Operation Fast and Furious is back in the headlines this morning after a federal judge ruled Monday evening that a lawsuit against Eric Holder’s Justice Department, filed by the House Committee on Oversight and Government Reform, may proceed.
The 44-page ruling, issued by U.S. District Court Judge Amy Berman Jackson, supported the Oversight Committee’s position that President Barack Obama could not assert executive privilege to prevent records relating to the gun running operation from being turned over to the committee.
Congressman Darrell Issa (R-CA), chairman of the Oversight Committee, issued a blistering statement blasting the Justice Department and House Democrats.
"This ruling is a repudiation of the Obama Justice Department and Congressional Democrats who argued the courts should have no role in the dispute over President Obama's improper assertion of executive privilege to protect an attempted Justice Department cover-up of Operation Fast and Furious,” Issa said. “I remain confident in the merits of the House's decision to hold Attorney General Eric Holder in contempt; this ruling is an important step toward the transparency and accountability the Obama Administration has refused to provide."
Likewise, Sen. Charles Grassley (R-IA), who launched the first Capitol Hill probe of the gun running operation, which was mounted by the Bureau of Alcohol, Tobacco, Firearms and Explosives field office in Phoenix, Ariz., was also critical of President Obama’s attempt to shield the documents.
“The President’s sweeping assertion of executive privilege over Fast and Furious documents is completely contrary to the transparent government that he promised and beyond any valid claim of privilege under the law,” Grassley said. “The documents subpoenaed by the House of Representatives are essential to gaining a full understanding of the gunwalking program that led to the tragic death of a U.S. Border Patrol agent and the efforts to keep the truth about it from Congress and the American people.
“Given that its refusal to comply with the subpoena is unlikely to survive legal scrutiny,” he added, “I fully expect the Obama administration to continue to put up procedural roadblocks to resolving this dispute. However, I look forward to the court finally deciding the case on the merits.”
In her ruling, Judge Berman Jackson wrote, “…the Attorney General takes the position that even if the Court is authorized to hear the lawsuit, it should exercise the discretion embodied in the Declaratory Judgment Act and its equitable discretion to decline to do so in favor of a negotiated resolution. His chief argument is the same one that the Court has already rejected: that this case is an inappropriate attempt by legislators to bring a political dispute into a judicial forum, threatening the separation of powers…
“Based on everything that has been presented to the Court to date," the judge added, "and the amount of time that has elapsed since this dispute arose, the Court does not believe that a discretionary dismissal is warranted. Moreover, it finds that the equitable considerations tend to favor the assumption of jurisdiction in this instance. While the defense presents its motion as a request that the court remain neutral while the other two bodies work out their difficulties, dismissing the case without hearing it would in effect place the court’s finger on the scale, designating the executive as the victor based solely on his untested assertion that the privilege applies.”
President Obama extended executive privilege to thousands of pages of subpoenaed documents in mid-2012, and Congress held Holder in contempt. It was the first time in history that the attorney general had been held in contempt.
In January, settlement talks were reportedly proceeding, but Judge Berman Jackson rejected Holder’s bid to dismiss the lawsuit.
The House Oversight Committee began investigating Fast & Furious early in 2011, a few months after the December 2010 slaying of U.S. Border Patrol agent Brian Terry in the desert of southern Arizona. Two guns linked directly to the operation were recovered at the scene. Two independent journalists – Gun Rights Examiner David Codrea and Sipsey Street Irregulars blogger Mike Vanderboegh – initially unearthed the scandal, but the mainstream press essentially ignored the story until CBS News investigative journalist Sharyl Attkisson scored an on-air interview with an ATF whistleblower that revealed how ATF supervisors in Arizona allowed guns to be “walked” into the hands of Mexican drug cartel gunmen. Attkisson earned an award for her investigative pieces, and Codrea was honored for his work at the 2011 Gun Rights Policy Conference in Chicago.
This column has covered the scandal for more than two years, beginning with this article. During that period, documents were recovered that suggested the ATF tried to exploit the sting operation to push new restrictions on firearms dealers in the Southwest. Gun dealers were blamed for allowing firearms to fall into the wrong hands until it became clear they had conducted transactions with the approval of ATF supervisors. Many in the firearms community theorized that the "sting" was a ruse to spike the numbers of recovered U.S.-origin guns in Mexico, thus enabling a push for more restrictions on law-abiding citizens and firearms dealers.
Some believe that the subpoenaed documents may contain damaging evidence of an administration cover-up of the scandal. Others don’t know what the documents contain, but are suspicious because of Holder’s refusal to turn them over, and his successful appeal to the president for executive protection.
The scandal brought about changes in command at ATF in Washington, D.C. and at the Phoenix field office. Bureau officials in charge of the case are no longer with the agency, and supervisors have been transferred. A former U.S. Attorney for Arizona abruptly resigned in August 2011 at the same time that then-acting ATF Director Kenneth Melson stepped down from that post.
Guns linked to the operation continue to show up at Mexican crime scenes, and the words of Carlos Canino, former ATF attaché to Mexico who now works out of the agency’s Tucson office, continue to haunt many of those involved. Canino called Fast and Furious “the perfect storm of idiocy.”
F&F ground-breaker David Codrea weighs in.