Fact Check: Cornyn accuses Holder of misleading Congress

In an unusual move during an often-heated Senate hearing Tuesday, Sen. John Cornyn, R-Texas, told the nation's top law enforcement officer he should resign.

"Let me talk about your record," Cornyn told Attorney General Eric Holder, before going into a lengthy list of alleged transgressions, most of which centered around the botched "Operation Fast and Furious."

"In short, you violated the public trust, in my view, by failing and refusing to perform the duties of your office," Cornyn said.

But as with much about "Fast and Furious," whether Cornyn's claims are true depends on whom you ask. Holder, for one, accused Cornyn of inaccuracies.

Fox News lays out the basic facts -- and, when appropriate, the disputes -- behind each of Cornyn's claims.

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CORNYN: "You misled Congress in February 2011 and claimed that there never had been a gunwalking program, and had to retract that in November 2011." 

THE FACTS: In late January 2011, Grassley handed Holder two letters, raising "serious concerns" over "numerous allegations that the ATF sanctioned the sale of hundreds of assault weapons to suspected straw purchasers, who then allegedly transported these weapons throughout the southwestern border area and into Mexico."

On Feb. 4, 2011, in response, Holder's top liaison to Congress, Assistant Attorney General Ron Weich, called the allegations "false," insisting, "ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico." But since then, details of "Fast and Furious" have become public, as have details about similar, smaller-scale operations under the Bush administration.

"Fast and Furious" 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, and many of those purchases ATF knew about ahead of time. 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.

Several months ago, the Justice Department retracted the Feb. 4, 2011, letter and released emails from the days before the letter was sent to Grassley.

Emails sent after Grassley first raised concerns show Weich and others in Washington trying to "get our arms around the facts first" before figuring out how to proceed. In subsequent emails to officials in Washington, Dennis Burke, the U.S. attorney in Arizona, called Grassley's assertions "categorical falsehoods." Then, a Weich aide met with ATF officials in Washington, and her notes of what was discussed include comments that, "ATF doesn't let guns walk," and, "We always try to interdict weapons purchased illegally."

By this time, Justice Department officials in Washington were denying the allegations to others within the department, as they circulated and tweaked drafts of a response to Grassley. On Feb. 4, 2011, after officials in Washington raised questions about the paragraph now known as inaccurate, Burke wrote that he and his colleagues "stand by" calling Grassley's assertions "categorically false." The letter was sent to Grassley the same day.

CORNYN: "You misled Representative Issa in May 2011, saying you did not learn about the 'Fast and Furious' program until the spring of 2011. And then you had to admit to Senator Grassley that you learned about those tactics in January of 2011."

THE FACTS: During a Senate hearing on March 10, 2011, Sen. Kay Bailey Hutchison, R-Texas, asked Holder about media reports that guns were being smuggled to Mexico with ATF's knowledge. Holder said he "took those allegations, those concerns, very seriously and asked the inspector general to try to get to the bottom of it. An investigation, an inquiry is now under way."

Then, during a House Judiciary Committee hearing nearly two months later on May 3, 2011, the lawmaker leading a House investigation into "Fast and Furious," Rep. Darrell Issa, R-Calif, asked Holder: "When did you first know about the program officially, I believe, called 'Fast and Furious' To the best of your knowledge, what date?"

Holder responded, "I'm not sure of the exact date, but I probably heard about 'Fast and Furious' for the first time over the last few weeks."

During the same hearing, Rep. Jason Chaffetz, R-Utah, asked Holder a follow-up: "You said that in just the last few weeks is -- is when you'd heard this. The president made statements to this in a report on Univision back on March 22. Were you aware of this operation before the president or after the president made those comments?" Holder said, "My guess would be probably before the president."

During subsequent hearings on Capitol Hill, Holder was asked repeatedly about his testimony in May 2011. Testifying before the Senate Judiciary Committee on Nov. 8, 2011, Holder said Grassley's letters "talked about a connection between an operation and the death of Agent Terry (but) it did not mention 'Fast and Furious.'"

Holder acknowledged he "became aware" of "Fast and Furious" in February 2011 from press reports and subsequent letters from Grassley.

CORNYN: "It's clear that your inner circle -- your high-level Department of Justice employees -- received briefings and memos on 'Fast and Furious' gunwalking, including Lanny Breuer, Deputy (Attorney General Gary) Grindler and others in early 2010." 

THE FACTS ON GRINDLER: During a briefing on March 12, 2010, Gary Grindler, then the acting deputy attorney general, was told about "Operation Fast and Furious" by name. According to Grindler's redacted notes, he was told the operation was associated with "multiple sales" and "seizures in Mexico" that could form a "predicate" for cases in the United States. In addition, he was shown a chart indicating that suspects used significant amounts of cash to purchase weapons. But when he testified to House investigators in December 2011, he said he was "extraordinarily confident" the ATF officials who briefed him at the time didn't tell him ATF was deliberately allowing firearms to be transferred to Mexico. "That is just an absurd concept," Grindler said. "If that had been told to me, I would not only have written something, but done something about it." In addition, one of the ATF officials who briefed Grindler at the time, ATF Deputy Director William Hoover, told congressional investigators he "certainly didn't brief (Grindler) on the techniques being employed in 'Fast and Furious'" because he didn't know them himself then.

THE FACTS ON BREUER: In April 2010, Breuer received a briefing from a deputy about an ATF gun-trafficking operation. "As you'll recall from (the briefing), ATF let a bunch of guns walk in an effort to get upstream conspirators but only got (straw purchasers), and didn't recover many guns," Deputy Assistant Attorney General Jason Weinstein wrote Breuer in an April 30, 2010, email.

But that briefing was not about "Fast and Furious" -- it was about "Operation Wide Receiver," the Bush-era ATF operation that involved similar tactics but lay dormant until the Justice Department under Holder revived efforts to bring charges. The subject of the email from Weinstein was: "Operation Wide Receiver." The operation involved about 350 weapons purchased by gun-smuggling suspects, and during the Nov. 8, 2011, hearing with Holder, Cornyn acknowledged "distinctions" between "Wide Receiver' and "Fast and Furious."

Nevertheless, Breuer has been taken to task for keeping higher-ups in the dark about questionable tactics in "Wide Receiver," and he has since apologized for failing to inquire whether "Wide Receiver" was the only such operation -- a move that some say could have stopped "Fast and Furious" much sooner.

In October 2010, a memo addressed as “From: Lanny A. Breuer” and “To: The Attorney General” noted that a case in Tucson, Ariz., would remained sealed “until another investigation, Phoenix-based ‘Operation Fast and Furious,’ is ready for takedown.” But that’s all the memo said about “Fast and Furious,” and Justice Department officials have said the names on the memo don’t indicate who actually wrote, sent or received it.

CORNYN: "You claim that the 'Fast and Furious' wiretap applications did not detail gunwalking tactics ... yet they do raise plenty of details to raise a red flag about this tactic."

THE FACTS: In his opening statement Tuesday, Grassley himself said the "debate over the wiretap applications has become a matter of he said/she said since they're sealed and not publicly available."

On Thursday, Issa's office said wiretap applications submitted to top Justice Department officials for approval "contain rich details about what occurred in 'Operation Fast and Furious,'" adding, "They also indicate that senior officials in the Department's Criminal Division were given details of the operation's reckless tactics but still approved the applications. Cornyn, who has seen the applications, agreed with that assessment Tuesday. And Grassley said he disagrees with anyone who claims the applications don't include "details about the tactics of 'Fast and Furious.'"

In a letter to Issa last week, however, the House Oversight Committee's ranking member, Elijah Cummings, D-Md., said such claims "mischaracterize the contents and significance" of the wiretap applications, insisting such assertions omit a "critical fact that ... completely undermines your conclusions and distorts your representations." The "critical fact" cited by Cummings, however, was redacted in the letter released by his office.

In an interview with congressional investigators in January, Weinstein, one of the officials who approved the wiretap applications, said he has "a sensitive radar to gunwalking, since that's been the focus of my life," and, "Had I seen anything at any time during the investigation of 'Fast and Furious' that raised (such) concerns, I would have reacted."

CORNYN: "You have defied the lawful and legitimate oversight responsibilities of the House of Representatives, and of the Senate. You have resisted producing documents -- you have produced about 7,600 documents out of a pool of at least 80,000 documents that would be responsive." 

THE FACTS: In testimony Thursday and Tuesday, Holder did not dispute the numbers. He told lawmakers Thursday, "We've looked at 240 custodians. We have processed millions of electronic and viewed over 140,000 documents and produced to you about 7,600." He said, "all information that I think appropriately can be shared has been shared." On Tuesday, Holder said there is a basis for withholding documents when they deal with internal deliberations -- calling it a Justice Department "tradition" under both Republican and Democratic administrations.

But in its "fact sheet" distributed Thursday, Issa's office said many of the 7,600 pages turned over to congressional investigators "have little value," at least in part because "many were already public and others have been nearly completely redacted." And, the "fact sheet" said, the department's claims of a "chilling effect" on future internal deliberations means that "virtually any agency could use this bland argument on nearly any topic," adding that Congress "has never recognized internal agency discussions as privileged and protected."