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Fast & Furious: No prosecution for Holder; Wiretapping suggests top-level knowledge; Key player in Clinton Gun Ban ran the op!
by Chad D. Baus
Lost in the chaos that ensued over Justice John Roberts' decision to join the liberals and uphold Obamacare last Thursday morning was news of what occurred that very afternoon. Namely, that for the first time in American history, a sitting Attorney General was found by the United States House of Representatives to be in contempt of Congress. The vote came as a result of Eric Holder's refusal to comply with a subpoena requiring him to release documents related to the BATFE's gun-walking operation known as Fast & Furious, and in spite of an eleventh-hour claim of executive privilege by President Barack Obama.
Not only was the vote margin substantial (255-67 for criminal contempt and 258-95 for civil contempt), it was also bi-partisan. Seventeen Democrats joined the Republican majority in voting for the resolution to find Holder in contempt of Congress.
Among those who did NOT vote to find Holder in criminal contempt were two Ohio Congressmen who have in the past had the support of the National Rifle Association as well as Buckeye Firearms Association: Tim Ryan (D) and Steve LaTourette (R). Both must now face to their pro-gun constituency at the ballot box in November, and the NRA has announced that it will scoring the vote when it evaluates candidates for grades and endorsements.
From The News-Herald:
"Washington has enough political theater and I would rather have a judge compel the Attorney General to hand over the documents and take whatever action those documents indicate is appropriate," LaTourette said.
Even so, not all firearms owners are comfortable, let alone, happy, with LaTourette's seeimgly yin and yang Holder-associated votes.
Buckeye Firearms Association chairman Jim Irvine says he "respectively disagrees with the Congressman."
"Holder is this country's supreme law enforcement officer, and a criminal," Irvine said. "We can't wait; not with this Attorney General."
Irvine says that Holder is in this particular legal pickle because of his relationship to "the cover-up" that has both riveted and also has been a distraction inside Washington's Beltway and outside.
"This is an incredibly serious issue and it must be looked at that way," Irvine said.
As to any possible fall-out from his pro-Second Amendment constituents, LaTourette may very well have to cross that bridge if not sooner than certainly later when he comes up for reelection on Nov. 6, Irvine says.
"Yes, I think the Congressman's vote will have an impact but it's too early to tell by how much," Irvine said.
According to Wikipedia, following a criminal contempt citation, the presiding officer of the chamber is instructed to refer the matter to the U.S. Attorney for the District of Columbia; according to the law it is the "duty" of the U.S. Attorney to refer the matter to a grand jury for action. However, the U.S. attorney for D.C. is an employee of none other than the U.S. Attorney General, and it appears, like to many other issues involving the Obama administration, the rule of law will not be followed.
On Friday, the Associated Press reported that Deputy Attorney General James Cole had informed House Speaker John Boehner (R-Ohio) via a letter dated the same day as the vote, that he will not bring the congressional contempt citation against Holder to a federal grand jury and that his department will take no other action to prosecute the attorney general.
From the article:
"We will not prosecute an executive branch official under the contempt of Congress statute for withholding subpoenaed documents pursuant to a presidential assertion of executive privilege," Cole wrote.
In its letter, the department relied in large part on a Justice Department legal opinion crafted during Republican Ronald Reagan's presidency.
Frederick Hill, the spokesman for Rep. Darrell Issa, said it is regrettable that "the political leadership of the Justice Department" is taking that position. Issa, the House Oversight and Government Reform Committee chairman, is leading the effort to get the material related to Operation Fast and Furious.
While Holder and Obama have claimed they had no knowledge of the Fast & Furious operation, which involved more than 2000 guns and led to the deaths of hundreds of Mexicans and at least one U.S. Border Patrol agent, it is becoming increasingly apparently that those claims, like others made by Holder in testimony before a Congressional committee, are false.
In the midst of a fiery floor debate over contempt proceedings for Attorney General Eric Holder, House Oversight and Government Reform Chairman Darrell Issa (R-Calif.) quietly dropped a bombshell letter into the Congressional Record.
The May 24 letter to Rep. Elijah Cummings (D-Md.), ranking member on the panel, quotes from and describes in detail a secret wiretap application that has become a point of debate in the GOP's "Fast and Furious" gun-walking probe.
The wiretap applications are under court seal, and releasing such information to the public would ordinarily be illegal. But Issa appears to be protected by the Speech or Debate Clause in the Constitution, which offers immunity for Congressional speech, especially on a chamber's floor.
According to the letter, the wiretap applications contained a startling amount of detail about the operation, which would have tipped off anyone who read them closely about what tactics were being used.
Holder and Cummings have both maintained that the wiretap applications did not contain such details and that the applications were reviewed narrowly for probable cause, not for whether any investigatory tactics contained followed Justice Department policy.
The wiretap applications were signed by senior DOJ officials in the department's criminal division, including Deputy Assistant Attorney General Jason Weinstein, Deputy Assistant Attorney General Kenneth Blanco and another official who is now deceased.
The discovery of these applications is highly significant, as obtaining such wiretaps is no small task, and those with knowledge of the workings of the office say stretches credibility to believe that they were being obtained without the approval of the attorney general himself.
Again from RollCall.com:
While Issa has since said he has obtained a number of wiretap applications, the letter only refers to one, from March 15, 2010. The full application is not included in what Issa entered into the Congressional Record, and names are obscured in Issa's letter.
In the application, ATF agents included transcripts from a wiretap intercept from a previous Drug Enforcement Administration investigation that demonstrated the suspects were part of a gun-smuggling ring.
"The wiretap affidavit details that agents were well aware that large sums of money were being used to purchase a large number of firearms, many of which were flowing across the border," the letter says.
The application included details such as how many guns specific suspects had purchased via straw purchasers and how many of those guns had been recovered in Mexico.
It also described how ATF officials watched guns bought by suspected straw purchasers but then ended their surveillance without interdicting the guns.
In at least one instance, the guns were recovered at a police stop at the U.S.-Mexico border the next day.
The application included financial details for four suspected straw purchasers showing they had purchased $373,000 worth of guns in cash but reported almost no income for the previous year, the letter says.
"Although ATF was aware of these facts, no one was arrested, and ATF failed to even approach the straw purchasers. Upon learning these details through its review of this wiretap affidavit, senior Justice Department officials had a duty to stop this operation. Further, failure to do so was a violation of Justice Department policy," the letter says.
Yet another bombshell related to the "Holder-lied-people-died" scandal was reported Friday by CNSNews.com. According to the report, Dennis K. Burke, who as a lawyer for the Democrats on the Senate Judiciary Committee in the 1990s was a key player behind the enactment of the 1994 assault-weapons ban, and who then went on to become Arizona Gov. Janet Napolitano's chief of staff, and a contributor to Barack Obama's 2008 presidential primary campaign, and then a member of Obama's transition team focusing on border-enforcement issues, ended up in the Obama administration as the U.S. attorney in Arizona responsible for overseeing Operation Fast and Furious.
From the article:
Dennis K. Burke has had a long career working as an aide and political appointee to Democratic elected officials. From 1989 to 1994, he was a counsel for the Democrats on the Senate Judiciary Committee, working in that capacity for several years on an assault-weapons ban, which was finally enacted on Sept. 13, 1994 as the Violent Crime Control and Law Enforcement Act. That act expired on Sept. 13, 2004.
From 1994-95, Burke served in the Clinton Justice Department in the Office of Legislative Affairs, and in 1997-99, he was an assistant U.S. attorney in Arizona.
From 1999 to 2003, Burke was chief deputy and special assistant to Arizona Attorney General Janet Napolitano.
In 2003, when Napolitano became governor, Burke became her chief of staff. He stayed in that job until the fall of 2008, when he left to help Democratic political campaigns, including then-Sen. Obama's presidential campaign.
...After Obama was elected in November 2008, Burke joined his presidential transition team, serving on the Immigration Policy Working Group.
Eight days before Obama's inauguration, on Jan. 12, 2009--while Burke was working on the transition team--Obama met with Mexican President Felipe Calderon at the Mexican Cultural Institute in Washington, D.C. At that meeting, Obama "pledged" to take action to stop the flow of guns from the United States to Mexico.
Obama also decided to put Burke's old boss, incoming Homeland Security Secretary Janet Napolitano, in a leadership role in making the gun-trafficking problem a top priority.
...When Napolitano became Homeland Security secretary, Burke moved from the Obama transition team to become her senior adviser. On Feb. 25, 2009, a little more than a month after Obama had made his "pledge" to Calderon, Napolitano testified in the House Homeland Security Committee. She stressed that stopping the flow of guns to Mexico was a top priority of the Obama administration and key focus of her work.
Responding to a question about violence on the border, Napolitano said the administration was going to work with the Mexican government on the issue. Then she said: "Secondly, it is looking at, government-wide, at what we can do to stop the southbound export of weaponry, particularly assault-type weapons and grenades that are being used in that drug war."
Napolitano further noted that drug cartels were targeting Mexican government officials and law enforcement officers, and that, given the seriousness of the threat, Obama's national security adviser, the attorney general, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), and Customs (of which the Border Patrol is part) would all be working on the issue.
"I've met with the attorney general of Mexico and the ambassador already," said Napolitano during the February 2009 hearing. "One of the things that I particularly am focused on is southbound traffic in guns, particularly assault weapons, and cash that are being used to funnel and fund these very, very violent cartels."
The same day Napolitano testified in the Homeland Security Committee, Attorney General Holder addressed the issue of drug-trafficking-related gun violence in northern Mexico. He said he had had conversations about the issue with the Mexican attorney general and that the Obama administration believed that re-instating the assault-weapons ban in the United States--the one Dennis Burke had initially helped push through as Senate aide in 1990s--would help the situation in Mexico.
"Well, as President Obama indicated during the campaign, there are just a few gun-related changes that we would like to make, and among them would be to reinstitute the ban on the sale of assault weapons," Holder said. "I think that will have a positive impact in Mexico, at a minimum."
The article notes that four-and-a-half months later, on July 10, 2009, Obama nominated Burke to be the U.S. attorney in Arizona. The Senate confirmed Burke on Sept. 15 of that year.
It was in July 2010, after his nomination as U.S. attorney, that Burke told the Arizona Capitol Times that he had "been working on homeland security and border enforcement issues" during the transition, and that there had "clearly been direction provided already by President Obama and Attorney General Holder as to what they want to be doing."
"What I hope to do, if confirmed by the Senate," Burke told the paper, "is to ensure that those plans and strategies are being implemented and we're moving quickly on prosecutions."
...Six weeks after Burke was confirmed, on Oct. 26, 2009, Eric Holder named him to the Attorney General's Advisory Committee (AGAC) of U.S. Attorneys. In his capacity as an adviser to Holder, Burke chaired the AGAC subcommittee on border and immigration law enforcement while Operation Fast and Furious was happening.
The same month that Burke joined Holder's advisory committee with a specific responsibility to report to Deputy Attorney General David Ogden on border and immigration enforcement, Ogden's office made a significant change in the federal government's strategy for dealing with gun-trafficking on the Mexican border.
"This new strategy directed federal law enforcement to shift its focus away from seizing firearms from criminals as soon as possible, and to focus instead on identifying members of trafficking networks," House Oversight and Government Reform Chairman Darrell Issa wrote in a May 3 memo to other members of his committee, summarizing what the committee had learned about Fast and Furious.
"The Office of the Deputy Attorney General shared this strategy with the heads of many Department components, including ATF," said Issa.
The next month, November 2009, the ATF in Arizona moved forward with the new strategy by creating Operation Fast and Furious.
...The ATF Phoenix Field Division applied to Justice Department headquarters to become an "Organized Crime Drug Enforcement Task Force" (OCDETF) case. In preparing their application in early January 2009, the ATF in Phoenix wrote a memo explaining the investigative technique of Fast and Furious.
The application for Fast and Furious was approved and, in January 2010, as Issa stated in his memo, it "became a prosecutor-led OCDETF Strike Force case, meaning that ATF would join with the Federal Bureau of Investigation, Drug Enforcement Administration, Internal Revenue Service, and Immigrations and Customs Enforcement under the leadership of the U.S. Attorney's Office for the District of Arizona."
In other words, it was under the leadership of Dennis Burke.
"Although ATF was the lead law enforcement agency for Fast and Furious, its agents took direction from prosecutors in the U.S. Attorney's Office," Issa says in his May 3 memo. "The lead federal prosecutor for Fast and Furious was Assistant U.S. Attorney Emory Hurley, who played an integral role in the day-to-day, tactical management of the case."
Issa states in his memo that Burke's U.S. attorney's office made it more difficult for ATF agents to interdict guns.
According to CNSNews.com, a report on Fast and Furious released by House Oversight and Government Reform Committee Democrats in January 2012, quotes a briefing paper prepared by the ATF on Jan. 8, 2010 which says U.S. Attorney Burke was briefed on the matter and agreed that the investigation should continue.
"Investigative and prosecutions strategies were discussed and a determination was made that there was minimal evidence at this time to support any type of prosecution," said the ATF briefing paper, "therefore, additional firearms purchases should be monitored and additional evidence continued to be gathered. This investigation was briefed to United States Attorney Dennis Burke, who concurs with the assessment of his line prosecutors and fully supports the continuation of this investigation."
Eight days after this briefing paper was produced, on Jan. 16, 2010, straw buyers bought three assault-weapon rifles, two of which would figure prominently in the unraveling of the program. They were the weapons that would later be found at the scene of the murder of Border Patrol Agent Brian Terry.
On. Nov. 24, 2010, just a few weeks before Terry was murdered, Burke--who had begun his career in public service working to enact an assault-weapons ban--had an email exchange with another U.S. attorney about an investigation he was working on that involved "straw purchasing of assault weapons."
"What a great investigation. What is the ETI (estimated time of indictment!)" U.S. Attorney Jenny A. Durkan for the Western District of Washington said to Burke in an email.
Burke responded, "Would love to chat. We are about to indict around [REDACTED] clowns for a Gun Trafficking to Mexico operation. It's a T-III investigation that we have been working w/ATF for a long time and IRS is all over some money laundering charges. It's going to bring a lot of attention to straw purchasing of assault weapons. Some of the weapons bought by these clowns in Arizona have been directly traced to murders of elected officials in Mexico by the Cartels, so Katie-bar-the-door when we unveil this baby."
Just weeks later, on Dec. 14, the same day of Terry's murder, the article reports that Burke sent an email replying to an e-mail from Monty Wilkinson, Attorney General Holder's deputy chief of staff. In this email, Burke said his office had a large firearms trafficking case that he wanted to discuss. In a follow up e-mail the next day--Dec. 15, 2010--Burke alerted Wilkinson that Agent Terry had been murdered. Wilkinson responded, "Tragic, I've alerted the AG, the Acting DAG, Lisa, etc."
The Democratic report indicates that "later that same day, U.S. Attorney Burke learned that two firearms found at Agent Terry’s murder scene had been purchased by a suspect in Operation Fast and Furious. He sent an email to Mr. Wilkinson forwarding this information and wrote: 'The guns found in the desert near the murder [sic] BP officer connect back to the investigation we were going to talk about—they were AK-47's purchased at a Phoenix gun store.' Mr. Wilkinson replied, 'I'll call tomorrow.'
Despite this email from Wilkinson, CNSNews.com says Burke told the committee he did not recall actually having such a phone conversation, and the Department of Justice told the committee that Wilksonson does not recall making the call. Also Attorney General Holder himself testified that his deputy chief of staff never told him about the tie between the gun-trafficking investigation and Agent Terry's murder.
Brian Terry's murder did, however, cause an apparent change of plans for the Justice Department.
"Washington-based Justice Department officials had earlier discussed bringing Attorney General Eric Holder to Phoenix for a triumphant press conference with Arizona U.S. Attorney Dennis Burke to herald the conclusion of the Department's flagship firearms trafficking case," said a House Oversight and Government Reform Committee memo from May 3, 2012. "In the aftermath of Agent Terry's death, the task of announcing indictments at a press conference fell to ATF Phoenix Division Special Agent in Charge William Newell and Burke. Holder did not attend.
"At the press conference on January 25, 2011, Newell triumphantly announced the indictment of 20 members of an arms trafficking syndicate that had been supplying weapons to the Sinaloa Cartel, Mexico's largest and most powerful cartel led by the notorious Joaquin 'El Chapo' Guzman," the May 3 memo said.
When Newell was asked if ATF agents purposefully allowed weapons to enter Mexico, he responded, "Hell no."
Two days after the press conference, Sen. Charles Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, wrote then-Acting ATF Director Kenneth Melson about reports from whistleblowers regarding gunwalking and Agent Terry's death.
Allegations of gunwalking "are based on categorical falsehoods," Burke said in a Jan. 31, 2011 e-mail to Jason Weinstein, the deputy assistant attorney general for the criminal division.
Not only did Burke get caught lying about gunwalking, he also was discovered to have leaked documents related to whistleblower ATF Agent John Dodson.
"Congressional investigators later determined that the individual who was behind the leaked documents was the U.S. Attorney for the District of Arizona, Dennis Burke--the Obama Administration political appointee who led the office in charge of Operation Fast and Furious," said Issa's May 3 Oversight Committee memo.
"Burke later testified that the reporter contacted him, and that he believed the reporter had already seen the documents or had them read to him from someone else in the Department of Justice. Instead of e-mailing the documents to the reporter in Washington, Burke, who was in Arizona at the time, e-mailed them to a friend of his in Washington, who then printed out the documents and then delivered them to the reporter personally," Issa said in his May 3 memo. "These efforts successfully kept Burke's fingerprints off of the leak until he publicly admitted his role more than two months after his August 2011 resignation as blame for Fast and Furious spread."
On Aug. 18, 2011, House Oversight Committee staff interviewed Burke. They asked him: "To your knowledge as the U.S. Attorney for the District of Arizona, did the highest levels of the Department of Justice authorize [the] non-interdiction of weapons, cutting off of surveillance, as an investigative tactic in Operation Fast and Furious?"
Burke responded, "I have no knowledge of that."
The committee also asked, "Did you ever authorize those tactics?"
Burke answered, "No."
During that same Aug. 18, 2011 interview, the committee staff asked Burke: "And did anyone ever—from the Department of Justice, Main Justice I will call it--ever tell you that you were authorized to allow weapons to cross the border when you otherwise would have had a legal authority to seize or interdict them because they were a suspected straw purchase or it was suspected that they were being trafficked in a firearms scheme?"
Burke answered, "I have no recollection of ever being told that."
Twelve days after this interview, on Aug. 30, 2011, Burke resigned as U.S. attorney. Since then, Homeland Security Secretary Napolitano has denied having had any communications with Mr. Burke about Operation Fast and Furious, and denied having knowledge of the operation at the time of Brian Terry's death.
So what's next? Although the criminal contempt charges, which could have resulted in a penalty for Holder of up to one year in jail, seem unlikely to be pursued, Speaker Boehner has indicted that the civil contempt charges will be - via the court system.
Last Sunday, Speaker Boehner told told FoxNews.com the chamber will likely file a lawsuit within the next several weeks to compel the Justice Department to release more documents. The civil contempt resolution grants the House the ability to ask a court to compel the Justice Department to hand over the documents.
"The American people have a right to know what happened," Boehner said on CBS's "Face the Nation."
Chad D. Baus is the Buckeye Firearms Association Vice Chairman.