The Missing Fast and Furious E-mails

The Department of Justice continues to conceal documents.

“Withholder General of the United States"

There was a time when opposing generals met before a battle. They’d exchange terms and gentlemanly propriety before trying to kill one another.

Rep. Darrell Issa (R., Calif.) might have fit into that age. He purposefully strode across a crowded House Judiciary Committee hearing room Thursday morning and held his hand out to Attorney General Eric Holder. The attorney general flinched when he noticed Issa suddenly so close before looking submissively down at the room’s blue carpet as he quickly took then let go of Issa’s hand.

Representative Issa walked back to the second row of two benches where committee members were taking their seats. Hours would pass before Issa would get his five minutes with Holder, but it was worth the wait.

Behind the seated congressmen and along the walls of the room congressional staffers — some of whom had nicknamed Holder “Withholder General” — were waiting to play their parts in the coming battle.

Issa, who also chairs the House Oversight and Government Reform Committee, has been leading the congressional charge to find out who authorized Operation Fast and Furious, a secret ATF program in which the Obama administration allowed guns to “walk” into Mexico and into the arsenals of Mexican drug cartels. He has complained of being lied to by the Obama administration. He and Sen. Charles Grassley (R., Iowa) have had to warn Obama administration officials not to retaliate against whistleblowers. And Issa has pointed out that many of the documents he’s received from the U.S. Department of Justice are so blacked out with redactions that personnel must have had to refill printer ink cartridges constantly to erase all the evidence.

Issa has a right to be incensed. Incredibly, just last week, the Obama administration even had to formally withdraw a letter it sent to Congress last February that falsely claimed the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) didn’t watch guns “walk” into Mexico.

Rep. Jim Sensenbrenner (R., Wis.) brought up this withdrawn document.

Holder said, “First let me make something very clear, in response to an assertion you made, or hinted at: Nobody in the Justice Department has lied.”

Sensenbrenner demanded, “Then why was the letter withdrawn?”

Holder answered, “The letter was withdrawn because there was information in there that was inaccurate.”

So Sensenbrenner asked, “Tell me what the difference is between lying and misleading Congress in this context.”

Holder replied, “If you want to have this legal conversation, it all has to do with your state of mind, and whether or not you had the requisite intent to come up with something that can be considered perjury or a lie.”

Despite the legal basis for his statement, the idea that the truth depends on your “state of mind” sounded so much like Pres. Bill Clinton’s semantics with the word “is” that the spectators — who sat quietly under the watchful eyes of United States Capitol Police — laughed.

As Issa sat waiting his turn, Rep. Dan Lungren (R., Calif.) wanted to know who authorized Operation Fast and Furious.

Holder said, “People in the criminal division of the Justice Department were aware of Fast and Furious. Who did it and who knows about it is being investigated by the inspector general.”

Lungren pressed further by saying, “You’re responsible for what these folks did. After all this time we still don’t know who . . . made the decisions.” Lungren then brought up a recent CBS report that covered an e-mail sent on July 14, 2010. After the operation, former ATF field operations assistant director Mark Chait e-mailed Bill Newell, then ATF’s Phoenix special agent in charge of Fast and Furious, to suggest a possible way to use Fast and Furious:

Bill — can you see if these guns were all purchased from the same (licensed gun dealer) and at one time. We are looking at anecdotal cases to support a demand letter on long gun multiple sales. Thanks.

This “demand letter” refers to the push for a policy that would require U.S. gun shops in southwestern states to report the sale of several rifles or shotguns to a single buyer. According to CBS, “Demand Letter 3 was so named because it would be the third ATF program demanding gun dealers report tracing information.”

Lungren pointed out that the Obama administration was attempting to use “this program as an excuse to broaden their control.”

Holder replied, “You’re taking that out of context.”

Lungren said, “No, we are not.”

Later in the exchange, Lungren asked, “The Justice Department creates the situation where thousands of weapons go south and use that as an excuse to have more gun-control regulations? You ought not to use your screw-up as a basis to expand your authority. Don’t use it as an excuse to expand your legislative agenda.”

All that was the preliminary bombardment before Issa’s planned assault. After hours of waiting, Issa leaned forward to speak into his microphone and began in part by asking,

“Do I need to serve a subpoena on you . . . or will you come before my committee?”

After several exchanges, Holder said, “I will consider it.”

Meanwhile Issa’s staff had stacked boxes of papers on either side of the congressman. Issa later used them as a prop for a question: “Does it surprise you that five boxes are what one gun dealer gave us voluntarily while this is all you gave us?” Issa held up and shook a few files before continuing, “Do you have documents . . . that have not yet been granted?”

Holder didn’t answer the question; meanwhile, Issa focused his attack with the tone of voice a prosecutor might use with a hostile witness. “Don’t you think it is a little conspicuous that there is not one e-mail from or to you on Fast and Furious? . . . Isn’t it true that executive privilege does not include you?”

Holder answered, “We have not withheld any documents that are responsive. We have withheld information about ongoing investigations.”

Issa said, “That’s how John Mitchell responded.”

John Mitchell was attorney general under President Richard Nixon, and was found guilty of charges related to the Watergate break-in. He was sentenced to 19 months in prison.

Holder turned to Committee Chairman Rep. Lamar Smith and said, “The reference to John Mitchell, let’s think about that. At some point, you know, as they said at the McCarthy hearings,” then he looked back at Issa he finished, “Have you no shame?”

Issa lashed back, “Have you no shame?”

During their verbal battle Issa accused Holder of being in “contempt” for refusing to turn over documents.

Holder replied, “We will respond in a way that is consistent with the way in which the Justice Department has always responded to those kinds of requests.”

Issa’s explosive five minutes were interrupted several times by Rep. Sheila Jackson-Lee (D., Texas). She wanted Issa to give Holder more time to answer, but Issa said, “I only get five minutes,” and he’s “filibustering.” Finally Chairman Smith, had to tell Jackson-Lee she had not been recognized.

Though Issa’s time quickly ended, Holder’s e-mails were still the focus of the Republican member’s attention.

Later, Holder was asked if he authorized the IG investigation into Operation Fast and Furious. He said, “I was in fact the person who asked the IG to investigate, but I didn’t put anything in writing. I have a good relationship with the IG. I don’t think there’s any writing from me, but I can check.”

That was too cute.

Rep. Trent Franks (R., Ariz.) focused on the e-mails: “Mr. Issa mentioned some internal e-mails that I think are pretty important.”

Holder acknowledged during the hearing that he has an official e-mail address and a private one, but he wouldn’t say how often he uses these accounts. He also said he had not seen e-mails that were printed in a CBS report that argued new gun-control regulations might have been the reason for Operation Fast and Furious.

Moments later Franks said he understood that Holder doesn’t read all the memos his staff sends to his desk, and Holder seemed to agree with this. Then Franks asked, “Do you read letters from Grassley and Issa?”

After a pause, Holder said, “I think it’s fair to say over the last few months I’ve read all of Issa’s and Grassley’s letters.”

This also drew a laugh from the spectators, but it was really a set-up.

Representative Franks next said, “Mr. Holder, these e-mails were attached to one of those letters.”

Holder tossed his head and replied that he “doesn’t always read attachments.”

The next congressman to continue the push for Holder’s e-mails was Rep. Jason Chaffetz (R., Utah): “Have you spoken with [Secretary of Homeland Security Janet] Napolitano, [Secretary of State] Hillary Clinton, [President Barack] Obama, the president of Mexico . . . about Operation Fast and Furious?”

Holder indicated he hadn’t.

Chaffetz said, “We have 50 members of Congress calling for your resignation . . . you took five days to go to the Caribbean, and you didn’t take five minutes to talk to Hillary or Napolitano?”

Holder responded that his staff has been in touch with them.

Chaffetz then asked about a joint task force Holder has with Napolitano and added, “Yet you never talked about Fast and Furious?”

Holder responded in part by saying, “Let me tell you how Washington works, okay . . . ” This drew another laugh.

In the end this seven-hour hearing — interrupted twice for congressmen to run to the floor for votes — didn’t have any smashing developments. A government-created gunrunning operation that has already gotten at least one U.S. Border Patrol agent killed and that has resulted in the deaths of hundreds of Mexicans was exposed nearly a year ago.

The investigation into who authorized it has been going since at least late last spring, yet no one has been fired or jailed. Now the attorney general gives the unmistakable impression of obfuscating and hiding his own involvement (his e-mails) behind the cloak of an inspector general’s investigation. Somehow it doesn’t now seem hyperbolic to compare Holder’s withheld e-mails to the tapes President Nixon famously kept.

— Frank Miniter is the author of The Ultimate Man’s Survival Guide, and, more recently, Saving the Bill of Rights.