Obama Asserts Executive Privilege Claim Over Holder’s Wife Emails Pertaining To Fast and Furious — Cover up Of Crimes — Article 1 of Impeachment Bill — What are They Hiding? — Aiding and Abetting Homicides –Videos
The Pronk Pops Show Podcasts
Story 1: Obama Asserts Executive Privilege Claim Over Holder’s Wife Emails Pertaining To Fast and Furious — Cover up Of Crimes — Article 1 of Impeachment Bill — What are They Hiding? — Aiding and Abetting Homicides –Videos
President Obama Evokes Executive Privilege for Eric Holder – 2007 v. 2012
Obama announces Eric Holder’s resignation
Is Obama involved in Fast and Furious, obstructing a congressional investigation or both?
Congress Votes to Hold Eric Holder in Contempt Perjury Lied to House Congress Vote Passes
Jon Stewart Slams Obama Executive Privilege, Fast & Furious, and Eric Holder
Remember Brian Terry, the murdered Border Patrol Agent
Judge Napolitano: Executive Privilege Only Applies If Obama Involved
Mark Levin Explains How GOP Should Handle Holder Contempt Charge & Executive Privilege Claim
Issa on Fast and Furious, Holder Contempt, Obama Executive Privilege on Fox News Sunday
Obama Perpetuates The ’90 Percent Of Mexico’s Weapons Come From The U.S.’ Lie — In Mexico!
Eric Holder – We Must “Brainwash” People Against Guns! – (1995)
Holder on 2nd Amendment
Eric Holder Attacking The Second Amendment To Help Mexico?
“Operation Fast & Furious: The Other Side of the Border” Part 1
“Operation Fast & Furious: The Other Side of the Border” Part 2
“Operation Fast & Furious: The Other Side of the Border” Part 3
Fast and Furious: Management Failures at the Department of Justice – Part 1
Eric Holder Choking on his Testimony
Michael Savage offers concise summary of “Fast and Furious”, describes his own love of guns
Congress: Eric Holder Should Be In Jail!
Obama Asserts Fast and Furious Executive Privilege Claim for Holder’s Wife
OCTOBER 23, 2014
Judicial Watch announced today that it received from the Obama Department of Justice (DOJ) a “Vaughn index” detailing records about the Operation Fast and Furious scandal. The index was forced out of the Obama administration thanks to JW’s June 2012 Freedom of Information Act (FOIA) request and subsequent September 2012 FOIA lawsuit (Judicial Watch v. Department of Justice (No. 1:12-cv-01510)). A federal court had ordered the production over the objections of the Obama Justice Department.
The document details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal. Notably, the document discloses that emails between Attorney General Holder and his wife Sharon Malone – as well as his mother – are being withheld under an extraordinary claim of executive privilege as well as a dubious claim of deliberative process privilege under the Freedom of Information Act. The “First Lady of the Justice Department” is a physician and not a government employee.
This is the first time that the Obama administration has provided a detailed listing of all records being withheld from Congress and the American people about the deadly Fast and Furious gun running scandal. The 1307-page “draft” Vaughn index was emailed to Judicial Watch at 8:34 p.m. last night, a few hours before a federal court-ordered deadline. In its cover letter, the Department of Justice asserts that all of the responsive records described in the index are “subject to the assertion of executive privilege.”
The Vaughn index explains 15,662 documents. Typically, a Vaughn index must: (1) identify each record withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption. The Vaughn index arguably fails to provide all of this required information but does provide plenty of interesting information for a public kept in the dark for years about the Fast and Furious scandal.
Based on a preliminary review of the massive document, Judicial Watch can disclose that the Vaughn index reveals:
Numerous emails that detail Attorney General Holder’s direct involvement in crafting talking points, the timing of public disclosures, and handling Congressional inquiries in the Fast and Furious matter.
President Obama has asserted executive privilege over nearly 20 email communications between Holder and his spouse Sharon Malone. The administration also claims that the records are also subject to withholding under the “deliberative process” exemption. This exemption ordinarily exempts from public disclosure records that could chill internal government deliberations.
Numerous entries detail DOJ’s communications (including those of Eric Holder) concerning the White House about Fast and Furious.
The scandal required the attention of virtually every top official of the DOJ and the Bureau of Alcohol, Tobacco and Firearms (ATF). Communications to and from the United States Ambassador to Mexico about the Fast and Furious matter are also described.
Many of the records are already publicly available such as letters from Congress, press clips, and typical agency communications. Ordinarily, these records would, in whole or part, be subject to disclosure under the Freedom of Information Act. Few of the records seem to even implicate presidential decision-making and advice that might be subject to President Obama’s broad and unprecedented executive privilege claim.
Judicial Watch President Tom Fitton criticized President Obama and his disgraced Attorney General in a statement today:
This document provides key information about the cover-up of Fast and Furious by Attorney General Eric Holder and other high-level officials of the Obama administration. Obama’s executive privilege claims over these records are a fraud and an abuse of his office. There is no precedent for President Obama’s Nixonian assertion of executive privilege over these ordinary government agency records. Americans will be astonished that Obama asserted executive privilege over Eric Holder’s emails to his wife about Fast and Furious.
Once again, Judicial Watch has proven itself more effective than Congress and the establishment media in providing basic oversight of this out-of-control Administration. This Fast and Furious document provides dozens of leads for further congressional, media, and even criminal investigations.
On June 28, 2012, Attorney General Eric Holder was held in contempt by the House of Representatives over his refusal to turn over records explaining why the Obama administration may have lied to Congress and refused for months to disclose the truth about the gun running operation. It marked the first time in U.S. history that a sitting Attorney General was held in contempt of Congress.
A week before the contempt finding, to protect Holder from criminal prosecution and stave off the contempt vote, President Obama asserted executive privilege over the Fast and Furious records the House Oversight Committee had subpoenaed eight months earlier. Judicial Watch filed its FOIA request two days later. Holder’s Justice Department wouldn’t budge (or follow the law), so JW filed a FOIA lawsuit on September 12, 2012.
But then the Justice Department convinced U.S. District Court Judge John D. Bates to stay our lawsuit, in part to allow ongoing settlement discussions between the Holder’s government lawyers and the House Committee to continue. Unsurprisingly, the “negotiations” between politicians running the House and the Justice Department went nowhere.
Fed up with the interminable delay caused Holder’s gamesmanship and stonewalling, JW renewed its request to the Court to allow our transparency lawsuit to continue. Thankfully, this past July, Judge John D. Bates ended the 16-month delay and ordered the Obama administration to produce a Vaughn index of the alleged “executive privilege” records by October 1. Judge Bates noted that no court has ever “expressly recognized” President Obama’s unprecedented executive privilege claims in the Fast and Furious matter.
Unhappy with having to produce the records prior to the elections, Justice lawyers asked the judge to give them one extra month, until November 3 (the day before Election Day!) to produce the info. Judge Bates rejected this gambit, suggested that the Holder’s agency did not take court order seriously. Rather than a month, Judge Bates gave Justice until yesterday to cough up the Vaughn index. Judge Bates issued his smack down on September 23.
Attorney General Eric Holder announced his resignation two days later.
Many share our opinion it was “no coincidence” that Holder’s resignation came “on the heels of another court ruling that the Justice Department must finally cough up information about how Holder’s Justice Department lied to Congress and the American people about the Operation Fast and Furious scandal, for which Eric Holder was held in contempt by the House of Representatives.”
The House had been separately litigating to obtain the records but had gotten nowhere until after Judge Bates ruled that the DOJ finally had to disclose information to Judicial Watch.
On September 9, U.S. District Court Judge Amy Berman Jackson, citing Judicial Watch’s success, ordered the Justice Department to produce information to Congress by November 3.
Fast and Furious was a DOJ/Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) “gun running” operation in which the Obama administration reportedly allowed guns to go to Mexican drug cartels hoping they would end up at crime scenes, advancing gun-control policies. Fast and Furious weapons have been implicated in the murder of Border Patrol Agent Brian Terry and hundreds of other innocents in Mexico. Guns from the Fast and Furious scandal are expected to be used in criminal activity on both sides of the U.S.-Mexico border for years to come.
Guns from the Fast and Furious scandal continue to be used in crimes. Just last week, Judicial Watch disclosed that a Fast and Furious gun was used in gang -style assault on a Phoenix apartment building that left two people wounded. We figured this out from information we uncovered through another public records lawsuit against the City of Phoenix.
Congress officially confirmed the AK-47 was used in the assault that terrorized residents in Phoenix. In an October 16 letter sent from Sen. Charles Grassley (R-IA) and Rep. Darryl Issa (R-CA) to Deputy Attorney General James Cole discloses that “we have learned of another crime gun connected to Fast and Furious. The [Justice] Department did not provide any notice to the Congress or the public about this gun….This lack of transparency about the consequences of Fast and Furious undermines public confidence in law enforcement and gives the impression that the Department is seeking to suppress information and limit its exposure to public scrutiny.”
We have many other active lawsuits over the Fast and Furious scandal:
On October 11, 2011, Judicial Watch sued the DOJ and the ATF to obtain all Fast and Furious records submitted to the House Committee on Oversight.
On June 6, 2012, Judicial Watch sued the ATF seeking access to records detailing communications between ATF officials and Kevin O’Reilly, former Obama White House Director of North American Affairs at the U.S. National Security Council.
On September 5, 2013, Judicial Watch sued the DOJ seeking access to all records of communications between DOJ and the Oversight Committee relating to settlement discussions in the Committee’s 2012 contempt of Congress lawsuit against Holder. The contempt citation stemmed from Holder’s refusal to turn over documents to Congress related to the Fast and Furious gunrunning scandal.
On May 28, 2014, Judicial Watch sued the DOJ on behalf of ATF Special Agent John Dodson, who blew the whistle on Operation Fast and Furious and was then subjected to an alleged smear campaign designed to destroy his reputation.
Obama used executive privilege to shield Holder emails
President Obama used executive privilege to withhold the contents of more than 20 emails sent between Attorney General Eric Holder, his wife and his mother that a conservative watchdog group sought in connection with the federal government’s botched “Fast and Furious” gun-running operation.
The document, according to the conservative watchdog group Judicial Watch, “details the Attorney General Holder’s personal involvement in managing the Justice Department’s strategy on media and Congressional investigations into the Fast and Furious scandal.”
Judicial Watch said the White House is withholding the contents of the Holder emails between his wife and mother citing not only the executive privilege, but the “deliberative process” exemption, which is normally used to exclude from public disclosure any information “that could chill internal government deliberations.”
Holder’s wife, Sharon Malone, is a Washington, D.C., gynecologist.
The Republican-led House has been dueling with Holder for years in an effort to get documents and emails related to Fast and Furious.
In 2012, the House voted to find Holder in contempt of Congress for refusing to turn over documents related to the operation and has sued to obtain them. Democrats have accused the GOP of a politically motivated witch hunt against Holder, who recently announced plans to step down.
The Fast and Furious program ran from 2006 to 2011 out of an Arizona division of the Bureau of Alcohol, Tobacco, Firearms and Explosives. It involved U.S. agents selling guns to Mexican drug traffickers in an effort to trace the weapons to the drug cartels. But agents lost track of the weapons and some of them were used to kill people, including U.S. Border Patrol agent Brian Terry.
“Obama’s executive privilege claims over these records are a fraud and an abuse of his office,” Judicial Watch President Tom Fitton said in a statement. “There is no precedent for President Obama’s Nixonian assertion of executive privilege over these ordinary government agency records. Americans will be astonished that Obama asserted executive privilege over Eric Holder’s emails to his wife about Fast and Furious.”
“This list of documents was provided in order to fulfill a procedural step in this case,” Justice Department spokesman Brian Fallon told theExaminer. “We will make a further submission, related to these same materials, on Nov. 3 in connection to the case brought by the House Oversight Committee.”
Editor’s note: Judicial Watch is representing the Washington Examiner in the newspaper’s federal lawsuit seeking access to Consumer Financial Protection Bureau records under FOIA.
Operation Fast and Furious Fast Facts
Here’s some background information about Operation Fast and Furious. From 2009 – 2011, under Operation Fast and Furious, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) Phoenix Field Division, along with other partners, allowed illegal gun sales believed to be destined for Mexican drug cartels in order to track the sellers and purchasers.
An estimated 1,400 weapons were lost by the ATF in Mexico. Two of the missing weapons linked to the operation turned up at the Arizona murder scene of United States Border Patrol agent Brian Terry.
Whistle-blowing leads to a Congressional investigation by the Senate Judiciary Committee and the House Oversight and Government Reform Committee, and Attorney General Eric Holder is cited for contempt.
Operation Fast and Furious was one of the operations under Project Gunrunner, part of the Department of Justice’s broader Southwest Border Initiative, an “inter-agency effort to combat Mexico-based trafficking groups.” (DOJ)
“Straw purchasers (also called straw buyers) buy firearms on behalf of others without disclosing that fact on the forms required by the Bureau of Alcohol, Tobacco and Firearms.” (DOJ)
The operation lasted approximately 15 months, resulting in grand jury indictments of 34 suspects in drug and firearms trafficking organizations.
Operation Fast and Furious was not the first “gun walking” investigation by ATF; it was preceded by Operation Wide Receiver, which began in 2006.
April 2006 – Official launch of Project Gunrunner.
October 2009 – Operation Fast and Furious begins, based on a review of Project Gunrunner by the ATF Organized Crime Drug Enforcement Task Force (OCDETF).
January 2010 – Bureau of Alcohol, Tobacco, Firearms agents tell the staff of Senator Charles Grassley (R-Iowa), member of the Senate Judiciary Committee, that the ATF allowed straw buyer Jaime Avila to make repeated purchases of guns after his name had been entered into a “suspect person database” on January 13, 2009.
December 14, 2011 – Border patrol agent Brian Terry is killed in the Arizona desert, and two weapons the ATF allowed to be purchased earlier in 2010 by purported “straw buyer” Jaime Avila are found near the shooting scene. It is unknown whether any of the guns were used as the murder weapon.
January 25, 2011 – The Department of Justice announces the end of Operation Fast and Furious, with the indictments of 34 drug and firearm trafficking suspects.
March 3, 2011 – ATF Acting Director Kenneth Melson announces the formation of a panel to “review the bureau’s current firearms trafficking strategies employed by field division managers and special agents.”
April 1, 2011 – Acting Director Melson is issued a subpoena from the House Oversight and Government Reform Committee.
May 3, 2011 – Attorney General Eric Holder testifies for the first time before the House Judiciary Committee that he had first heard of Operation Fast and Furious only over the past few weeks.
June 2011 – Whistleblowers testify before the House Oversight committee. ATF agent John Dodson tells lawmakers, “I cannot begin to think how the risk of letting guns fall into the hands of known criminals could possibly advance any legitimate law enforcement interest.”
July 26, 2011 – The House Oversight and Government Reform Committee holds a second hearing.
August 30, 2011 – Melson is reassigned to the Justice Department, and is replaced by B. Todd Jones.
October 12, 2011 – Congressional investigators issue a subpoena for communications from Attorney General Holder relating to the federal gunrunning operation.
October 2011 – Investigators uncover memos indicating Attorney General Holder had known about Operation Fast and Furious for close to a year, not a few weeks as he had stated in May 2011.
November 7, 2011 – A federal grand jury in the District of Arizona hands up an 11-count indictment. It alleges that on December 14, 2010, five of the defendants (Manuel Osorio-Arellanes, Jesus Rosario Favela-Astorga, Ivan Soto-Barraza, Heraclio Osorio-Arellanes and Lionel Portillo-Meza) were involved in a firefight with Border Patrol agents during which Terry was fatally shot. The men are charged with first-degree murder, second-degree murder, conspiracy to interfere with commerce by robbery, attempted interference with commerce by robbery, carrying and using a firearm during a crime of violence, assault on a federal officer and possession of a firearm by a prohibited person. The indictment is unsealed on July 9th, 2012.
November 8, 2011 – Attorney General Holder testifies before the Senate Judiciary Committee that, “this operation was flawed in concept, as well as in execution.”
February 1, 2012 – The family of ATF agent Brian Terry files a $25 million wrongful death claim against the United States.
February 2, 2012 – Attorney General Holder testifies before the House Oversight and Government Reform Committee that firings and charges against Justice Department officials who oversaw Fast and Furious are likely to come in the next six months. He also denies any cover-up.
June 12, 2012 – Attorney General Holder testifies before the U.S. Senate Committee on the Judiciary, and rejects calls for his resignation.
June 20, 2012 – The House Oversight and Government Reform Committee recommends that Attorney General Holder be cited for contempt of Congress for failing to turn over documents relating to the Fast and Furious operation.
June 20, 2012 – President Barack Obama asserts executive privilege over the documents sought by the investigating committee. This prevents future prosecution of Holder.
June 28, 2012 – The House of Representatives votes 255-67 to hold Holder in criminal contempt. This is the first time in American history that the head of the Justice Department has been held in contempt by Congress.
July 31, 2012 – The first of a three-part joint staff Congressional report is released, Fast and Furious: Anatomy of a Failed Operation, which lays blame for the failed gun-running probe on Acting ATF Director Kenneth Melson and Deputy Director William Hoover.
July 31, 2012 – ATF Deputy Director William Hoover resigns.
August 13, 2012 – The House Oversight Committee files a civil lawsuit against Holder over Operation Fast and Furious documents.
September 6, 2012 – Mexican authorities arrest Leonel Sanchez Jesus Meza, wanted in the killing of Border Patrol agent Brian Terry.
September 19, 2012 – Department of Justice Inspector General Michael Horowitz releases a report on the operation. The report finds 14 employees of the ATF and the Justice Department responsible for management failures. After the release, former acting ATF head Kenneth Melson retires and former Deputy Assistant Attorney General Jason Weinstein resigns.
December 13, 2012 – Jaime Avila is sentenced to 57 months in prison for his role in buying weapons that were found at the site of the killing of patrol agent Brian A. Terry.
ATF gunwalking scandal
“Gunwalking“, or “letting guns walk“, was a tactic of the Arizona Field Office of the United States Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), which ran a series of sting operations between 2006and 2011 in the Tucson and Phoenix area where the ATF “purposely allowed licensed firearms dealers to sell weapons to illegal straw buyers, hoping to track the guns to Mexican drug cartel leaders and arrest them.” These operations were done under the umbrella of Project Gunrunner, a project intended to stem the flow of firearms into Mexico by interdicting straw purchasers and gun traffickers within the United States. The Chambers case[who?] began in October 2009, and eventually became known in February 2010 as “Operation Fast and Furious” after agents discovered some of the suspects under investigation belonged to a car club.
The stated goal of allowing these purchases was to continue to track the firearms as they were transferred to higher-level traffickers and key figures in Mexican cartels, with the expectation that this would lead to their arrests and the dismantling of the cartels. The tactic was questioned during the operations by a number of people, including ATF field agents and cooperating licensed gun dealers. During Operation Fast and Furious, the largest “gunwalking” probe, the ATF monitored the sale of about 2,000:203 firearms, of which only 710 were recovered as of February 2012.:203 A number of straw purchasers have been arrested and indicted; however, as of October 2011, none of the targeted high-level cartel figures had been arrested.
Guns tracked by the ATF have been found at crime scenes on both sides of the Mexico–United States border, and the scene where United States Border Patrol Agent Brian Terry was killed December 2010. The “gunwalking” operations became public in the aftermath of Terry’s murder. Dissenting ATF agents came forward to Congress in response. According to Humberto Benítez Treviño, former Mexican Attorney General and chair of the justice committee in the Chamber of Deputies, related firearms have been found at numerous crime scenes in Mexico where at least 150 Mexican civilians were maimed or killed. Revelations of “gunwalking” led to controversy in both countries, and diplomatic relations were damaged.
As a result of a dispute over the release of Justice Department documents related to the scandal, Attorney General Eric Holder became the first sitting member of theCabinet of the United States to be held in contempt of Congress on June 28, 2012. Earlier that month, President Barack Obama had invoked executive privilegefor the first time in his presidency over the same documents.
One 20-year veteran of ATF’s Tucson office told us that before Operation Wide Receiver, all of ATF’s trafficking cases were very similar in their simplicity: ATF would get a tip from an FFL[Federal Firearms Licensee] about a buyer who wanted a large number of firearms and information about when the transaction was scheduled to take place, and would set up surveillance and arrest the buyer when he headed southbound or at the border. Sometimes the initial buyer would cooperate with ATF, and agents would arrest the actual buyer when he showed up to take possession of the guns. If the guns went to a stash house, agents would speak with subjects at the stash house or conduct a search of the stash house. This agent told us that ATF interdicted guns as a matter of course and had been “content to make the little cases,” but that Wide Receiver represented a “different direction” from ATF’s typical practice.
ATF “gunwalking” operations were, in part, a response to longstanding criticism of the bureau for focusing on relatively minor gun violations while failing to target high-level gun smuggling figures. U.S. firearms laws currently govern the possession and transfer of firearms and provide penalties for the violation of such laws. “Gun trafficking”, although not defined by statute, essentially includes the movement or diversion of firearms from legal to illegal markets.:Summary A 2009 GAO report on efforts to combat arms trafficking to Mexico notes that straw purchasing is not in itself illegal, although it is illegal to provide false information in connection with a purchase.
Four federal statutes govern U.S. commerce of firearms domestically and internationally. Many states supplement these federal statutes and have firearms laws of their own that are stricter. For example, some states require permits to obtain firearms and impose a waiting period for firearm transfers. Domestic commerce and importations into the United States are generally regulated under the National Firearms Act of 1934 (NFA) and the Gun Control Act of 1968 (GCA). The exportation of firearms from the United States is regulated by the Arms Export Control Act of 1976 and, to a lesser extent, the Export Administration Regulations (EAR).:3
Defendants are often prosecuted and convicted under provisions of statutes such as the GCA that make it unlawful for certain persons to be in possession of firearms, govern the transaction process of obtaining firearms (e.g., straw purchases), and contain penalties for the use of a firearm in a crime of violence or a drug trafficking crime, or penalties for knowingly or fraudulently smuggling goods that would be contrary to U.S. law and regulation.:18
In a 2012 case in San Juan, Texas, under existing 1968 Gun Control Act provisions on straw purchasing (Title 18 United States Code, Section 924(a)(1)(A)), straw purchaser Taisa Garcia received 33 months and buyer Marco Villalobos received 46 months, plus two years supervision after release. In another Texas gun trafficking case, Oscar Bravo Hernandez received a sentence of 84 months for buying and sending to Mexico at least 55 firearms from a ring of nine straw purchasers who received sentences from 51 months for the most involved down to three years probation for the least involved.
According to twenty-year ATF veteran Jay Wachtel, letting guns “walk” has been a practice done in a controlled manner that involved surveillance and eventual seizure of the weapons. “The idea was that you would follow it long enough until you were sure you had enough probable cause” to initiate an arrest, Wachtel said.According to ATF field agents involved in Operation Fast and Furious, a part of Project Gunrunner, “ATF agents were trained to interdict guns and prevent criminals from obtaining them” and not to allow guns to walk and then disappear. ATF agents assigned to Phoenix from other districts to work on Fast and Furious were critical of the operation.
There have been allegations of “gunwalking” in at least 10 cities in five states. The most widely known and controversial operations took place in Arizona under the ATF’s Phoenix, Arizona field division.
2006–2008: Operation Wide Receiver and other probes
Operation Wide Receiver
The first known ATF “gunwalking” operation to Mexican drug cartels, named Operation Wide Receiver, began in early 2006 and ran into late 2007. Licensed dealer Mike Detty of Mad Dawg Global informed the ATF of a suspicious gun purchase that took place in February 2006 in Tucson, Arizona. In March he was hired as a confidential informant working with the ATF’s Tucson office, part of their Phoenix, Arizona field division.
With the use of surveillance equipment, ATF agents monitored additional sales by Detty to straw purchasers. With assurance from ATF “that Mexican officials would be conducting surveillance or interdictions when guns got to the other side of the border”, Detty would sell a total of about 450 guns during the operation. These included AR-15s, semi-automatic AK-pattern rifles, and Colt .38s. The majority of the guns were eventually lost as they moved into Mexico.
As the later DOJ OIG Report documented, under Wide Receiver coordination of ATF Tucson with the ATF Mexico City Office (MCO) and with Mexican law enforcement had been haphazard. Discussions of getting tracking devices from Raytheon were not followed up. ATF field agents and the cooperating gun dealer had been told by ATF supervisors that the guns were being interdicted before they could reach Mexico, but only 64 of the 474 guns had actually been seized. The kingpin sought by walking the guns, Israel Egurrola-Leon, turned out to be the target of a larger drug case Operation Iron River run by OCDETF. After Operation Wide Receiver was ended, several attorneys at the Phoenix USAO who reviewed the Wide Receiver cases for prosecution found the cases had been so poorly managed that they were reluctant to bring any of them to trial.
At the time, under the Bush administration Department of Justice (DOJ), no arrests or indictments were made. After President Barack Obama took office in 2009, the DOJ reviewed Wide Receiver and found that guns had been allowed into the hands of suspected gun traffickers. Indictments began in 2010, over three years after Wide Receiver concluded. As of October 4, 2011, nine people had been charged with making false statements in acquisition of firearms and illicit transfer, shipment or delivery of firearms. As of November, charges against one defendant had been dropped; five of them had pled guilty, and one had been sentenced to one year and one day in prison. Two of them remained fugitives.
The Hernandez case
Another, smaller probe occurred in 2007 under the same ATF Phoenix field division. The Fidel Hernandez case began when the ATF identified Mexican suspects who bought weapons from a Phoenix gun shop over a span of several months. The probe ultimately involved over 200 guns, a dozen of which were lost in Mexico. On September 27, 2007, ATF agents saw the original suspects buying weapons at the same store and followed them toward the Mexican border. The ATF informed the Mexican government when the suspects successfully crossed the border, but Mexican law enforcement were unable to track them.
Less than two weeks later, on October 6, William Newell, then ATF’s Special Agent in Charge (SAC) of the Phoenix field division, shut down the operation at the behest of William Hoover, ATF’s assistant director for the office of field operations. No charges were filed. Newell, who was Phoenix ATF SAC from June 2006 to May 2011, would later play a major role in Operation Fast and Furious.
The Hernandez case was referenced in a briefing paper prepared for Attorney General Michael Mukasey prior to his meeting with the Mexican Attorney General Medina Mora on November 16, 2007. The paper stated, “ATF has recently worked jointly with Mexico on the first-ever attempt to have a controlled delivery of weapons being smuggled into Mexico by a major arms trafficker” and that “the first attempts at this controlled delivery have not been successful.” The paper also stated, “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.”
Investigators regarded the Hernandez Case as an example of “controlled delivery” with surveillance and involvement of Mexican authorities rather than “gunwalking” or failure to attempt interdiction.
The Medrano case[
The 2008 Alejandro Medrano case involved both ATF SAC William Newell and cooperating Tucson gun dealer Mike Detty of Operation Wide Receiver. ATF Phoenix allowed about 100 guns to be taken into Mexico over the objections of U.S. Immigration and Customs Enforcement (ICE) personnel who became aware of the case. Phoenix ATF SAC Newell acknowledged to ICE “that letting guns cross the border was part of ATF’s plan”. In August 2010, Medrano was sentenced to 46 months, his associate Hernan Ramos received 50 months and their fellow conspirators received prison terms from 14 to 30 months, but the target, a Sinaloa Cartel kingpin, Javier Elenes Ruiz, nicknamed “Rambo,” remained untouched inside Mexico.
2009–2011: Operation Fast and Furious
On October 26, 2009, a teleconference was held at the Department of Justice in Washington, D.C. to discuss U.S. strategy for combating Mexican drug cartels. Participating in the meeting were Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny A. Breuer, acting ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Director of the Federal Bureau of Investigation Robert Mueller and the top federal prosecutors in theSouthwestern border states. They decided on a strategy to identify and eliminate entire arms trafficking networks rather than low-level buyers. Those at the meeting apparently did not suggest using the “gunwalking” tactic, but Phoenix ATF supervisors would soon use it in an attempt to achieve the desired goals.
The strategy of targeting high-level individuals, which was already ATF policy, would be implemented by Bill Newell, special agent in charge of ATF’s Phoenix field division. In order to accomplish it, the office decided to monitor suspicious firearms purchases which federal prosecutors had determined lacked sufficient evidence for prosecution, as laid out in a January 2010 briefing paper. This was said to be allowed under ATF regulations and given legal backing by U.S. Attorney for the District of Arizona Dennis K. Burke. It was additionally approved and funded by a Justice Department task force. However, long-standing DOJ and ATF policy has required suspected illegal arms shipments to be intercepted.
The operation began on October 31, 2009, when a local gun store reported to the Phoenix ATF that four individuals had purchased multiple AK47 style rifles. In November 2009, the Phoenix office’s Group VII, which would be the lead investigative group in Fast and Furious, began to follow a prolific gun trafficker. He had bought 34 firearms in 24 days, and he and his associates bought 212 more in the next month. The case soon grew to over two dozen straw purchasers, the most prolific of which would ultimately buy more than 600 weapons. The effort would come to be called Operation Fast and Furious for the successful film franchise, because some of the suspects under investigation operated out of an auto repair store and street raced.
Under the previous Operation Wide Receiver, there had been a formal ATF contract with the cooperating gun dealer and efforts were made to involve the ATF Mexico City Office (MCO) and Mexican law enforcement. Under Operation Fast and Furious, at Newell’s insistence the cooperating gun dealers did not have contracts with ATF, and MCO and Mexican police were left in the dark.
According to internal ATF documents, the operation was initially run in conjunction with the Phoenix DEA Organized Crime Drug Enforcement Task Force(OCDETF). On January 26, 2010, ATF formally applied to the Justice Department in Washington for funding through the OCDETF program. When it won approval and received additional funding, Operation Fast and Furious was reorganized as a Strike Force that included agents from ATF, FBI, DEA, and the ICE component of the Department of Homeland Security, which would be run through the U.S. Attorney’s office rather than the ATF. This new Strike Force designation allowed the operation to take advantage of sophisticated surveillance techniques such as federal wiretaps, which would require court orders and interaction from Justice Department officials in Washington, D.C. since federal law requires certain individuals to review evidence and certify the necessity of such techniques.
The dealers involved became concerned as months went by and the same individuals they reported to ATF as suspected straw purchasers returned and repeatedly bought identical weapons. As they later told the DOJ OIG, their previous experience was that after they reported a suspected straw to ATF, they did not see the straw again unless subpoenaed to testify against the straw at trial. One cooperating dealer expressed his concerns in a series of emails in April and June 2010 to GS David Voth, who assured the dealer that ATF was monitoring the suspects using a variety of techniques that he could not discuss in detail.
The tactic of letting guns walk, rather than interdicting them and arresting the buyers, led to controversy within the ATF. As the case continued, several members of Group VII, including John Dodson and Olindo Casa, became increasingly upset at the tactic of allowing guns to walk. Their standard Project Gunrunner training was to follow the straw purchasers to the hand-off to the cartel buyers, then arrest both parties and seize the guns. But according to Dodson, they watched guns being bought illegally and stashed on a daily basis, while their supervisors, including David Voth and Hope MacAllister, prevented the agents from intervening.
However, other accounts of the operation insist that ATF agents were prevented from intervening not by ATF officials, but rather by federal prosecutors with the Attorney General’s office, who were unsure of whether the agents had sufficient evidence to arrest suspected straw-buyers. According to some reports, many agents insisted they were prevented from making arrests because prosecutors were unwilling to engage in what could become a potentially contentious political battle over Second Amendment rights during an election year, particularly given the difficult nature of prosecuting straw buyers, and the weak penalties associated with it, even if successful. Instead, prosecutors instructed ATF agents not to make arrests, but rather continue collecting evidence in order to build a stronger case. One tactic proposed for doing so was a wiretap of suspected straw-buyers, in an attempt to link the suspects to criminal activities taking place on the Mexican side of the border. Between March 20 and July 30, 2010, nine wiretaps were sought and approved by Justice Department officials, resulting in a significant delay in concluding the case.:247,274
One of the central targeted individuals was Manuel Fabian Celis-Acosta. By December 2009, Celis-Acosta was being investigated by the ATF, which had placed a secret pole camera outside his Phoenix home to track his movements. Around this time, apparently by chance, ATF agents discovered Celis-Acosta was also a potential criminal target of the DEA, which was operating a wire room to monitor live wiretaps in order to track him. On April 2, 2010, Celis-Acosta was arrested on possession of cocaine and found in possession of a weapon purchased by Uriel Patino, who had already purchased at least 434 guns from cooperating gun dealers in the Phoenix area. By this time about a dozen ATF agents regularly surveilled Celis-Acosta as he recruited 20 friends and family to buy guns for him and regularly traveled to Texas to obtain funds from cartel associates to purchase firearms. On May 29, 2010, Celis-Acosta was detained in Lukeville, Arizona with 74 rounds of ammunition and 9 cell phones. He was then released by the chief ATF investigator on Fast and Furious, Hope MacAllister, after he promised to cooperate with her to find two specific Sinaloa cartel associates. After the redetention and arrest of Celis-Acosta in February 2011, the ATF learned that the associates they were after were FBI/DEA paid informants, and one of them was Celis-Acosta’s financier. Since they were informants, they were unindictable under Operation Fast and Furious.
Later, the DOJ inspector General concluded: “We did not find persuasive evidence that agents sought to seize firearms or make arrests during the investigative stage of the case and were rebuffed by the prosecutor. … We found that the lack of seizures and arrests was primarily attributable to the pursuit of a strategic goal shared by both the [Phoenix] ATF and the U.S. Attorney’s Office—to eliminate a trafficking organization—and the belief that confronting subjects and seizing firearms could compromise that goal.”
By June 2010, suspects had purchased 1,608 firearms at a cost of over US$1 million at Phoenix-area gun shops. At that time, the ATF was also aware of 179 of those weapons being found at crime scenes in Mexico, and 130 in the United States. As guns traced to Fast and Furious began turning up at violent crime scenes in Mexico, ATF agents stationed there also voiced opposition.
On the evening of December 14, 2010, U.S. Border Patrol agent Brian Terry and others were patrolling Peck Canyon,Santa Cruz County, Arizona, 11 miles from the Mexican border. The group came across five suspected illegal immigrants. When they fired non-lethal beanbag guns, the suspects responded with their own weapons, leading to a firefight. Terry was shot and killed; four of the suspects were arrested and two AK-pattern rifles were found nearby. The Attorney General’s office was immediately notified of the shooting incident by email. The rifles were traced within hours of the shooting to a Phoenix store involved in the Fast and Furious operation, but the bullet that killed Terry was too badly damaged to be conclusively linked to either gun. Acting Deputy Attorney General Gary Grindler and Deputy Chief of Staff Monty Wilkinson were informed about the guns, but they didn’t believe the information was sufficiently important to alert the Attorney General about it or to make any further inquiry regarding the development.:297
After hearing of the incident, Dodson contacted ATF headquarters, ATF’s chief counsel, the ATF ethics section and the Justice Department’s Office of the Inspector General, none of whom immediately responded. He and other agents then contacted Senator Chuck Grassley of Iowa (R–IA), ranking member of the Senate Judiciary Committee, who would become a major figure in the investigation of “gunwalking.” At the same time, information began leaking to various bloggers and Web sites.
On January 25, 2011, Burke announced the first details of the case to become officially public, marking the end of Operation Fast and Furious. At a news conference in Phoenix, he reported a 53-count indictment of 20 suspects for buying hundreds of guns intended for illegal export between September 2009 and December 2010. Newell, who was at the conference, called Fast and Furious a “phenomenal case,” while denying that guns had been deliberately allowed to walk into Mexico.
Altogether, about 2,000 firearms were bought by straw purchasers during Fast and Furious.:203 These included AK-47 variants, Barrett .50 caliber sniper rifles, .38 caliber revolvers, and FN Five-sevens. As of October 20, 2011, 389 had been recovered in the US and 276 had been recovered in Mexico. The rest remained on the streets, unaccounted for. As of February 2012, the total number of recovered firearms was 710.:203 Most of the guns went to the Sinaloa Cartel, while others made their way to El Teo and La Familia.
Although most weapons were purchased by suspects under investigation by the program, there have been reports of at least one instance of ATF agents being directly involved in the transfer of weapons. On April 13, 2010, ATF Agent John Dodson, with assistance from Agents Casa and Alt, directed a cooperating straw purchaser to give three guns to Isaiah Fernandez, a suspected gun trafficker, and had taped the conversations without prosecutor approval.
After being instructed by his superiors to obtain approval from prosecutors (albeit retroactively), Dodson’s proposal was later rejected by his immediate superior David Voth, although he later received permission from Voth’s supervisor after submitting a written proposal for the program. On June 1, 2010, Dodson used $2,500 of ATF funds to purchase six AK Draco pistols from local gun dealers, which he then gave to Mr. Fernandez, who reimbursed him for the expense of the guns, plus $700 for his assistance. Two days later, Agent Dodson went on a scheduled vacation without interdicting the weapons. As a result, the weapons were never recovered, no arrests were ever made, and the case was closed without charges being filed.
According to the DOJ OIG report, Agent Dodson, as the undercover posing as a straw buyer, was not expected to surveil the weapons after hand-off to Fernandez. Other ATF agents followed the weapons to a storage facility; then surveillance was terminated without interdiction. The Fernandez case was dropped from Fast and Furious after it was determined that Fernandez was not connected to Mexican cartels and had ceased buying guns for resale.
Aftermath and reaction
Fate of walked guns
Since the end of Operation Fast and Furious, related firearms have continued to be discovered in criminal hands. As reported in September 2011, the Mexican government stated that an undisclosed number of guns found at about 170 crime scenes were linked to Fast and Furious. U.S. Representative Darrell Issa (R–Calif.–49) estimated that more than 200 Mexicans were killed by guns linked to the operation. Reflecting on the operation, Attorney General Eric Holder said that theUnited States government is “…losing the battle to stop the flow of illegal guns to Mexico,” and that the effects of Operation Fast and Furious will most likely continue to be felt for years, as more walked guns appear at Mexican crime scenes.
In April 2011, a large cache of weapons, 40 traced to Fast and Furious but also including military-grade weapons difficult to obtain legally in the US such as an anti-aircraft machine gun and grenade launcher, was found in the home of Jose Antonio Torres Marrufo, a prominent Sinaloa Cartel member, in Ciudad Juárez, Mexico. Torres Marrufo was indicted, but evaded law enforcement for a brief time. Finally, on February 4, 2012, Marrufo was arrested by the Mexican Police.
On May 29, 2011, four Mexican Federal Police helicopters attacked a cartel compound, where they were met with heavy fire, including from a .50 caliber rifle. According to a report from the House Committee on Oversight and Government Reform, this rifle is likely linked to Fast and Furious.
There have been questions raised over a possible connection between Fast and Furious and the death of U.S. Immigration and Customs Enforcement agent Jaime Zapata on February 15, 2011. The gun used to kill Zapata was purchased by Otilio Osorio in the Dallas/Fort Worth Metroplex, Texas (outside the area of responsibility for the ATF Phoenix field division which conducted Fast and Furious), and then smuggled into Mexico. Congressional investigators have stated that Osorio was known by the ATF to be a straw purchaser months before he purchased the gun used to kill Zapata, leading them to question ATF surveillance tacticsand to suspect a Texas-based operation similar to Fast and Furious.
In addition to Otilio Osorio, a Texas-based drug and gun trafficker, Manuel Barba, was involved trafficking another of the guns recovered in the Zapata shooting. The timeline of this case, called “Baytown Crew”, shows guns were allowed to walk during surveillance that began June 7, 2010. On August 20, 2010, Barba received a rifle later recovered in the Zapata ambush and sent it with nine others to Mexico. The warrant for Barba’s arrest was issued February 14, 2011, the day before Zapata was shot. On January 30, 2012, Barba, who claimed to be working with Los Zetas in illegally exporting at least 44 weapons purchased through straw buyers, was sentenced to 100 months in prison.
On November 23, 2012, two firearms linked to the ATF were found at the scene of a shootout between Sinaloa cartel members and the Mexican military. One of the weapons was an AK-47 type rifle trafficked by Fast and Furious suspect Uriel Patino, and the other was an FN Herstal pistol originally purchased by an ATF agent. Mexican beauty queen Maria Susana Flores Gamez and four others were killed.
Investigations and fallout
In the U.S. Congress, Representative Darrell Issa (R–CA–49), chairman of the House Committee on Oversight and Government Reform, and Senator Chuck Grassley(R–IA), ranking member of the Senate Judiciary Committee, have been leading investigations of “gunwalking” operations. There have also been investigations by the United States Department of Justice Office of the Inspector General and others.
On January 27, 2011, Grassley wrote a letter to ATF Acting Director Kenneth E. Melson requesting information about the ATF-sanctioned sale of hundreds of firearms to straw purchasers. The letter mentioned a number of allegations that walked guns were used in the fight that killed Border Patrol Agent Brian Terry. A second letter from Grassley on January 31 accused the ATF of targeting whistleblowers.
On February 4, after review and comment from dozens of officials in the Justice Department Criminal Division, the Office of the Deputy Attorney General, the U.S. Attorney’s Office in Phoenix, and ATF Headquarters,:332 Assistant Attorney General Ronald Weich sent a response to Grassley regarding his two letters. Weich said claims “…that (the) ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them to Mexico [are] false. ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” On February 28, Attorney GeneralEric Holder requested that the Department of Justice‘s Inspector General begin an investigation of Fast and Furious.
On March 23, President Barack Obama appeared on Univision and spoke about the “gunwalking” controversy. He said that neither he nor Attorney General Holder authorized Fast and Furious. He also stated, “There may be a situation here in which a serious mistake was made, and if that’s the case then we’ll find out and we’ll hold somebody accountable.”
On May 3, Attorney General Holder testified to the House Judiciary Committee that he did not know who approved Fast and Furious, but that it was being investigated. He also stated that he “probably heard about Fast and Furious for the first time over the last few weeks,” a claim which would later be questioned as explained below.
In June, ATF Agent Vince Cefalu, who helped to publicize Fast and Furious, was served with termination papers, in a move by the agency he described as politically motivated retaliation. He had been at odds with ATF management since he filed a complaint over tactics in an unrelated case in 2005. The ATF denied that the firing was retaliation, and Cefalu’s termination letter noted that he leaked documents to the Internet and showed a “lack of candor” in other operations.
On June 14, 2011, a preliminary joint staff report was released by Representative Issa and Senator Grassley. Among the findings: agents were told to stand down rather than interdict weapons, they complained about the strategy and were ignored, and Fast and Furious led to increased violence and death in Mexico. Agents were panicked, certain that “someone was going to die.”
Representative Issa continued to hold hearings in June and July where ATF officials based in Phoenix and Mexico, and at headquarters in Washington, testified before the committee. ATF agent John Dodson stated that he and other agents were ordered to observe the activities of gun smugglers but not to intervene. He testified:
Over the course of the next 10 months that I was involved in this operation, we monitored as they purchased hand guns, AK-47 variants, and .50 caliberrifles almost daily. Rather than conduct any enforcement actions, we took notes, we recorded observations, we tracked movements of these individuals for a short time after their purchases, but nothing more. Knowing all the while, just days after these purchases, the guns that we saw these individuals buy would begin turning up at crime scenes in the United States and Mexico, we still did nothing. …
I cannot begin to think of how the risk of letting guns fall into the hands of known criminals could possibly advance any legitimate law enforcement interest.
A second joint staff report was released by the Republicans on July 26.
In August, three important Fast and Furious supervisors were transferred to new management positions at ATF headquarters in Washington: William Newell and David Voth, field supervisors who oversaw the program from Phoenix, and William McMahon, an ATF deputy director of operations. The transfers were initially reported as promotions by the Los Angeles Times, but the ATF stated that they did not receive raises or take on greater responsibilities. In late August, it was announced that Acting ATF Director Melson had been reassigned to the Justice Department, and U.S. Attorney Burke announced his resignation after being questioned by Congressional investigators earlier that month.
In October, documents showing that Attorney General Holder’s office had been sent briefings on Fast and Furious as early as July 2010, prompted questions about his May statement that he wasn’t sure of the exact date, but had known about it for only a few weeks. The briefings were from the National Drug Intelligence Center andAssistant Attorney General Lanny Breuer. The Justice Department said that those briefings were about a different case started before Holder became Attorney General, and that while he had known about Fast and Furious, he didn’t know the details of the tactics being used.
On October 31, 2011, after the release of subpoenaed documents, Assistant Attorney General Lanny Breuer stated he found out about gunwalking in Operation Wide Receiver in April 2010, and that he wished he had alerted the deputy or the attorney general at the time. The following day, in testimony before the Senate Judicial Committee in a hearing on International Organized Crime, when asked if he had reviewed the letter before it was sent to Senator Charles Grassley on February 4, 2011 denying gunwalking, Breuer replied, “I cannot say for sure whether I saw a draft of the letter that was sent to you. What I can tell you, Senator, is that at that time I was in Mexico dealing with the very real issues that we’re all so committed to.”
On November 8, Holder stated for the first time in Congressional testimony that “gunwalking” was used in Fast and Furious. He remarked that the tactic is unacceptable, and that the operation was “flawed in its concept and flawed in its execution.” He further stated that his office had inaccurately described the program in previous letters sent to Congress, but that this was unintentional. Reiterating previous testimony, he said that he and other top officials had been unaware that the “gunwalking” tactic was being used. Holder stated that his staff had not showed him memos about the program, noting, “There is nothing in any of those memos that indicates any of those inappropriate tactics that are of concern. Those things were not brought to my attention, and my staff, I think, made the correct decision in that regard.”
That same month, ex-US Attorney Burke admitted to leaking sensitive documents about ATF agent and whistleblower Dodson. Senator Grassley expressed concern that the Justice Department was using Burke as a scapegoat to protect higher officials and vowed to continue his probe.
On December 2, 2011, the Justice Department formally withdrew its statement from February 4, 2011 denying gunwalking due to inaccuracies.
Later that month, documents showed that some ATF agents discussed using Fast and Furious to provide anecdotal cases to support controversial new rules about gun sales. The regulation, called Demand Letter 3, would require 8,500 firearms dealers in Arizona, California, New Mexico and Texas that “have a significant number of crime guns traced back to them from Mexico” to report multiple rifle sales.
Investigations by Congress and the DOJ Inspector General continued into 2012. In January, Patrick Cunningham, who was the criminal division chief at the Phoenix office of the U.S. Attorney’s Office for the District of Arizona and has since resigned, asserted his innocence and his constitutional right against self-incrimination to avoid testifying. Cunningham worked directly under Burke during Fast and Furious. He was subpoenaed because of the role he might have played in the operation, and in the letter sent from the DOJ to Senator Grassley in February 2011 that claimed the ATF did not allow weapons to be trafficked to Mexico.
On January 31, 2012, Democrats on the House Oversight and Government Reform Committee released a report titled, “Fatally Flawed: Five Years of Gunwalking in Arizona”. The report concluded that there was no evidence of involvement by high-ranking appointees at the Justice Department in “gunwalking.” Rather, Operation Fast and Furious was just one of four such operations conducted over five years during the Bush and Obama administrations, and was only “the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney’s Office.”
In May, it was reported that the Department of Homeland Security (DHS) Office of Inspector General had begun to investigate Fast and Furious, with a report expected in October. The DHS had Immigration and Customs Enforcement agents assigned to the operation after becoming involved in late 2009.
On May 3, 2012, Congressman Issa released a letter to the Committee on Oversight and Government Reform that included a draft of a resolution to hold Attorney General Holder in contempt. In the letter, Issa described the connection between Operation Fast and Furious and the OCDETF program since at least January 2009, which would involve multiple executive agencies including the ATF, DOJ, DEA, FBI, ICE, and DHS. He questioned how, why, or if oversight by high level Justice Department did not occur in such an important case. He further described the tragic death of Brian Terry, the whistleblowers and their mistreatment, and the damage the operation had to US-Mexico relations.
On June 7, 2012, under the threat of being held in contempt of Congress for not turning over additional requested documents, Attorney General Holder appeared at his seventh Congressional hearing, where he continued to deny knowledge of “gunwalking” by high-level officials. By then, the Justice Department had turned over more than 7,000 pages of documents.
During the June 12, 2012, Senate hearing, Eric Holder stated, “If you want to talk about Fast and Furious, I’m the Attorney General that put an end to the misguided tactics that were used in Fast and Furious. An Attorney General who I suppose you would hold in higher regard was briefed on these kinds of tactics in an operation called Wide Receiver and did nothing to stop them—nothing. Three hundred guns, at least, walked in that instance.” Holder cited a briefing paper on “Wide Receiver”; the DOJ Office of Legislative Affairs later clarified that the briefing paper was about the Fidel Hernandez case, prepared for Holder’s predecessor, U.S. Attorney General Michael Mukasey before his meeting with Mexican Attorney General Mora on November 16, 2007. The Hernandez Case had ended October 6, 2007,before Mukasey entered office November 9, 2007. The office further explained, “As Attorney General Holder also noted in his testimony, and as we have set forth in prior correspondence and testimony, he took measures and instituted a series of important reforms designed to ensure that the inappropriate tactics used in Fast and Furious, Wide Receiver, Hernandez, and other matters about which the Department has informed Congress are not repeated.” The later DOJ OIG investigation concluded “Attorney General Mukasey was not briefed about Operation Wide Receiver or gun “walking,” but on a different and traditional law enforcement tactic that was employed in a different case.”
On June 20, the House Oversight and Government Reform Committee voted along party lines to recommend that Holder be held in contempt. At issue were 1,300 pages of documents that had not been turned over to Congress by the DOJ. Earlier that day, President Obama had invoked executive privilege over those documents, marking the first time the privilege has been asserted during his presidency. Issa contends that the Obama executive privilege claim is a cover-up or an obstruction to the congressional probe. Issa said the department has identified “140,000 pages of documents and communications responsive to the committee’s subpoena.”
On Thursday, June 28, 2012, Holder became the first sitting member of the Cabinet of the United States to be held in criminal contempt of Congress by the House of Representatives for refusing to disclose internal Justice Department documents in response to a subpoena. The vote was 255–67 in favor, with 17 Democrats voting yes and a large number of Democrats walking off the floor in protest and refusing to vote. A civil contempt measure was also voted on and passed, 258–95. The civil contempt vote allows the House Committee on Oversight and Government Reform to go to court with a civil lawsuit to look into the US Justice Department’s refusal to turn over some of the subpoenaed documents and to test Obama’s assertion of executive privilege. Holder dismissed the votes as “the regrettable culmination of what became a misguided—and politically motivated—investigation during an election year,” and the White House called it “political theater rather than legitimate congressional oversight.” The National Rifle Association controversially lobbied for Holder to be held in contempt.
In June 2012, a six-month long investigation by Fortune magazine stated that the ATF never intentionally allowed guns to fall into the hands of Mexican drug cartels, in contrast to most other reports. Agents interviewed during the investigation repeatedly asserted that only one isolated incident of “gunwalking” ever occurred, and was performed independently by ATF Agent John Dodson (who later appeared on CBS News as a whistleblower to denounce the gunwalking scandal) as part of an unauthorized solo action outside the larger Fast and Furious operation.
On July 31, the first part of a new three-part report, Fast and Furious: The Anatomy of a Failed Operation, was released by Republican lawmakers. The report singled out five ATF supervisors for responsibility in Fast and Furious, all of whom had been previously reassigned. The report also said that Fast and Furious resulted from a change in strategy by the Obama Administration. The Justice Department was dismissive of the report, saying that it contained “distortions” and “debunked conspiracy theories,” and that “gunwalking” tactics dated back to 2006. DOJ spokeswoman Tracy Schmaler, while critical of the report, did credit it for acknowledging that the idea for “gun walking”—allowing illegal sales of weapons on the border—originated under the Republican administration before Eric Holder took office in 2009. Schmaler noted that Holder moved swiftly to replace the ATF’s management and instill reforms. On the same day, ATF Deputy Director William Hoover, who was one of the five blamed in the Congressional report, officially retired. The report included an appendix disputing claims in the Fortune article.Following its publication, Dodson’s lawyer wrote the managing editor of Fortune stating the article was “demonstrably false” and that a retraction was in order. AfterFortune did not retract the article, Dodson sued for libel on October 12, 2012.
On September 19, the Department of Justice Inspector General Michael Horowitz publicly released a 471-page report detailing the results of the Justice Department’s own internal investigations. The Inspector General’s report, which had access to evidence and interviews with witnesses not permitted in previous Congressional reports, recommended 14 federal officials for disciplinary action, ranging from ATF agents to federal prosecutors involved in the Fast and Furious operation. It found “no evidence” that Attorney General Holder knew about Fast and Furious before early 2011. It found no evidence that previous Attorneys General had been advised about gunwalking in Operation Wide Receiver.
While the OIG report found no evidence that higher officials at the Justice Department in Washington had authorized or approved of the tactics used in the Fast and Furious investigations, it did fault 14 lower officials for related failures, including failures to take note of “red flags” uncovered by the investigation, as well as failures to follow up on information produced through Operation Fast and Furious and its predecessor, Operation Wide Receiver. The report also noted ATF agents’ apparent frustrations over legal obstacles from the Phoenix Attorney’s Office to prosecuting suspected “straw-buyers,” while also criticizing the agents’ failure to quickly intervene and interdict weapons obtained by low-level suspects in the case. The 14 Justice Department employees were referred for possible internal discipline. The Justice Department’s Criminal Division head Lanny Breuer, an Obama administration presidential appointee, was cited for not alerting his bosses in 2010 to the flaws of Operation Wide Receiver. Deputy Assistant Attorney General Jason Weinstein, who was responsible for authorizing a portion of the wiretap applications in Operation Fast and Furious and faulted in the report for not identifying the gunwalking tactics, resigned on the day of the report.
On December 4, 2012, the ATF Professional Review Board delivered its recommendations to high-level ATF managers, who will decide whether to accept them. The recommendations included firing William McMahon, ATF Deputy Assistant Director; Mark Chait, ATF Assistant Director for Field Operations; William Newell, Phoenix ATF Special Agent in Charge; and George Gillett, Newell’s second in command. Two additional ATF employees, Phoenix supervisor David Voth and lead agent Hope McAllister, received recommendations for demotion and disciplinary transfer to another ATF post, respectively. It was reported the next day that McMahon had been fired. It was also announced that Gary Grindler, Eric Holder’s chief of staff who was faulted in the OIG report, would be leaving the Justice Department. Later that month, the family of Brian Terry sued seven government officials and a gun shop involved in Operation Fast and Furious for negligence and wrongful death.
Agent John Dodson’s book on his experiences in Operation Fast and Furious was released by Simon and Schuster on December 3, 2013.
Related criminal prosecutions
On July 9, 2012, an indictment charging five men in the death of U.S. Border Patrol Agent Brian Terry was unsealed. The FBI offered a reward of $250,000 per fugitive for information leading to their arrests. The indictment, originally handed up on November 7, 2011, charges Manuel Osorio-Arellanes, Jesus Rosario Favela-Astorga, Ivan Soto-Barraza, Heraclio Osorio-Arellanes and Lionel Portillo-Meza with first-degree murder, second-degree murder, and other crimes. Manuel Osorio-Arellanes pled guilty to avoid the death penalty and is expected to be sentenced in March 2013. As of December 12, 2012, another of the suspects is in custody, and three remain fugitives.
On October 15, 2012, Danny Cruz Morones, one of the twenty individuals indicted as a result of Fast and Furious, was sentenced to 57 months in prison. He was the first of the twenty to be sentenced. He pled guilty to straw purchasing and recruiting others to buy guns. According to prosecutors, he bought 27 AK-47s, and his recruits bought dozens more.
On December 12, Jaime Avila, Jr. received the maximum penalty of 57 months in prison for gun dealing and conspiracy. He pled guilty after two AK-47 type rifles purchased by him were found at the scene of Border Patrol Agent Brian Terry’s death. Federal prosecutors stated that, in addition to gun trafficking, he had recruited others to do the same. He was under ATF surveillance at the time.
As more information on Operations Fast and Furious and Wide Receiver was revealed in 2011, Mexican officials, political commentators and media reacted with anger. Mexican officials stated in September that the U.S. government still had not briefed them on what went wrong nor had they apologized.
Due to several failed attempts at coordinating with Mexican law enforcement in the apprehension of suspected arms traffickers in the Wide Receiver and Hernandez cases, and concerns about widespread corruption, details of Operation Fast and Furious were not shared with Mexican government officials, and they were deliberately kept out of the loop after related firearms began turning up at crime scenes and in criminal arsenals in 2010. The U.S. Embassy in Mexico and the ATF Mexico City Office (MCO) were also kept in the dark. According to Attorney General of Mexico Marisela Morales, the Mexican government was told about the undercover program in January 2011, but they were not provided details at the time.
Morales stated, “At no time did we know or were we made aware that there might have been arms trafficking permitted. In no way would we have allowed it, because it is an attack on the safety of Mexicans.” In addition, she expressed that allowing weapons to “walk” would represent a “betrayal” of Mexico. Morales said that her office would search “to the end” in order to clarify what happened in Fast and Furious. In November 2011, it was reported that the Mexican Attorney General’s office was seeking the extradition of six citizens of the United States implicated with smuggling weapons.
Mexican Senator Arturo Escobar stated after hearing about Operation Wide Receiver, “We can no longer tolerate what is occurring. There must be condemnation from the state,” and that the Mexican Senate condemned the actions of the ATF.
Jorge Carlos Ramírez Marín, president of the Chamber of Deputies of Mexico from the Institutional Revolutionary Party, said “This is a serious violation of international law. What happens if next time they need to introduce trained assassins or nuclear weapons?”
Chihuahua state prosecutor Patricia Gonzalez, who had worked closely with the US for years, said, “The basic ineptitude of these officials [who ordered the Fast and Furious operation] caused the death of my brother and surely thousands more victims.” Her brother, Mario, had been kidnapped, tortured and killed by cartel hit men in fall 2010. Later, two AK-47 rifles found among the several weapons recovered after a gunfight between police and cartel members were traced to the Fast and Furious program.
Mexican Congressman Humberto Benítez Treviño, a former attorney general, called Fast and Furious “a bad business that got out of hand.” He had also characterized it as “an undercover program that wasn’t properly controlled.”
Like many politicians, Mexican pundits across the political spectrum expressed anger at news of both operations. La Jornada, a left-leaning newspaper, asked “US: ally or enemy?” The paper also argued that after news about Wide Receiver, the Mérida Initiative should be immediately suspended. A right-leaning paper accused the US of violating Mexican sovereignty. Manuel J. Jauregui of the Reforma newspaper wrote, “In sum, the gringo (American) government has been sending weapons to Mexico in a premeditated and systematic manner, knowing that their destinations were Mexican criminal organizations.”
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- Richard A. Serrano, “‘Fast and Furious’ probe: Chief suspect released more than once” Los Angeles Times, March 22, 2012.
- Richard A. Serrano, “Informant helped smuggle guns to Mexico, investigators say” Los Angeles Times, September 27, 2011.
- William La Jeunesse, “Main suspect in Operation Fast and Furious arrested twice before, report shows Fox News, April 14, 2012.
- Carrie Johnson, “Emails Show How ‘Fast And Furious’ Ambush News Unfolded At Justice Dept.” NPR, January 27, 2012.
- Joint Staff Report Part I Appendix III PDF “The Whole Truth About the Fast and Furious Scandal”, 7-31-12.
- Serrano, Richard A. (September 11, 2011). “Gun store owner had misgivings about ATF sting”. Los Angeles Times. Retrieved 23 June 2012.
- “200 mexicanos murieron por armas de ‘Rápido y Furioso’: congresista de EU”.CNN Mexico. October 28, 2011.
- “Eric Holder: Effects of Fast and Furious will linger”. Politico LLC. November 7, 2011. Retrieved November 8, 2011.
- Frieden, Terry (November 7, 2011). “El gobierno de EU admite que pierde la batalla contra el tráfico de armas”. CNN Mexico. Retrieved November 8, 2011.
- Longbottom, Wil (October 13, 2011). “U.S. Attorney General issued with subpoena in probe over ‘Fast and Furious’ gun trafficking”. Daily Mail (London). Retrieved October 24, 2011.
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- Ugarte, Marco (February 4, 2012). “Mexico arrested Jose Antonio Torres Marrufo, the reputed enforcer for the Sinaloa drug cartel.”. Los Angeles Times. Retrieved April 23, 2012.
- Serrano, Richard (July 17, 2011). “Family of U.S. agent slain in Mexico demands to know gun source”. Los Angeles Times. Retrieved November 15, 2011.
- Carroll, Susan. “Slain ICE agent’s family still searching for answers”. The Houston Chronicle. Retrieved November 15, 2011.
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- “Phoenix Field Division”. ATF. Retrieved November 15, 2011.
- Titus, Elizabeth. “Cornyn Presses Holder on Alleged Texas Operation”. The Texas Tribune. Retrieved November 15, 2011.
- “Timeline of “Baytown Crew” case.” (PDF). CBS News. Retrieved 2012-07-14.
- Sharyl Attkisson, “Second gun used in ICE agent murder linked to ATF undercover operation”, CBS News, February 22, 2012.
- Attkisson, Sharyl (19 December 2012). “Pistol purchased by ATF agent found at alleged cartel crime scene in Mexico”. CBS News. Retrieved 14 January 2013.
- Attkisson, Sharyl (18 December 2012). “Fast and Furious gun found at Mexican crime scene”. CBS News. Retrieved 14 January 2013.
- Serrano, Richard (August 16, 2011). “Supervisors in ATF gun operation are promoted”. Los Angeles Times. Retrieved January 13, 2012.
- Wagner, Dennis. “Phoenix-area gun store, ATF sting may be linked to shootout”. The Arizona Republic. Retrieved December 25, 2011.
- Lott, Maxim (February 2, 2011). “Senator Calls ATF on Allegations Agency Is Allowing Guns Into Mexico”. Fox News. Retrieved January 12, 2012.
- Salant, Jonathan (December 2, 2011). “Erroneous Gun Letter Based on U.S. Attorney, Documents Show”. Bloomberg. Retrieved January 13, 2012.
- Weich, Ronald. “Judiciary ATF 02-04-11 letter from DOJ deny allegations”. United States Senate. Retrieved January 13, 2012.
- Serrano, Richard (December 24, 2011). “Angry former ATF chief blames subordinates for Fast and Furious”. Los Angeles Times. Retrieved January 12, 2012.
- Attkisson, Sharyl. “Obama on “gunwalking”: Serious mistake may have been made”. CBS News. Retrieved January 13, 2012.[dead link]
- Attorney General Eric Holder Testimony Before the House Judiciary Committee; CSPAN; May 3, 2011.
- Hennessey, Kathleen (November 9, 2011). “Senate grills Holder on Fast and Furious gun-trafficking sting”. Los Angeles Times. Retrieved November 9, 2011.
- Attkisson, Sharyl. “Attorney General Eric Holder grilled by Congress on ATF “Gunwalker” controversy”. CBS News. Retrieved January 7, 2012.[dead link]
- Attkisson, Sharyl. “ATF Fast and Furious: New documents show Attorney General Eric Holder was briefed in July 2010”. CBS News. Retrieved January 7, 2012.[dead link]
- Lott, Maxim (June 27, 2011). “‘Project Gunrunner’ Whistleblower Says ATF Sent Him Termination Notice”. Fox News. Retrieved July 26, 2011.
- Lajeunesse, William (June 15, 2011). “House Panel Releases Scathing Report on ‘Fast and Furious’ Gun Operation, Sure to Anger Mexico”. Fox News. Retrieved January 13, 2012.
- Murphy, Kim (June 14, 2011). “Report describes gun agents’ ‘state of panic'”.Los Angeles Times. Retrieved January 13, 2012.
- La Jeunesse, William (June 10, 2011). “Justice Officials in ‘Panic Mode’ as Hearing Nears on Failed Anti-Gun Trafficking Program”. Fox News. Retrieved January 13, 2012.
- Johnson, Kevin (June 16, 2011). “ATF agent calls gun-tracking program a ‘disaster'”. USA Today. Retrieved January 13, 2012.
- Holub, Hugh. “Statement of John Dodson about ATF gunwalker scandal: “The very idea of letting guns walk is unthinkable to most law enforcement.””. Tucson Citizen. Retrieved January 13, 2012.
- Serrano, Richard (August 17, 2011). “ATF denies it promoted Fast and Furious supervisors”. Los Angeles Times. Retrieved January 13, 2012.
- Attkisson, Sharyl. “Gunwalker scandal: ATF director out of top job”. CBS News. Retrieved January 7, 2012.[dead link]
- Terry Frieden, Top Justice official expresses regret for failure to warn on ‘gun walking’ CNN, November 1, 2011.
- Carrie Johnson, “Official Admits ‘Mistake’ In Gun-Trafficking Case” NPR, November 1, 2011.
- “Senate Committee Hearing on International Organized Crime” CSPAN, November 1, 2011.
- Attkisson, Sharyl. “Eric Holder calls “gunwalking” unacceptable, regrets tactic as part of Fast and Furious”. CBS News. Retrieved January 7, 2012.
- “Holder emails” (PDF). Retrieved 2012-07-14.
- Dennis Wagner, “Ex-U.S. Attorney Burke admits to leaking whistle-blower’s records” The Arizona Republic, November 10, 2011.
- Carrie Johnson, “Justice Withdraws Inaccurate ‘Fast And Furious’ Letter It Sent To Congress” NPR, December 2, 2011.
- Sharyl Attkisson, “Documents: ATF used “Fast and Furious” to make the case for gun regulations”, CBS News, December 7, 2011.
- Savage, Charlie (January 31, 2012). “Report by House Democrats Absolves Administration in Gun Trafficking Case”. The New York Times. Retrieved January 31, 2012.
- Yager, Jordy. “Federal officer invokes Fifth in ‘Fast and Furious’ investigation”. The Hill. Retrieved January 22, 2012.
- Yost, Pete (February 1, 2012). “Dems: Fast & Furious just 1 of 4 misguided probes”. Associated Press. Retrieved March 11, 2012.
- Attkisson, Sharyl (May 22, 2012). “Homeland Security IG Investigates Fast and Furious”. CBS News. Retrieved 5 August 2012.
- Frieden, Terry (June 7, 2012). “Holder rejects GOP assertions on Fast and Furious at House hearing”. CNN. Retrieved 22 June 2012.
- “ATF Emails Discuss Bush-Era ‘Gun Walking’ Program” Page 2 email from William Newell to Carson W. Carroll 6 Oct 2007.
- Laurie Kellman (AP), “Mukasey confirmed as attorney general”, Washington Post, November 9, 2007.
- Issa: Obama executive privilege claim is cover-up or obstruction; Washington Times; June 26, 2012
- NRA sends Democrats a message over Holder contempt vote; CNN; July 2, 2012
- NRA Letter to the committee – June 20; National Rifle Association; June 20, 2012
- “House votes to hold attorney general in contempt”. Fox News. June 28, 2012. Retrieved 29 June 2012.
- Grant, David (June 27, 2012). “Why NRA wants Congress to vote Attorney General Eric Holder in contempt”. The Christian Science Monitor. Retrieved 29 June 2012.
- Hoyer Challenges Issa to Show E-Mails; New York Times; June 26, 2012
- Issa’s right: Tougher gun laws Fast and Furious goal; National Rifle Association; June 27, 2012
- “Justice Dept: Fast and Furious report distorted”. CBS News. August 1, 2012. Retrieved 3 August 2012.[dead link]
- Serrano, Richard A. (July 31, 2012). “Justice Department shrugs off Fast and Furious report”. Los Angeles Times. Retrieved 3 August 2012.
- Frieden, Terry (August 2, 2012). “Deputy Director William Hoover resigns from ATF in wake of critical report”. CNN. Retrieved 3 August 2012.
- “Letter from Robert N. Driscoll to Andy Serwer re: The truth about the Fast and Furious scandal”. Politico. September 27, 2012. Retrieved 2014-06-25.
- Dylan Byers, “Exclusive: Fast and Furious whistleblower sues Time Inc. for libel”, Politico, 24 Oct 2012.
- “Libel Complaint, John Dodson v Time Inc., 6:12-294-MGL”. Documentcloud.org. Retrieved 2014-06-25.
- Charlie Savage, “Guns Inquiry Urges Action Against 14 in Justice Dept.”,New York Times, 19 Sep 2012.
- Kevin Johnson (September 19, 2012). “Review: Holder did not know about ‘Fast and Furious'”. USA Today.
- Attkisson, Sharyl (5 December 2012). “Heads roll after Fast and Furious investigation”. CBS News. Retrieved 14 January 2013.
- “Probe faults US agents over Mexico gunrunning”, Al Jazeera, 20 Sep 2012.
- Mary Jacoby, “Criminal Division Deputy Weinstein Resigns In Wake of Fast and Furious Report” Main Justice, September 19, 2012.
- Evan Perez, “Firings Set Over ‘Fast and Furious'”, The Wall Street Journal, 4 Dec 2012. Subscription required.
- Chuck Neubauer (2012-12-05). “Firings advised for 4 ATF leaders tied to Fast and Furious”. Washington Times. Retrieved 2014-06-25.
- Sharyl Attkisson, “Brian Terry family sues ATF officials in Fast and Furious”CBS, December 17, 2012.
- John Dodson, The Unarmed Truth: My Fight to Blow the Whistle and Expose Fast and Furious Hardcover, Threshold Editions, 3 Dec 2013, ISBN 978-1476727554. Hardcover: 304 pages.·
- Phillips, Whitney. “Feds name 4 suspects linked to Fast and Furious”. Independentmail.com. Retrieved 9 July 2012.
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- “Fast and Furious suspect sentenced”. CBS/AP. 12 December 2012. Retrieved 14 January 2013.
- Perry, Tony (15 October 2012). “‘Fast and Furious’ defendant gets prison for buying guns”. Los Angeles Times. Retrieved 11 March 2013.
- Hernandez, Daniel (October 6, 2011). “MEXICO: News of another U.S. gun-tracking program stirs criticism”. Los Angeles Times. Retrieved October 17, 2011.
- Ellingwood, Ken (September 19, 2011). “Mexico still waiting for answers on Fast and Furious gun program”. Los Angeles Times. Retrieved October 17, 2011.
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United States of America
|This article is part of a series on the|
|United States Constitution|
|Preamble and Articles
of the Constitution
|Amendments to the Constitution|
|Full text of the Constitution
In the United States government, executive privilege is the power claimed by the President of the United States and other members of the executive branch to resist certain subpoenas and other interventions by the legislative and judicial branches of government to access information and personnel relating to the executive branch. The concept of executive privilege is not mentioned explicitly in the United States Constitution, but the Supreme Court of the United States ruled it to be an element of the separation of powers doctrine, and/or derived from the supremacy of executive branch in its own area of Constitutional activity.The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon, but only to the extent of confirming that there is a qualified privilege. Once invoked, a presumption of privilege is established, requiring the Prosecutor to make a “sufficient showing” that the “Presidential material” is “essential to the justice of the case” (418 U.S. at 713-14).Chief Justice Burger further stated that executive privilege would most effectively apply when the oversight of the executive would impair that branch’s national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine, since Presidents have generally sidestepped open confrontations with the United States Congress and the courts over the issue by first asserting the privilege, then producing some of the documents requested on an assertedly voluntary basis.
In the context of privilege assertions by US Presidents, “In 1796, President George Washington refused to comply with a request by the House of Representatives for documents related to the negotiation of the then-recently adopted Jay Treaty with the Kingdom of Great Britain. The Senate alone plays a role in the ratification of treaties, Washington reasoned, and therefore the House had no legitimate claim to the material. Therefore, Washington provided the documents to the Senate but not the House.”
President Thomas Jefferson continued the precedent for this in the trial of Aaron Burr for treason in 1807. Burr asked the court to issue a subpoena duces tecum to compel Jefferson to provide his private letters concerning Burr. Chief Justice John Marshall, a strong proponent of the powers of the federal government but also a political opponent of Jefferson, ruled that the Sixth Amendment to the Constitution, which allows for these sorts of court orders for criminal defendants, did not provide any exception for the president. As for Jefferson’s claim that disclosure of the document would imperil public safety, Marshall held that the court, not the president, would be the judge of that. Jefferson complied with Marshall’s order.
In 1833, President Andrew Jackson cited executive privilege when Senator Henry Clay demanded he produce documents concerning statements the president made to his cabinet about the removal of federal deposits from the Second Bank of the United States during the Bank War.
During the period of 1947-49, several major security cases became known to Congress. There followed a series of investigations, culminating in the famous Hiss–Chambers case of 1948. At that point, the Truman Administration issued a sweeping secrecy order blocking congressional efforts from FBI and other executive data on security problems. Security files were moved to the White House and Administration officials were banned from testifying before Congress on security related matters. Investigation of the State Department and other cases was stymied and the matter left unresolved.
During the Army–McCarthy hearings in 1954, Eisenhower used the claim of executive privilege to forbid the “provision of any data about internal conversations, meetings, or written communication among staffers, with no exception to topics or people.” Department of Defense employees were also instructed not to testify on any such conversations or produce any such documents or reproductions. This was done to refuse the McCarthy Committee subpoenas of transcripts of monitored telephone calls from Army officials, as well as information on meetings between Eisenhower officials relating to the hearings. This was done in the form of a letter from Eisenhower to the Department of Defense and an accompanying memo from Eisenhower Justice. The reasoning behind the order was that there was a need for “candid” exchanges among executive employees in giving “advice” to one another. In the end, Eisenhower would invoke the claim 44 times between 1955 and 1960.
U.S. v. Nixon
|This section does not cite any references or sources. (June 2009)|
The Supreme Court addressed ‘executive privilege’ in United States v. Nixon, the 1974 case involving the demand by Watergate special prosecutor Archibald Cox that President Richard Nixon produce the audiotapes of conversations he and his colleagues had in the Oval Office of the White House in connection with criminal charges being brought against members of the Nixon Administration. Nixon invoked the privilege and refused to produce any records.
The Supreme Court did not reject the claim of privilege out of hand; it noted, in fact, “the valid need for protection of communications between high Government officials and those who advise and assist them in the performance of their manifold duties” and that “[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.” This is very similar to the logic that the Court had used in establishing an “executive immunity” defense for high office-holders charged with violating citizens’ constitutional rights in the course of performing their duties. The Supreme Court stated: “To read the Article II powers of the President as providing an absolute privilege as against a subpoena essential to enforcement of criminal statutes on no more than a generalized claim of the public interest in confidentiality of nonmilitary and nondiplomatic discussions would upset the constitutional balance of ‘a workable government’ and gravely impair the role of the courts under Article III.” Because Nixon had asserted only a generalized need for confidentiality, the Court held that the larger public interest in obtaining the truth in the context of a criminal prosecution took precedence.
“Once executive privilege is asserted, coequal branches of the Government are set on a collision course. The Judiciary is forced into the difficult task of balancing the need for information in a judicial proceeding and the Executive’s Article II prerogatives. This inquiry places courts in the awkward position of evaluating the Executive’s claims of confidentiality and autonomy, and pushes to the fore difficult questions of separation of powers and checks and balances. These ‘occasion[s] for constitutional confrontation between the two branches’ are likely to be avoided whenever possible. United States v. Nixon, supra, at 692.”
The Clinton administration invoked executive privilege on fourteen occasions.
In 1998, President Bill Clinton became the first President since Nixon to assert executive privilege and lose in court, when a Federal judge ruled that Clinton aides could be called to testify in the Lewinsky scandal.
Later, Clinton exercised a form of negotiated executive privilege when he agreed to testify before the grand jury called by Independent Counsel Kenneth Starr only after negotiating the terms under which he would appear. Declaring that “absolutely no one is above the law”, Starr said such a privilege “must give way” and evidence “must be turned over” to prosecutors if it is relevant to an investigation.
George W. Bush administration
The Bush administration invoked executive privilege on six occasions.
President George W. Bush first asserted executive privilege to deny disclosure of sought details regarding former Attorney General Janet Reno, the scandal involving Federal Bureau of Investigation (FBI) misuse of organized-crime informants James J. Bulger and Stephen Flemmi in Boston, and Justice Department deliberations about President Bill Clinton’s fundraising tactics, in December 2001.
Bush invoked executive privilege “in substance” in refusing to disclose the details of Vice President Dick Cheney‘s meetings with energy executives, which was not appealed by the GAO. In a separate Supreme Court decision in 2004, however, Justice Anthony Kennedy noted “Executive privilege is an extraordinary assertion of power ‘not to be lightly invoked.’ United States v. Reynolds, 345 U.S. 1, 7 (1953).
Further, on June 28, 2007, Bush invoked executive privilege in response to congressional subpoenas requesting documents from former presidential counsel Harriet Miers and former political director Sara Taylor, citing that:
The reason for these distinctions rests upon a bedrock presidential prerogative: for the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
On July 9, 2007, Bush again invoked executive privilege to block a congressional subpoena requiring the testimonies of Taylor and Miers. Furthermore, White House Counsel Fred F. Fielding refused to comply with a deadline set by the chairman of the Senate Judiciary Committee to explain its privilege claim, prove that the president personally invoked it, and provide logs of which documents were being withheld. On July 25, 2007, the House Judiciary Committee voted to cite Miers andWhite House Chief of Staff Joshua Bolten for contempt of Congress.
On July 13, less than a week after claiming executive privilege for Miers and Taylor, Counsel Fielding effectively claimed the privilege once again, this time in relation to documents related to the 2004 death of Army Ranger Pat Tillman. In a letter to the House Committee on Oversight and Government Reform, Fielding claimed certain papers relating to discussion of the friendly-fire shooting “implicate Executive Branch confidentiality interests” and would therefore not be turned over to the committee.
On August 1, 2007, Bush invoked the privilege for the fourth time in little over a month, this time rejecting a subpoena for Karl Rove. The subpoena would have required the President’s Senior Advisor to testify before the Senate Judiciary Committee in a probe over fired federal prosecutors. In a letter to Senate Judiciary ChairmanPatrick Leahy, Fielding claimed that “Mr. Rove, as an immediate presidential advisor, is immune from compelled congressional testimony about matters that arose during his tenure and that relate to his official duties in that capacity….”
Leahy claimed that President Bush was not involved with the employment terminations of U.S. attorneys. Furthermore, he asserted that the president’s executive privilege claims protecting Josh Bolten, and Karl Rove are illegal. The Senator demanded that Bolten, Rove, Sara Taylor, and J. Scott Jennings comply “immediately” with their subpoenas, presumably to await a further review of these matters. This development paved the way for a Senate panel vote on whether to advance the citations to the full Senate. “It is obvious that the reasons given for these firings were contrived as part of a cover up and that the stonewalling by the White House is part and parcel of that same effort”, Leahy concluded about these incidents.
As of July 17, 2008, Rove still claimed executive privilege to avoid a congressional subpoena. Rove’s lawyer wrote that his client is “constitutionally immune from compelled congressional testimony.”
House Investigation of the SEC
Leaders of the U.S. Securities and Exchange Commission testified on February 4, 2009 before the United States House Committee on Financial Servicessubcommittee including Linda Chatman Thomsen S.E.C. enforcement director, acting General Counsel Andy Vollmer, Andrew Donohue, Erik Sirri, and Lori Richards and Stephen Luparello of FINRA. The subject of the hearings were on why the SEC had failed to act when Harry Markopolos, a private fraud investigator from Boston alerted the Securities and Exchange Commission detailing his persistent and unsuccessful efforts to get the SEC to investigate Bernard Madoff, beginning in 1999.Vollmer claimed executive privilege in declining to answer some questions. Subcommittee chairman Paul E. Kanjorski asked Mr. Vollmer if he had obtained executive privilege from the U.S. attorney general. “No … this is the position of the agency,” said Vollmer. “Did the SEC instruct him not to respond to questions?” Mr. Kanjorski asked. Vollmer replied that it was the position of the Commission and that “the answer is no.” The SEC announced Vollmer would “leave the Commission and return to the private sector,” just 14 days after making the claim.
On June 20, 2012, President Barack Obama asserted executive privilege, his first, to withhold certain Department of Justice documents related to the ongoingOperation Fast and Furious controversy ahead of a United States House Committee on Oversight and Government Reform vote to hold Attorney General Eric Holder inContempt of Congress for refusing to produce the documents. Later the same day, the United States House Committee on Oversight and Government Reform voted 23-17 along party lines to hold Attorney General Holder in contempt of Congress over not releasing documents regarding Fast and Furious.
- Chief Justice Burger, writing for the majority in US v. Nixon noted: “Whatever the nature of the privilege of confidentiality of Presidential communications in the exercise of Art. II powers, the privilege can be said to derive from the supremacy of each branch within its own assigned area of constitutional duties. Certain powers and privileges flow from the nature of enumerated powers; the protection of the confidentiality of Presidential communications has similar constitutional underpinnings.United States v. Nixon, 418 U.S. 683 (1974) (Supreme Court opinion at FindLaw)
- Proper Assertion of the Deliberative Process Principle, S Narayan, p 6
- FindLaw’s Writ – Dorf: A Brief History Of Executive Privilege, From George Washington Through Dick Cheney
- David and Jeanne Heidler, Henry Clay: The Essential American (2010) p.264
- Blacklisted by History, p. 23
- Blacklisted by History p.575
- Holding, Reynolds. Time, March 21, 2007. Holding, Reynolds (March 21, 2007). “The Executive Privilege Showdown”. Time. Retrieved 2007-03-27.
- Baker, Peter; and Schmidt, Susan. “President is Denied Executive Privilege”. The Washington Post. July 22, 1998. Retrieved 2007-03-27. Washington Post, May 6, 1998.
- Lewis, Neil A. (2001-12-14). “Bush Claims Executive Privilege in Response to House Inquiry”. New York Times. Retrieved 2007-07-17.
- “House inches toward constitutional showdown with contempt vote”. Politics (CNN). July 25, 2007. Retrieved 2007-07-25.
- “House Judiciary Reports Contempt Citations to the House of Representatives” (Press release). U.S. House of Representatives Committee on the Judiciary. July 25, 2007. Retrieved 2007-07-26.
- “White House Rebuffs Congress on Tillman Papers”. Politics (The Seattle Times). August 1, 2007. Retrieved 2008-08-01.
- “Bush won’t let aide Rove testify to Congress”. Politics (Reuters). August 1, 2007. Retrieved 2008-08-01.
- “Leahy: Bush not involved in firings”. Yahoo! News. Retrieved 2008-11-30.[dead link]
- “Leahy: Rove, others must comply with subpoenas”. CNN. Retrieved 2008-11-30.[dead link]
- “Leahy again orders Karl Rove to appear”. Bennington Banner. Retrieved 2008-11-30.
- “Leahy again demands U.S. attorney info”. Earth Times. Retrieved 2008-11-30.
- “Rove ignores committee’s subpoena, refuses to testify”. CNN. July 10, 2008. Retrieved 2008-07-10.
- Henriques, Diana (February 4, 2009). “Anger and Drama at a House Hearing on Madoff”. The New York Times.
- Jamieson, Dan (February 4, 2009). “SEC officials dodge questions; one claims privilege”. InvestmentNews.
- Ahrens, Frank (February 5, 2009). “Lawmakers Sink Teeth Into the SEC: Agency Mocked for Not Catching Madoff”. The Washington Post. pp. D01.
- “Acting General Counsel Andrew Vollmer to Leave SEC”. Washington, D.C.: U.S. Securities and Exchange Commission. Feb 18, 2009. Retrieved 6 March 2009.
- Jackson, David (June 20, 2012). “Obama team: ‘Fast and Furious’ documents are privileged”. USA Today. Retrieved 20 June 2012.
- Madhani and Davis, Aamer and Susan (June 20, 2012). “House panel votes to cite Holder for contempt of Congress”. USA Today. Retrieved 20 June 2012.
President Asserts Executive Privilege in Bid to Forestall Contempt Vote By JOHN H. CUSHMAN Jr. Published: June 20, 2012 NY Times
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Listen To Pronk Pops Podcast or Download Show 184-193
Listen To Pronk Pops Podcast or Download Show 174-183
Listen To Pronk Pops Podcast or Download Show 165-173
Listen To Pronk Pops Podcast or Download Show 158-164
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Listen To Pronk Pops Podcast or Download Show 135-142
Listen To Pronk Pops Podcast or Download Show 131-134
Listen To Pronk Pops Podcast or Download Show 124-130
Listen To Pronk Pops Podcast or Download Shows 121-123
Listen To Pronk Pops Podcast or Download Shows 118-120
Listen To Pronk Pops Podcast or Download Shows 113 -117
Listen To Pronk Pops Podcast or Download Shows 108-111
Listen To Pronk Pops Podcast or Download Shows 106-108
Listen To Pronk Pops Podcast or Download Shows 104-105
Listen To Pronk Pops Podcast or Download Shows 101-103
Listen To Pronk Pops Podcast or Download Shows 98-100
Listen To Pronk Pops Podcast or Download Shows 94-97
Listen To Pronk Pops Podcast or Download Shows 88-90
Listen To Pronk Pops Podcast or Download Shows 84-87
Listen To Pronk Pops Podcast or Download Shows 79-83
Listen To Pronk Pops Podcast or Download Shows 74-78
Listen To Pronk Pops Podcast or Download Shows 71-73
Listen To Pronk Pops Podcast or Download Shows 68-70
Listen To Pronk Pops Podcast or Download Shows 65-67
Listen To Pronk Pops Podcast or Download Shows 62-64
Listen To Pronk Pops Podcast or Download Shows 58-61
Listen To Pronk Pops Podcast or Download Shows 55-57
Listen To Pronk Pops Podcast or Download Shows 52-54
Listen To Pronk Pops Podcast or Download Shows 49-51
Listen To Pronk Pops Podcast or Download Shows 45-48
Listen To Pronk Pops Podcast or Download Shows 41-44
Listen To Pronk Pops Podcast or Download Shows 38-40
Listen To Pronk Pops Podcast or Download Shows 34-37
Listen To Pronk Pops Podcast or Download Shows 30-33
Listen To Pronk Pops Podcast or Download Shows 27-29
Listen To Pronk Pops Podcast or Download Shows 17-26
Listen To Pronk Pops Podcast or Download Shows 16-22
Listen To Pronk Pops Podcast or Download Shows 10-15
Listen To Pronk Pops Podcast or Download Shows 01-09