Holder deputy says ball in Republicans' court on Fast and Furious lawsuit

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The Justice Department's No. 2 on Monday acknowledged that when it comes to the showdown over Operation Fast and Furious, the ball is now in Republicans' court.

"It's up to the House to initiate it, we'll see what they do," said Deputy Attorney General James Cole, one day after House Speaker John Boehner vowed that House Republicans would be filing a civil suit in federal court in an effort to force the Justice Department to turn over documents related to Fast and Furious.

"It needs to happen," Boehner said Sunday. "The American people deserve the truth."

On Monday, Cole would not say if the Justice Department is already preparing for battle in federal court, insisting only that "once litigation is initiated, we'll respond." It was his first comment on the case since he wrote a letter to Boehner last week making clear the department would shield Holder from criminal prosecution. 

Last week, House Republicans -- and even many Democrats -- voted to hold Attorney General Eric Holder in both criminal and civil contempt of Congress for failing to give congressional investigators documents in response to a subpoena last year. Meetings in the run-up to the vote failed to reach a compromise, after President Obama asserted executive privilege over the documents.

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"I think the first thing you need to realize is the documents that are at issue are not the documents concerning the actual Fast and Furious investigation," Cole said Monday. "All of those -- other than sensitive law enforcement documents -- were turned over. These are just documents that occurred well after the fact."

Specifically, the documents at issue are mostly composed of internal Justice Department emails after Feb. 4, 2011, when department officials realized they would have to retract a letter to Congress that denied Alcohol, Tobacco, Firearms and Explosives agents ever let guns fall into the hands of suspected criminals.

"They concern internal communications in the Justice Department about how we would be responding to the congressional questions, and that's all," Cole said of the documents. "These are things we offered, frankly, in an accommodation to try and give to Congress in return for just having it satisfy the subpoena."

In one email from early 2011, described to Fox News, Holder told subordinates: "We need answers on this. Not defensive BS. Real answers." The email was among several shown in two separate meetings with House Republicans and Democrats last week.

For more than a year, Republicans have been leading an investigation into Fast and Furious, which was launched in Arizona in late 2009 by ATF, 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.

The chairman of the House Oversight and Government Reform Committee, Rep. Darrell, R-Calif., has said it is "critically important" to obtain the post-Feb. 4, 2011, documents at issue because, among other things, they could show whether top officials were "surprised or were already aware" about so-called "gunwalking" in Fast and Furious when confronted with new information. In essence, Republicans say the documents could show whether the false letter was part of a "cover-up."

In a hearing before Thursday's contempt votes, Issa insisted Holder offered "to provide subpoenaed documents only if the committee agrees in advance to close the investigation," adding, "No investigator would ever agree to that."

But Justice Department officials have disputed that account, as Cole did again Monday, saying, "We never asked them to stop their investigation."

A Justice Department official insisted last week the documents at issue "show no intention or attempt to conceal information or mislead (Congress)."

Nevertheless, Boehner said Sunday that a civil lawsuit to obtain the documents "would be coming in the next several weeks."

Days earlier, Cole informed Boehner in a letter that the Justice Department had "determined that the Attorney General's respond to the subpoena ... does not constitute a crime, and therefore the Department will not bring the congressional contempt citation before a grand jury or take any other action to prosecute the Attorney General."

That left a civil lawsuit in federal court as the Republicans' best option, and it's unclear how a federal judge would rule.

"The American people have a right to know what happened here," Boehner said Sunday on CBS' "Face the Nation." "Brian Terry's family has a right to know what happened here.  And the fact is, is that the only facts that we've received about this entire Fast and Furious operation came from whistleblowers and others associated with it."

In fact, the Justice Department has turned over more than 7,600 documents, a small fraction of the 80,000 documents identified as responsive to the House subpoena.

According to the publicly available documents, at least twice in 2010 a top federal prosecutor in Phoenix told U.S. Attorney Dennis Burke in memos that ATF agents "have pursued interdiction of the firearms transferred to the conspirators where possible," and that agents "have not purposely let guns 'walk.'"

After allegations saying otherwise surfaced in late January 2011, Burke told department officials in Washington that whistleblower claims of "gunwalking" were "categorically false."

Days later, on Feb. 4, 2011, the Justice Department sent its letter to Congress, saying, "ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."

But within a month, Holder directed the Justice Department's inspector general to launch its own investigation. And months after that, the department retracted the letter.