OTR Interviews

Does the Justice Department have a conflict of interest in its 'Fast and Furious' investigation?

Justice Department alleges GOP lawmakers have twisted the facts of case, but questions about inspector general investigating scandal surface


This is a rush transcript from "On the Record," August 1, 2012. This copy may not be in its final form and may be updated.

GRETA VAN SUSTEREN, FOX NEWS HOST: Well, there are new questions tonight in the Fast and Furious scandal. The Department of Justice inspector general is getting ready to release his report on the botched gun-running operation.

But tonight, some are wondering if he might have a conflict of interest. Three years before Michael Horowitz became inspector general, he wrote a job recommendation letter for Lanny Breuer to help him get his current job as assistant attorney general. Now, Breuer is one of the Justice Department officials whose name has come up in the investigation.

So is Inspector General Horowitz independent and objective in his investigation of Justice Department officials and their possible roles in the botched Fast and Furious operation, or does he have a conflict of interest?

Congressman Trey Gowdy recently met with the inspector general. He joins us. Nice to see you, sir.

REP. TREY GOWDY, R-S.C.: Good to see you.

VAN SUSTEREN: So have any problem with Mr. Horowitz investigating what may also include Lanny Breuer?

GOWDY: The fact that you have a prior relationship with someone does not automatically mean you cannot be unbiased, but it is certainly something that you would want to factor into the equation, and the burden of persuasion will be higher for Mr. Horowitz because of that prior relationship.

To his credit, he was very up front about it when Jason Chaffetz and I met with him. I read the letter today, the letter of recommendation. It was glowing. But facts are stubborn things...

VAN SUSTEREN: All right, you and I are both lawyers. Lanny Breuer is a lawyer. Mr. Horowitz is a lawyer. We all know...

GOWDY: Would I seat him on a jury? No, I would not.

VAN SUSTEREN: You know, but we all know that it's not -- I mean, that the appearance of impropriety -- it may be that he is perfectly able to be completely independent but the appearance of impropriety is what we all look at as lawyers because it's just not smart to have someone who doesn't have the appearance of being fair because of a relationship.

GOWDY: I wouldn't seat him as a juror, and that's the standard I would use. If he stood up in a jury panel and said, I know the defendant, or I know a witness, I would use one of my strikes against him. I don't have a strike. He was confirmed by the Senate. This is who we're stuck with...

VAN SUSTEREN: But he didn't become -- he didn't become the inspector general until April, right?

GOWDY: Well, I think he was nominated prior to then, but there was a little bit of delay confirming him with the Senate. And this issue -- I sound like an apologist for him, and I don't mean to be. I -- what strikes me is -- his report may be -- you know, everyone is capable of telling truth and everyone is capable of not telling the truth.

He has a distinguished career as a federal prosecutor in the southern district of New York, which is an outstanding judicial district. He worked public corruption cases. He may be able to be fair, but...

VAN SUSTEREN: But here's the problem -- but...

GOWDY: ... the burden's going to be high.

VAN SUSTEREN: Yes, no, but here's the -- there are two problems. One is that if you like someone, if you think someone is -- you know, is above reproach, you've written a letter of recommendation, it's hard for you to sort of step back and have that calculating look at it that you might -- or critical look at it. That's the first thing.

The second thing is that American people and the border agent's family really deserve the best we have, especially that border agent's family. And he can be enormously fair, but when they go to bed at night, if they think the fix was in because of one buddy investigating a buddy, even if it's fair, are we really doing a service to that family? And is that fair to the American people?

GOWDY: Well, the result matters, and as you say, the process matters. And if you don't have confidence in the process, then the result doesn't matter. I -- I would have recused myself. I had friends' kids get in trouble when I was the DA. I recused myself. I sent it to another office.

I don't know whether the inspector general has this ability or not. I know this, Greta, and I told Jason Chaffetz this. The result may be that he is so aware of the appearance of bias that he over-corrects it.

VAN SUSTEREN: And -- and -- and as you said, it is to his credit that he (INAUDIBLE) because lots of times, we say there's no conflict if everybody knows about it so that you can make a choice not to have him, for instance, be the one. But we don't get that choice. That's the problem.

GOWDY: I would prefer to have someone that had no connection to Eric Holder or Lanny Breuer. I have been very critical of Lanny Breuer, which is why I asked him at our meeting if he had any relationship with him. He was very forthcoming about it.

You know, I -- would I prefer to have someone that didn't know either one of them? Yes. The chances of finding someone who doesn't have any relationship with current Department of Justice officials who is going to be an inspector general is not very high.

VAN SUSTEREN: You know, this has changed my view about -- and it's sort of a side thing -- about who should investigate the leaks of national security information because there are currently two U.S. attorneys, one appointed by President Bush, a Republican, and one appointed by President Obama, a Democrat, too.

And I thought that that -- because we've had problems with special prosecutors and independent counsels, so I thought that this might be better, even though there was some squawking. Having now seen this and knowing that people will really -- will -- you know, may not have faith in it, even if it is fair, I now think that you should get someone outside, totally.

GOWDY: Well, you know, we used to call it independent prosecutor, and used the word "independent" for a reason. You want somebody that's not connected to any of the interested parties.

I -- when I was reading the letter today that was written by Mr. Horowitz on Lanny Breuer, he clearly has a high opinion of him. Does that mean necessarily he cannot be fair? I will tell you this. What is interesting to me -- and I hope what you will pay attention to, and I know you will -- the Department of Justice has a chance to correct the inspector general's initial report and say, You were wrong here or wrong there.

I'm going to be very curious whether or not this inspector general takes any of the corrections offered by the Department of Justice. I want to see his independence, which he promised Jason Chaffetz and I he would be.

The other thing is he serves at the pleasure of the president. We may have this same president come January. We may not. If he wants to hang onto his job, he needs to do a good job of proving to us that he's independent.

VAN SUSTEREN: And I might add that maybe, you know, Lanny Breuer has nothing to do with this. It's simply how it appears and whether people can have confidence in it. All right, when is this report by Mr. Horowitz coming out?

GOWDY: He said weeks and not months, and that was two weeks ago. My guess is it will be in late August, but that is just a guess. He laid out the timeline for us. I think it's going to be transmitted to the Department of Justice. But they will have an opportunity to say, You're wrong here or you're wrong there...

VAN SUSTEREN: Before it gets released?


VAN SUSTEREN: I mean, so wait a second! So the Justice Department gets to review the -- wait a second. That -- I mean, that is suspect. We've got someone who's supposedly the independent within the department doing an evaluation of the department, looking for wrongdoing. Before he surrenders that to the American people, the Justice Department gets to go through and look at it!

GOWDY: He does not have to accept. He does not have to accept.

VAN SUSTEREN: Accept what?

GOWDY: It's almost like giving someone a chance to read their deposition and say, Well, I didn't say that. Ultimately, the court reporter decides whether you did or not. He does not have to accept what they say...

VAN SUSTEREN: Yes, but they're all in the same building! They're all friends! I mean, you know, it -- look, you know...

GOWDY: I'm just telling you what he said. I'm just telling you what he said.

VAN SUSTEREN: Do you like this? Do you like this process?

GOWDY: I would rather have someone that had no connection with anyone at the Department of Justice.

VAN SUSTEREN: I'd rather have someone who doesn't first give the report to the people he's investigating to see what they think about it before he surrenders it to the American people.

GOWDY: I would like someone that has subpoena power, that can compel people to testify. That's the other thing to look out for is whether or not people refuse to cooperate with him.

He's going to come before our committee just like Attorney General Holder has, and all of the questions you've raised about bias and conflict of interest will be raised. I do want to give -- he is a career prosecutor.

VAN SUSTEREN: And -- and I...

GOWDY: I want to give him a chance to do what is right before I leap to the conclusion that he has not.

VAN SUSTEREN: Congressman, thank you, sir.

GOWDY: Yes, ma'am.