Published June 14, 2012
Attorney General Eric Holder on Thursday agreed to make what he called "an extraordinary accommodation" to Republicans investigating the botched "Operation Fast and Furious" by turning over department emails he has long insisted deal with internal deliberations and should be protected.
Holder is trying to head off a push by House Republicans to hold him in contempt of Congress for allegedly "stonewalling" their investigation. And he offered to personally brief the chairman of the House Oversight and Government Reform Committee, Rep. Darrell Issa, R-Calif., in the next few days.
"We believe that this briefing, and the documents we are prepared to provide ... will fully address the remaining concerns identified in the recent letters to me from you and House leadership," Holder said in a letter to Issa. "The department's willingness to provide these materials is a serious, good faith effort to bring this matter to an amicable resolution."
Issa's office said in an early response that Holder's letter "only seems to indicate a willingness to offer a selective telling" of key events and that the chairman is still asking the Justice Department to explain "how it is prepared to alter its opposition to producing subpoenaed documents"
Earlier Thursday, Holder's allies on the committee mounted their own aggressive defense of the attorney general, circulating a memo to House Democrats that calls the Republican argument for contempt, laid out in a contempt citation last month, "irresponsible, unprecedented, and contrary to the rule of law."
For more than a year, Republicans have been leading an investigation into "Fast and Furious," which was launched in Arizona in late 2009 by Alcohol, Tobacco, Firearms and Explosives officials, with help from the U.S. attorney's office there. The operation's targets bought nearly 2,000 weapons over several months. But for reasons that are still in dispute, most of the weapons sold were never followed, and high-powered weapons tied to the investigation ended up at crime scenes in Mexico and the United States, including the December 2010 murder of Border Patrol Agent Brian Terry.
Late last year, Issa issued a subpoena to Holder, and the Justice Department subsequently identified more than 80,000 documents responsive to it.
However, the department has turned over about 7,600 documents and insisted those not turned over include traditionally protected deliberative material, legally protected grand jury material and other investigative material relating to ongoing cases.
In recent days, Issa narrowed his demands to focus on correspondence between department officials after they sent a now-retracted letter to Congress on Feb. 4, 2011. In that letter, the department inaccurately insisted: "ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."
Issa says the documents he wants are "critically important" because, among other things, they could show whether top officials were "surprised or were already aware" about "gunwalking" in "Fast and Furious" when confronted with evidence contradicting the Feb. 4 letter. And the documents could further detail how the department handled officials who were negligent.
In his letter Thursday, Holder said he appreciates Issa's "narrowed" request for information, calling it "an important step forward" and noting the department has "repeatedly expressed concern that the production of (certain) materials would undermine the integrity and independence of (its) core law enforcement operations."
Holder said he is willing to turn over documents that, "while outside the scope of the committee's interest in the inappropriate tactics used in Fast and Furious," show how his department's "understanding" of the facts "evolved throughout 2011" and how the Feb. 4, 2011, letter came to be withdrawn.
But in his letter, Holder insisted department leaders drafted the inaccurate letter based on assertions from others that the allegations being made were "categorically false."
He also insisted, "The record in this matter reflects that until allegations about the inappropriate tactics used in Fast and Furious were made public, department leadership was unaware of those tactics."
Republicans scheduled the contempt vote against Holder for June 20 after accusing him of failing to comply with the subpoena and turn over tens of thousands of still-undisclosed documents. The measure, if it remains on the agenda, would be voted on at the committee level and would still have to be approved by the full House.
In the memo circulated Thursday, Democrats said, "Holding the attorney general in contempt of Congress for protecting these documents is an extreme and blatant abuse of the congressional contempt power and undermines the credibility of the committee."
But a spokeswoman for Issa took issue with that assessment, saying, "The only credibility that has been undermined is that of Attorney General Holder and the Justice Department who issued a false denial of reckless conduct."
Nevertheless, House Democrats also took aim more broadly at the Republicans' investigation of "Operation Fast and Furious," saying it "has been characterized by a series of unsubstantiated allegations against the Obama administration that later turned out to be inaccurate."
"Rather than conducting this investigation in an even-handed manner, the committee has politicized this inquiry by systematically refusing to investigate gunwalking operations during the Bush administration and by disregarding clear evidence that contradicts (their) political narrative," the Democrats' memo states.
One of the "most significant flaws of the investigation," according to the memo, is Issa's refusal to hold a public hearing with former ATF head Ken Melson, who told congressional investigators in July 2011 that he never informed senior Justice Department officials about the tactics of "Fast and Furious" because he didn't know them himself.
In addition, the memo states, Issa has refused multiple requests for the committee to hear from former Attorney General Michael Mukasey, who could discuss "the origination and evolution of gunwalking operations" dating back to 2006.
In late 2007, Mukasey was sent a memo noting that the "first-ever attempt" to have a "controlled delivery" of weapons smuggled into Mexico was "unsuccessful" in tracking the weapons, but ATF would still like to "expand the possibility" of such cases with Mexico. It's unclear if Mukasey ever saw the memo.
The spokeswoman for Issa, Becca Watkins, said the Democrats' criticism is based on a "fundamental misunderstanding" about the facts of the case and the Justice Department's "failure to comply" with the subpoena.
"These opinions are unsubstantiated and without merit," she said.
As for the contempt vote scheduled for Wednesday, the Democrats' memo said negotiations could last into next week, and "it is important for committee members to be fully prepared in the event that negotiations are unsuccessful."
In his letter Thursday, Holder told Issa that "as the chairman only you have the authority to bind the committee," and therefore a meeting between the two "is required both to assure that there are no misunderstandings about this matter and to confirm that the elements of the proposal we are making will be deemed sufficient to render the process of contempt unnecessary."
Holder proposed meeting by Monday.