By Dave Kopel
Is Attorney General Eric Holder in criminal contempt of Congress because of his role in the “Fast and Furious” cover-up? As this magazine goes to press, the U.S. House Oversight Committee has just voted 23-17 to recommend Holder be held in contempt. A vote by the full House of Representatives is scheduled for late June, unless Holder releases the documents he has been concealing.
Whatever the House does, Holder has already proven his contempt for Congress. And now, President Barack Obama has himself taken a lead role in the cover-up by claiming that “executive privilege” allows him to withhold documents from congressional investigators.
The full House could vote for either criminal contempt or civil contempt. A criminal contempt resolution would be referred to the U.S. attorney for the District of Columbia, who would be required to bring the case before a grand jury. The maximum punishment for criminal contempt of Congress is one year in federal prison and a $1,000 fine. Since the attorney who would have to prosecute the criminal contempt case works for Holder, it is unlikely that a criminal conviction would result.
Alternatively, and more likely, the House could vote for civil contempt. Then, the House could bring a civil case in court, asking the judge to order Holder to turn over the documents. If Holder refused a court order, the judge could impose sanctions on Holder, such as fines.
A contempt of Congress resolution is very rare, and it is a powerful sign of how far a person may have stepped outside of the law. That is one reason why NRA-ILA Executive Director Chris W. Cox sent Congress a letter calling the contempt vote “an issue of the utmost seriousness” and explaining NRA would take the vote into account in its candidate evaluations.
The Obama/Holder administration’s cover-up of “Fast and Furious” is apparently designed to keep the scandal out of the public mind until the November elections are over. Much of the pro-Obama national media, such NBC/MSNBC, have ignored “Fast and Furious,” or have “covered” the story with a pro-Obama spin.
Because of the “Fast and Furious” operation, U.S. Border Patrol Agent Brian Terry was murdered on Dec. 14, 2010. And according to the Mexican attorney general, “Fast and Furious” guns have been used in at least 200 murders in Mexico. Among the victims was a Mexican state attorney general’s brother, who was tortured to death.
If Holder is allowed to get away with this, what crimes and cover-ups might take place during a second Obama term? If, during the first term, putting guns in the hands of murderers was accepted as a useful means for promoting gun control, what could a second term bring?
Here are some of the reasons why many believe it would be appropriate for Holder to be declared in contempt of Congress:
On Oct. 12, 2011, the House Oversight Committee sent a subpoena—a legally compulsory demand for documents—to Holder. The subpoena specified 22 particular types of documents that Holder was required to produce for the committee. The October subpoena came after six months of Holder’s obstreperous defiance of previous subpoenas. The Oversight Committee knew that Holder was withholding documents because whistleblowers had provided the committee with documents that Holder had not delivered.
Since October, Holder has not produced anything in 13 of the 22 subpoena categories.
Since the House investigation began in early 2011, the Department of Justice has produced about 7,600 pages of documents for congressional investigators. But the department’s own files on “Fast and Furious” include over 70,000 more pages of documents that have not been produced.
Those pages withheld from Congress were given to the DOJ’s own inspector general (IG). The DOJ’s internal self-investigation of “Fast and Furious” has been going on since February 2011. When asked why the DOJ’s self-investigation is taking so long, DOJ explained that the investigators were trying to reach “consensus.” It seems very possible that no “consensus” will form until after the November elections.
For some of the subpoena categories, Holder’s DOJ has asserted that the documents cannot be provided because they relate to an ongoing criminal investigation. Yet legal experts say this fact in itself is not sufficient to deny Congress all access. Among the possible accommodations are that some documents could be made available to congressional staff to read but not to copy.
Notably, the DOJ’s criminal investigations seem to be proceeding so slowly as to delay any disclosures until after the election.
On the morning of the contempt vote, President Obama personally invoked “executive privilege” to justify the withholding of the documents. Obama was apparently relying on a subtype of the privilege, called “deliberative process privilege,” which protects the confidentiality of some discussions among executive branch personnel.
Unlike some legal privileges (such as the priest-penitent privilege), the deliberative process privilege is not absolute. In particular, as the U.S. Supreme Court unanimously ruled in the case of United States v. Nixon (1974), the privilege is not to be used to cover up evidence of wrongdoing. Given the Obama/Holder administration’s obduracy, the issue will probably have to be resolved by a court.
Let’s take a look at the 13 categories of documents for which the Holder DOJ has refused to provide anything to Congress.
1. Communications between the DOJ and the White House about “Fast and Furious.” Among the communications sought are those involving Associate Communications Director Eric Schultz, who screamed at CBS News reporter Sharyl Attkisson in October 2011 because of her continuing investigation of “Fast and Furious.” These documents might reveal a lot about the White House’s role in the cover-up.
Among the mainstream media, CBS’s Attkisson has been the leader in reporting on “Fast and Furious.” Like the congressional investigators, she, too, has been stonewalled by the Obama administration.
Pursuant to the Freedom of Information Act, she has requested the administration provide copies of “Fast and Furious”-related communications involving Holder, Assistant Attorney General Lanny Breuer and other top DOJ officials.
All of the CBS News requests were denied in whole or in part. Some of the documents that were “produced” were mostly blank pages. And for most of the requests, the administration took more than a year to respond.
Notably, Breuer and his staff had the legal responsibility to approve the wiretap applications that were part of “Fast and Furious.” The Obama/Holder administration spent 2011 claiming that the applications did not describe the “gun-walking” tactics that were the core of “Fast and Furious.” But in May 2012, whistleblowers provided the House Oversight Committee with copies of the wiretap applications, which did describe the gun-walking tactics. Holder then claimed that neither Breuer nor his staff even read the wiretap applications before approving them, although federal law requires them to do so.
CBS also sent a FOIA request to the FBI about the murder of Border Patrol Agent Terry. That request was entirely denied on the basis that there is an ongoing investigation of his murder. Terry was murdered in December 2010. Taking a year and a half (with no end in sight) to investigate the murder of a federal agent is not exactly fast-paced. The existence of an “ongoing investigation” is a common pretext to keep Congress and the public in the dark.
CBS points out that the FBI has already provided some Terry records to the media without jeopardizing the investigation. Further, the FBI has failed to provide a log of the withheld documents.
2. The second category of documents that the Obama administration has totally refused to provide to Congress is communications between the DOJ and the White House about President Obama’s March 22, 2011, interview on the Spanish-language channel Univision. During that interview, Obama insisted Holder had never approved “Fast and Furious.” How was he so sure? What did the White House know at that point?
3. The third category is “Documents and communications referring or relating to the murder of Immigration and Customs Enforcement Agent Jaime Zapata.” Agent Zapata was murdered in Mexico by a drug trafficking organization. The killers’ guns came from Texas, delivered by a known gun smuggler whom BATFE had failed to arrest.
4. “Reports of Investigation (ROIS) related to ‘Operation Fast and Furious.’” These relate to items in category 5, below.
5. Communications about the items in category 4 between and among Matt Axelrod (associate deputy attorney general, who works with DOJ criminal division head Breuer), Kenneth Melson (acting director of BATFE during “Fast and Furious”) and William Hoover (regional BATFE director for the area including Arizona).
Former BATFE Acting Director Melson testified to Congress, “It appears thoroughly to us that the department is really trying to figure out a way to push the information away from their political appointees at the department.” Documents in categories 4 and 5 could shed light on DOJ efforts to push all the “Fast and Furious” blame away from Obama’s political appointees.
6. “All communications sent or received between Aug. 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.” This relates to the DOJ concealing the existence of “Fast and Furious” from American officials in Mexico at a time when the Americans in Mexico noticed a “surge” in crime-gun smuggling in Mexico—a surge that was caused by “Fast and Furious.”
As Mexico’s ambassador noted in a June 1 speech in Washington, “Fast and Furious” has “poisoned” Mexican public opinion against the u.s. This is one reason why people who do not care at all about guns should care about the Obama administration’s “Fast and Furious” program profoundly damaging American interests abroad.
7. FD-302 reports related to “Fast and Furious” targets and suspects. These are investigative summaries written by the FBI. After the “Fast and Furious” program was shut down, Hope MacAllister, who was BATFE’s lead case agent for “Fast and Furious,” reportedly provided some of these FBI reports to BATFE’s top management.
The issues in items 7-10 all involve alleged failures to share information between three organizations that are part of the federal Department of Justice: BATFE, FBI and the Drug Enforcement Agency.
Under “Fast and Furious,” BATFE told Arizona gun stores to sell rifles to obvious “straw purchasers.” These buyers were not purchasing firearms for themselves, but instead were buying on behalf of someone who could not legally buy a gun in the United States. Straw purchases are a federal felony.
The straw purchasers whom “Fast and Furious” was enabling were apparently working for a Mexican named Manuel Fabian Celis-Acosta who, in turn, was procuring the guns for a higher-up in a drug-trafficking organization.
In May 2010, Celis-Acosta was caught bringing arms, magazines and ammunition into Mexico. If “Fast and Furious” had been a genuine investigation, the capture of Celis-Acosta would have been the perfect time to arrest him, shut down his gun smuggling operation and offer him a reduced sentence in exchange for providing information about his superiors.
Instead, MacAllister let Celis-Acosta go based on his promise that he would keep in touch and cooperate with BATFE. Unsurprisingly, he never called back and vanished into Mexico. He was eventually captured in February 2011, after the December 2010 murder of Agent Terry had resulted in “Fast and Furious” being terminated a month later.
According to the Arizona Daily Star, when BATFE finally arrested Celis-Acosta in February 2011, BATFE discovered that he was working for Eduardo and Jesus A. Miramontes-Varela, who were procuring guns for the Sinaloa cartel. According to media reports, the brothers were also protected informants for the FBI.
Why did the FBI and DEA let “Fast and Furious” go on so long when they knew that BATFE’s supplying Celis-Acosta with murder weapons for cartel killers would never lead to the prosecution of an important cartel leader? Congress wants to know, and Attorney General Holder seems to want Congress not to know.
Even if the Miramontes-Varela brothers had not been protected FBI assets, “Fast and Furious” would have been an outrage. Putting more than 2,000 murder weapons into the hands of deadly drug cartels is not exactly an acceptable way to catch a pair of gun-smuggler bosses.
8. FBI or DEA documents involving the “targets, suspects or defendants in the ‘Fast and Furious’ case.” This is similar information to item 7:
The FBI and DEA’s knowledge of, and relationships with, the Miramontes-Varela brothers and Celis-Acosta.
9. “Any investigative reports by the FBI or DEA relating to the individuals described to committee staff at the Oct. 5, 2011, briefing at Justice Department headquarters as Target Number 1 and Target Number 2.” This one apparently relates to information from a closed-door briefing, and perhaps relates to items 7-8.
10. DEA documents about Celis-Acosta: this item is similar to item 8.
11. FBI laboratory documents involving the investigation of Border Patrol Agent Terry’s death. These relate in part to the DOJ’s claim that Terry was not murdered with a “Fast and Furious” gun, since the particular gun that killed him cannot (supposedly) be ascertained.
12. “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.’” These would help reveal who at the DOJ leadership knew about “Fast and Furious“ and when they knew it.
13. Surveillance tapes from Lone Wolf Trading Co. between Oct. 3 and Oct. 7, 2010. Lone Wolf was one of the gun stores that BATFE tricked into selling “Fast and Furious” guns by falsely telling the owner that all the guns were carefully tracked once they left the store, and the guns would never be allowed into the hands of someone who would do harm. The dates relate to a break-in at Lone Wolf.
It is a crime to attempt to obstruct a congressional investigation, but that is precisely what Holder’s BATFE appears to be doing. For example, a few days after whistleblowing BATFE Agent Larry Alt notified his superiors that he was going to testify before Congress, BATFE claimed that Alt had illegally downloaded $8 worth of applications on his government-issued cell phone.
When Alt’s phone was searched, there were no such applications—not surprising, since those applications are not compatible with his particular phone. Alt denies downloading the applications, yet while BATFE’s retaliatory “investigation” continues, he is denied all pay raises, transfers or promotions.
Attorney General Holder likewise stonewalled a November 2012 question from Iowa Sen. Charles Grassley asking the name of the DOJ official who leaked documents in an attempt to smear and retaliate against a BATFE whistleblower. Holder refused to divulge the person’s name.
According to the contempt resolution, “For over a year, the department has issued false denials, given answers intended to misdirect investigators, sought to intimidate witnesses, unlawfully withheld subpoenaed documents and waited to be confronted with indisputable evidence before acknowledging uncomfortable facts.”
Led by Rep. Trey Gowdy, R-S.C., the House of Representatives showed its displeasure by cutting $1 million from the Justice Department’s General Administration fund—the fund that pays for Holder and his inner circle.
However, President Obama says that if the bill is not changed, he will veto it. He objects to provisions in the law that end the system of rifle registration that his administration created (with no congressional authorization) in the four Southwest border states.
Although Holder and his media enablers claim that trying to make Holder end the cover-up is just Republican partisanship, Indiana Democrat Joe Donnelly, a U.S. representative who is his party’s nominee for U.S. Senate, disagrees. Donnelly told “The Daily Caller,” “There has been a serious allegation of federal law enforcement misconduct and we need to get to the bottom of this issue without playing partisan politics.”
Holder and his allies insist the investigation is just election-year politics. The fact is, if Holder had cooperated with the congressional investigation that began in early 2011, the investigation could have been finished last year.
Instead, the Holder DOJ sent the committee a letter in February 2011 containing the flagrant falsehood that the DOJ had never allowed guns to “walk.” That letter was not retracted until 10 months later—half a year after BATFE employees had described under oath to Congress the gun walking in horrific detail.
As this article goes to press, 129 U.S. representatives have said that Holder should resign or be fired over “Fast and Furious,” or co-sponsored a House resolution of “no confidence” in him. So have three U.S. senators and two governors. Most importantly, the presumed Republican presidential nominee, Mitt Romney, has said that Holder should be removed.
Last year, since the true scope of “Fast and Furious” became apparent, NRA began calling for Holder’s dismissal. Speaking at the NRA Annual Meetings & Exhibits in St. Louis this past April, Romney said, “I applaud NRA leadership for being among the first and most vocal in calling upon Attorney General Holder to resign or get fired.”
If Romney is elected president, Holder will no longer be attorney general.
But if Obama is re-elected, the deadly culture of impunity at the Department of Justice, exemplified by the “Fast and Furious” cover-up, will continue. The result for constitutional rights could be catastrophic.