LAS VEGAS — Fox News has reported, and this column has confirmed that Patrick J. Cunningham, chief of the Criminal Division of the U.S. Attorney’s office in Phoenix, will invoke his right to remain silent under the Fifth Amendment, and not testify before the House Committee on Oversight and Government Reform or its investigators about his role in, or knowledge about, Operation Fast and Furious.
This column reported the Cunningham story yesterday. Today it is likely to be on the minds of many people in the firearms industry who feel wrongly smeared by the Obama administration over gun trafficking to Mexican drug cartels. They are meeting here for the final day of the 2012 Shooting, Hunting and Outdoor Trade (SHOT) Show.
In the year since the investigation began, it has been revealed that the Bureau of Alcohol, Tobacco, Firearms and Explosives in Phoenix encouraged firearms retailers to allow gun running suspects to purchase large quantities of firearms — even while the gun dealers were expressing alarms — and then providing false information to Senator Charles Grassley in February of last year that no guns were being allowed to walk.
This stunning new development, reported first by Fox News’ William La Jeunesse late Thursday, is already being amplified by an appearance by South Carolina Congressman Trey Gowdy, a member of the Oversight committee and former federal prosecutor. In an interview with Fox Business reporter Lou Dobbs, Gowdy discussed the problems that the committee has faced.
Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.—Fox News
Now that a subpoena was issued to a high-ranking Justice Department official in Phoenix, it signaled that Committee Chairman Darrell Issa is serious about getting to the bottom of Operation Fast and Furious.
In a letter to Chairman Issa, (provided here by Fox News) Cunningham’s attorney, Tobin J. Romero, said this:
Finally, as a professional courtesy, and to avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself. The Supreme Court has held that “one of the basic functions of the privilege is to protect innocent.” Grunewald v. United States, 353 U.S. 391,421(1957); see also Ohio v. Reiner,532 U.S.17 (2001) (per curiam). The evidence described above shows that my client is, in fact, innocent, but he has been ensnared by the unfortunate circumstances in which he now stands between two branches of government. I will therefore be instructing him to assert his constitutional privilege.—Tobin J. Romero, attorney for Patrick Cunningham
It is the first time in the investigation that a potential witness has publicly taken the Fifth Amendment and refused to testify. What signal does it send? To Mike Vanderboegh at Sipsey Street Irregulars, one of the two people responsible for originally breaking the Fast and Furious story one year ago, it suggests that the House committee, and the Obama White House, may be content to focus on officials in Phoenix at the U.S. Attorney’s office and Bureau of Alcohol, Tobacco, Firearms and Explosives, rather than push the investigation to explore the FBI’s alleged involvement. Vanderboegh offers his thoughts here. My colleague, National Gun Rights Examiner David Codrea, writes about it here.
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UPDATE: House Oversight and Government Reform Committee Chairman Darrell Issa issued the following statement Friday morning:
“The assertion of the fifth amendment by a senior Justice official is a significant indictment of the Department’s integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their fifth amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.
“Coming a year after revelations about reckless conduct in Operation Fast and Furious were first brought to light, the assertion of the fifth amendment also raises questions about whether President Obama and Attorney General Holder have made a serious and adequate response to allegations raised by whistleblowers. Did Attorney General Holder really not know a senior Justice Department official fears criminal prosecution or is this just another example of him hiding important facts? The committee will continue to demand answers.”
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In his interview with Dobbs, Gowdy focused on Attorney General Eric Holder, who is scheduled to testify before the Oversight Committee on Feb. 2. Holder has already declined to provide copies of e-mails and other documents to the committee. Gowdy had this to say:
You shouldn’t have to subpoena or threaten contempt with the top law enforcement official in the country. You just shouldn’t have to do it. But if he’s not going to provide his e-mails and the documents that we have a legitimate right to see then we’ll have to do what we’ll have to do.—Congressman Trey Gowdy
Cunningham’s refusal to appear before the committee or its investigators does not signal an end to the Fast and Furious investigation, which may still become a presidential campaign issue, especially now that a key figure has invoked his Fifth Amendment right to remain silent. Gowdy was clear about that, and he publicly cautioned Holder against any further stalling.
Anyone who thought this was a political exercise that would ebb and flow with the vagaries of politics is wrong… If the attorney general thinks he can give an interview with the New York Times and al of this will go away, he will be sadly mistaken on the second of February.”—Congressman Trey Gowdy
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