“Fast & Furious” (Jamie Trueblood_Universal Pictures)
The federal investigation into Mexican gun-trafficking was dubbed Operation Fast and Furious, because the suspects involved liked a little auto-sideshow action. The better analogy might be “The Wire”—to cover a roiling case of vindictive office politics, cowboy agents, sensationalized reporting, the clash of Second Amendment rights and gun crimes, and election-year bickering that has resulted in the first-ever contempt charge against a sitting Cabinet officer.
What is Operation Fast and Furious?: The Bureau of Alcohol, Tobacco, Firearms, and Explosives wanted to put a stop to the purchase of guns in the United States, that were later used across the border in cartel crimes. The case has been hampered by office politics, prosecutorial reluctance, and weak enforcement. For instance, straw purchases—the act of buying guns for others—is not illegal in Arizona.
What Republicans are loath to admit is that the ATF tried Fast and Furious in lieu of other means of combating illegal weapons-trafficking partly because Congress, at the behest of gun-rights advocates, has resisted virtually every proposal to empower the bureau against the buying and selling of firearms destined for illegal use in Mexico. (June 21, Washington Post)
The operation ended in January 2011, about a month after Brian Terry was killed in a rare border shootout near Rio Rico, Arizona; he was the fifth Border Patrol agent to die in 2010, and two guns used in the shoot-out allegedly came from Fast and Furious.
The massive fallout: As a result of Terry’s death, reports emerged was the belief that ATF allowed known straw buyers for the cartels to “walk” the guns across the border instead of intercepting them and arresting the buyers. Agents planned to track guns to the cartel buyers and arrest them, but accusations flew that ATF purportedly lost track of hundreds of weapons. Politicians in Mexico claimed ‘lost’ Fast and Furious guns killed more than 150 Mexicans.
A newly released Fortune investigative report (details below and in timeline) took pains to lay out that the fallout was actually a rush to judgment, that the ATF had to allow “gun walking” because straw purchasing is not illegal in Arizona, and that they didn’t lose track of hundreds of weapons. Two of the guns that were involved in the shootout, Fortune alleges, a result of a rogue undercover sting that was outside Operation Fast and Furious — although that sting had been approved by an ATF supervisor.
[Related: Operation Fast and Furious timeline]
Historical contempt Eric Holder (J. Scott Applewhite/AP)
The investigation and Holder’s liability: A congressional committee, led by Rep. Darryl Issa, in its 18-month investigation has so far compiled 7,600 documents but wants emails from after the operation shut down in February 2011. U.S. attorney general Eric Holder cited confidentiality, and President Obama, for the first time, asserted executive privilege to back him up. (Bill Clinton claimed the privilege 14 times in his two terms, George W. Bush six.) House Speaker John Boehner claimed that privilege meant involvement, although Issa rebutted that. However, Issa led another first: a House contempt charge against a sitting U.S. attorney general.
This is not the first time this oversight committee has issued a contempt charge, points out Todd Peterson, a law professor at George Washington University, to Yahoo!. Attorney General Janet Reno was on the receiving end of one during a prolonged campaign finance investigation. Chief of Staff Joshua Bolten and Harriet Miers, who had already resigned as White House counsel, felt the sting of a House charge for contempt, for their refusal to testify in the firings of seven attorney generals. At that time, President George W. Bush had claimed absolute executive privilege.
What is unusual in this case, Peterson says, “is the speed that the full House has proceeded with the contempt vote, notwithstanding the Justice Department’s willingness to continue to negotiate.”
Rush to judgment: One day before the House passed H.Res. 711 against Holder, Fortune magazine reporter Katherine Erbe released the highlights of her own six-month investigation. The current understanding of Operation Fast and Furious has been “misconstrued, incorrect,” Erbe said to CNN, and part of that might be due to the Justice Department’s own poor internal communications.
So there’s a sense that the Justice Department immediately wanted to deal with the potential political repercussions without necessarily grappling with the substantive question of what actually happened. Now I think they would say that they have turned to the inspector general to do a thorough investigation and they are withholding judgment pending the—that review. But, in fact, I think anyone watching Eric Holder testifying would conclude that he believes that guns were walked [even when they weren’t]. (June 28, CNN)
Some takeaways from Erbe’s report: No federal statute outlaws firearm trafficking, which hampered the ATF—already in leaderless disarray—from the start. The Sinoloa drug cartel used Phoenix as its “gun supermarket”: The National Rifle Association notes that the state doesn’t require purchase permits, registration, or licensing. The Brady Campaign to Prevent Gun Violence has scored Arizona 0 out of 100 in its Curb Firearm Trafficking scorecard.
According to government figures, Arizona also has the sixth highest percentage of crime guns recovered that were originally purchased within the state. (Handguncontrol.org)
A disgruntled ATF agent—described by a former partner and best man at his wedding as an “a–hole”—seems to have set up an undercover case separate from Fast and Furious, then later went on CBS blaming his supervisors for gun walking. The idea of a wiretap, to make a direct link between purchases for criminals, came from an assistant attorney general in Phoenix. Even so, prosecutors were inexplicably slow to issue indictments for suspected gun traffickers—especially compared with New York and Los Angeles—until Terry’s murder. Notably, since Congress’ investigation began, “gun seizures by Group VII and the ATF’s three other groups in Phoenix dropped by more than 90%.”
Democrats walk-out during contempt vote (Jacquelyn Martin/AP)
Political poker: second Amendment, race: Pick your wild card. While the congressional investigation has been widely seen as legitimate, accusations of underlying motives of the partisanship have ranged from racism to Second Amendment conspiracies.
Holder does have a track record of favoring gun-control measures, and firearm forums repost of his post-9/11 Washington Post editorial advocates background checks on sellers and a law allowing ATF a “record of every firearm sale.” Fears of gun control have caused gun sales to soar during Obama’s term. The White House administration, however, has proposed no legislation on gun control, even after the spree killing and assassination attempt of Gabrielle Gifford.
What’s next: After a contempt charge, the case can be referred to the U.S. attorney for the District of Columbia, who has the option of bringing it to the grand jury. But the Office of Legal Counsel ruled back in 1984 that it wouldn’t be constitutional to prosecute someone asserting a claim of executive privilege, points out Professor Peterson.
Congress could proceed with a civil suit, but usually judges prefer to let Congress and the Department of Justice negotiate a settlement. “There are a million different ways” to settle this, Peterson says, whether deciding if copies can be made or if House members have to hang out at Justice to look at primary material. “These kinds of disputes come up all the time, and they’re almost always negotiated.”
Ultimately, even though the Congress has a bad track record in keeping confidential information secret, it will likely get what it wants, as the Washington Post points out.
No doubt a lot of congressional investigations are partisan fishing expeditions. For better or worse, that comes with the democratic territory. Absent very strong countervailing considerations—stronger than some of those the administration has asserted in this case—Congress is generally entitled to disclosure. (June 21, Washington Post)