the leadership of the agency in
charge? The answer is, you can't.
Based on the documents, we now know that gunwalking, in fact, started
in 2006. Yesterday, Chairman Issa said this about the misguided
operations during the Bush administration: ``They were all flops. They
were all failures.''
The committee has obtained documentary evidence that former Attorney
General Mukasey was personally
[[Page H4403]]
briefed on these botched interdiction efforts during his tenure and
that he was told they would be expanded. Chairman Issa refused to call
Mr. Mukasey for a hearing or even for a private meeting. During our
committee's year and a half investigation, the chairman refused every
single Democratic request for a witness.
Instead of taking any of these reasonable steps as part of a credible
and even-handed investigation to determine facts, House Republican
leaders rushed this resolution to the floor only 1 week after it was
voted out of committee. In contrast, during the last Congress, House
leaders continued to negotiate for 6 months to try to avoid contempt in
the United States Attorneys investigation.
Mr. Speaker, some of my colleagues on the other side seem almost
giddy about today's vote. After turning this investigation into an
election year witch hunt, they have somehow convinced the Speaker to
take it to the floor.
{time} 1440
And they are finally about to get the prize they have been seeking
for more than a year: holding the Attorney General of the United States
of America in contempt.
They may view today's vote as a success, but in reality, it is a sad
failure--a failure of House leadership, a failure of our constitutional
obligations, and a failure of our responsibilities to the American
people.
I reserve the balance of my time.
Mr. ISSA. I yield 3 minutes to the gentleman from Pennsylvania, the
distinguished Congressman Meehan, a former U.S. attorney in that
district.
Mr. MEEHAN. Thank you, Mr. Chairman.
Mr. Speaker, this is not about politics, though there are some who
want to suggest that it is because if they yell loud enough and long
enough, it will deflect the truth of the matter. Frankly, it's not
about ``gotcha.'' As a former prosecutor myself, the Attorney General
personifies the pursuit of justice, and I want to see him do well. But
it is about accountability.
Agent Brian Terry is dead, protecting our border, and 563 days later,
the Terry family still does not know why it occurred. What they do know
is that the very agency that initiated Fast and Furious, the Department
of Justice under Attorney General Eric Holder, called the operation
``fatally flawed.'' And then the wagons got circled.
It's about the separation of powers. As uncomfortable as it may be,
at times it's a fundamental tenet and a strength of our democracy that
Congress is given not just the power, but the responsibility, to
exercise its duty of oversight over the Executive, especially when, by
their own admission, things have gone glaringly wrong.
Because the Justice Department has stubbornly resisted the legitimate
inquiries of Congress over Operation Fast and Furious, there's so much
we do not know. But because whistleblowers within the Department of
Justice were outraged at mischaracterizations, there's a great deal
that we do know.
What we do know is that we have been dealing with a systematic effort
to deflect attention away from the decisions and the determinations
that were made at the highest levels of the Department of Justice,
where information was brought directly to individuals at the highest
levels of the Department of Justice, information that was contained in
wiretap affidavits that lay out in explicit detail the matters related
to Fast and Furious.
Mr. Speaker, there is a famous quotation in the Department of Justice
about the responsibility of the Attorney General not being to win
cases, but to assure that justice is pursued and retained.
Mr. Speaker, it is incumbent and a responsibility on this House to do
what is required to do in this circumstance and to support the request
that we be given the documents to obtain the facts that will allow us
to draw the conclusions which I believe will allow us to get to the
bottom of this level.
Mr. CUMMINGS. Mr. Speaker, I yield 2 minutes to the distinguished
gentleman from Illinois (Mr. Quigley).
Mr. QUIGLEY. Those bringing this contempt vote say they want to talk
about gunwalking and how to stop it. Okay, let's have that
conversation.
They say they want to stop gun trafficking and keep our ATF agents
safe. Well, then let's properly fund the ATF, which has the same number
of agents since 1970.
They say they want to stop gun trafficking. Well, then appoint a
permanent ATF Director, which the agency hasn't had in 6 years.
They say they want to stop gun trafficking. Well, then let's pass
some laws which actually deter straw purchasers. Straw purchasers can
currently buy thousands of AK-47s, lie on their paperwork, and the
penalty is equivalent to a moving violation.
They say they want to stop gun trafficking. Well, then let's give the
agents in the field what they've been asking for: the ability to track
multiple purchases of long guns. These long guns include AK-47s,
variant assault weapons, and .50 caliber semiautomatic sniper rifles,
the weapons of choice for international drug cartels.
They say they want to stop gun trafficking. Well, then let's close
the gun show loophole which currently allows anyone to purchase any gun
they want without background check. Felons, domestic violence abusers,
those with severe mental illness, even those on the terrorist watch
list can currently walk into a gun show and purchase any gun they want.
Yes, 2,000 guns were allowed to walk to Mexico, but the truth is tens
of thousands of guns flow across our border every year because of those
lax gun laws. But those bringing this contempt vote don't want to have
this conversation, and they aren't serious about stopping gun
trafficking. They simply want to embarrass the administration, even
though the committee's 16-month investigation found no evidence the
Attorney General knew about gunwalking, even though there was no
evidence of White House involvement in gunwalking, all of which
Chairman Issa admitted on national TV last week.
So if we're going to talk about gun trafficking, let's be clear: this
is about politics, not safety.
Mr. ISSA. Mr. Speaker, the minority knows that, in fact, this
contempt is all about the Attorney General's refusal to turn over
documents, not whether or not it was his lieutenants or he that
personally was involved in Fast and Furious.
With that, I yield 2 minutes to the distinguished former chairman of
the Judiciary Committee, the gentleman from Wisconsin (Mr.
Sensenbrenner).
Mr. SENSENBRENNER. Mr. Speaker, this isn't about politics. This is
about the Constitution, and it's about Congress's mandate to do
oversight over both the executive and judicial branches of government.
The President is asserting executive privilege to attempt to shield
these documents, and he is relying on a type of privilege called the
deliberative process privilege. However, that privilege disappears when
Congress is investigating evidence of wrongdoing.
In 1997, the U.S. Court of Appeals for the District of Columbia
Circuit wrote, in part:
Moreover, the privilege disappears altogether when there is
any reason to believe government misconduct occurred.
In another case that was decided by the First Circuit in 1995, it
says that the grounds that shielding internal government deliberations
in this context does not serve ``the public's interest in honest,
effective government.''
There's been misconduct that's already a matter of public record in
two instances. The Justice Department wrote Senator Grassley in January
of 2011 saying that the ATF-sanctioned gunwalking across the border was
false, and it took them 9 months to retract that letter. So they misled
Congress, and then 9 months later they said, Oops, maybe we did mislead
Congress and we'll withdraw the letter. And in May 2011, the Attorney
General testified before the Judiciary Committee that he first heard of
Operation Fast and Furious a few weeks before the hearing. Over 6
months later, he conceded that he should have said ``a few months.''
Now, this very clearly shows that Congress has got the obligation to
get to the bottom of this and that the assertion of executive privilege
by the President and the Attorney General is not based in law. We ought
to go ahead and do our job and do our oversight. It's too bad that the
Justice Department has decided to try to obstruct Congress' ability to
do it.
[[Page H4404]]
Pass the resolution.
Mr. CUMMINGS. I yield 2 minutes to a member of the committee, the
gentleman from Virginia (Mr. Connolly).
Mr. CONNOLLY of Virginia. Mr. Speaker, the 112th Congress is on the
verge of becoming the first in the history of the country to hold a
sitting Cabinet member in contempt, cementing its legacy as the most
partisan House of Representatives perhaps of all time. When they say
it's not about politics, you can be sure it's about politics.
The majority's irresponsible and unprecedented contempt vote brings
dishonor to this House, which has become so clouded in judgment, so
besotted with rancor and partisanship, that it's incapable of
addressing a fundamental separation of powers conflict in a serious and
fair fashion.
In refusing to engage in good-faith negotiations with the Department
of Justice and the Attorney General, the majority has exposed this
contempt citation for what it really is: an extraordinarily shameful
political witch hunt aimed at trashing an honorable man.
{time} 1450
It is unacceptable that we are rushing to the floor this
unprecedented contempt resolution. Yesterday, Ranking Member Cummings
sent a letter to the Speaker highlighting 100 errors, omissions, and
mischaracterizations of fact contained in the contempt citation itself,
rushed out of our committee last week on a party-line vote.
Although some of the contempt citation's flaws are simply misleading,
others are significant legal deficiencies and may contain factual
errors that call into question the very validity of the contempt
citation itself.
For example, on pages 4 and 5, the contempt citation charges that
senior officials at the Department of Justice headquarters ``ultimately
approved and authorized'' Operation Fast and Furious. However, the
contempt citation fails to mention that the committee has uncovered no
evidence that DOJ officials, including the Attorney General, ever
approved or authorized gunwalking in Operation Fast and Furious. In
fact, the authorization originated at the ATF office in Phoenix,
Arizona, not at DOJ headquarters in Washington.
On pages 16, 17, 19, 20, 21, 22, 25, 26, and 27, the contempt
citation charges DOJ with not producing a series of documents that the
chairman only recently acknowledged the Department is prohibited by law
from providing due to the potential impact on ongoing prosecutions.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CUMMINGS. I yield the gentleman an additional 15 seconds.
Mr. CONNOLLY of Virginia. In fact, he had to amend his own subpoenas
to delete documents in this very category. But his contempt citation
has not caught up with his most recent version of his subpoena.
Clearly, the majority has not taken the necessary time to properly
weigh this very serious charge. Regrettably, this deeply flawed and
shoddy contempt citation is emblematic of the majority's reckless rush
to judgment throughout this political prosecution.
I have been deeply troubled by the tone and tenor of some of the very
hostile questioning and the utter and complete contempt and lack of
respect given to the Attorney General of the United States.
When this chapter of congressional history is written, it will not be
a brave, shining moment. It will be seen for what it is: a craven,
crass, partisan move that brings dishonor to this body.
Mr. ISSA. I now yield 1 minute to the very distinguished and always
participating member of the committee, the gentlewoman from New York
(Ms. Buerkle).
Ms. BUERKLE. Mr. Speaker, I thank the chairman for his steadfast work
on behalf of truth in trying to get to the bottom of Fast and Furious.
Mr. Speaker, Syracuse, New York, in the heart of my district, is
roughly 2,500 miles from Rio Rico, Arizona, where U.S. Border Patrol
Agent Brian Terry was tragically shot and killed by an AK-47 assault
rifle that the United States knowingly allowed into the hands of a
suspected gun trafficker, yet every time I'm home, it is the issue
first and foremost on the minds of my constituents. I listen to their
calls, to their emails, and at our town halls. They want to know what
happened, who knew what, and when did they know it. They ask me, they
ask Washington, they ask the Department of Justice: How could the
United States Government, the pillar of hope and freedom, have allowed
for this, for one of their own representatives, one of their own good
guys, to be so helplessly gunned down by a suspected criminal?
Mr. Speaker, I'm embarrassed to say that after 562 days, I still
don't have an answer for them.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. ISSA. I yield the gentlelady an additional 10 seconds.
Ms. BUERKLE. Mr. Speaker, I ask: Is this the hope that Americans are
supposed to believe in out of the supposedly most-transparent
government in the history of our Nation?
It is my hope, Mr. Speaker, that the district court judge will see
through the Attorney General's contempt of Congress after it is passed
in the House today. However, we must not be mistaken, even if the
Attorney General is prosecuted, the case is not closed. We must not
forget that guns leaked through this program claimed lives.
The SPEAKER pro tempore. The time of the gentlewoman has expired.
Mr. ISSA. I yield the gentlelady an additional 10 seconds.
Ms. BUERKLE. Mr. Speaker, after today's vote, we must continue our
efforts to find more answers than there are questions relating to this
administration's catastrophic Fast and Furious. The American people
deserve to know those answers, and the family of Border Patrol Agent
Brian Terry do as well.
Mr. CUMMINGS. Mr. Speaker, I yield the gentleman from Missouri (Mr.
Clay) 2 minutes, a member of the committee.
Mr. CLAY. Mr. Speaker, as a member of the Oversight Committee, I know
that the gunwalking operations conducted by the ATF under both the
previous and current administrations were absolutely wrong. But the
leadership of this House is focused on shameful election-year political
posturing instead of the real issue.
The Justice Department, long ago, ended the practice of allowing
these guns to ``walk'' across the border, putting communities in Mexico
at great risk. But the same people who have relentlessly pursued a
baseless, partisan attack on Attorney General Holder and the President
have ignored the desperate pleas of the Mexican Government--to
strengthen American gun laws and curb the gun trafficking that gave
rise to the strategy in the first place.
But focusing on the real issue would take time away from their
playing politics with their oversight authority. Those on the other
side of the aisle claim to be concerned about powerful assault weapons
crossing the border into Mexico illegally, but how can they be
completely fine with those same powerful assault weapons being sold
right here in this country legally, putting our communities at even
greater risk?
This is nothing more than a political witch hunt. The disgraceful
posturing that I witnessed at last week's markup has been continued on
the floor today. I agree that it never should have come to this, but we
are here debating this resolution solely because of the majority. They
created the scandal and produced a showdown during an election season
just to smear an honorable, dedicated public servant and to embarrass
his boss.
I urge my colleagues to reject this nakedly partisan abuse of power.
Mr. ISSA. Mr. Speaker, it is now my honor to yield 1 minute to the
distinguished Speaker of the House, the gentleman from Ohio (Mr.
Boehner).
Mr. BOEHNER. I thank my colleague for yielding.
It's important for the American people to know how we got here and to
know the facts of this case.
The Congress asked the Justice Department for the facts related to
Fast and Furious and the events that led to the death of U.S. Border
Patrol Agent Brian Terry. The Justice Department did not provide the
facts and the information that we've requested. Instead, the
information came from people outside the Department, people who wanted
to do the right thing.
[[Page H4405]]
In addition to not providing the information, the administration
admitted misleading Congress, actually retracting a letter it had sent
10 months earlier.
I think all Members understand this is a very serious matter. The
Terry family wants to know how this happened, and they have every right
to have their answers. And the House needs to know how this happened,
and it's our constitutional duty to find out.
So the House Oversight and Government Reform Committee issued a
lawful and narrowly tailored subpoena. We've been patient, giving the
Justice Department every opportunity to comply so we can get to the
bottom of this for the Terry family. We showed more than enough good
faith, but the White House has chosen to invoke executive privilege.
That leaves us no other options. The only recourse left to the House is
to continue seeking the truth and to hold the Attorney General in
contempt of Congress.
Now, I don't take this matter lightly. I, frankly, hoped it would
never come to this. The House's focus is on jobs and on the economy.
But no Justice Department is above the law, and no Justice Department
is above the Constitution, which each of us has sworn an oath to
uphold.
So I ask the Members of this body to come together and to support
this resolution so we can seek the answers that the Terry family and
the American people deserve.
Mr. CUMMINGS. I yield myself 1 minute.
I want to say in response to the Speaker, we, too, are all saddened
by the tragic death of Border Patrol Agent Brian Terry who gave his
life in service to his country on December 15, 2010.
{time} 1500
But, Mr. Speaker, despite what my colleagues have claimed, this
contempt vote is not about getting documents that show how gunwalking
was initiated and utilized in Operation Fast and Furious.
Now, the only documents in dispute are the documents created after
Fast and Furious ended and after Brian Terry's death, but we pledge to
continue to find all the answers with regard to the death of Brian
Terry.
With that, I yield 2 minutes to the distinguished gentleman from
Massachusetts (Mr. Lynch), a member of the committee.
Mr. LYNCH. Mr. Speaker, I would add that we have 31 Democrats that
signed a letter to the Department of Justice and to the White House in
the aftermath of Agent Terry's death to fully cooperate in this
investigation. However, I rise in strong opposition to this contempt
resolution.
While criticism of the Department of Justice for oversight of the so-
called ``gunwalking'' operations--conducted during both the Bush
administration and the current administration--may be warranted, a
finding of contempt against the sitting Attorney General of the United
States is most certainly not.
In determining whether this House should hold our highest-ranking
national law enforcement officer in contempt of Congress, let us
remember that up until last week the majority of our committee had been
demanding the production of documents that our Attorney General is
legally prohibited from disclosing and that has caused much of the
delay here. In other words, Mr. Holder would have broken the law and
likely compromised existing criminal prosecutions if he adhered to the
majority's unreasonable request for materials that related to ongoing
criminal investigations, Federal wiretap communications under judicial
seal, and documents also subject to grand jury secrecy rules.
Let us also be mindful that we are considering the extent of
cooperation, or noncooperation, of an Attorney General who has appeared
before Congress on nine separate occasions, whose Justice Department
has produced over 7,600 pages of documents to oversight investigators
and who continues to offer significant accommodations in response to
extraordinary and ever-changing requests for information.
Meanwhile, the majority continues to deny any and all Democratic
requests to publicly question, under oath, law enforcement officials,
including former Director of the ATF, Ken Melson, the head of the very
Agency that ran the gunwalking operations such as Fast and Furious.
Accordingly, it's become quite clear that what began as a legitimate
and compelling oversight committee investigation into Operation Fast
and Furious has deteriorated into an unfortunate example of politics
and partisanship at their worst.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CUMMINGS. I yield the gentleman another 15 seconds.
Mr. LYNCH. In closing, I urge my colleagues on both sides of the
aisle to oppose this contempt resolution.
Mr. ISSA. Mr. Speaker, I now yield 1 minute to the gentleman from
Michigan (Mr. Walberg).
Mr. WALBERG. Mr. Speaker, there is no joy in today's action; but the
fact remains, 18 months after U.S. Border Patrol Agent Brian Terry was
murdered, the Justice Department has failed to hold anybody accountable
for the mistakes of Operation Fast and Furious.
As a member of the Oversight and Government Reform Committee, I have
witnessed firsthand the stonewalling by the Department of Justice and
Attorney General Holder. At every question, the Justice Department has
refused to acknowledge what they know about the gunwalking tactics that
led to Agent Terry's death. Most recently, they have hid behind the
President's erroneous claims of executive privilege, an action the
President denounced as lacking transparency when he was campaigning.
The Department has stood in open defiance of Congress' moral and
constitutional obligation to conduct oversight of this affair.
The family of Agent Terry deserves to know who approved Fast and
Furious. They have the right to know who had the power to stop this
program before he was murdered, and they need an explanation as to why
the Department of Justice took 9 months to withdraw their false denial
that they had ever let guns walk into Mexico.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. ISSA. I yield the gentleman an additional 15 seconds.
Mr. WALBERG. To some on the other side of the aisle, it seems fine
that the people who authorized this operation still work within the
Department of Justice. I don't agree. They'd rather play politics than
uphold Congress' right to investigate.
Today's vote is about accountability. It's about making sure another
2,000 firearms don't end up in the hands of Mexican drug cartels. And
it's about bringing closure to the Terry family.
I urge my colleagues to support this resolution and honor the memory
of Brian Terry.
Mr. CUMMINGS. Mr. Speaker, I yield 4 minutes to the distinguished
gentleman from Maryland (Mr. Hoyer).
Mr. HOYER. Mr. Speaker, this is a sad day for the House of
Representatives. It is an irresponsible day for the House of
Representatives. It is a day in which the majority party asked us to
take an action that has never been taken in the history of America--
never once--holding a Cabinet officer in contempt of the Congress.
Now, there have been previous contempt citations--some promoted by
Democratic committees and some promoted by Republican committees. The
average time between committee action and consideration on the floor of
this House is 87 days; time to reflect on an extraordinarily important
action with consequences beyond the knowledge of anybody sitting here
today.
Now, I want to tell the chairman, with all due respect, I think this
investigation has been extraordinarily superficial. I think the
chairman has failed to call witnesses that could in fact give relevant,
cogent testimony on the issues to bear. That ought to be done. That is
why I will strongly support the motion of the gentleman from Michigan
(Mr. Dingell), who has served here longer than any of the rest of us
and who is one of the strongest gun control rights supporters in this
Congress.
What his motion says is: let us reflect. Let us bring thoughtful
judgment. Let us not, every time that there is the opportunity, choose
confrontation over cooperation and consensus. That has been the history
of this Congress, confrontation over consensus every time, and America
is suffering because of it.
[[Page H4406]]
I ask my friends on the Republican side of the aisle--who know me to
be a bipartisan Member of this body who believes in this institution
and who cares about its actions and the precedent that they will set--
don't do this. Vote for this motion to refer. Give the chairman the
opportunity he should have taken before to have a full hearing, calling
former Attorney General Mukasey, calling the former head of the ATF,
calling agents who were personally involved in this proceeding.
I venture to say that there are very few Members who will vote on
this issue who have read the committee proceedings, very few Members
who have read the minority report or the majority report. Yet they're
about to take a historic vote to do what has never been done by any
Congress--111 Congresses. Do not take this action.
This is not about Republicans or Democrats. This is about our
Constitution, our country, our respect for a Nation of laws, not of
men. That's what this vote is about. We ought not to be voting as
Republicans and Democrats; we ought to be voting as Americans,
Americans committed to justice and fair process.
{time} 1510
I regret that I do not believe this committee has followed that. I
believe that the political motivations behind this resolution are clear
and pose a clear and present danger to this Nation.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. CUMMINGS. I yield the gentleman an additional 30 seconds.
Mr. HOYER. I want to thank the gentleman from Maryland, my colleague
and my friend, for his leadership on this effort.
When we vote on this referral, let us vote as Americans, as I said,
not as a partisan issue. You may have the Attorney General in the
future. It's not the question of the party of the Attorney General. It
is the question of whether or not this Congress is going to provide for
equal treatment of all Attorney Generals and all Cabinet officers.
Let us vote for this motion to refer and give the committee the
opportunity it should take, and let us vote down this motion that
should fail, and let us vote down these motions for contempt, and let
us thoughtfully consider the equities of this issue.
Mr. ISSA. Mr. Speaker, it is now my honor to yield 1 minute to the
gentleman from Arizona (Mr. Gosar), an active participant, and from the
district from which this event sprung.
Mr. GOSAR. Mr. Speaker, finding Attorney General Eric Holder, Jr. in
contempt of Congress is long overdue, but welcome news for the American
people, and especially for Arizonans.
As I explained in my recent statement, Mr. Holder has shown his
contempt and utter disdain for our constitutional rights, our border,
Arizonans and all Americans; 115 Members of Congress agree that
Americans lack confidence in Mr. Holder and his Department. Every
Member of Congress should do their constitutional duty and hold the
Attorney General to be in contempt today.
The people of Arizona, California, New Mexico, and Texas, who deal
with the unsecured borders and violent Mexican cartels on a regular
basis, now must also live in fear of these firearms.
Some have said that these charges against Attorney General Eric
Holder are racially motivated, and I couldn't disagree more. The
violent cartels armed by our government have no regard for party ID or
race. Throughout our Nation and, specifically, in Arizona, folks from
all political parties and all races are now living in danger of this
lethal violence due to the actions of this administration.
Make no mistakes about it, today's vote is to deliver justice and
accountability for the Brian Terry family and the over 300 Mexicans who
have died as a result of Fast and Furious. Time's up.
Mr. CUMMINGS. I yield 30 seconds to the gentleman from Maryland (Mr.
Hoyer).
Mr. HOYER. I thank the gentleman for yielding.
On November 1, 2009, our Speaker stood on this floor, outraged about
the process. We, too, are outraged about this process, and let me quote
the Speaker:
We will not stand for this. And I would ask my House
Republican colleagues and those who believe that we should be
here protecting the American people, protecting our
Constitution, not vote on this bill. Let's just get up and
leave.
My colleagues may well follow that advice.
Mr. ISSA. I yield myself 10 seconds, and have no doubt that the
gentleman will walk off the floor. But his motion is asking us also to
delay, into an election, getting an answer for the Terry family. I know
that is not the wise course, and I strongly support that we do this
today.
With that, I yield 1 minute to the gentleman from Idaho (Mr.
Labrador).
Mr. LABRADOR. Mr. Speaker, I stand with a heavy heart in support of
today's contempt resolution. It puts us another step closer to holding
the Attorney General accountable for this severely flawed operation and
his failure to cooperate with Congress.
The Attorney General has not only failed to produce all the relevant
documents; he has misled this Congress and thereby prevented us from
uncovering the truth. So how can the Members of the minority say that
an investigation is superficial when we don't even have all the
documents?
When the Attorney General was before the Committee on Oversight last
year, I brought to light his historical pattern of willful ignorance. I
highlighted his lack of knowledge when under oath. He knows nothing, he
says nothing, and he seeks for nothing. Never in my life have I met a
man more unconcerned with the search for the truth.
I've since become even more disturbed by the depth to which Mr.
Holder and his allies will sink to stonewall justice.
Yes, this is an unprecedented day, I agree with you. But not until
now have we had an Attorney General have to retract so many statements
made to the Congress of the United States, the duly elected
Representatives of the people of the United States.
Let us vote to support this motion for contempt.
Mr. CUMMINGS. Mr. Speaker, may I inquire as to how much time both
sides have.
The SPEAKER pro tempore. The gentleman from Maryland has 6\1/4\
minutes remaining. The gentleman from California has 11\1/4\ minutes
remaining.
Mr. CUMMINGS. I yield 2 minutes to the gentlewoman from New York
(Mrs. Maloney).
Mrs. MALONEY. Mr. Speaker, the family of Brian Terry deserves our
respect, our condolences and our best efforts to finish the mission, to
put an end to gun violence on the southern border. But instead of going
after gun violence, this investigation has gone after the man that
tried to stop the gun violence, the Attorney General.
Chairman Issa has acknowledged that Attorney General Holder did not
know about the gunwalking operation. He has acknowledged that the
President and the White House did not know about the gunwalking
operation. Both the White House and the Attorney General have
acknowledged that the gunwalking operation was a tragic mistake, that
it was badly executed, and that it originated under the Bush
administration.
It was Attorney General Holder that terminated the program and
requested an extensive investigation of the operation and how it was
conducted. And the documents that they're now requesting in this ``vast
and spurious'' investigation have absolutely nothing to do with
gunwalking.
If they were really interested in discovering the truth, the
committee would have called Kenneth Melson, head of the ATF, as a
witness. The chairman refused 10 different requests for a hearing with
Mr. Melson--10 requests.
Republicans have not granted one single Democratic witness request in
16 months. Not one.
This is not about discovering the truth. This is about politics. This
has become an obsessive political vendetta, pursuing a political agenda
in a season of unusually ugly politics.
If they were serious about ending gun violence, they would do what
many ATF agents have suggested and put some teeth in the law; and that
is why I authored, with my colleagues, a bill to make gun trafficking a
Federal offense and strengthen penalties for straw purchases.
[[Page H4407]]
This unprecedented contempt citation is politics at its worst and why
this body is held in such low esteem by the public now.
Mr. ISSA. Mr. Speaker, I place in the Record at this time the
statement by the Terry family regarding Congressman John Dingell's
criticism of the contempt vote.
Terry Family Statement With Regard to Congressman John Dingell's
Criticism of Contempt Vote
On Wednesday, Representative John Dingell invoked the Terry
family name while saying he would not back the contempt
resolutions but instead wants the Oversight and Government
Reform Committee to conduct a more thorough investigation
into Operation Fast and Furious.
Congressman Dingell represents the district in Michigan
where Brian Terry was born and where his family still
resides, but his views don't represent those of the Terry
family. Nor does he speak for the Terry family. And he has
never spoken to the Terry family.
His office sent us a condolence letter when Brian was
buried 18 months ago. That's the last time we heard from him.
A year ago, after the House Oversight and Reform Committee
began looking into Operation Fast and Furious, one of Brian's
sisters called Rep. Dingell's office seeking help and
answers. No one from his office called back.
Mr. Dingell is now calling for more investigation to be
conducted before the Attorney General can be held in contempt
of Congress.
The Terry family has been waiting for over 18 months for
answers about Operation Fast and Furious and how it was
related to Brian's death. If Rep. Dingell truly wants to
support the Terry family and honor Brian Terry, a son of
Michigan, he and other members of congress will call for the
Attorney General to immediately provide the documents
requested by the House Oversight and Government Reform
Committee.
Mr. ISSA. Mr. Chairman, I'm sure that the gentlelady from New York
recognizes that the right of a minority hearing has not been exercised,
and that would have answered the questions, as they are well aware,
about bringing Kenneth Melson before the committee. That would be their
right. They did not exercise their right.
I yield 1 minute to the gentleman from Florida (Mr. Mica), the senior
member of the committee.
Mr. MICA. I thank the gentleman for yielding.
When the Founding Fathers created our government and established the
committees in Congress, they had authorizing committees and they had
appropriating committees. In 1808, the predecessor of this committee
was established for a fundamental reason, and that's to make certain
that programs and funding were properly executed and used by agencies
created by Congress.
Congress created the law that created the Department of Justice.
Congress funded the programs that are under the Department of Justice.
It's our responsibility to investigate when things go wrong. And things
went wrong. An agent of the United States was murdered with weapons
which were funded by the agency that we created.
All we have asked for is the documents. All we want are the facts,
and we have been thwarted. Eric Holder, Attorney General of the United
States, the highest judicial enforcement officer of the United States,
has been in contempt, is in contempt, and is showing contempt for the
Congress and the responsibility under the Constitution of this
important committee of Congress.
I urge adoption of the contempt resolution against the Attorney
General.
{time} 1520
Mr. CUMMINGS. Mr. Speaker, I yield 2 minutes to the gentleman from
California (Mr. Schiff).
Mr. SCHIFF. I thank the gentleman for yielding.
I rise in strong opposition to these contempt resolutions.
I spent 6 years as an assistant U.S. attorney, and I have great
admiration and respect for the hardworking men and women of the
Department. I have great respect for our Attorney General, who I think
has been a superb Attorney General and is a man of great integrity. I,
like most Americans, would like to know about the facts of Fast and
Furious, about the problem of guns crossing our border, about the
horrendous violence to the south of our border. But what we do today
will shed no light on that.
What we do today will not improve the situation in terms of gun
violence that has claimed the lives of tens of thousands of Mexican
citizens and that has claimed the lives of an increasing number of
Americans. What we are doing today is simply a partisan abuse of the
contempt power. Thirteen percent of the American people think highly of
Congress, and today those 13 percent are wondering why. What we do will
cause no injury to the Department, but it will cause great injury to
this House.
The Justice Department, after providing 8,000 documents and extensive
testimony, is now being required to turn over privileged materials; and
like all administrations before it, it has reluctantly used executive
privilege to respectfully refuse to provide materials it cannot
provide. So now we are here, bringing a contempt motion against the
Attorney General, who our committee chairman acknowledges was not aware
of Fast and Furious. They don't expect any documents to show he was
aware of Fast and Furious. Yet we are going to hold this Cabinet
official in contempt?
That is an outrageous abuse of the contempt power. What will happen
when this Congress actually needs to use the contempt power for a
legitimate purpose? Will anyone still recognize it?
I urge the Speaker to withdraw this motion as, indeed, Speaker
Gingrich withdrew the motion in his day and let the parties work it
out. We both know, Democrats and Republicans, how this will end. It
will end with a settlement in court months or years from now and with
the Department's providing the same documents it's offering to provide
today. Let's end this partisan exercise now.
Mr. ISSA. I yield myself 15 seconds.
I respect my colleague from California, as we came in to Congress
together some 12 years ago; but the fact is he talked about everything
except the fact that Congress was lied to in a false letter and follow-
up statement. Ten months went by. We're only asking for the information
related to the false statements made to Congress during that
intervening period and nothing more.
I reserve the balance of my time.
Mr. CUMMINGS. I yield 1 minute to the gentlewoman from California,
the minority leader, Ms. Pelosi.
Ms. PELOSI. I thank the gentleman for yielding.
I commend him for his extraordinary patriotism, for his commitment to
upholding our oath of office to protect and defend the Constitution,
and for recognizing full well the congressional role of oversight of
all branches of government. I think we all share the view that Congress
has a legitimate role to play in oversight; thus, your committee has so
much jurisdiction, and I respect that.
I think we also all agree--I think we all very, very much agree--that
we are very sad and seek justice for the family of Border Patrol Agent
Brian Terry. His loss is a tragedy for all who knew him, for all of us
who care about him. We offer our condolences to his family. So sad. But
that's not what we are here to debate, what we agree upon.
What we are here to debate is something very, very large because it
is a major disagreement between the two sides of the aisle here--and
I'm sorry to say that--about what our responsibilities are to the
Constitution of the United States. The Constitution requires Congress
and the executive branch to avoid unnecessary conflict and to seek
accommodations that serve both their interests. That's how the
Constitution guides us.
As Attorney General William French Smith, who served under President
Ronald Reagan, said:
The accommodation required is not simply an exchange of
concessions or a test of political strength. It is an
obligation of each branch to make a principled effort to
acknowledge and, if possible, to meet the legitimate needs of
the other branch.
Mr. Speaker, on the floor today, the Republicans in Congress are not
making a principled effort to acknowledge or to meet the legitimate
needs of the other branch. What they are doing is exploiting a very
unfortunate circumstance for reasons that I cannot even characterize,
so I won't; but I will say this without any fear of contradiction:
The basic premise that this debate is predicated on today is a false
premise. It is factually not true. In how many more ways can I say
that? So we have
[[Page H4408]]
a debate predicated on a false premise. What can that lead to that has
any good outcome? It is a situation in which we have a contempt of
Congress resolution against a sitting Cabinet member, which is the
first time in the over-200-year history of our country that this has
ever happened. Again, what is the motivation?
Secondly--and that's why I quoted the Constitution--this motion is
not a principled effort to resolve the issue. If it were, we would not
be able to measure in hours and days, not even weeks, the rush--the
railroading--of a resolution of contempt of Congress that the
Republicans passed last week and are bringing this week to the House
floor.
I say this because I took considerable heat myself when we brought
contempt charges against two staff people at the White House--Josh
Bolton and Harriet Miers--4\1/2\ years ago. We were asking for some
papers. We got nothing, as I said to my friends, not even a wrapper of
a piece of gum. Nothing. Stonewalled. Nothing. Yet, at the time, our
chairman of the Judiciary Committee, Mr. Conyers, and our House
leadership, Mr. Hoyer and others, kept saying, Find a way. Exhaust
every remedy so that we do not have to take this action of bringing a
contempt charge to the floor of the House.
For over 200 days, we tried, we tried, we tried to resolve the
situation. When we could not, we brought it to the floor--two staff
people at the White House--which is in stark contrast to the rush of
one week to the next for an unsubstantiated--not even factual--charge
against the Attorney General of the United States.
It may just be a coincidence--I don't know--that the Attorney General
of the United States, the chief legal officer of our country, has a
responsibility to fight voter suppression, which is going on in our
country; has refused to defend the constitutionality of DOMA because he
doesn't believe it's constitutional; or has some major disagreements on
immigration, which fall under the enforcement of immigration law.
{time} 1420
It may just be a coincidence that those are part of his
responsibilities, or maybe it isn't. But the fact is is that the chief
legal officer of our country and his staff have to spend enormous
psychic and intellectual energy and time dealing with this unprincipled
effort on the part of the Republicans.
Just when you think you have seen it all, just when you think they
couldn't possibly go any further over the edge, they come up with
something like this. It's stunning. It really is. I don't mean that in
meaning it's beautiful. It's stunning. It stops you in your tracks
because you say: How far will they go? Have they no limits? Apparently,
not.
The temptation is to say: Let's just ignore the whole thing, to not
dignify what they're doing by even being present on the floor when they
do this heinous act, the first time in the history of our country, to
bring contempt against a Cabinet officer. You would think they'd be
more careful about what they say. But being careful about what they say
is apparently not part of their agenda.
I know in our caucus there is a mixed response to this. They're
acting politically; we should act politically. We shouldn't vote on
this; I want to vote ``no.'' I think Members have to make their own
decision about that. I'm very moved by the efforts of our Congressional
Black Caucus to say that they're going to walk out on this. Perhaps
that's the best approach for us to take. How else can we impress upon
the American people, without scaring them, about what is happening
here?
What is happening here? What is happening here is shameful. What is
happening here is something that we all have an obligation to speak out
against. Because I'm telling you it is Eric Holder today, and it's
anybody else tomorrow on any charge they can drum up.
As has been said, the fact is that the papers that they have seen,
they know are exculpatory. That means there is no blame on the Attorney
General, and they know that. That's why they don't want to bring those
responsible for this before their committee, and that's why I commend
Chairman Dingell for his leadership in the motion that he will bring to
the floor momentarily, a motion of referral, so that we can get to the
bottom of this, so that we can see how this happened, so that we can
offer some solace to Brian Terry's family, and so that we can have some
sense of decency about what should happen on the floor of the House.
It seems to me the more baseless the charge, the higher up they want
to go with the contempt. The less they have to say that is real, the
higher up they want to bring the contempt charge.
I have always tried to make it a habit of not questioning the
motivation of people. They believe what they believe, we believe what
we believe, and we act upon our beliefs. It always interested me that
in this Congress somebody can bring something to the floor that is not
true. But if I were to call someone a misrepresenter of that
information, my words would be taken down. So I guess that gives them
liberty to say anything because it's in the form of a motion.
Let's make sure that we all take responsibility for doing the right
thing by not letting there be an abuse of power, an abuse of this floor
of the House, an abuse of the time of the executive branch, an abuse of
the time of a member of the Cabinet who has serious responsibilities to
our country.
I urge my colleagues to do what they want as far as walking off. I
myself had said that I was coming to this floor to vote against this
resolution. I thought it was so wrong that there was no question to
take the opportunity to vote ``no.'' But listening to the debate, it is
almost unbelievable. Not that what they're saying is believable, but
unbelievable that they would say it.
I say to those who have a doubt about how they want to proceed, that
instead of doing what I said before, which was just to come and treat
this as a resolution before the Congress and express my ``no,'' after
listening to the unconscionable presentation, I want to join my CBC
colleagues in boycotting the vote when we have the walkout after we
have the debate over Mr. Dingell's motion.
We all take our responsibilities seriously here, and one of them
first and foremost is to support, uphold, and defend the Constitution
of the United States. That Constitution requires the Congress and the
executive branch--as I began--to avoid unnecessary conflict and seek
accommodation to serve both interests, the executive branch and the
legislative branch. We are not upholding that aspect of the
Constitution here.
I urge my colleagues to vote ``no,'' or a ``no'' vote, but to
seriously reject. Let's hope that this will not be repeated. But I'm
telling you, it's Eric Holder one day, and you don't know who it is the
next because of the frivolousness with which they treat a
serious responsibility of the House of Representatives. It's appalling.
Mr. ISSA. As I know the former Speaker of the House knows, the
Attorney General is being held in contempt as the custodian of the
records for refusing to deliver them, and not because we got to choose
how far up or not to go.
With that, I yield 1 minute to the gentleman from Utah (Mr.
Chaffetz).
Mr. CHAFFETZ. Mr. Speaker, Leader Pelosi seriously questioned our
motivations here. Let me be crystal clear what my motivation is. We
have a dead United States agent. We have more than 200 dead people in
Mexico. We have more than 2,000 weapons that were knowingly and
willfully given to the drug cartels. More than 1,000 of those weapons
are still missing. Most of them are AK-47s. We have a duly issued
subpoena that has not been responded to.
On February 4, 2011, on Department of Justice letterhead, they
presented the United States Congress a letter that was a lie. It took
them nearly 9 to 10 months to provide that information and say, Whoops,
sorry. That's not good enough.
This is not about Eric Holder. This is about the Department of
Justice and justice in the United States of America. I would hearken
back to the June 3, 2011, letter that 31 brave Democrats sent to the
White House. I will read part of this. And remember, this is about a
year ago:
It is equally troubling that the Department of Justice has
delayed action and withheld information from congressional
inquiries.
{time} 1540
He went on to say:
[[Page H4409]]
While the Department of Justice can and should continue its
investigation, those activities should not curtail the
ability of Congress to fulfill its oversight duty. We urge
you to instruct the Department of Justice to promptly provide
complete answers to all congressional inquiries.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. ISSA. I yield the gentleman an additional 15 seconds.
Mr. CHAFFETZ. Nothing's changed in over a year. But I will tell you
this: Brian Terry doesn't have answers. You don't have answers. I don't
have answers. I want all the facts. That's what we're asking for today,
the facts, all of them.
Mr. CUMMINGS. I will remind the gentleman that all of this started
under President Bush.
I reserve the balance of my time.
Mr. ISSA. I would recognize myself for 10 seconds.
The distinguished gentleman from Maryland can have an opinion, but he
can't have his facts.
Fast and Furious was an OCDETF operation that began under President
Obama and Attorney General Holder. No ifs, no ands, no buts. And I
would trust that the gentleman would no longer make statements that
would be less than truthful.
And I reserve the balance of my time.
Mr. CUMMINGS. I yield myself 15 seconds.
Again, the gentleman puts out statements in search of facts.
I reserve the balance of my time.
Mr. ISSA. With that, I yield 1 minute to the distinguished gentleman
from Indiana (Mr. Burton), the former chairman of the Oversight
Committee.
Mr. BURTON of Indiana. I thank the gentleman for yielding.
There has been a lot of hyperbole and a lot of repetition, but a lot
of the things that have been said haven't really been factual. So let's
look at the facts:
Brian Terry was murdered. Hundreds of people have been murdered in
Mexico with guns that went across the border. The Justice Department
said in February of 2011 that they had no knowledge about this, and
then 10 months later, they admitted they lied. Now they said they
didn't know, and then they said they did. I don't know what you call
that, but to me, it's a lie.
Then Chairman Issa tried again and again to get information so we
could get to the bottom of this, like the 32 Democrats wanted, and they
refused. He sent subpoenas; they refused. They hid behind this being an
ongoing investigation and they couldn't give those documents. We got a
fraction of the documents that should have been given to us, but they
wouldn't do that.
Issa met with the Attorney General's people to try to come to some
conclusion, some kind of a resolution of this so we wouldn't have to
move the contempt citation; nothing, absolutely nothing.
And then finally, at the 11th hour, when we knew that we were going
to have to move with the contempt citation, the President of the United
States issues an executive order claiming executive privilege.
Something is funny.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. ISSA. I yield the gentleman an additional 30 seconds.
Mr. BURTON of Indiana. Something is wrong. There's just no question.
Something is being hidden from the Congress and the American people.
And no matter how much is being said here tonight, the fact of the
matter is we aren't getting the information.
A Border Patrol agent has been killed, maybe two. Hundreds of people
have been killed in Mexico with American guns that our government knew
were going across that border. The Attorney General has not been giving
us the information. The Justice Department has been hiding it from the
Congress and the American people, and the President has claimed
executive privilege. If that doesn't tell you something, nothing will.
Mr. CUMMINGS. I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I would inquire of how much time is remaining.
The SPEAKER pro tempore. The gentleman from California has 6\1/2\
minutes remaining. The gentleman from Maryland has 1\1/4\ minutes
remaining.
Mr. ISSA. I thank the Speaker.
I submit the following:
House of Representatives,
Committee on Oversight
and Government Reform,
Washington, DC, May 24, 2012.
Hon. Elijah E. Cummings,
Ranking Member, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
Dear Ranking Member Cummings: Last February, I joined
Senator Grassley in investigating Operation Fast and Furious,
the reckless and fundamentally flawed program conducted by
the Phoenix Field Division of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF). As you know, during Fast and
Furious, ATF agents let straw purchasers illegally acquire
hundreds of firearms and walk away from Phoenix gun stores.
The misguided goal of this operation was to allow the U.S.-
based associates of a Mexican drug cartel to acquire firearms
so they could be traced back to the associates once the
firearms were recovered at crime scenes. On December 15,
2010, two guns from the Fast and Furious operation were the
only ones found at the scene of U.S. Border Patrol Agent
Brian Terry's murder.
An Organized Crime Drug Enforcement Task Force (0CDETF) Wiretap Case
Operation Fast and Furious got its name when it became an
official Department of Justice Organized Crime Drug
Enforcement Task Force (OCDETF) Strike Force case. The OCDETF
designation resulted in funding for Fast and Furious from the
Justice Department's headquarters in Washington, D.C. The
Strike Force designation meant that it would not be run by
ATF, but would instead create a multi-agency task force led
by the U.S. Attorney's Office. The designation also meant
that sophisticated law enforcement techniques such as the use
of federal wire intercepts, or wiretaps, would be employed.
Federal wiretaps are governed by Title III of the Omnibus
Crime Control and Safe Streets Act, and are sometimes
referred to as ``T-IIIs.''
The use of federal wire intercepts requires a significant
amount of case-related information to be sent to senior
Department officials for review and approval. All
applications for federal wiretaps are authorized under the
authority of the Assistant Attorney General for the Criminal
Division. In practice, a top deputy for the Assistant
Attorney General has final sign-off authority before the
application is submitted to a federal judge for approval.
This deputy must ensure that the wiretap application meets
statutory requirements and Justice Department policy. The
approval process includes a certification that the wiretap is
necessary because other investigative techniques have been
insufficient. Therefore, making such a judgment requires a
review of operational tactics. Since gunwalking was an
investigative technique utilized in Fast and Furious, then
either top deputies in the Criminal Division knew about the
tactics employed as part of their effort to establish legal
sufficiency for the application, or they approved the wiretap
applications in a manner inconsistent with Department
policies.
From the beginning, ATF was transparent about its strategy.
An internal ATF briefing paper used in preparation for the
OCDETF application process explained as much:
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 co-conspirators who would continue to
operate and illegally traffic firearms to Mexican DTOs which
are perpetrating armed violence along the Southwest Border.
* * * * *
The ultimate goal is to secure a Federal T-III audio
intercept to identify and prosecute all co-conspirators of
the DTO. . . .
Tracking the illegally-purchased guns after they left the
premises of Federal Firearms Licensees (FFLs) would allow ATF
and federal prosecutors to build a bigger case, one aimed at
dismantling what was believed to be a complex firearms
trafficking network. The task force failed, however, to track
the firearms. Instead, according to the testimony of ATF
agents, their supervisors ordered them to break off
surveillance shortly after the guns left the gun stores or
were transferred to unknown third parties. Many of the
firearms purchased were next seen at crime scenes on both
sides of the border.
The Fast and Furious Gun Trafficking Network Was Not Complex
We now know the gun trafficking ring that Fast and Furious
was designed to target was relatively straightforward. It
involved approximately 40 straw purchasers; a money-man,
Manuel Celis-Acosta (Acosta), and; two figures tied to
Mexican cartels. Acosta and the cartel figures were the top
criminals targeted by ATF and the U.S. Attorney's Office.
On January 19, 2011, 20 suspects were indicted, including
Acosta and 19 of his straw buyers. In all, it is believed
that the Fast and Furious network purchased approximately
2,000 firearms. An internal ATF document dated March 29,
2011, shows that of the indicted defendants, only a select
few purchased the majority of the firearms, and nearly all of
the purchases occurred after ATF knew that these defendants
were straw purchasers working with Acosta. These four
indicted defendants alone illegally purchased nearly 1,300
firearms: Uriel Patina (720), Sean Steward (290), Josh Moore
(141), and Alfredo Celis (134).
The Goals of Our Investigation
A central aim of our investigation has been to find out why
and how such a dangerous
[[Page H4410]]
plan could have been conceived, approved, and implemented.
Who in ATF and the Justice Department knew about the volume
of guns being purchased? Who approved of the case at various
stages as it unfolded? Under whose authority did this occur?
Who could have--and should have--stopped it? By closely
examining this disastrous program, our Committee hopes to
prevent similar reckless operations from using dangerous
tactics like gunwalking ever again. Our investigation also
aims to determine what legislative actions might be necessary
to ensure that such a program will not happen again.
The Department's Failure to Comply with the Committee's Subpoenas
Our Committee is still entitled to thousands of documents
responsive to our subpoenas. These documents will undoubtedly
shed more light on the misguided tactics used in Operation
Fast and Furious. If the Justice Department changes course
and complies with the Committee's subpoenas, some of these
documents will cover the targets of an FBI investigation of
the individuals who were the link between the drug cartels
and the Fast and Furious firearms trafficking ring. Other
documents will chronicle the Department's response to
allegations of whistleblowers following Agent Terry's death
and how it shifted its position from the outright denial that
there was any misconduct to the Department's formal
withdrawal of its false statement in December 2011.
Most importantly, as you are well aware, we are still
waiting for documents relating to the individuals who
approved the tactics employed in Fast and Furious. In his
recent letter to me, Deputy Attorney General James Cole
asserted that such documents ``will not answer the question''
of what senior officials were in fact notified of the
unacceptable tactics used in Fast and Furious. This statement
is deeply misleading. We are aware of specific documents that
lay bare the fact that senior officials in the Department's
Criminal Division who were responsible for approving the
applications in support of the Fast and Furious wiretap
authorization requests were indeed made aware of these
questionable tactics. Cole's letter goes on to state that
``Department leadership was unaware of the inappropriate
tactics used in Fast and Furious until allegations about
those tactics were made public in early 2011.'' That
statement is even more misleading and utterly false. The
information provided to senior officials in the affidavits
accompanying the wiretaps includes copious details of the
reckless investigative techniques involved. Senior department
leaders were not only aware of these tactics. They approved
them.
Wiretap Application Obtained by the Committee
The Committee has obtained a copy of a Fast and Furious
wiretap application, dated March 15, 2010. The application
includes a memorandum dated March 10, 2010, from Assistant
Attorney General of the Criminal Division Lanny A. Breuer to
Paul M. O'Brien, Director, Office of Enforcement Operations,
authorizing the wiretap application on behalf of the Attorney
General. The memorandum from Breuer was marked specifically
for the attention of Emory Hurley, the lead federal
prosecutor for Operation Fast and Furious.
In response to your personal request, I am enclosing a copy
of the wiretap application. Please take every precaution to
treat it carefully and responsibly. I am hopeful that it will
assist you in understanding the information brought to the
attention of senior officials in the Criminal Division
charged with reviewing the contents of the applications to
determine if they were legally sufficient and conformed to
Justice Department policy. The information is as vast as it
is specific. This wiretap application, signed by Deputy
Assistant Attorney General Kenneth Blanco under the authority
of his supervisor, Assistant Attorney General Breuer,
provides new insight into who knew--or should have known--
what and when in Operation Fast and Furious.
To assist you in better understanding the facts, I
appreciate the opportunity to provide relevant and necessary
context for some of the information in this wiretap
application. Due to the sensitivity of the document,
individual targets and suspects will be referred to with
anonymous designations. You will notice, however, that the
individuals referred to in the wiretap application are well-
known to our investigation. Although senior Department
officials authorized this application on March 15, 2010, a
mere four months after the investigation began, it contains a
breathtaking amount of detail.
The detailed information about the operational tactics
contained in the applications raises new questions about
statements of senior Justice Department officials, including
the Attorney General himself. Before the Senate Judiciary
Committee on November 8, 2011, the Attorney General
testified:
I don't think the wiretap applications--I've not seen--I've
not seen them. But I don't know--I don't have any information
that indicates that those wiretap applications had anything
in them that talked about the tactics that have made this
such a bone of contention and have legitimately raised the
concern of members of Congress, as well as those of us in the
Justice Department. I--I'd be surprised if the tactics
themselves about gun walking were actually contained in
those--in those applications. I have not seen them, but I
would be surprise[d] [if that] were the case.
At a hearing before our Committee on February 2, 2012, the
Attorney General also denied that any information relating to
tactics appeared in the wiretap affidavits. He testified:
I think, first off, there is no indication that Mr. Breuer
or my former deputy were aware of the tactics that were
employed in this matter until everybody I think became aware
of them, which is like January February of last year. The
information--I am not at this point aware that any of those
tactics were contained in any of the wiretap applications.
Contrary to the Attorney General's statements, the enclosed
wiretap affidavit contains clear information that agents were
willfully allowing known straw buyers to acquire firearms for
drug cartels and failing to interdict them--in some cases
even allowing them to walk to Mexico. In particular, the
affidavit explicitly describes the most controversial tactic
of all: abandoning surveillance of known straw purchasers,
resulting in the failure to interdict firearms.
The Justice Department's Office of Enforcement Operations
reviews the wiretap applications to ensure that they are both
legally sufficient and conform to Justice Department policy.
Deputy Attorney General James M. Cole has verified this
understanding. In a letter he sent to Congress on January 27,
2012, he stated that the Department's ``lawyers help AUSAs
and trial attorneys ensure that their wiretap packages meet
statutory requirements and DOJ policies. When Assistant
Attorney General Breuer testified last November about the
wiretap approval process, however, he stated:
[The role of the reviewers and the role of the deputy in
reviewing Title Three applications is only one. It is to
insure that there is legal sufficiency to make an application
to go up on a wire, and legal sufficiency to petition a
federal judge somewhere in the United States that we believe
it is a credible request. But we cannot--those now 22 lawyers
that I have who review this in Washington--and it used to
only be seven--can not and should not replace their judgment,
nor can they, with the thousands of prosecutors and agents
all over the country. Theirs is a legal analysis; is there a
sufficient basis to make this request.
Assistant Attorney General Breuer failed to acknowledge
that before a wiretap application can be authorized, it must
adhere to Justice Department policy. Yet, the operational
tactics included in the enclosed wiretap application--
including abandoning surveillance and not interdicting
firearms--violate Department policy. According to Deputy
Attorney General Cole, operations allowing guns to cross the
border do indeed violate Department policy. In an e-mail he
sent to southwest border U.S. Attorneys on March 9, 2011,
Deputy Attorney General Cole stated, ``I want to reiterate
the Department's policy: We should not design or conduct
undercover operations which include guns crossing the
border.''
The Committee understands the limitations of the Office of
Enforcement Operations function. Nevertheless, when presented
with alarming details such as those contained in this
application, a sensible lawyer--vested with the important
responsibility of recommending to the Assistant Attorney
General whether a wiretap should be authorized--must raise
the alarm. Senior officials reviewing the application for
legal sufficiency and/or whether Justice Department policy
was followed, however, failed to identify major problems that
these manifold facts suggested.
March 2010 Wiretap Application States the Main Suspect Had Intent to
Acquire Firearms for the Purpose of Transporting Them to Mexico
According to the wiretap application obtained by the
Committee, as early as December 2009, the task force had
identified the main suspect in Fast and Furious (Target 1), a
figure well-known to our investigation. The affidavit
provides transcripts of entire conversations obtained through
a prior DEA wire intercept. These conversations demonstrate
that key suspects in Operation Fast and Furious were running
a firearms trafficking ring. In one conversation that took
place on December 11, 2009, Unknown Person 1 asks, ``Can you
hold them [firearms] for me there for a little while there?''
Target 1 responds, ``Well it's that I do not want to have
them at home, dude, because there is a lot of . . . uh, it's
too much heat at my house.'' Unknown Person 1 then asked
where he could store the firearms and Target 1 responds,
``[m]ake arrangements with that guy [Straw Purchaser X], call
him back and make arrangements with him.'' The affidavit
acknowledges that while monitoring the DEA target telephone
numbers, law enforcement officers intercepted calls that
demonstrated that Target 1 was conspiring to purchase and
transport firearms for the purpose of trafficking the
firearms from the United States to Mexico.
March 2010 Wiretap Application States that Nearly 1,000 Firearms had
Already Been Purchased, and that Many Were Recovered in Mexico
The Probable Cause section of the affidavit shows that ATF
was aware that from September 2009 to March 15, 2010, Target
I acquired at least 852 firearms valued at approximately
$500,000 through straw purchasers. As of March 15, 2010,
twenty-one straw purchasers had been identified. Between
September 23, 2009, and January 27, 2010, 139 firearms
purchased by these straw
[[Page H4411]]
purchasers were recovered--81 of which were in Mexico. These
recoveries occurred one to 49 days after their purchase in
Arizona.
March 2010 Wiretap Application Describes How Smugglers were Bringing
Firearms into Mexico
The wiretap affidavit details that agents were well aware
that large sums of money were being used to purchase a large
number of firearms, many of which were flowing across the
border. For example, in the span of one month, Straw
Purchaser Z bought 241 firearms from just three cooperating
FFL,s. Of those, at least 57 guns were recovered shortly
thereafter either in the possession of others or at crime
scenes on both sides of the border. The wiretap affidavit
even shows that ATF agents knew the tactics the smugglers
were using to bring the guns into Mexico.
According to the affidavit: The potential interceptees
conspire with each other and others known to illegally
traffic firearms to Mexico. The potential interceptees
purchase firearms in Arizona and transport them to Mexico or
a location in close proximity of the United States/Mexico
border. The potential interceptees deliver the firearms to
individual(s) both known and unknown who then transport them
into Mexico and/or the potential interceptees transport the
firearms across the border and deliver them to customers both
known and unknown.
The fact that ATF knew that Target 1 had acquired 852
firearms and had the present intent to move them to Mexico
should have prompted Department officials to act. Department
officials should have ensured that the firearms were
interdicted immediately and that law enforcement took steps
to disrupt any further straw purchasing and trafficking
activities by Target 1. Similarly, by way of example, if
Criminal Division attorneys were reviewing a wiretap
affidavit that showed that human trafficking was taking place
for the purpose of forcing humans into slavery, the attorneys
should act to make sure such a practice would not continue.
Accordingly, Target l's activities should have provoked an
immediate response by the Criminal Division to shut him and
his network down.
March 2010 Wiretap Application Contains Details of Dropped Surveillance
The wiretap affidavit also describes firearms purchases by
individual straw purchasers. For example, Straw Purchaser Y
purchased five AK-47 type firearms on December 10, 2009, and
surveillance units observed Straw Purchaser Y travel from the
FFL where he made the purchase to Target l's residence. The
next day, surveillance units observed Straw Purchaser Y
purchase an additional 21 AK-47 type firearms, and within an
hour, arrive at Target l's home.
On December 8, 2009, agents observed Straw Purchaser Z
purchase 20 AK-47 type firearms. While Straw Purchaser Z was
making this purchase, Z saw a commercial delivery truck
arrive at the gun store with a shipment of an additional 20
AK-47 type firearms. Straw Purchaser Z then told FFL
employees that he wanted to purchase those additional
firearms. Later that same day, Straw Purchaser Z returned to
the FFL to buy them. After Straw Purchaser Z left the FFL
with the firearms, Phoenix police officers conducted a
vehicle stop on Straw Purchaser Z's vehicle and identified
two of the passengers as Straw Purchaser Z and Target 1. The
officers observed the firearms in the bed of the truck and
asked the subjects about the firearms. Straw Purchaser Z told
them he had purchased the firearms and they belonged to him.
ATF agents continued surveillance until the vehicle arrived
at Target l's residence.
The very next day, nine of these firearms were recovered
during a police stop of a third person in Douglas, Arizona,
on the U.S.-Mexico border. Five days later, Straw Purchaser Z
bought another 43 firearms from an FFL. On December 24, 2009,
Straw Purchaser Z bought even more firearms, purchasing 40
AK-47 type rifles from an FFL. All of these rifles were
recovered on January 13, 2010, in El Paso, Texas, near the
U.S./Mexico border. Although the individual found in
possession of all these guns provided the first name of the
purchaser, agents did not arrest the individual or the
purchaser.
Though the wiretap application states that agents were
conducting surveillance of known straw purchasers, none of
these weapons were interdicted. No arrests were made.
March 2010 Wiretap Details How Fast and Furious Firearms Had Been Found
at Crime Scenes in Mexico
The wiretap affidavit also details the very sort ``time-to-
crime'' for many of the firearms purchased during Fast nd
Furious. For example, on November 6, 2009, November 12, 2009,
and November 14, 2009, Straw Purchaser Y purchased a total of
25 AK-47 type firearms from an FFL in Arizona. On November
20, 2009--just eight days later--Mexican officials recovered
17 of these firearms in Naco, Sonora, Mexico. Another straw
purchaser, Straw Purchaser Q, purchased a total of 17 AK-47
type firearms from an FFL on November 3, 2009, November 10,
2009, and November 12, 2009. Then, on December 9, 2009,
Mexican officials recovered 11 of these firearms in Mexicali,
Baja California, Mexico, along with approximately 421
kilograms of cocaine, 60 kilograms of methamphetamine, 48
additional firearms, 392 ammunition cartridges, $2 million in
U.S. currency, and $800,000 in Mexican currency.
Once again, although ATF was aware of these facts, no one
was arrested, and ATF failed to even approach the straw
purchasers. Upon learning these details through its review of
this wiretap affidavit, senior Justice Department officials
had a duty to stop this operation. Further, failure to do so
was a violation of Justice Department policy.
Straw Purchasers Had Meager Financial Means
The affidavit provides details of the straw purchasers'
financial records. As of March 15, 2010, just four straw
purchasers had spent $373,206 in cash on firearms. Yet, these
same straw purchasers had only minimal earnings in Fiscal
Year (FY) 2009. Straw Purchaser Q earned $214 per week, while
Straw Purchaser Y earned only $188 per week. Straw Purchaser
Z earned $9,456.92 during FY 2009, and Straw Purchaser X did
not report any income whatsoever.
------------------------------------------------------------------------
Money spent on
Name firearms by 3/15/ FY 2009 income*
10
------------------------------------------------------------------------
Straw Purchaser Y................. $128,580 $9,776
Straw Purchaser Q................. 64,929 11,128
Straw Purchaser X................. 39,663 None reported
Straw Purchaser Z................. 140,034 9,456
-------------------
Total......................... $373,206
------------------------------------------------------------------------
*Incomes based on weekly incomes detailed in wiretap application.
These straw purchasers did not have the financial means to
spend tens of thousands of dollars each on guns. Yet, ATF
allowed them to continue acquiring firearms without
approaching them to inquire how they were able to obtain the
funds to do so. ATF also failed to alert the FFLs with this
information so that they could make more fully informed
decisions as to whether to continue selling to these straw
purchasers.
Conclusion
The wiretap affidavit reveals a remarkable amount of
specific information about Operation Fast and Furious. The
affidavit reveals that the Justice Department has been
misrepresenting important facts to Congress and withholding
critical details about Fast and Furious from the Committee
for months on end. As the primary investigative arm of
Congress, our Committee has a responsibility to demand
answers from the Department and continue the investigation
until we get all the facts.
Sincerely,
Darrell Issa.
Chairman.
Mr. ISSA. I now yield 1 minute to the gentleman from Oklahoma (Mr.
Lankford).
Mr. LANKFORD. Mr. Speaker, this is a truly sad day. This is not
stunning, as I have heard. This is a deliberative process that we've
tried to work through.
We have a border agent that's been killed. We have hundreds of
Mexicans that have been killed. And the fingerprints on all of that go
straight back to an operation that was done by the Federal Government.
This is a moment to get all of the facts, to get it on the table, find
out what happened, and to get it done.
Now, we started with a subpoena process, over 22 different
categories. We narrowed that down to one. How do we get the documents
from the time of February 4 of last year, when the Department of
Justice told us one thing, and December, when they said, Oops, and
changed their story? We found out that they had not told us the truth.
And in that time period when they stalled, stalled, stalled, stalled,
we just want the information on that. How did this occur?
This is essential because Phoenix ATF had a plan, Fast and Furious.
It was then approved by the U.S. attorney in that area, and then went
up the food chain to the Department of Justice, where it was signed
off. This is not irrelevant. It is essential that we know the process
of how this was done. If we're going to fix this problem, we've got to
know the facts. Instead, they're being withheld.
Mr. CUMMINGS. I will continue to reserve the balance of my time.
Mr. ISSA. Mr. Speaker, as a point of inquiry, do I have the right to
close?
The SPEAKER pro tempore. The gentleman from California has the right
to close.
Mr. ISSA. Then I will reserve my right to close.
Mr. CUMMINGS. Does the gentleman have any further requests for time?
Mr. ISSA. No, I do not.
Mr. CUMMINGS. Mr. Speaker, as the Democratic leader said, there is no
doubt that the Constitution gives Congress the right and responsibility
to investigate. But the Constitution also requires something else. It
requires Congress and the executive branch to avoid unnecessary
conflict and deceit, accommodations that serve both of their interests.
In this case, the Attorney General has testified nine times. He has
provided thousands of pages of documents. He has provided 13 pages of
deliberative
[[Page H4412]]
internal documents, and he is willing to provide even more to me, the
recent demands of Chairman Issa.
But House Republican leaders are not honoring their constitutional
obligations. In fact, they are running in the wrong direction as
quickly as possible. It is fundamentally wrong to vote in favor of this
resolution at this time when the Attorney General has been working with
the House in good faith. I believe this action will undermine the
standing of the House, will cement the Speaker's legacy, and will be
recorded by history as a discredit to this institution.
With that, I yield back the balance of my time.
Mr. ISSA. I yield myself such time as I may consume.
Mr. Speaker, there's been a lot of talk about the documents that the
Attorney General couldn't give us. These documents, documents under
seal, would be an example of documents that we should not see, except
in camera, and we've taken great care to ensure that no one outside
Members of Congress and key staff have ever looked at them.
But I've looked at them, and what I know is that these documents,
read by any person of ordinary learning, make it very clear that these
wiretap applications were read and signed by individuals in the
Department of Justice in Washington. And if you read them, you knew
they were gunwalking. People will tell you differently. I give you my
word: You read this, you know they were letting guns go to Mexico. They
knew who the buyers were, who the intermediaries were, who the
recipients were, and, most importantly, where they ended up. And there
are reports in here, as part of the evidence given to judges in order
to get wiretaps--there is evidence that they knew that, in fact,
weapons had already ended up in Mexico.
That's before Brian Terry was killed. That's how Fast and Furious
could have been stopped. That's how people could have been warned. In
fact, that's at a time in which ATF agents in Mexico City, if they
punched in the serial number of a weapon found there, they got an
erroneous, an error. They did not get meaningful information because
that was being blocked--not by ATF, per se, but by the Department of
Justice under the auspices of the U.S. attorney and his bosses.
{time} 1550
Now you're going to hear that this began under President Bush and
Attorney General Mukasey. I'm going to tell you that's just false. What
happened in previous administrations with some of the same local ATF
agents was they exercised extremely bad judgment. They did things and
pushed on programs that I believe were poorly conceived and poorly
manned and as a result they lost track of weapons repeatedly. That
happened. And it was wrong. The U.S. attorney at the time even declined
prosecutions because of failed techniques.
All of these were shut down during the Bush administration. President
Bush can take no credit for it. He didn't know it. As far as I know,
the Attorney General didn't know. And anyone who saw the record of that
should say: This was wrong-minded. But during this administration,
during the time in which the Attorney General and his key lieutenants,
including Lanny Breuer, were in charge, they reopened the prosecutions
from a failed program called Wide Receiver and they opened Fast and
Furious.
Now I'm the second child in a family. I have an older brother. I
learned at a very young age you in fact cannot, when you do something
wrong, say: My brother Billy did it. It doesn't work that way. You're
responsible for what you do wrong, whether it happened before your
watch or not. This happened on the Attorney General's watch.
But that's not why we're here today. We're here because when we asked
legitimate questions about Brian Terry's murder, about Fast and
Furious, we were lied to. We were lied to repeatedly and over a 10-
month period. The fact is that is what we're here for. The American
people want to know if you give false testimony to Congress.
The minority leader talked about, Why is there such a hurry? Why was
there a 10-month delay? I was sworn in just a few days before this
investigation began, and now we're nearing an election. We don't want
to have this during an election. We want to have resolution for the
Terry family.
The important thing is, we know enough to know that we have people
who have told us under penalty of criminal prosecution--they have told
Congress and their employees certain documents exist. And we've asked
for those documents. And we've been denied them. We can't bring Kenneth
Melson back in in good faith and say, Well, we've got to get them in
front of our committee, if in fact there's documents he says exist. And
they do, and they will not be given to us. We want to have those so we
can ask the best questions.
You've heard earlier that in fact we've denied somehow due process to
the minority. My ranking member is very capable, and has asked for
minority days; in other words, hearings exclusively for him. He chose
not to do it. When we were having the local ATF and other individuals
in early on, all of whom worked for this government, he didn't even ask
for any. It wasn't until we asked to have the Attorney General come in,
based on these false statements and final retraction, that he suddenly
wanted a previous Attorney General, who happened to say, No, I don't
want to come. So on that particular day we would have had to subpoena
him to get him in. I have no objection to having the former Attorney
General in. I believe that on his watch and his predecessor's watch and
his predecessor's watch and for a very long time we have not done a
good job of overseeing the actions of field agents when it comes to
guns.
But, again, we're here today, for the first time in over 200 years,
to deal with an Attorney General who has flat-out refused to give the
information related to lies and a coverup exclusively within his
jurisdiction. That's what we're voting on.
I urge a ``yes'' vote on the contempt on behalf of the Terry family.
I yield back the balance of my time.
The SPEAKER pro tempore. All time for debate on the resolution has
expired.
Motion to Refer
Mr. DINGELL. I have a motion at the desk.
The SPEAKER pro tempore. The Clerk will report the motion to refer.
The Clerk read as follows:
Mr. Dingell of Michigan moves to refer the resolution, H.
Res. 711, to the Committee on Oversight and Government Reform
with instructions to:
(1) Hold a bipartisan public hearing with testimony from
Kenneth Melson, the former Acting Director of the Bureau of
Alcohol, Tobacco, Firearms, and Explosives during Operation
Fast and Furious.
(2) Hold a bipartisan public hearing with testimony from
William Hoover, the former Acting Deputy Director of the
Bureau of Alcohol, Tobacco, Firearms, and Explosives during
Operation Fast and Furious.
(3) Hold a bipartisan public hearing with testimony from
former Attorney General Michael Mukasey, who, according to
documents produced to the committee, was informed during his
tenure that, although efforts to coordinate firearm
interdictions with Mexican law enforcement officials in 2007
``have not been successful'', the ``ATF would like to
expand'' such efforts.
(4) Conduct a bipartisan transcribed interview of Alice
Fisher, who served as the Assistant Attorney General for the
Criminal Division of the Department of Justice from 2005 to
2008, about her role in authorizing wiretaps in Operation
Wide Receiver.
(5) Conduct a bipartisan transcribed interview of Kenneth
Blanco, who serves as Deputy Assistant Attorney General at
the Department of Justice and also authorized wiretaps in
Operation Fast and Furious.
(6) Take such further actions as the committee, with full
bipartisan consultation, deems appropriate to assure a
thorough and vigorous investigation of this matter.
The SPEAKER pro tempore. Pursuant to House Resolution 708, the
gentleman from Michigan (Mr. Dingell) and a Member opposed each will
control 5 minutes.
The Chair recognizes the gentleman from Michigan.
Mr. DINGELL. I yield myself 4 minutes.
(Mr. DINGELL asked and was given permission to revise and extend his
remarks.)
Mr. DINGELL. I rise to offer this motion to refer so that this
investigation can focus on the real issues at hand and to get the
facts.
I begin by expressing my respect and affection for the chairman of
the committee, Mr. Issa. I want to see a proper investigation and the
facts gotten about serious misbehavior and utter incompetence at the
Bureau of Alcohol,
[[Page H4413]]
Tobacco, and Firearms and Explosives, called the ATF. This is a
tragedy.
I have had the entirety of the motion read so that we can understand
what a real investigation is. I didn't roll off the cabbage wagon
yesterday, Mr. Speaker. I chaired committees for over 20 or 30 years,
and I have conducted more investigations than any man in this
particular body. It is clear that the events here were characterized by
dishonest, evasive, and deceitful activities on the part of ATF
personnel.
I want to find out what has happened. This is not the first time I've
crossed swords with ATF and this is not the first time I have found
them engaged in shameful, illegal, and improper behavior. In one
instance, I caught them raiding the home of an individual. They shot
him in the brain and they pitched his wife, in her underpants, out into
the hall.
Operation Fast and Furious was a highly irresponsible operation that
never should have occurred. People on both sides of this aisle agree to
that. The American people want the answers and they deserve to have a
proper, thorough, and bipartisan investigation that gets them the
truth. My constituent Brian Terry wants the truth from the grave, and
his families asks that we get the truth. With God as my judge, they
deserve it, and they shall have it if I can get it for them.
I have shared scores of investigations and hearings over 50 years on
wrongdoing which have collected hundreds of millions of dollars
wrongfully taken from our people and have caught more than a few
serious wrongdoers, who have paid proper penalties for their
wrongdoing.
These investigations were always bipartisan, with both sides of the
aisle actively participating and fully informed. The actions of the
committee were unanimously conducted and supported by Members on both
sides of the aisle. What we see before us does not follow that model,
and it brings no respect to this body. As someone who holds the
institution here in the highest regard, I find this to be most
troubling.
Instead of going after the real answers and getting the facts about
what happened at ATF, the majority of the committee has engaged in what
appears to be a partisan political witch hunt, with the Attorney
General as its target. Over the 16-month investigation, Democrats were
not permitted to call a single witness to testify. So much for
bipartisanship. The American people deserve better than this, Mr.
Speaker. They deserve a legitimate inquiry based on facts which all
Members of this body can support.
{time} 1600
This is not a Second Amendment question. I have defended the Second
Amendment more than any Member of this body, and I am a past member of
the board of directors of NRA and a life member of that body. We
deserve, and the American people deserve, a legitimate inquiry based on
the facts.
It seems to me there's a simple way to resolve this dispute. First,
adopt the resolution. Then see to it that the Attorney General produces
the documents that are currently at issue, and I will actively support
the gentleman and see to it that those facts and documents are
presented.
Second, the House Republicans should give a good-faith commitment to
work towards resolving the contempt fight. If the documents in fact are
consistent with the Attorney General's testimony that he never
authorized or approved or knew about gunwalking, then I think we should
consider the matter of contempt resolved.
The SPEAKER pro tempore. The time of the gentleman has expired.
Mr. DINGELL. I reserve the balance of my time.
Mr. ISSA. Mr. Speaker, I claim time in opposition.
The SPEAKER pro tempore. The gentleman from California is recognized
for 5 minutes.
Mr. ISSA. Mr. Speaker, I yield myself 1 minute.
I respect the gentleman from Michigan, the dean of the House, but
you're just wrong. There were plenty of opportunities for the minority
to ask for witnesses. They chose not to except at one hearing, and then
they wanted the former Attorney General. They did not avail themselves
of the procedures allowing them to have a hearing even though they know
how to do it and have done it.
But more importantly, when you say you represent Brian Terry, you do
not. The Terry family issued this statement, referring to Congressman
Dingell:
His views don't represent those of the Terry family. Nor
does he speak to the Terry family. And he has never spoken to
the Terry family.
Secondly:
His office sent us a condolence letter when Brian was
buried 18 months ago. That's the last time we heard from him.
Third:
A year ago, after the Oversight and Government Reform
Committee began its work, one of Brian's sisters called
Representative Dingell's office seeking help and answers. No
one from his office called back.
Lastly:
If Rep. Dingell truly wants to support the Terry family and
honor Brian Terry, a son of Michigan, he and other Members of
Congress will call for the Attorney General to immediately
provide the documents requested by the House Oversight and
Government Reform Committee.
I reserve the balance of my time.
Mr. DINGELL. I yield myself the balance of my time.
Well, I was aware of this. I have communicated with the family my
sorrow at their loss, and my office is setting up a meeting with the
Terry family as soon as I can get back to Michigan.
My motion here would ensure that the witnesses the minority has
requested, including the former Director of ATF during the time of this
operation, are called for a full, open public hearing to ensure that
the American people get the whole story.
I'm not here solely representing the interests of the Terry family.
I'm here representing the interests of the whole country and all of the
800,000 people that I serve in the 15th District of Michigan.
As I've said on a number of occasions in the last year, Congress has
two choices in their decisionmaking: we can work together and get
something done, or we can play political football. I choose to get
something done, which is why I have offered a resolution. And if you
have listened to what I had read by the Clerk, you will observe that it
says we want a full, thorough, bipartisan investigation. That's the way
the matter should be done. And Members on this side will support the
findings of that investigation if the chairman of that committee will
permit this kind of undertaking to be begun.
I would observe this very interesting fact. The contempt resolution
is going to give the same instructions to the same fellow who is under
contempt. He will simply put it in his pocket, and we will find that
this body has been weakened in its dealings with the executive branch.
I yield back the balance of my time.
Mr. ISSA. Mr. Speaker, I now yield all remaining time to the
gentleman from South Carolina (Mr. Gowdy), an experienced prosecutor,
to close.
The SPEAKER pro tempore. The gentleman from South Carolina is
recognized for 4 minutes.
Mr. GOWDY. Mr. Speaker, I thank the chairman.
This is a sad day, Mr. Speaker, for those of us who respect the rule
of law as the foundation of this Republic, for those of us who proudly
worked for the Department of Justice, for those of us who believe the
same rules apply to everyone regardless of whether they live simple
lives of peace and quiet or whether they live and work in the towers of
power, prestige, and authority. The same rules apply to everyone. It is
the greatness of this country, Mr. Speaker. It is the greatness, the
elegance, the simplicity of a woman who is blindfolded holding nothing
but a set of scales and a sword.
The chief law enforcement official for this country is on the eve of
being held in contempt of Congress because he refuses to follow the
law. He refuses to allow Congress to find the truth, the whole truth.
For those of you who want a negotiation, a compromise, an extraordinary
accommodation, to use the Attorney General's words, for those of you
who want to plea bargain, my question to you is simply this: Will you
settle for 75 percent of the truth? Is 50 percent of the truth enough
for you? Is a third? Or do you want it all? Because if you want all the
truth, then you want all the documents.
If you've ever sat down, Mr. Speaker, with the parents who have lost
a child
[[Page H4414]]
who has been murdered--and some of my colleagues on both sides of the
aisle have been there--it is a humbling, emotional, life-altering
experience. All they want is the truth. They want answers. They want
justice, and they don't want part of it. They want all of it. And I
will not compromise, Mr. Speaker, when it comes to finding the truth.
Congress is right to pursue this no matter where it takes us. No
matter which administration was in power and no matter what the facts
are, we are right to pursue this. And we are wrong if we settle for
anything less than all the facts.
To my colleagues who are voting ``no,'' Mr. Speaker, let me ask this:
Can you tell me, can you tell the American people why the Department of
Justice approved this lethal, fatally flawed operation?
To those of you who are voting ``no,'' can you tell the American
people how the tactic of gunwalking was sanctioned?
To those of you who are voting ``no,'' can you tell Brian Terry's
family and friends how a demonstrably false letter was written on
Department of Justice letterhead on February 4, and where would we be
if we accepted that letter at face value? A letter written on
Department of Justice letterhead, that is not just another political
Cabinet agency. It is emblematic of what we stand for as a country--
truth, justice, the equal application of law to everyone. That letter
was written on America's stationery. That is what the Department of
Justice is, and it was dead wrong. And where would we be if we took
their word for it?
Our fellow citizens have a right to know the truth, and we have an
obligation to fight for it, Mr. Speaker, the politics be damned. We
have a right to fight for it.
I wish the Attorney General would give us the documents. I would
rather have the documents than have this vote on contempt of Congress.
But we cannot force him to do the right thing, and that does not
relieve us of the responsibility for us to do the right thing. Even if
the heavens may fall, Mr. Speaker, I want the truth. I want all of it.
We should never settle for less than all of it, and we have to start
today.
Mr. BRALEY of Iowa. Mr. Speaker, I opposed the contempt of Congress
resolution today because I don't want political games or partisan
politics to stand in the way of a serious effort to find the truth.
The best place to resolve this dispute isn't on the floor of the
House in an election year, but in a federal court where both sides can
present their cases and the debate won't turn into a political circus.
I've been disappointed by the failure of both House Republicans and
the Justice Department to find a practical way to get the American
people the full details of this tragedy without compromising existing
court orders and other national security concerns. An American was
murdered and we owe it to his family and the public to get to the
bottom of what happened.
Mr. YOUNG of Alaska. Mr. Speaker, I've been very disturbed to hear
today that it's inappropriate for the National Rifle Association to
take a position on this resolution.
It should be clear to everyone that as a long-time NRA board member,
I take a back seat to no one on Second Amendment issues. On this
resolution, I can tell you that it is entirely appropriate for the NRA
to take a position.
We are here today because Congress has a duty to hold our government
accountable. We have a duty to ensure those in charge protect the
public and the Constitution. Congress was misled when Administration
officials initially briefed the appropriate Congressional committees.
The U.S. Attorney General's office denied knowledge of a gun walking
operation after whistleblowers reported troubling allegations. However,
they later admitted certain officials with the Attorney General's
office did have knowledge at the time Congress initially reviewed
allegations of gun walking.
I am deeply troubled by reports the ATF forced law abiding gun
dealers to do something they knew was wrong--to sell guns to
individuals they normally would not sell to. The Administration
designed this outrageous program to reportedly reduce gun violence
along our SW border. And an innocent American Border Patrol agent paid
the ultimate price for this ill-conceived plan.
There are those who believe that there were ulterior motives at play.
We already know about at least three e-mails from ATF officials
discussing how they could use information from ``Fast and Furious'' to
make the case for a new gun control proposal--the Obama
administration's proposal to impose a new--and, I believe, illegal--
reporting requirement on dealers who sell multiple long guns to
individuals in the southwest border states. The administration has
defended that rule in court, and by their logic there's no reason it
couldn't be expanded to all guns in all states.
That would be a system of national gun registration. And that makes
this a Second Amendment issue.
We as elected lawmakers must have all relevant facts to hold whoever
approved Operation Fast and the Furious accountable. I stand with my
colleagues here today who believe that the Oversight Committee has been
denied all relevant evidence on who approved this terrible operation.
The Oversight Committee's investigation has been thorough. The
committee has followed the evidence in pursuit of the truth, not in
pursuit of a political agenda. What brings us here today is the fact
that this effort has been stonewalled by this Justice Department and
this White House. The American people deserve to know the truth. The
family of Border Patrol agent Brian Terry deserves to know the truth.
Members of Congress deserve to know the truth. Today's vote will bring
us one step closer to learning the truth.
Mr. THORNBERRY. Mr. Speaker, it is unfortunate that the House must
vote on whether to hold the Attorney General in contempt for refusing
to produce documents in his Department. The underlying facts are
disturbing and tragic, leading to the death of a Border Patrol officer
and several hundred people in Mexico. The Attorney General should work
with Congress to understand what went wrong rather than to withhold
information and attempt to thwart the investigation.
The power of Congress to investigate and conduct oversight of federal
agencies has been well established throughout our history. The late
claim of Executive Privilege made here, on the other hand, is not
consistent with precedent or previous court rulings. One can only
conclude that the Attorney General, perhaps on the instruction of the
President, is trying to prevent Congress and the American people from
learning the truth.
Mr. HOLT. Mr. Speaker, the resolution before us today is an
illegitimate, politically motivated smear campaign.
Never in the history of the House has a U.S. Attorney General been
held in contempt. What makes this resolution particularly outrageous is
that there is absolutely no basis for it.
The Attorney General has testified repeatedly about Operation Fast &
Furious. The Justice Department has turned over thousands of pages of
relevant records about this incident. None of that matters to the
majority. Neither does the fact that these kinds of operations were
undertaken by the Bush administration. And the majority does not want
the public to know that not a single witness was allowed to testify
before the House Oversight & Government Reform Committee about past
``gun walking'' episodes in the Bush administration. That's why this
resolution and the Oversight Committee's ``hearings'' into Fast &
Furious are not about ``gun walking''--they are about election year
politics.
Rather than dealing with the substantive issue of illegal guns and
how to reduce violent gun-related crime, today we have a political
stunt that does nothing to solve the problem that cost the life of a
federal agent. Mr. Speaker, the public see this for what it is: a
politically motivated legislative lynching--and those who support this
illegitimate resolution will have to answer for it to the voters.
Ms. RICHARDSON. Mr. Speaker, I rise in strong and unyielding
opposition to resolution recommending that the House find Attorney
General Eric Holder in contempt of Congress. This unprecedented
resolution, which was passed out of committee on a party-line vote, is
nothing more than an attempt by the majority Republican leadership to
divert attention from its failure to address the real challenges facing
our country.
The hard working and hard pressed people of the 37th Congressional
District of California did not send me here to waste precious floor
time debating this frivolous and partisan resolution. They want us to
work together to create jobs for the unemployed, make education
affordable, health care available, and protect the social safety net of
Medicare, Social Security, Medicaid, and assistance programs to
vulnerable families.
I oppose the resolution before us for several reasons:
1. The resolution relates to a document request involving allegations
of ``gunwalkng'' in an ATF operation known as ``Operation Fast and
Furious,'' but the documents now involved are completely unrelated to
how ``gunwalking'' was utilized in the operation.
2. Over the past year, the Justice Department provided thousands of
pages of responsive documents to the Oversight and Government Reform
Committee and has made dozens of officials available for interviews and
hearings, and the Attorney General has testified before Congress nine
times on this topic.
[[Page H4415]]
3. The Committee's investigation identified no evidence that the
Attorney General or senior Department officials were aware of
gunwalking in Fast and Furious. To the contrary, as soon as the
Attorney General became aware of the tactic, he put a halt to it,
ordered an IG investigation, and instituted internal reform measures.
4. The House of Representatives has never held an Attorney General in
contempt. The only precedent cited in the Issa contempt resolution is a
committee contempt vote that took place in the 1990's against former
Attorney General Janet Reno. That action was so widely discredited that
Speaker Gingrich chose not to bring it to the floor for a vote.
5. During this investigation, the Committee refused every Democratic
request for a hearing witness, including the head of ATF--the agency
that actually ran the operation. This is not the way to conduct an
oversight investigation unless you are interested in partisan political
ploys instead of learning the facts.
Mr. Speaker, I must say that am offended that Attorney General
Holder, a man of unimpeachable integrity and one who has served this
nation with distinction for many years, has been subjected to such
demeaning treatment by some in the majority. Even though Attorney
General Holder has been forthright and forthcoming, some in this body
accuse him of a cover-up or claim he has been obstructive. He has even
been called a ``liar'' on national television. These unfounded charges
are beyond the pale and reflect more on those who have uttered them
that they do our Attorney General, the honorable Eric Holder.
I oppose this politically inspired resolution and urge my colleagues
to join me.
Mr. REYES. Mr. Speaker, I rise today to express my opposition to the
majority's decision to force a contempt vote on the floor. I want to
mention the following points for the record.
There is no evidence that the attorney general authorized, condones,
or knew about ``gun walking.'' Chairman Darrell Issa admitted this
yesterday before the Rules Committee.
There is no evidence that the attorney general lied to Congress or
engaged in a cover-up. Chairman Issa also admitted this yesterday.
There is no evidence that the White House had anything to do with
``gun walking'' operations. Chairman Issa admitted this on Fox News on
Sunday.
Democrats wanted a real investigation, but Chairman Issa refused TEN
different requests from Democrats for a hearing with Ken Melson, the
former Director of ATF--the agency in charge.
Chairman Issa said this yesterday about ``gun walking'' operations
under the Bush Administration: ``They were all flops. They were all
failures.'' Yet, he has refused all Democratic requests to interview
Bush Administration officials about their rules.
Despite finding no evidence that Attorney General Holder knew about
``gun walking'', the Committee has obtained documentary evidence
showing that former Attorney General Mukasey was personally briefed on
botched interdiction efforts during the Bush Administration and he was
told that they would be expanded during his tenure. Chairman Issa has
refused to call on Mukasey for a hearing.
Republicans have not granted a single Democratic witness request
during the entire 16 month so-called investigation. This has been a
credible process.
As soon as Attorney General Holder learned about ``gun walking'', he
immediately halted it and ordered an IG investigation.
In closing Mr. Speaker, I think the worst part is that the tragic
death of a U.S. Border Patrol agent is being politicized and used as a
way to score cheap political points. This is especially disappointing
to me. As a former Border Patrol Agent and Sector Chief with 26\1/2\
years of law enforcement experience on the U.S.-Mexico Border, I expect
that this body show more respect and more focus.
Instead of using this tragedy as a political ploy, this body needs to
see this as a learning opportunity and a wake-up call. We must take
action and provide ATF with the needed resources and tools it needs to
tackle the issue of gun trafficking. I hope that this Congress is able
to move on to enact the critical reforms needed to more effectively
combat this threat---and I will gladly work with my colleagues on both
sides of the aisle on that particular effort.
Ms. JACKSON LEE of Texas. Mr. Speaker, I rise today to oppose H. Res
708, ``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.''
Holding a sitting Attorney General in contempt would be
unprecedented. In our Nation's history the House of Representatives has
never held a sitting Attorney General in contempt of Congress.
In 1998, the then Chair of the House Oversight Committee led a vote
to hold then Attorney General Janet Reno in contempt of Congress.
Attorney General Reno was also accused of withholding documents;
however, the then Speaker of the House Newt Gingrich elected not to
bring the Contempt Citation to the Floor. Attorney General Reno and
House leadership were able to resolve their difference without holding
our Nation's highest law enforcement officer in contempt. Today's
conflict can also be resolved without holding Attorney General Holder
in contempt.
I firmly believe and I am joined by at least 65 other colleagues who
believe that the Attorney General is acting in good faith based upon
his actions over the course of the past 15 months.
The Attorney General has testified before Congress no less than nine
times in the last 15 months and has made himself available for meetings
with Members of Congress. Further, the Department of Justice has
cooperated with Congressional inquiries into this matter and is willing
to continue to engage in discussions with Congressional leadership and
others.
As of today, the Attorney General has produced more than 7,600 pages
of documents as part of 47 separate productions, including sensitive
law enforcement materials related to the pending prosecution of the
defendants in the underlying Fast and Furious case.
Attorney General Holder has consistently expressed his willingness to
find a resolution to the issues surrounding the narrow list of
documents for which he is being cited.
Holding the Nation's top law-enforcement officer in contempt of
Congress would be a drastic, disproportionate action on the part of
this body.
A contempt citation should be an act of last resort, after lengthy
preliminary procedures, negotiations, gathering of evidence through
other methods, appeals to potential intercessors and intermediaries.
Contempt Citations have been extraordinarily rare which is evidenced
by the fact that the House has declared just four people in contempt
over the last three decades. For these reasons and more we request that
you elect not to bring the Contempt Citation to the Floor this
Thursday.
Mr. Speaker, I delivered a letter to you that was signed by 65
Members of this body stating the same, that this destructive piece of
legislation should not be brought to the Floor today. It appears that
this is nothing more than destructive election-year politics pure and
simple. It is Republicans following through on their threats to use
their authority to try to damage this Administration, politically, and
this Attorney General, specifically, who has placed an emphasis on
enforcing civil rights, voting rights and defending our justice system
and the rule of law.
This kind of divisive politics hurts Americans who want their leaders
focused on fixing real problems they face every day and hurts law
enforcement agents who are putting their lives at risk in ongoing
investigations that could be compromised by the Committee's political
fishing expedition.
Congress has the answers to its questions about who designed this
flawed operation and who authorized it--they just don't like it so they
have ignored the evidence they received last year which shows this was
a tactic that was designed and employed in the field and it dates back
to the previous Administration.
This Attorney General is the one who put a stop to the tactic, called
for an independent investigation and instituted reforms and personnel
changes to ensure it doesn't happen again.
The Department has made extraordinary efforts to accommodate Congress
by turning over almost 8,000 documents--including all the documents
that relate to the tactics in this flawed investigation and the other
flawed investigations that occurred in Arizona in the previous
administration.
The Department has even turned over internal deliberative material to
answer the Committee's questions and the AG offered to provide
additional deliberative documentation to resolve the subpoena, but the
Committee rejected that offer.
The documents at issue now are after-the-fact--they have nothing to
do with the flawed tactics in any of the investigations dating back to
the Bush Administration or who designed, approved or employed them.
The resolution relates to a document request involving allegations of
``gunwalking'' in an ATF operation known as ``Operation Fast and
Furious,'' which came to light when two weapons involved in the
operation were recovered at the murder scene of Border Patrol Agent
Brian Terry.
However, the documents now at issue are completely unrelated to how
``gunwalking'' there is a question about whether gun-waling existed was
utilized in the operation. Over the past year, the Justice Department
has provided thousands of pages of documents to the Oversight and
Government Reform Committee and has made dozens of officials available
for interviews and hearings, and the Attorney
[[Page H4416]]
General has testified before Congress nine times on this topic. The
evidence demonstrated that Fast and Furious was in fact the fourth in a
series of gunwalking operations run out of the ATF field division in
Phoenix over a span of five years beginning in 2006 during the Bush
Administration.
The investigation identified no evidence that the Attorney General or
senior Department officials were aware of gunwalking in Fast and
Furious. To the contrary, as soon as the Attorney General became aware
of the tactic, he put a halt to it, ordered an IG investigation, and
instituted internal reform measures.
The House of Representatives has never held an Attorney General in
contempt. The only precedent cited in the Issa contempt resolution is a
committee contempt vote that took place in the 1990's held by then-
Chairman Dan Burton against former Attorney General Janet Reno. That
action became so widely discredited that Speaker Gingrich chose not to
bring it to the Floor for a vote.
The current contempt debate no longer focuses on any documents
relating to how gunwalking was initiated and utilized in Operation Fast
and Furious. Since Republicans could identify no wrongdoing by the
Attorney General, the Committee shifted just last week to focus
exclusively on a single letter sent by the Department's Office of
Legislative Affairs to Senator Charles Grassley on February 4, 2011,
initially denying allegations of gunwalking. The Department has already
acknowledged that its letter was inaccurate, has withdrawn the letter,
and has provided the Committee with more than 1,300 pages of documents
relating to how it was drafted.
These documents show that Department staffers who drafted the letter
did not intentionally mislead Congress, but instead relied on
inaccurate assurances from ATF leaders and officials in Arizona who ran
the operation. Despite these good faith efforts, House Republicans
chose to move forward with a contempt resolution anyway.
Moving the goalposts again, the Committee is now demanding additional
internal deliberative documents created even after the Grassley letter
was sent. The Attorney General offered to provide them last week in
exchange for a good faith commitment to move toward resolution of the
contempt fight, but Chairman Issa flatly refused. When it became clear
that contempt was inevitable, the Administration asserted executive
privilege over this narrow category of deliberative Department
documents, while indicating at the same time that it remains willing to
continue negotiations.
The Issa contempt resolution is nothing more than a politically
motivated, election-year ploy. During this investigation, the Committee
refused every Democratic request for a hearing witness, including the
head of ATF--the agency that actually ran the operation.
Chairman Issa has acknowledged that ``we do go down blind alleys
regularly'' and has made numerous unfounded claims, including accusing
the FBI agents of concealing a ``third gun'' from the scene of Agent
Terry's murder--a claim that the FBI quickly demonstrated to be
completely unfounded.
Ms. McCOLLUM. Mr. Speaker, today the House is voting on a Republican-
Tea Party witch hunt intended to destroy an honorable man's character.
This resolution of contempt targeting Attorney General Eric Holder is a
shameful and shameless abuse of power by the majority party. The only
reason this unprecedented attack is taking place on the House floor
today, against our country's first African American Attorney General,
is because the Tea Party Republican majority is pandering to birthers,
NRA members and other extremist obsessed with defeating President
Obama.
Attorney General Eric Holder has my full support and I reject this
transparent political abuse of power.
I am strongly opposed to the House Republican resolution to hold
Attorney General Eric Holder in contempt of Congress for failing to
turn over documents pertaining to sensitive and on-going law
enforcement activities to the House Oversight and Government Reform
Committee.
The committee request is for documents related to Operation Fast and
Furious, conducted by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF), which allowed the straw purchase of firearms in
pursuit of prosecutions of gun smugglers. Two of the illegally
purchased AK-47 assault weapons were found at the scene of a gun battle
that resulted in the killing of U.S. Border Patrol agent Brian Terry on
December 15, 2010. In his effort to cooperate with Chairman Darrell
Issa, Attorney General Holder has provided the Oversight Committee with
more than 7,600 pages of documents and participated in nine
congressional hearings.
In 2006, under the Bush Administration, the ATF's Arizona office used
the tactic of ``gun walking'' to allow guns to remain on the street
after a potentially illegal sale to build a bigger case rather than
interdicting them immediately. President Bush's attorney general,
Michael Mukasey, received a briefing paper on November 16, 2007 on ATF
cooperation with Mexico on ``controlled deliveries'' of weapons
smuggling. The House Oversight Committee has failed to call any Bush
Administration officials to testify on this matter.
This week, in Politico, a senior Republican House aide is quoted as
saying, ``The contempt of Holder is a dog whistle to the right-wing tea
party community, saying that we are representing them . . . this is a
way to say we're going after this administration, holding them
accountable.''
Further proof of the blatantly political nature of the Holder
contempt vote is the decision by the National Rifle Association (NRA)
to ``score'' the vote as part of their legislative report card to their
membership. The NRA has long championed allowing the proliferation of
assault weapons previously banned on American streets and sold over the
counter, like the AK-47s found at Agent Terry's murder scene.
This entire episode is a stain on the reputation of this Republican
led House of Representatives. It is appalling to know that the politics
of personal destruction is the top policy priority of this Tea Party
controlled House.
Again, I want to state my strong support for Attorney General Holder
and the Obama Administration's efforts to cooperate with this on-going
congressional investigation.
The SPEAKER pro tempore. All time for debate on the motion to refer
has expired.
Pursuant to House Resolution 708, the previous question is ordered on
the motion to refer.
The question is on the motion to refer.
The question was taken; and the Speaker pro tempore announced that
the noes appeared to have it.
Mr. DINGELL. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 9 of rule XX and House
Resolution 708, this 15-minute vote on the motion to refer will be
followed by 5-minute votes on a motion to recommit, if offered;
adoption of the resolution, if ordered; motion to suspend on H.R. 1447,
if ordered; and motion to suspend on H.R. 3173, if ordered.
The vote was taken by electronic device, and there were--yeas 172,
nays 251, not voting 9, as follows:
[Roll No. 440]
YEAS--172
Ackerman
Andrews
Baca
Baldwin
Barber
Bass (CA)
Becerra
Berkley
Berman
Bishop (GA)
Bishop (NY)
Blumenauer
Bonamici
Boswell
Brady (PA)
Braley (IA)
Brown (FL)
Butterfield
Capps
Capuano
Carnahan
Carney
Carson (IN)
Castor (FL)
Chu
Cicilline
Clarke (MI)
Clarke (NY)
Clay
Cleaver
Clyburn
Cohen
Connolly (VA)
Conyers
Cooper
Costa
Costello
Courtney
Critz
Crowley
Cuellar
Cummings
Davis (CA)
Davis (IL)
DeFazio
DeGette
DeLauro
Deutch
Dicks
Dingell
Doggett
Doyle
Edwards
Ellison
Engel
Eshoo
Farr
Fattah
Filner
Frank (MA)
Fudge
Garamendi
Gonzalez
Green, Al
Green, Gene
Grijalva
Gutierrez
Hahn
Hanabusa
Hastings (FL)
Heinrich
Higgins
Himes
Hinchey
Hinojosa
Hirono
Holden
Holt
Honda
Hoyer
Israel
Jackson Lee (TX)
Johnson (GA)
Kaptur
Keating
Kildee
Kind
Kucinich
Langevin
Larsen (WA)
Larson (CT)
Lee (CA)
Levin
Lewis (GA)
Lipinski
Loebsack
Lofgren, Zoe
Lowey
Lujan
Lynch
Maloney
Markey
Matsui
McCarthy (NY)
McCollum
McDermott
McGovern
McNerney
Meeks
Michaud
Miller (NC)
Miller, George
Moore
Moran
Murphy (CT)
Nadler
Neal
Olver
Pallone
Pascrell
Pastor (AZ)
Pelosi
Perlmutter
Peters
Pingree (ME)
Polis
Price (NC)
Quigley
Rangel
Reyes
Richardson
Richmond
Rothman (NJ)
Roybal-Allard
Ruppersberger
Rush
Sanchez, Linda T.
Sanchez, Loretta
Sarbanes
Schakowsky
Schiff
Schrader
Schwartz
Scott (VA)
Scott, David
Serrano
Sewell
Sherman
Shuler
Sires
Slaughter
Smith (WA)
Speier
Stark
Sutton
Thompson (CA)
Thompson (MS)
Tierney
Tonko
Towns
Tsongas
Van Hollen
Velazquez
Visclosky
Wasserman Schultz
Waters
Watt
Waxman
Welch
Wilson (FL)
Woolsey
Yarmuth
NAYS--251
Adams
Aderholt
Akin
Alexander
Altmire
Amash
Amodei
Austria
Bachmann
Bachus
Barletta
Barrow
Bartlett
Barton (TX)
Bass (NH)
Benishek
Berg
Biggert
Bilbray
Bilirakis
Black
Blackburn
Bonner
Bono Mack
Boren
Boustany
Brady (TX)
Brooks
Broun (GA)
Buchanan
Bucshon
Buerkle
Burgess
Burton (IN)
Calvert
Camp
[[Page H4417]]
Campbell
Canseco
Cantor
Capito
Carter
Cassidy
Chabot
Chaffetz
Chandler
Coble
Coffman (CO)
Cole
Conaway
Cravaack
Crawford
Crenshaw
Culberson
Davis (KY)
Denham
Dent
DesJarlais
Diaz-Balart
Dold
Donnelly (IN)
Dreier
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Emerson
Farenthold
Fincher
Fitzpatrick
Flake
Fleischmann
Fleming
Flores
Forbes
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gardner
Garrett
Gerlach
Gibbs
Gibson
Gingrey (GA)
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guinta
Guthrie
Hall
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Heck
Hensarling
Herger
Herrera Beutler
Hochul
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (IL)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Kelly
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kissell
Kline
Labrador
Lamborn
Lance
Landry
Lankford
Latham
LaTourette
Latta
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marino
Matheson
McCarthy (CA)
McCaul
McClintock
McCotter
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meehan
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mulvaney
Murphy (PA)
Myrick
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Owens
Palazzo
Paul
Paulsen
Pearce
Pence
Peterson
Petri
Pitts
Platts
Poe (TX)
Pompeo
Posey
Price (GA)
Quayle
Rahall
Reed
Rehberg
Reichert
Renacci
Ribble
Rigell
Rivera
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross (AR)
Ross (FL)
Royce
Runyan
Ryan (WI)
Scalise
Schilling
Schmidt
Schock
Schweikert
Scott (SC)
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stearns
Stivers
Sullivan
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner (NY)
Turner (OH)
Upton
Walberg
Walden
Walsh (IL)
Walz (MN)
Webster
West
Westmoreland
Whitfield
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Young (AK)
Young (FL)
Young (IN)
NOT VOTING--9
Bishop (UT)
Cardoza
Hayworth
Jackson (IL)
Johnson, E. B.
Lewis (CA)
Napolitano
Ryan (OH)
Stutzman
{time} 1630
Messrs. THOMPSON of Pennsylvania, WALDEN, Ms. JENKINS, Mrs. ROBY,
Messrs. MURPHY of Pennsylvania, SCALISE, KINGSTON, and HALL changed
their vote from ``yea'' to ``nay.''
Mr. RICHMOND and Ms. LORETTA SANCHEZ of California changed their vote
from ``nay'' to ``yea.''
So the motion to refer was rejected.
The result of the vote was announced as above recorded.
The SPEAKER pro tempore. The question is on the resolution.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Recorded Vote
Mr. GRIMM. Mr. Speaker, I demand a recorded vote.
A recorded vote was ordered.
The SPEAKER pro tempore. This is a 5-minute vote.
The vote was taken by electronic device, and there were--ayes 255,
noes 67, answered ``present'' 1, not voting 109, as follows:
[Roll No. 441]
AYES--255
Adams
Aderholt
Akin
Alexander
Altmire
Amash
Amodei
Austria
Bachmann
Bachus
Barletta
Barrow
Bartlett
Barton (TX)
Bass (NH)
Benishek
Berg
Biggert
Bilbray
Bilirakis
Bishop (UT)
Black
Blackburn
Bonner
Bono Mack
Boren
Boswell
Boustany
Brady (TX)
Brooks
Broun (GA)
Buchanan
Bucshon
Buerkle
Burgess
Burton (IN)
Calvert
Camp
Campbell
Canseco
Cantor
Capito
Carter
Cassidy
Chabot
Chaffetz
Chandler
Coble
Coffman (CO)
Cole
Conaway
Cravaack
Crawford
Crenshaw
Critz
Culberson
Davis (KY)
Denham
Dent
DesJarlais
Diaz-Balart
Dold
Donnelly (IN)
Dreier
Duffy
Duncan (SC)
Duncan (TN)
Ellmers
Emerson
Farenthold
Fincher
Fitzpatrick
Flake
Fleischmann
Fleming
Flores
Forbes
Fortenberry
Foxx
Franks (AZ)
Frelinghuysen
Gallegly
Gardner
Garrett
Gerlach
Gibbs
Gibson
Gingrey (GA)
Gohmert
Goodlatte
Gosar
Gowdy
Granger
Graves (GA)
Graves (MO)
Griffin (AR)
Griffith (VA)
Grimm
Guinta
Guthrie
Hall
Hanna
Harper
Harris
Hartzler
Hastings (WA)
Hayworth
Heck
Hensarling
Herger
Herrera Beutler
Hochul
Huelskamp
Huizenga (MI)
Hultgren
Hunter
Hurt
Issa
Jenkins
Johnson (IL)
Johnson (OH)
Johnson, Sam
Jones
Jordan
Kelly
Kind
King (IA)
King (NY)
Kingston
Kinzinger (IL)
Kissell
Kline
Labrador
Lamborn
Lance
Landry
Lankford
Latham
Latta
LoBiondo
Long
Lucas
Luetkemeyer
Lummis
Lungren, Daniel E.
Mack
Manzullo
Marchant
Marino
Matheson
McCarthy (CA)
McCaul
McClintock
McCotter
McHenry
McIntyre
McKeon
McKinley
McMorris Rodgers
Meehan
Mica
Miller (FL)
Miller (MI)
Miller, Gary
Mulvaney
Murphy (PA)
Myrick
Neugebauer
Noem
Nugent
Nunes
Nunnelee
Olson
Owens
Palazzo
Paul
Paulsen
Pearce
Pence
Peterson
Petri
Pitts
Platts
Poe (TX)
Pompeo
Posey
Price (GA)
Quayle
Rahall
Reed
Rehberg
Reichert
Renacci
Ribble
Rivera
Roby
Roe (TN)
Rogers (AL)
Rogers (KY)
Rogers (MI)
Rohrabacher
Rokita
Rooney
Ros-Lehtinen
Roskam
Ross (AR)
Ross (FL)
Royce
Runyan
Ryan (WI)
Scalise
Schilling
Schmidt
Schock
Schweikert
Scott (SC)
Scott, Austin
Sensenbrenner
Sessions
Shimkus
Shuster
Simpson
Smith (NE)
Smith (NJ)
Smith (TX)
Southerland
Stearns
Stivers
Stutzman
Sullivan
Terry
Thompson (PA)
Thornberry
Tiberi
Tipton
Turner (NY)
Turner (OH)
Upton
Walberg
Walden
Walsh (IL)
Walz (MN)
Webster
West
Westmoreland
Whitfield
Wilson (SC)
Wittman
Wolf
Womack
Woodall
Yoder
Young (AK)
Young (FL)
Young (IN)
NOES--67
Baldwin
Barber
Berkley
Berman
Bishop (NY)
Blumenauer
Bonamici
Braley (IA)
Capps
Cohen
Connolly (VA)
Cooper
Costello
Courtney
Cuellar
DeFazio
DeLauro
Deutch
Dicks
Dingell
Doggett
Eshoo
Farr
Green, Gene
Heinrich
Higgins
Himes
Hirono
Holden
Holt
Langevin
Larsen (WA)
LaTourette
Loebsack
Lofgren, Zoe
Lujan
Lynch
McDermott
McNerney
Michaud
Miller (NC)
Miller, George
Moran
Murphy (CT)
Nadler
Pastor (AZ)
Perlmutter
Quigley
Rigell
Rothman (NJ)
Ryan (OH)
Sanchez, Loretta
Schrader
Schwartz
Sherman
Shuler
Slaughter
Smith (WA)
Speier
Sutton
Thompson (CA)
Tierney
Tsongas
Visclosky
Wasserman Schultz
Waxman
Welch
ANSWERED ``PRESENT''--1
Lipinski
NOT VOTING--109
Ackerman
Andrews
Baca
Bass (CA)
Becerra
Bishop (GA)
Brady (PA)
Brown (FL)
Butterfield
Capuano
Cardoza
Carnahan
Carney
Carson (IN)
Castor (FL)
Chu
Cicilline
Clarke (MI)
Clarke (NY)
Clay
Cleaver
Clyburn
Conyers
Costa
Crowley
Cummings
Davis (CA)
Davis (IL)
DeGette
Doyle
Edwards
Ellison
Engel
Fattah
Filner
Frank (MA)
Fudge
Garamendi
Gonzalez
Green, Al
Grijalva
Gutierrez
Hahn
Hanabusa
Hastings (FL)
Hinchey
Hinojosa
Honda
Hoyer
Israel
Jackson (IL)
Jackson Lee (TX)
Johnson (GA)
Johnson, E. B.
Kaptur
Keating
Kildee
Kucinich
Larson (CT)
Lee (CA)
Levin
Lewis (CA)
Lewis (GA)
Lowey
Maloney
Markey
Matsui
McCarthy (NY)
McCollum
McGovern
Meeks
Moore
Napolitano
Neal
Olver
Pallone
Pascrell
Pelosi
Peters
Pingree (ME)
Polis
Price (NC)
Rangel
Reyes
Richardson
Richmond
Roybal-Allard
Ruppersberger
Rush
Sanchez, Linda T.
Sarbanes
Schakowsky
Schiff
Scott (VA)
Scott, David
Serrano
Sewell
Sires
Stark
Thompson (MS)
Tonko
Towns
Van Hollen
Velazquez
Waters
Watt
Wilson (FL)
Woolsey
Yarmuth
Announcement by the Speaker Pro Tempore
The SPEAKER pro tempore (during the vote). There are 2 minutes
remaining.
{time} 1639
Mr. LaTOURETTE changed his vote from ``aye'' to ``no.''
So the resolution was agreed to.
The result of the vote was announced as above recorded.
A motion to reconsider was laid on the table.
[[Page H4418]]
____________________
