Obama's Enforcer (14 page)

So it was very clear that Machen had not made an “independent” decision not to enforce Holder's contempt citation; that decision had been taken out of his hands by Holder's own deputy, directly contradicting Holder's sworn testimony to Issa. As Senator Chuck Grassley (R-Iowa) pointed out, Cole was in essence refusing to allow Machen to comply with federal law since 2 U.S.C. §194 says that with regard to any witness who refuses to produce documents or testify before Congress, the appropriate U.S. attorney's “duty . . . shall be to bring the matter before the grand jury for its action.” In other words, “it is not optional”—Machen was
obligated
to present the contempt resolution to a federal grand jury.
19

But Cole's letter came out before Machen could have even “undertaken any such independent assessment” of the contempt resolution and his obligation to present it to a grand jury. So while Holder was blithely telling a congressional committee at his oversight hearing that Machen made an independent decision, the public record showed that Holder's deputy had entirely foreclosed an independent decision, had immediately shut down any Justice Department enforcement, and had ordered Machen to violate federal law. That is why the House of Representatives was forced to go to court on its own to do the job that Machen refused to do.

When Jennifer Rubin of the
Washington Post
questioned the Justice Department about this discrepancy, she was told that Holder “misspoke” and “since he was not involved, he did not recall the details.”
20
But as Rubin says, that means that Holder just “made something up at the hearing.” She adds that we have seen this routine far too often from the administration, but “when the prevarication repeats over and over again, followed by more prevarication about the original falsehoods . . . you get the sense the truth doesn't matter. What matters is keeping Congress and the media at bay, ducking accountability, and wielding power over other branches of government, the press and political opponents.”
21

When the congressional investigation first started into Operation Fast and Furious, Holder also prevaricated on when he first learned of the operation and gave sworn testimony that is contradicted by other evidence and even himself. On May 3, 2011, when he testified before the House Judiciary Committee during an oversight hearing, Holder was asked by Representative Issa: “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 that he was “not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks.”
22

Holder changed that answer when he was asked a similar question by Senator Pat Leahy (D-VT), chairman of the Senate Judiciary Committee, in another oversight hearing six months later, on November 8, 2011. Then Holder said that he “first learned about the tactics and the phrase ‘Operation Fast and Furious' at the beginning of this year, I think, when it became a matter of public controversy. In my testimony before the House Committee, I did say ‘a few weeks.' I probably could have said ‘a couple of months.' ”
23

Yet we now know that Holder's deputy chief of staff, Monty Williams, read weekly reports discussing Operation Fast and Furious in 2010, and that just before Marine veteran and Border Patrol agent Brian Terry was killed on December 15, 2010, near Rio Rico, Arizona, Williams made inquiries to U.S. Attorney Dennis Burke about the “Attorney General's participation in announcing the Fast and Furious take-down” at a press conference in Arizona. Gary Grindler, who became Holder's chief of staff in January 2011, had attended detailed briefings on Operation Fast and Furious in 2010 when he was the acting deputy attorney general. Edward Siskel, who was the associate deputy attorney general, was responsible for the ATF portfolio and also “attended detailed briefings on Fast and Furious.”
24
Wilkinson, Williams, and Grindler were notified almost immediately about the tie-in between Terry's murder and weapons obtained through Operation Fast and Furious. There were at least seven memos sent to Holder in 2010 discussing Operation Fast and Furious that Holder claims he never read.

In their testimony given to Congress during its investigation, these Justice staffers claimed that they never talked to their boss, Eric Holder, in 2010 about this major law enforcement operation, and did not immediately notify him about the connection between the weapons “walked” across the Mexican border and Agent Terry's death. As the House report concluded, there seemed to be collective “amnesia at Justice Department Headquarters.”
25
The House report said Wilkinson's failure to recall details was “simply not credible in light of the timing and circumstances” and that the “documents suggest that there was an immediate and obvious instinct to protect the Attorney General from being associated with an obviously controversial operation.” In fact, “Department officials seem to have experienced collective memory loss.”
26

Any Justice Department veteran can tell you that the claims that Holder did not know about this operation are simply not credible. There is no question that the Justice Department is a very large operation and that the attorney general cannot have personal knowledge of everything being done in the department or read every document and memorandum sent to his office. But the job of his staff is to keep him briefed on major operations like Operation Fast and Furious and it is simply not credible that his closest aides, who were without question briefed about this operation, did not tell him about it at all or brief him on the continuing stream of memos they were receiving about the efforts to crack down on drugs and guns along the southwest border.

It is even more incredible that they would not immediately notify Holder about the death of a border agent who was killed with a weapon used in this very Justice Department operation, given the negative consequences, particularly in the public relations arena, that any competent lawyer and senior aide could see flowing from that tragedy. A former senior career lawyer who worked in the solicitor general's office told one of the authors that any competent senior staff would
immediately
notify the attorney general of such a problem.

This is particularly true given that shortly after he took office, Holder “delivered a series of speeches about combating violence along the southwest border” and his vision was crystallized in the “Department of Justice Strategy for combating the Mexican Cartels.” Operation Fast and Furious was an integral part of this strategy and it begs credulity to claim that Holder was never briefed about a major operation set up to implement his objectives in the Southwest.
27

Fast and Furious also demonstrates the studied and deliberate ignorance practiced by Holder to protect his political cronies. This was shown rather directly in questioning by Representative Louie Gohmert (R-TX) when Holder was testifying before the House Judiciary Committee on June 7, 2012.

Gohmert said to Holder: “Did you not ever go back to your office and say when you found out about Fast and Furious, I demand to know who authorized this? Are things so fast and loose in your office that somebody can authorize the sale to international criminals of American guns that are bringing about the death of even American agents, and nobody has to do that in writing?”
28

This was an obvious question to ask—if Holder was indeed so upset about what happened to Agent Brian Terry and the reckless nature of this operation that he immediately shut it down, as he claimed he did, if he really had not known about it, wouldn't the first question he would ask (or anyone else in his position) be: “Who authorized this?”

Holder avoided answering Gohmert's question by saying, “I asked the inspector general to conduct an investigation. I put an end to the policy that led to the Fast and Furious debacle. I made personnel changes at ATF and in [the] U.S. Attorney's Office. We made changes in the procedures there.”
29

Gohmert countered that Holder wasn't answering his question, which was “[D]id you go back and say, I demand to know who authorized this Fast and Furious program? That was the question.” But Holder insisted that he had answered the question. Holder apparently never asked his staff and his top subordinates who had authorized this operation. It is pretty obvious that he either did not want to know or was covering up his own participation in and knowledge of the operation. And his staff was either so incompetent that they did not inform their boss about this major operation and the connected death of a U.S. border agent, or they had convenient memory lapses when they were deposed by congressional investigators.

As explained in the opening chapter and further detailed in the chapter on Holder's mishandling of the national security responsibility of the Justice Department, Holder also lied about the department's investigation of Fox News reporter James Rosen over leaks of information from the State Department about North Korea. But in addition to his false testimony on multiple occasions, Holder's inability to answer basic questions about his actions, Justice Department cases, and the applicable law could only be attributed to incompetence or deliberate ignorance. One of the authors, Hans von Spakovsky, helped prepare high-level Justice Department officials for numerous oversight hearings when he worked at the department. The standard procedure at Justice was to write a voluminous set of briefing papers on every conceivable topic that the official could be questioned about, and particularly on hot topics that were in the news that Justice was involved in. Each briefing paper would be one to two pages long and would provide a complete answer on Justice Department actions and any applicable federal statutes.

The Justice official who was going to testify would then have practice sessions with his aides where they would pretend to be the members of the committee and ask questions of the official in a mock hearing. The pretend hearings were always tougher than the real thing and in four years of doing this kind of work by von Spakovsky at Justice, there was
never
a question from a member of a committee that had not been anticipated ahead of time by the Justice Department staff and for which an answer had not been prepared.

So Holder's ignorance on multiple occasions is a sign either that he is deliberately choosing not to answer the committee's questions, that he has a completely incompetent staff who did not prepare him to answer the most obvious questions, or that he doesn't care enough about his responsibility to respond to congressional inquiries to bother to come prepared to hearings. Given the high caliber of the individuals that prior attorneys general of both parties have had as their staff, it is doubtful that Holder's ignorance is based on incompetent staff. Watching the attorney general's performance and his seeming ignorance on question after question is actually embarrassing to any veteran of the Justice Department.

As former Justice Department prosecutor Andrew McCarthy says, many “things in politics are unpredictable.” But “Eric Holder's lack of candor and propensity to politicize justice are not among them.” McCarthy says that, “Long before he was confirmed as President Obama's attorney general, he was a key participant, as President Clinton's deputy attorney general, in the shameful pardons of Marc Rich and FALN terrorists. In connection with Rich in particular, Holder gave Congress grossly misleading testimony about his role in the pardon and his knowledge of Rich's sinister background. Nothing about Holder's abysmal performance over the last five years—including his contemptuous misleading and stonewalling of Congress—has been surprising. What is most disappointing is that, knowing what it knew when Obama nominated Holder, the Senate overwhelmingly confirmed him anyway.”
30

As the chief law enforcement official in America, responsible for a legal agency with more than one hundred thousand employees, the attorney general has an uncompromising duty to always conduct himself in an ethical and professional manner. Attorney General Eric Holder has consistently failed in that duty. His misleading testimony to Congress on numerous occasions as well as his failure to provide information and documents to which Congress is entitled are an embarrassment to a long line of lawyers of both political parties who have held that post throughout our history and who carried out their responsibilities in the highest and best traditions of public service.

CHAPTER 7

FAST AND FURIOUS

 

Imagine if a Drug Enforcement Administration (DEA) official let a kilo of cocaine onto the streets to try to figure out where it was going, but did not make any efforts to follow it after a drug dealer got his hands on it. When dealing with known criminals, federal law enforcement agents know they are never going to see those drugs again—and those drugs could put someone's life in danger from an overdose or other issues that may arise.

The same concept applies to guns. If federal law enforcement agents allow guns to get into the hands of known criminals, and then don't follow them, those weapons will probably end up being used in the commission of crimes—including murders. As such, federal law enforcement frowns upon and rarely ever lets even a smidgeon of drugs or just one gun walk, never mind a couple of thousand, which is what happened in the Fast and Furious scandal.

“Operation Fast and Furious” grew out of a mixture of inept bureaucrats and a cadre of politically motivated anti–Second Amendment Obama appointees. Assigning accountability for the scandal has been difficult, but there are signs the courts may eventually demand the release of records that will allow that to happen.

In Fast and Furious, ATF agents directed people known as “straw purchasers”—low-level illicit weapons purchasers who work for the Mexican drug cartels' smugglers inside the United States—to buy guns at Phoenix, Arizona–area Federally Licensed Firearms dealers. Those guns were then smuggled into Mexico by cartel operatives, after agents let the weapons get into the hands of those cartel operatives by not tracking them.

The cycle of gun walking continued despite protests from street agents for more than a year after it began in late 2009, until U.S. Border Patrol agent Brian Terry was murdered on December 15, 2010, in Peck Canyon, Arizona, by Mexican cartel operatives running a rip crew. A rip crew is a group of bandits who clear corridors in the desert for drug smugglers coming from Mexico into the United States. They are used to eliminate potential competition from other cartels trying to steal drugs en route to a U.S. destination, and from law enforcement officials who may attempt to arrest smugglers.

Two Fast and Furious guns were found at Terry's murder scene, after they had been previously trafficked into Mexico. The revelation sparked what became one of President Obama's first major scandals, one with deadly repercussions that continue to this day. Perhaps even more shocking is, that along with Benghazi, the targeting of conservative organizations by the IRS, and a whole consortium of other scandals that the Obama administration is responsible for, Fast and Furious remains the only one in which President Barack Obama has asserted an official executive privilege claim, to withhold documents about the Justice Department operation that were subpoenaed by the House of Representatives.

The origins of the Fast and Furious scandal date back to the George W. Bush Justice Department, which launched the “Project Gunrunner” initiative through the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in 2006. The goal of the initiative was to decrease drug and gun trafficking along the U.S. border, crime trades largely driven by the Mexican drug cartels.

In and of itself, Project Gunrunner was not problematic, but incompetent bureaucrats in Arizona's ATF who launched specific investigations as part of it badly mishandled it. Also in 2006, as part of the larger Project Gunrunner, Tucson, Arizona, ATF officials—including Phoenix-based Special Agent in Charge Bill Newell, who ran ATF operations in the state of Arizona and was viewed as a rising star in the agency by officials in Washington—launched an investigation named Operation Wide Receiver.

In Wide Receiver, the beginnings of the gun-walking tactics later employed in a more dramatic and fast-paced way in Fast and Furious were tested. Agents, at Newell's direction, allowed 275 weapons to “walk” in Wide Receiver. According to CBS News, which first broke the Fast and Furious scandal in the news in early 2011 and subsequently uncovered much of the details about Wide Receiver, during Wide Receiver “the vast majority of guns were not tracked and Mexico's government was not fully informed of the case.”

“Apparently worried that the gunwalking tactics could be viewed as inappropriate, federal prosecutors in Arizona abandoned the case,” CBS News' Sharyl Attkisson wrote of Wide Receiver in early 2013 in a summary of the larger scandal. “Then, in the fall of 2009, Justice Department officials decided to go ahead and prosecute the case.”
1

When President Obama first took office in January 2009, he and his new administration officials announced a series of new initiatives they would be taking to increase activity through the Project Gunrunner program started under the Bush administration. Essentially, they were taking it to the next level—beefing up and expanding tactics used in the past.

On February 25, 2009, Holder gave a press conference to announce the takedown of a drug smuggling ring connected to Mexico's Sinaloa Cartel. At the presser, Holder left some not-so-subtle hints about what he was going to do next. “I met yesterday with Attorney General Medina Mora of Mexico and we discussed the unprecedented levels of violence his country is facing,” Holder said. “The Mexican government has been courageous during the last two years to directly confront the drug trafficking cartels and I stand before you today to say that we are ready and willing to continue the fight with our Mexican counterparts against these violent criminal enterprises.”
2

Holder said that the cartels “are lucrative, they are violent, and they are operated with stunning planning and precision.” Holder promised that while he was atop the Department of Justice, “these cartels will be destroyed.”
3

Meanwhile, at the end of March 2009, then–secretary of state Hillary Clinton visited Mexico's capital, Mexico City, more than a thousand miles south of the U.S. border. While there, Clinton gave speeches bashing American gun stores and gun owners for the violence.

“Our insatiable demand for illegal drugs fuels the drug trade,” Clinton said in a speech that the
New York Times
described as having “unusually blunt language.”
4

“Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police officers, soldiers and civilians,” Clinton said.

Clinton's campaign in Mexico City included a meeting with then-president Felipe Calderón and television appearances in major media across the United States, including one particularly notable interview with MSNBC's Andrea Mitchell. In that MSNBC hit, Clinton said: “We're going to start tracing these guns, we're going to start cracking down on illegal gun sales, we're going to go after the straw men and women who go in and buy these guns. We're going to use every tool at our disposal.”
5

The nation's top diplomat's trip was much heralded in the press and was an obvious attempt by the political figures at the top of the Obama administration to mislead people into agreeing with her claim that “90 percent” of the “guns that are used by the drug cartels against the police and the military” actually “come from America.”

“Our inability to prevent weapons from being illegally smuggled across the border to arm these criminals causes the deaths of police, of soldiers and civilians,” Clinton said.

Clinton's claim is actually false. A diplomatic cable uncovered by WikiLeaks shows that 90 percent of the weapons the cartels get come from Central America or from corrupt Mexican military officials. Oftentimes cartels will raid armories in Guatemala. Or crooked Mexican military officials will split up a shipment of new rifles among their troops and the cartels. For instance, if 200 new fully automatic AK-47s came in, a dirty military leader might give 100 to his troops and sell the other 100 to his buddies in the cartel. Then he'll report the missing 100 weapons as an oversight or as stolen—and nobody will ask any questions.

For organized crime purposes, the guns the cartels get from Central America or from corrupt military leaders are better than what cartels could get from America. They're usually fully automatic, military-grade weapons. Weapons they'd be able to traffic into Mexico via straw purchasing rings from Federal Firearms Licensee gun dealers in the United States aren't fully automatic and aren't military grade—they're semiautomatic at best.
6
The ATF's own figures show that only 17 percent of the guns found at Mexican crime scenes have been traced back to the United States.
7

Despite the inaccuracy of her claim, that political worldview from Clinton, that gun dealers and owners in the United States are responsible for guns getting into criminals' hands in Mexico—a view shared by most of the rest of the Obama administration—dominated Fast and Furious, making its dangerous tactics even more deadly than during Wide Receiver in the previous administration. Essentially the administration needed to find evidence to justify its claims that American gun dealers were chiefly responsible for Mexico's cartel violence.

About a week after Clinton's trip to Mexico, Holder himself made his own—to Cuernavaca, Mexico—a suburb of Mexico City, about forty miles south of the capital—for a firearms trafficking conference. It was Holder's first trip to any foreign country as attorney general.

“I wanted to come to Mexico to deliver a single message: We stand shoulder-to-shoulder with you in this fight against the narcotics cartels,” Holder told a roomful of journalists and Mexican politicians. “The United States shares responsibility for this problem and we will take responsibility by joining our Mexican counterparts in every step of this fight.”
8

Holder expanded on his February 25 promise to “destroy” the Mexican drug cartels. He said the way the Obama administration was going to eliminate the organized crime groups in Mexico was by cutting off the supposed flow of weapons from the United States into Mexico—even though that flow, which Clinton had claimed the Obama administration would fight a week earlier, doesn't really exist.

Holder said he and then–homeland security secretary Janet Napolitano were “committed to putting the resources in place to increase our attack on arms trafficking into Mexico.”

“Last week, our administration launched a major new effort to break the backs of the cartels,” Holder said. “My department is committing 100 new ATF personnel to the Southwest border in the next 100 days to supplement our ongoing Project Gunrunner, DEA is adding 16 new positions on the border, as well as mobile enforcement teams, and the FBI is creating a new intelligence group focusing on kidnapping and extortion. DHS is making similar commitments, as Secretary Napolitano will detail.”

Holder said a “topic that has been addressed over the past two days could not be more important.” That topic, according to Holder, was “the development of an arms trafficking prosecution and enforcement strategy on both sides of the border.”

The president himself visited Mexico City on April 16, 2009, a couple of weeks after Holder's visit. There he and Mexican president Calderón made the same argument Holder and Clinton had made before about weapons trafficking and American gun owners. “In fact, I've asked Eric Holder to do a complete review of how our current enforcement operations are working and make sure we are cutting down on the loopholes that are causing some of these drug trafficking problems,” Obama said.
9

A couple of weeks after Obama returned to Washington, D.C., Napolitano testified before Congress with the same misinformation that Holder, Clinton, and the president were peddling in Mexico City.

“A large number of weapons recovered in Mexico's drug war are smuggled illegally into Mexico from the United States,” Napolitano told the Senate Judiciary Committee on May 6, 2009. “Clearly, stopping this flow must be an urgent priority.”
10

Later, in a June 30, 2009, speech, Deputy Attorney General David Ogden promised that ATF and U.S. Immigration and Customs Enforcement (ICE) would work together to battle gun trafficking on the southwest border. He promised ATF and ICE would “ensure coordination between the Departments on firearms investigations.”
11

Each of these political direction changes in law enforcement, and more, led to what Republicans on the House Committee on Oversight and Government Reform, led by Representative Darrell Issa (R-CA), would later describe as the DOJ's development of “a risky new strategy to combat gun trafficking along the Southwest Border.”

“The new strategy directed federal law enforcement to shift its focus away from seizing firearms from criminals as soon as possible—and to focus instead on identifying members of trafficking networks,” a House Oversight Committee report on Fast and Furious reads. “The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) implemented that strategy using a reckless investigative technique that street agents call ‘gunwalking.' ATF's Phoenix Field Division began allowing suspects to walk away with illegally purchased guns. The purpose was to wait and watch, in the hope that law enforcement could identify other members of a trafficking network and build a large, complex conspiracy case.”
12

According to the House Oversight report, the Phoenix Field Division of the ATF created a new law enforcement team called “Group VII” to focus on firearms trafficking.

“This shift in strategy was known and authorized at the highest levels of the Justice Department. Through both the U.S. Attorney's Office in Arizona and ‘Main Justice,' headquarters in Washington, D.C., the Department closely monitored and supervised the activities of the ATF,” the Oversight Committee wrote. “The Phoenix Field Division established a Gun Trafficking group, called Group VII, to focus on firearms trafficking. Group VII initially began using the new gunwalking tactics in one of its investigations to further the Department's strategy.”