Foreign Policy Blogs

Fast & Furious: Mack jabs, Clinton dodges, US Attorneys duck

Clinton testifying before Congress

Date: October 27, 2011
Place: Washington, DC–Hearing before the House Foreign Affairs Committee, US Congress.
Representative Connie Mack (R-Fla) versus Hon. Hillary R. Clinton, US Secretary of State

If you didn’t have ringside seats, click here for a replay. Smiling, genial and oozing a considerable amount of “Yes, Ma’am” charm, Connie Mack, the Republican representative from Florida, thanks Secretary of State Hillary Clinton for taking the time to appear before the Committee, and then hits her with a question about Fast and Furious whose answer, he says, “I think I already know–but I’ll ask it anyway.”

Owwwwww…sharp right to the jaw.

“Under the Arms Export Control Act, the Justice Department was required to receive a written waiver from the State Department to account for their intent to cause arms to be exported to drug cartels in Mexico,” said Mack. “If no such waiver was received, Justice Department officials have violated the law. And you would agree with that, correct?”

Right, left, another right…..

“I cannot offer an opinion,” says Clinton.

Block.

“I don’t know,” she continues. “I mean, this is the first time I’m being asked.”

Dodge.

Of course, Ma’am.

And then, Representative Mack gently asks the lady, a Yale Law School graduate, if she’s had a chance to read the letter he’d sent her the day before, on October 26, a letter, he points out, in which he asked her the same question, the very same one.

“Yes,” says Madam Secretary, “…my birthday.”

Is that the sound of the bell?

“Happy Birthday!” responds Mack.

Round one is over. Fighters retreat to respective corners.

No matter

No one’s expecting any knock-out punches–this is just a warm-up match, theater, the kind of dog-and-pony shows that congressional committees regularly put on for effect or to flush out stubborn quarry.

For the past six months, ever since the ATF operation called Fast and Furious hit the news, the Secretary of State has been laying low, volunteering nothing, and hoping no one would notice the logical and legal ties (State is the agency responsible for issuing licenses to exporters of US firearms) that might link her department to the murders of US Border Patrol Agents Brain Terry and ICE Agent Jaime Zapata.

But on October 27 all that ended, and Clinton was weaving and bobbing in front of the House Foreign Affairs Committee, assuring Representative Connie Mack (R-Fla) that State has been in no way (that she knows of) connected to the ATF gun walking scandal tagged Fast and Furious: we received “no heads up” says Clinton.

The only real question–which Mack alone has asked any principle with possible ties to Fast and Furious–is if DOJ/ATF at any time requested exemptions or waivers from the Arms Export Control Act, which would have been a necessary prerequisite for moving weapons purchased in the USA over the US-Mexico border.

If DOJ/ATF did not obtain those waivers or exemptions, that department is, as Mack pointed out, in criminal violation of US law.

Did ATF violate AECA?

Clinton avoided answering that question head on, telling Mack she would have to submit a ‘request’ to the ‘department that deals with that issue’ to see if the ‘facts’ were as she was presenting them.

Mack, not to be put off, followed up on Clinton’s offer, telling the Secretary of State that he ‘looked forward’ to getting that information regarding the issuance or non-existence of the waivers.

Mack takes lead on possible criminal violations

Mack’s decision to take the lead on Fast and Furious and to confront the Secretary of State on the most salient part of the investigation–possible violations of the Export Control Act tells us something important about his man–he has guts.

Connie Mack (R-Fla) tells Clinton he looks forward to more information

The Republican congressman from Florida took the opportunity to lay out his argument plainly, explaining to Clinton, the House audience and the public-at-large that DOJ/ATF had indeed committed a felony if Attorney General Eric Holder had failed to obtain a waiver from State’s Arms Export Control Act before implementing Fast and Furious.

Hillary Clinton, in return, got a chance to send some skillful visuals into America’s living rooms, a weary and annoyed expression designed to tell America–“I have REAL work to do and this is a colossal waste of America’s time.”

Let me tell you something about Hillary Clinton, a woman with more sand than the Sahara: this ain’t her first rodeo.

We know Hillary Clinton was an advisor to the House Committee on the Judiciary (the same committee currently chaired by Rep. Lamar Smith (R-TX), who is now calling for an independent counsel to investigate Fast and Furious) during the Watergate Scandal.

She was the only First Lady to be subpoenaed by a federal grand jury as part of the investigation into Whitewater in 1996 and several other investigations during her husband’s administration, with no charges of wrong-doing ever leveled.

Hillary Rodham Clinton rode the Lewinsky scandal until Monica disappeared into obscurity and Bill signed the lease on his new un-office in Harlem.

She made room, reluctantly, for an African-American one-term Senator, who, she said, had done nothing more than “give a good speech at the Democratic National Convention,” and now, now, the word is that Hillary may replace Biden as number two on the 2012 Democratic ticket, grabbing the women’s vote like Halloween candy from Mitt “21 percent” Romney, and sailing unstoppably into the Oval Office in 2016.

Clinton and Obama 2012

Wow. Almost home.

Except for Fast and Furious. And the law.

Fast and Furious Recap

In late 2009, ATF launched what it first described as a ‘secret’ tag and bag operation whose aim, supposedly, was to infiltrate criminal networks in Mexico trading in illegally acquired (from US gun dealers) weapons and to shut these networks down. ATF would allow, even encourage, US gun dealers along the US-Mexico border to sell military-grade weapons, including AK-47s and .50 cal sniper rifles, to ‘straw purchasers,’ in some cases ATF ‘informants,’ who would then ‘walk’ the weapons (transport without harassment from law enforcement) across the border into Mexico and sell the guns to bad guys.

Simple, right? Wrong. Investigators have discovered that, from the very beginning, ATF had no plans in place to attach any kind of tracking devices to the weapons or to follow the weapons via human surveillance until the time when US law enforcement might seize or in some way interdict the guns. That means there was never any intent to take the guns away from Mexican gunmen before they had a chance to perpetrate murder and mayhem.

We know from the Grassley-Issa Report that ATF agents in Phoenix were instructed by their superiors to simply let the guns go missing.

Indeed, if the weapons reappeared at all, ATF officials openly admitted that the guns would most likely be returned to them by Mexican authorities only after they’d been used to commit a crime. And that’s when ATF would check the serial numbers and confirm, yes, that these guns had recently been purchased from a US gun dealer and illegally trafficked into Mexico. No mention made of ATF’s role in the affair.

More Fast and Furious guns turn up

And indeed, that is just what happened: an assault rifle linked to the murder of US Border Patrol Agent Brian Terry was returned to ATF, and agents verified that the serial numbers on the weapon matched numbers they had registered in their e-Trace database before they’d sent the guns into Mexico as part of Fast and Furious. Links were also established between the murder of ICE Agent Jaime Avila, an unarmed US agent working in Mexico, and another weapon supplied via the ATF operation.

The fact that the ATF-supplied AK-47 had been used to gun down a US Border Patrol Agent on US soil, however, was a snag DOJ/ATF hadn’t anticipated–but they understood that this link would generate high-beam publicity, possibly revealing the part the agency itself had played in the gun walking operation.

Panicked, senior officials at DOJ (Arizona US Attorney Dennis Burke) and ATF decided this information, the link between the murder weapon and the murder of a US Border Patrol agent, was best kept secret. They agreed that any revelation that the weapon used by Mexican drug thugs to kill Terry had been sent into Mexico by the US government, as part of a ‘secret’ ATF operation, would be a bad idea. A very bad idea. Burke lost his job just last month, along with Kenneth Melson, ATF’s Acting Director.

Of course, the information came out anyway. The Terry murder, in late 2010, was the last straw for an ATF agent named John Dodson, who had argued with his superiors in Phoenix about the absence of any plan to interdict the weapons they were sending into Mexico before they could be used to commit a crime. Dodson, a career agent close to retirement, finally blew the whistle, outlining the operation for Congress and the part it played in arming cartel gangs. Fast and Furious hit the news stands, and that’s when ATF higher-ups began calling it a ‘botched operation.’

‘Botched’ operation?

Skeptics say no. Even ‘botched operations’ start out festooned with the operational bells and whistles planners believe will produce the concrete, measurable outcome that’s supposed to make the effort worthwhile in the first place. Not Fast and Furious. And so, we are left with the old ‘form is function’ guide to figuring it all out, a boomer nod to Marshall McLuhan, who told us so long ago that if we learned nothing else, know this–the medium is the message.

The formal architecture of Fast and Furious seems to leaves us with one unavoidable conclusion: that the enterprise accomplished precisely what it was designed to do. It supplied cartel gangs with military grade weapons experience told US law enforcement would eventually be returned to ATF, where the guns could positively, absolutely be identified as equipment purchased (illegally) from a US gun dealer.

But why?

Stay away from ‘motive’

The question of motive is one place no one in the Department of Justice wants to go–and, indeed, if Fast and Furious passes into history as merely another ATF operation gone awry, motive is irrelevant. Another failing mark for ATF, perhaps, but no one gets expelled.

The problem is the growing claim that anti-gun ideologues within the Obama Administration signed off on Fast and Furious as a means of providing quantifiable evidence (assault rifles with short ‘time-to-crime’ histories) to support the argument, publicly advanced by Clinton, Holder, Napolitano, and other Administration officials, that ’90 percent’ of the guns used by Mexican cartels have been obtained illegally from US gun dealers.

Indeed, the White House has already adjusted that number down to 70 percent, and most of the proponents (except for Senator Diane Feinstein) of the idea that the US is to blame, via illegal gun sales, for the violence in Mexico appear to be soft-pedaling in the wake of the ATF blowup.

If these claims gain purchase, the political fallout, especially in an election year, could be significant. It is one thing to admit incompetence on the part of ATF–quite another to admit that an operation that resulted in the deaths of US agents, as well as US and Mexican civilians, may have been constructed to shore up a political or ideological agenda.

But let’s not be naive. We know Watergate and Iran-Contra were ideologically-inspired undertakings. And the blowback, when it came, the cries for the appointment of an independent counsel and criminal indictments were triggered as much by partisan passions as they were by the need to see justice done. Such is life.

The political subtext during the Iran-Contra investigation was vitriolic–I was there, and the left gave no quarter to an administration on fire to counter ‘communist threats’ on the American continent. Of course, then, like now, the road to an Independent Counsel appeared to be paved with the best of intentions: as the cast of characters grew, so did the list of faulty recollections and tentative (pending further review)’dunnos.’

Former Secretary of State Schultz and President Obama

To no avail. In the end, Lawrence E. Walsh, the Independent Counsel investigating Iran-Contra, determined that the Secretaries of State and Defense, the Director of the CIA, two National Security Advisors, and the President and Vice President of the United States–despite initial claims of ignorance–‘had known’ early on that the shipments of weapons to Iran were illegal. Fourteen administration officials were indicted on criminal felony charges.

Scroll forward to Fast and Furious and the possible involvement of Obama appointees. Of particular interest to anyone who watched Secretary of State Hillary Clinton’s testimony on October 27th should be the following comments, taken from the report of Independent Counsel Lawrence E. Walsh, in regard to the congressional testimony provided by Secretary of State George Schultz in the early days of Iran-Contra:

In 1990 and 1991, Independent Counsel [Lawrence E. Walsh] received new documentary evidence in the form of handwritten notes suggesting that Secretary Shultz’s congressional testimony painted a misleading and incorrect picture of his knowledge of the Iran arms sales. The subsequent investigation focused on whether Shultz or other Department officials deliberately misled or withheld information from congressional or OIC investigators.

The key notes, taken by M. Charles Hill, Shultz’s executive assistant, were nearly verbatim, contemporaneous accounts of Shultz’s meetings within the department and Shultz’s reports to Hill on meetings the secretary attended elsewhere. The Hill notes and similarly detailed notes by Nicholas Platt, the State Department’s executive secretary, provided the OIC with a detailed account of Shultz’s knowledge of the Iran arms sales. The most revealing of these notes were not provided to any Iran/contra investigation until 1990 and 1991. The notes show that — contrary to his early testimony that he was not aware of details of the 1985 arms transfers — Shultz knew that the shipments were planned and that they were delivered.

Also in conflict with his congressional testimony was evidence that Shultz was aware of the 1986 shipments. Independent Counsel concluded that Shultz’s early testimony was incorrect, if not false, in significant respects, and misleading, if literally true, in others. When questioned about the discrepancies in 1992, Shultz did not dispute the accuracy of the Hill notes. He told OIC that he believed his testimony was accurate at the time and he insisted that if he had been provided with the notes earlier, he would have testified differently. Independent Counsel declined to prosecute because there was a reasonable doubt that Shultz’s testimony was willfully false at the time it was delivered.

My favorite phrase, of course, is that the early testimony provided by Secretary of State “was incorrect, if not false” in some ways, and “misleading, if literally true” in other ways. The Secretary of State, it appears, got off because, in the end, no one could sort it out or prove his testimony was “willfully false at the time it was delivered.”

You know what I’m betting?

That Secretary of State Hillary Clinton had a little time between blowing out her candles and unwrapping her gifts to do some checking up and checking in. That she understood, far in advance of her rumble with the House Foreign Affairs Committee, that most of this business is about words, words, worrrrrrrds…and that given a slight, but still arms-length distance (sorry) from the epicenter of this scandal, the human, legal, and political walls standing between Clinton and Richter-scale culpability will most probably hold.

If ‘the group responsible for this issue’ within State ‘reports’ back to Clinton that DOJ/ATF never requested exemptions or waivers to the Export Control Act, Eric Holder is on his own, at least legally, with nowhere to point but up.

The worst the White House can lay on Clinton is that she failed in the effort to present a unified front. It happens. Time to keep those eyes on the prize–2012.

If Clinton’s ‘people’ at State cannot escape some bit of evidence that Holder did, in fact, obtain waivers/exemptions to the Arms Export Control Act before he marched 2000 military-grade weapons across the border, then, of course, Clinton faces a far more urgent challenge.

Let’s be serious for a minute. News about Fast and Furious hit the press in last spring–six or seven months ago. It is inconceivable that either the Secretary of State, a Yale lawyer and savvy political operator, or the State Department crew in charge of administering export control licenses missed the headlines (check the State Department’s news clips circulated daily) or that they could have been ignorant of the fact that the legality or illegality of the ATF operation might well hinge on State’s involvement.

Again, the Arms Export Control Act, or AECA, is not a new, a trivial, or an obscure law.

It’s designed to ensure that US arms manufacturers and dealers cannot sell weapons “made in the USA’ to enemies of the state, terrorists, or criminals willing to pay big money to acquire the military-grade weapons they need to shoot back at our own people–at US citizens, at US law enforcement, at our sons and daughters in the US military. It’s meant to counter the greed of the arms industry, as well as the hubris of the Executive Branch in situations where politics and/or ideology may trigger a ‘means justify the ends’ mentality.

So, how do you think it’s going to play out? My money is on the same kind of dense, deconstructionist defense that saved Schultz, a semiotic masterpiece that demonstrates language is indeed the leaky vessel grad students love to diss. What do you think? Better to be incorrect, if not false–or literally true, but misleading?

OK, time to move on to practical speculation–who’s more critical to Election 2012? Holder or Clinton?

Napolitano and Feinstein testify before Judiciary Committee

And then, of course, there’s Janet Napolitano, Director of Homeland Security, and chief witness for the defense last Thursday before the Senate Judiciary Committee. Where does she fit in? Napolitano, like Clinton and Holder, has been highly vocal in her support for stronger gun regulation, and like Clinton, her agency is connected to the ATF operation in more tangible ways as well.

You see, DHS/ICE, Napolitano’s outfit, is the only law enforcement agency that has jurisdictional authority to conduct an undercover arms trafficking operation that involves the cross-border shipment of weapons, so in addition to the questions raised about State’s willingness to cooperate with ATF via the issuance of waivers to AECA, investigators have also been asking why Napolitano’s agency, DHS/ICE, would voluntarily hand over the huge chunk of law enforcement ‘turf’ ATF needed to turbocharge its own undercover operation and move all those big guns across the US-Mexico border.

Did Napolitano simple cede her agency’s jurisdictional authority to DOJ/ATF after-the-fact?

No harm, no foul?

US Law enforcement agencies are intensely territorial, and have been known to strike back at competitors who try to move in and take glory that they–the FBI, ICE, ATF, DEA– believe belongs to them. Napolitano said the Judiciary Hearing on Oct 27 felt like a ‘cross-examination.’

But here’s the interesting part: while past accounts have suggested DHS/ICE had one of their field agents on a joint Fast and Furious task force in Phoenix, on Thursday Napolitano told Congress that she too had first learned about the ATF op ‘in the press.’

She went on to assert that she ‘knew nothing about the operation,’ that it belonged solely to ATF, and that she had ‘never spoken to Attorney General Eric Holder about Fast and Furious,’ even after it was discovered that one of the assault rifles ATF sent across the border may have been linked to the death of ICE Agent Jaime Zapata, one of Napolitano’s own.

Indeed, a Washington Times Report goes on to say:

The agent’s death wasn’t the first time Homeland Security was tipped to the ongoing operation. Agents from Ms. Napolitano’s department were asked twice in 2009 to “stand down” by the ATF when they picked up guns involved in the operation.

Napolitano’s response? Nobody told her.

Ms. Napolitano said that after the second incident, agents brought the matter to the attention of the assistant U.S. attorney, who said the ATF operation took precedence. She said she didn’t learn about those incidents until House investigators began looking into the affair.

I’m thinking Napolitano might want to go with the ‘reasonable doubt that her testimony was wilfully false at the time it was delivered.’ Just an idea.

In a bizarre interlude, during the same Senate Judiciary Hearing on Oct 27, Senator Diane Feinstein (D-Calif), who clearly needs to be updated on the political playbook, waxed eloquent with pre-scandal Talking Points that spoke to the need for the US to assume the blame for the illegal sales of thousands of weapons sold by US gun dealers to criminals who then (on their own) trafficked these weapons into the hands of Mexican cartels.

There was no sense that Feinstein had been updated on the ATF scandal or that she had any inkling that her spirited appeal for stronger gun control in the US might have struck some as exactly the kind of smoking gun that might lead investigators back to the ideological motive skeptics claim is the catalyst for Fast and Furious.

Lanny Breuer, Head of the Criminal Division at DOJ during Fast and Furious, was also testifying at the same Hearing, and after admitting he ‘knew about problems with Fast and Furious and should have shared his concerns with others at DOJ,” he still had enough life left in his body to jump on Feinstein’s bandwagon with the now inexplicably diminished 70 percent figure as the share of made-in-the-US guns returned to ATF by Mexican authorities.

Later in the Hearing, Senator Grassley (R-Iowa) entered into the record a report refuting Feinstein’s claims about the percentage of weapons entering Mexico from the US.

As silly as this all sounds, of course, none of it is amusing to the families of Brian Terry or Jaime Zapata, or to the thousands of people damaged in irrevocable ways by Fast and Furious.

Nobody–neither Holder, nor Clinton, nor Napolitano, nor the President of the United States–admits to knowing anything about Fast and Furious ‘except what I learned from the press.’

Right now, there are three House Committees out there, Oversight, Foreign Affairs and the House Judiciary Committee, as well as the Senate Judiciary Committee, which seem, finally, to be following up.

But that doesn’t mean truth will out or justice will be done.

That last statement, I know, is certain to draw political fire. But here is what we must remember. We are a nation of laws.

And the law is all that Brian Terry and Jaime Zapata have left.

Brian Terry's family attend funeral of slain Border Patrol Agent

Administration ignores House Judiciary call for special counsel

More than a month ago, House Judiciary Chairman Lamar Smith (R-TX) sent a letter to President Obama calling for the appointment of a Special Counsel to investigate whether Attorney General Eric Holder committed perjury during his testimony about Fast and Furious.

Note that the investigation pertains only to perjury, and that Smith is not calling for the appointment of a Special Prosecutor (who took the lead in Watergate) or an Independent Counsel (who took the lead in Iran-Contra and the investigation into Clinton’s Whitewater affair).

That’s because there no longer exists statutory authority for the appointment of either a Special Prosecutor or an Independent Counsel–remember the 1973 ‘Saturday Night Massacre,’ when Nixon fired Archibald Cox, the investigator Attorney John Mitchell had appointed to dissect Watergate? Ken Starr, the attorney who investigated the Clinton-Lewinsky affair, which led to the impeachment of the President, was the last man standing with the title Independent Counsel.

The Office of Independent Counsel was terminated in 1999, after the Ken Starr investigation, and was replaced with the Office of Special Counsel.

According to a Fox News report, it works like this:

This office comes under the aegis of the Justice Department and essentially functions as a U.S. attorney. He or she operates within the Department of Justice but does not report to the attorney general or any political appointee (hence, eliminating the problem Cox had with Nixon).

This is how the process occurred under Attorney General Alberto Gonzales during the scandal over the firing of several U.S. attorneys. Another example is the appointment of Patrick Fitzgerald to look into the release of the identity of CIA operative Valerie Plame.

The current law allows the attorney general to appoint a special counsel to conduct investigations. In this case, since Holder is the one in the spotlight, Smith is calling on President Obama to request the special counsel.

Seems pretty straightforward, doesn’t it?

Maybe not

I spoke to an attorney on the House Judiciary Committee, and the information I took away with me quickly turned into that funny tickle that crawls up the back of your neck when things look like they’re going way too well.

If an Office of the US Attorney (there are 96 US Attorneys in the US) can open an investigation into a crime involving government officials at its own discretion, if each US Attorney has ‘prosecutorial independence,’ then why, for example, would the new US Attorney in Arizona (the state/district in which Border Patrol Agent Brian Terry was gunned down with an AK-47 supplied by ATF’s Fast and Furious) be reluctant to open a criminal investigation into that situation? Why would the people of Arizona, or any citizen with a stake in seeing justice done, not be knocking at the US Attorney’s door, demanding such an investigation?

Consider: the investigation by a Special Counsel, suggested in the letter from Lamar Smith to Obama, only asks for investigation into the charges of perjury. Nothing else. And, here’s something to file in your priority box–the House Judiciary Committee hasn’t heard anything from the White House in response.

You can’t attach deadlines to requests of this kind, apparently.

But, again, here’s the good news: the route chosen by Representative Lamar Smith is not the only way to trigger an investigation.

Question: who wants you to know this?

Answer: No one.

Representative Smith, as a member of Congress, is taking the high road, exhibiting good form and deference for high office by requesting the appointment of a Special Counsel from the White House; ordinarily that request would go to the Attorney General, but since it’s the AG who is under suspicion, it’s his boss, the President (who has already said he has ‘full and complete confidence in his team’) who’s been tagged to select, if he so chooses, a Special Counsel.

What do you think?

What’s that thing they say about ‘justice delayed…..’?

Lamar Smith and his fellow members of Congress are ladies and gentlemen. And they’re following protocol, or as the House Counsel described it, “appropriate channels and procedure.” Fine.

Get investigation moving–contact US Attorney

But there is, yes, this is important enough to repeat, another way of opening an investigation into Fast and Furious. A method that belongs to ordinary people who may not subscribe to the genteel belief that it’s not kosher to investigate a member of the political elite unless an equally ‘special’ and elite prosecutor is appointed to do it.

Remember this: in the USA, no one is above the law. Do you think that if the President, or a Cabinet Member, or any other top dog in DC commits a crime, you can’t go after him or her unless you do it through a ‘designer’ prosecutor? Absolutely not.

You don’t need a Special Prosecutor, or an Independent Counsel, or a Special Counsel to open an investigation into a government official suspected of having committed a crime. Go back and read it again. According to CBS news, ten Arizona Sheriffs are calling vehemently for an independent investigation–well then, guys, this tip is for you….

Any US Attorney, who by definition “operates within DOJ, but does not report to the Attorney General or any political appointee,” can open an investigation into any crime which is alleged to have occurred in his or her jurisdiction/district and into any individual allegedly tied to that crime.

This is from the US Attorneys’ Manual administered by the US Department of Justice:
_________________________________________________________________________________________________________
9-2.001

Introduction
The United States Attorney, within his/her district, has plenary authority with regard to federal criminal matters. This authority is exercised under the supervision and direction of the Attorney General and his/her delegates.

The statutory duty to prosecute for all offenses against the United States (28 U.S.C. § 547) carries with it the authority necessary to perform this duty. The USA is invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.

The authority, discretionary power, and responsibilities of the United States Attorney with relation to criminal matters encompass without limitation by enumeration the following:

1. Investigating suspected or alleged offenses against the United States, see USAM 9-2.010;

2. Causing investigations to be conducted by the appropriate federal law enforcement agencies, see USAM 9-2.010;

3. Declining prosecution, see USAM 9-2.020;

4. Authorizing prosecution, see USAM 9-2.030;

5. Determining the manner of prosecuting and deciding trial related questions;

6. Recommending whether to appeal or not to appeal from an adverse ruling or decision, see USAM 9-2.170;

7. Dismissing prosecutions, see USAM 9-2.050; and

8. Handling civil matters related thereto which are under the supervision of the Criminal Division.

9-2.010

Investigations
The United States Attorney, as the chief federal law enforcement officer in his district, is authorized to request the appropriate federal investigative agency to investigate alleged or suspected violations of federal law. The federal investigators operate under the hierarchical supervision of their bureau or agency and consequently are not ordinarily subject to direct supervision by the United States Attorney. If the United States Attorney requests an investigation and does not receive a timely preliminary report, he may wish to consider requesting the assistance of the Criminal Division. In certain matters the United States Attorney may wish to request the formation of a team of agents representing the agencies having investigative jurisdiction of the suspected violations.
_________________________________________________________________________________________________________

In the case of Fast and Furious, of course, the agency having jurisdiction is Immigration and Customs Enforcement, or ICE, a part of Napolitano’s DHS.

Repeat: any US Attorney in any district (Texas? Arizona? California?) in which Fast and Furious guns were sold, trafficked, or recovered after the commission of a crime can investigate officials within any department with possible ties to criminal violations perpetrated during the course of Fast and Furious.

And the investigation which doesn’t have to stop with perjury–it can target possible violations of the Arms Export Control Act as well.

But here’s the dilemma: it’s not Congress (unless you pressure them) who sends the request to a US Attorney asking that this kind of investigation be opened–that’s your job. That request has to come from the people, from US citizens who believe it’s time for this to happen. You have to be the engine driving this train.

When I spoke to an attorney on the House Judiciary Committee, she was careful to say that it was not Representative Smith’s place to contact a US Attorney in one of the Texas Districts directly to ask that an investigation be opened, but, if I, as a citizen, would like to write to Representative Smith and make that request–or if I thought it might be appropriate to write directly to the US Attorney in the Southern, Eastern, Western or Northern District of Texas, or to Arizona’s US Attorney–Congress would ‘welcome’ that effort on the part of any US citizen.

With this information in hand, I called the Office of the US Attorney in each of the four districts in Texas: the response was unenthusiastic.

Each office had a spokesperson. The first told me that the US Attorney ‘worked for DOJ,” and that she thought it might be a ‘conflict of interest’ for the US Attorney General to open an investigation involving a DOJ official, but I better call public affairs at main Justice since my question (“Could your office, as is indicated in the US Attorneys’ Manual, open an independent investigation without DOJ’s ‘permission’?) was a ‘broad policy question.’

Will Texas US Attorney investigate Fast and Furious?

No response at all from the US Attorneys Offices in San Antonio or Dallas. V-mail from the Office of the US Attorney in Phoenix, advising me to direct questions to public affairs at main Justice in Washington, DC. (Wait, the PAO in Phoenix did have his new intern, a very pleasant young lady, call me back with the name of the US Attorney recently named to replace Dennis Burke–it’s Ann Birmingham Scheel. She also emailed Scheel’s bio to me).

Then I called main Justice. They never called me back.

All of this has left me thinking that these five, newly-confirmed US Attorneys (in Texas, they’re all Republicans, by the way) do not, repeat DO NOT, want to get involved in Fast and Furious, regardless of their political affiliations or their judicial proximity to criminal violations of the the Arms Export Control Act and a plethora, no doubt, of other violations. And there’s a real danger here, of course, given that a US Attorney also has the right, called prosecutorial discretion, to choose NOT to investigate.

Undue Influence from DOJ?

In the case of Fast and Furious, of course, this could put everyone in a bind–the appearance might well be of undue political influence.

A whiff of that may already be in the air–maybe I’m wrong, but here’s the question: if the Office of the US Attorney is not ‘controlled’ by the Attorney General or the Department of Justice, why can’t press officers assigned to the Office of the US Attorney answer questions specific to that venue? Why is DOJ, main Justice, talking (or in my case, not) for the Office of the US Attorney?

Call me ‘over-reacting,’ but I’m thinking that Sharyl Attkisson, CBS news, or Fox news might want to call the PAO at the Office of the US Attorney in Texas or Arizona and mention the phrase “Prosecutorial Independence“?

IS DOJ (main Justice) muzzling or muscling the Offices of the US Attorney in Texas and Arizona?

Now, that would be a big story….

The fact that President Obama gave a collective green light (an unusually efficient move, it seems) to all four candidates for US Attorney in Texas did garner some press attention, as did their speedy confirmation on September 28, 2011. I know they’re new. But maybe it’s time for them to start doing their jobs, even if it lands them between a rock and a hard place–after all, that’s where careers are made.

The mainstream press might want to give these same US Attorneys a jingle as well, and ask the same question I’ve been trying to pose: Does, as the US Attorneys’ Manual suggests, a US Attorney in any district have the statutory authority to empanel a grand jury, and/or open lines of investigation into alleged criminal violations believed to have occurred in his or her district?

If not–if the Office of the US Attorney does indeed ‘work’ for the Department of Justice, or the White House, and opening an investigation would, as a result, constitute conflict-of-interest, does that mean that DOJ employees, or administation higher-ups, are above the law?

Interesting questions.

For a map of Districts and US Attorneys possibly impacted by ATF operation, click here.

If you’re a journalist, or just a citizen invested in the issues we’ve been talking about in this blog, you might want to start with the names and addresses below.

US Atty, Arizona–Ann Birmingham Scheel 602.514.7500 Two Renaissance Sq., 40 N. Central Ave. Ste. 1200, Phoenix, AZ 85004
US Atty, Texas, Eastern District–Malcolm Bales 409.839.2538 350 Magnolia Blvd, Beaumont, TX 77701
US Atty, Texas, Western District–Robert Lee Pitman 210.384.7100601 N.W. Loop 410, Ste. 600, San Antonio, TX 78216
US Atty, Texas, Northern District–Sarah Saldana (1st Latina to be appointed US Atty) 214.659.8600 110 Commerce St., 3rd Fl, Dallas, TX 75242
US Atty, Texas, Southern District–Kenneth Magidson 713.567.9000 (Houston, Brownsville, Corpus Christi, McAllen) PO Box 61129, Houston, TX 72208

Are we clear?

Nobody at DOJ, DHS, State, or the White House knows anything about Fast and Furious. Three House Committees and one Senate Committee are asking questions, but Connie Mack, a member of the House Foreign Affairs Committee, is the only elected representative who’s mentioned a possible violation of the Arms Export Control Act. The rest are still focusing on perjury.

The White House is studiously ignoring a request from Rep. Lamar Smith (R-TX) asking the President to appoint a Special Counsel.

The fact that any US Attorney can, under public pressure, open an investigation into any alleged criminal violations in his or her district appears to be one of America’s best-kept secrets–and something the Department of Justice appears not to want to talk about.

This, in turn, raises the possibility that Holder’s organization is limiting prosecutorial independence….for a chart updating the ‘turnover’ within the ranks of the US Attorneys, from Bush appointees to Obama appointees, click here.

It also raises a question about the integrity of five newly-confirmed US Attorneys (appointed by Obama) and about how much time and energy the American people are willing to invest to get the job done.

 

Author

Kathleen Millar
Kathleen Millar

Kathleen Millar began her career in public affairs working for Lyn Nofziger, White House Communications Director. She has gone on to write about a wide range of enforcement and security issues for DHS, for the US Department of the Treasury (Customs & Border Patrol), for Senator Olympia Snowe (R-ME), then a Member of the Senate Intelligence Committee, and for top law enforcement officials in the United States and abroad.

A Founding Member of the Department of Homeland Security, Millar was also the deputy spokesperson-senior writer for the United Nations Office on Drugs and Crime in Vienna, Austria. She has authored numerous speeches, articles and opeds under her own and client bylines, and her work, focusing on trafficking, terrorism, border and national security, has appeared in both national and international outlets, including The Washington Post, The Washington Times, The International Herald Tribune, The Financial Times, and Vital Speeches of the Day.

Kathleen Millar holds an MA from Georgetown University and was the recipient of a United Nations Fellowship, International Affairs, Oxford. She is a member of the Georgetown University Alumni Association, Women in International Security (GU), the Women’s Foreign Policy Group, and the American News Women’s Club in Washington, DC. Kathleen Millar is currently teaching and writing about efforts to combat transnational organized crime.

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