Congress v. Holder: Despite 'bombshell' wiretap, feds decline to investigate top cop

The Justice Department declined on Friday to investigate its own boss, Attorney General Eric Holder, for congressional contempt, even as House Republicans revealed evidence tying some of the government’s top law enforcement officers directly to the Fast and Furious “gun-walking” program, and, by association, the death of US Border Patrol Agent Brian Terry.

Mr. Holder became the first Cabinet member in history to be cited for contempt of Congress, after he refused to share documents related to a short-lived ATF sting operation in Arizona tied to hundreds of deaths in Mexico and the killing of Mr. Terry in a desert shootout in 2010, where two such guns were found.

Operation Fast and Furious was the largest and most audacious incarnation of a controversial tactic dating back to the Bush administration: Allow known “straw buyers” to buy and deliver US-bought weapons illegally in Mexico, and then build cases against the cartel boss recipients.

But while the sting did yield suspects, it fell apart when 1,400 guns bought under federal supervision in Arizona started turning up at murder scenes in Mexico. Unlike the Bush-era gun-walking programs, the Mexican government says it knew nothing of Fast and Furious. But did Washington?

Whether the disappearance of the weapons is the fault of local ATF agents trying to uphold the law or federal prosecutors overseeing the cases is at the heart of the congressional probe. And therein lies the contempt charge against Holder, whom the House, by a vote of 255 to 67, agreed has stonewalled a 16-month investigation to figure it all out.

The White House says Sen. Chuck Grassley and Rep. Darrell Issa, the chief Republican interlocutors, are on a cynical fishing expedition for political dirt, to which the Cabinet won’t condescend. So strongly do congressional Democrats support Holder that dozens walked out of the Capitol on Thursday, arms linked, in protest of a Republican “witch hunt.”

Certainly, Messrs. Issa and Grassley have utilized the power of the minority party to investigate the majority, including the central question of whether higher ups have “blood on their hands” for either approving, participating in, or ignoring the ill-advised program.

On Friday, Issa dropped a letter into the Congressional Record where he writes to Rep. Elijah Cummings, the ranking Democrat on the panel, that a series of sealed Fast and Furious wiretaps approved by major players in Holder’s DOJ contained a “startling” amount of information and detail about the operation.

For his part, Holder testified on June 7 that “nothing in those affidavits as I’ve reviewed them … indicates that gunwalking was allowed.”

But in his letter, Issa wrote, “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 (Justice Department) officials to act … and shut him and his network down.”

He goes on to say: “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.”

The affidavits Issa quotes from were approved in March 2010 by DOJ attorneys in Washington. In early 2011, Holder told Congress he had just heard about the program.

A Democratic committee staffer told Roll Call newspaper that Issa’s letter contains unspecified inaccuracies, and that Democrats “won’t stoop to [Issa’s] level” to address “desperate and unsubstantiated claims.”

With the DOJ decision to not investigate Holder, the wiretap letter will likely push Congress to hire its own investigator, though the House will probably stop short of appointing a special prosecutor or actually arresting Holder, which it has to the power to do.

In his letter to Issa on Friday, Deputy Attorney General James Cole said Obama’s decision to invoke executive privilege validates the legality of Holder’s decision to ignore the congressional subpoena – and has precedent in similar actions taken by both Republican and Democratic administrations in the past.

“We will not prosecute an executive branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege,” Mr. Cole writes. DOJ has “determined that the Attorney General’s response to the subpoena [from the Oversight Committee] does not constitute a crime, and therefore the Department will not bring … the contempt citation before a grand jury or take any other action to prosecute the Attorney General.”

The Obama White House, with the help of Democrats, activists, and liberal commentators, have tried to stay above the fray, painting Issa’s committee as empty political theater featuring Holder as the straw man for paranoid conspiracies about Second Amendment politics and cover-ups.

At the same time, Issa’s credibility has taken a hit, especially after insinuating without proof that Fast and Furious may have been part of a broader political strategy by Democrats in Washington to covertly provide arms to Mexican cartels in order to build a case domestically for tighter gun controls. (It’s that notion that led the National Rifle Association to announce it would score the Holder contempt vote, which likely played into 17 Democrats crossing the aisle and voting with Republicans.)

But politics aside, large questions do remain, piqued by a series of misstatements and walk-backs by Holder.

Holder has prevaricated on when, exactly, he first knew about the program, and he had to acknowledge a major error when he retracted a letter to Congress stating that the ATF, a Justice agency, never allowed guns to “walk” into Mexico – a statement that turned out to be false, and acknowledged as such by Holder.

At the heart of the documents Congress now wants is most likely what was said between the White House and Justice after the scandal broke.

This week, emails were released indicating that Holder was demanding, as the scandal broke, to find out what happened, suggesting that he was as in the dark as he has claimed about the operation. Since the story broke in early 2011, Fast and Furious has been shut down, half a dozen officials and agents have resigned or been reassigned, and Holder has apologized to the family of Brian Terry.