This is a rush transcript from "On the Record," July 9, 2012. This copy may not be in its final form and may be updated.
GRETA VAN SUSTEREN, FOX NEWS HOST: A murder indictment unsealed, charges for the murder of Border Patrol agent Brian Terry, the agent's death setting off a firestorm in Washington because a gun found at the murder scene came from the ATF's botched gun-walking operation.
After Congressional hearings, a claim of executive privilege and the first contempt citation for a sitting cabinet member, still no peace for the murdered agent's family. But now a surprise. The Justice Department unseals an indictment and it charges five people in Agent Terry's death and offers a $1million reward for information.
Congressman Trey Gowdy is on the Oversight Committee. He joins us. Nice to see you, sir.
REP. TREY GOWDY, R-S.C.: Good to see you, too. Thank you.
VAN SUSTEREN: And I should add that this is a federal prosecution. You are a former assistant United States attorney yourself.
GOWDY: Yes, ma'am.
VAN SUSTEREN: OK, why -- why do you think this was unveiled now? That's the first question. Apparently, the indictment came down in November. And it is what's called a superceding indictment. What's your thought on this?
GOWDY: I think it's a twice superceding indictment. It could be something as innocuous as fixing a grammatical error or adding a count. And usually, indictments are sealed if you want to allow law enforcement an opportunity to apprehend the persons who were indicted without them knowing that you're coming.
Also, sometimes you seal indictments to protect informants. And as I was reading the indictment this afternoon, it struck me -- and I don't have any evidence to back this up, but as a former prosecutor reading it, it strikes me that some of the charged defendants may well be cooperating with the prosecutors.
VAN SUSTEREN: All right. And -- and according -- obviously, some are on the run.
VAN SUSTEREN: In Mexico.
GOWDY: ... are on the run. Right.
VAN SUSTEREN: In Mexico. And I assume that -- at least maybe I'm -- it's a false assumption, but I assume that Mexico is aggressively looking for them, as well.
GOWDY: I think the $1 million fine by the bureau will help also.
VAN SUSTEREN: All right. Did you know this was coming down? Because there's been an awful lot of action on Capitol Hill, holding the attorney general in contempt of court -- in contempt of Congress, rather, because the view of Congress is, is that he is withholding documents he should surrender.
GOWDY: I did not know it was coming down, but the nature of sealed indictments is such that I should not have known it was coming down. And I read some accounts today that some -- by colleagues and some other attorneys. I think the timing is curious.
I have no reason to suspect that this unsealing of the indictment was calculated to draw attention away from the attorney general, and I think the U.S. attorney in the southern district of California, because that's who's prosecuting the case, is entitled to a presumption of good faith until it is suggested or proven otherwise. And I don't have any reason to suspect the timing of it.
VAN SUSTEREN: So bottom line, everything about this superceding indictment seems perfectly normal, nothing unusual on its face to you, whether timing, who's bringing it, the content? There's nothing peculiar about it?
GOWDY: Well, I mean, the thing that's most unusual is the timing because the indictment was true-billed or delivered last fall, and here it is eight months later and it's being unsealed. But the explanation that we're looking for the suspects and that we gave it a good eight-month effort and there's no reason to keep it secret anymore -- I have no reason to cross-examine or to dispute that explanation.
And I'm -- you know, maybe I'm biased towards prosecutors, but I'm inclined to give career prosecutors the benefit of the doubt when they're handling their cases.
VAN SUSTEREN: Well, the unsealing -- would not a reasonable explanation for the unsealing now is that they're unsuccessful getting them by keeping it secret, and now they're -- they have to go public with the reward and that's an effort to get them? So that was just -- it's just a different strategy to try to catch up with the people, the ones who were indicted?
GOWDY: Per usual, you are correct. I would also add this. It may well be that they tried various schemes to lure these four into the United States in an undercover capacity, and those schemes were unsuccessful. So after eight months, announce to everyone, These are the four people we're looking for. And if you help us find them, you'll get a million dollars.
VAN SUSTEREN: Does this change your view or would you want a different vote on the contempt of the attorney general? Because the attorney general, as the boss of this U.S. attorney, I assume, was well aware of this indictment all along.
GOWDY: Not one iota, for this reason. He was not held in contempt of Congress for his actions with respect to Fast and Furious. He was held in contempt of Congress because he refuses to turn over documents not related to this case but related to a February 4th letter, demonstrably false letter.
And if anything, Greta, there was a memo that came out last week that Senator Grassley made public that makes me even more convinced we did the right thing by sanctioning the attorney general. It's proven beyond any doubt higher-level DoJ officials knew that there were problems with gun- walking before they sent that letter.
So this has nothing to do with sending a false letter to Congress. I'm happy that they are making progress, especially for Brian Terry's family. They're one step closer to holding all of these defendants accountable, and for that, all of us in the criminal justice system or all of us as Americans should be grateful. That has nothing to do with the fact that the attorney general's not turned over documents.
VAN SUSTEREN: Do you have an update of when you expect that Congress will take that civil contempt and to U.S. district court and get some enforcement on it, or at least seek enforcement?
GOWDY: I will see Mr. Boehner tomorrow, and I promise I will ask him. It will be done by House counsel and not by Oversight or Judiciary. We got back today...
VAN SUSTEREN: Is that someone who's -- is that someone who is on staff for the House of Representatives? The reason I ask is that, you know, I'm always suspicious when people outsource to lawfirms and do it by billable hours. They're going to get hours because this is taking -- at least in my view, it could have been done faster.
GOWDY: You would think that somebody was being paid billable hours for the amount of time. No, it is done in-house by staff members who aren't paid any more than whether they do it tomorrow or whether they do it a year from tomorrow.
Again, my suspicion is because the only precedent is Harriet Miers and Josh Bolton -- there was another article I read this week that the GOP is on the verge of committing some legal malpractice by our theory of the case. We don't want to draft the pleadings incorrectly and get bounced out of court. That will be humiliating, at a minimum.
So if it takes another week to get it right -- and I know what you're thinking. Well, it's been a week since I asked you last time. And you're right. I'll anticipate your question. It's already been a week.
I'm going to ask Speaker Boehner tomorrow, and I would encourage him to do it as quickly as we can guarantee that the process is correct, the pleadings are correct.
VAN SUSTEREN: Congressman, thank you, sir.
GOWDY: Yes, ma'am. Thank you