Foreign Policy Blogs

Is Patrick Cunningham Obama’s Ollie North?

Oliver North takes the Fifth

Could be. Countdown to the February 2nd Issa-Grassley hearing into Operation Fast and Furious is underway, and one of the biggest questions still unanswered is whether Congress will offer former AUSA Patrick Cunningham immunity for his testimony, and if Cunningham, so immunized, will shed any light on the parentage of an ATF operation that allowed roughly 2000 military-grade weapons to walk across the US-Mexico border and disappear, without a trace, into cartel arsenals.

Nobody seems to be holding his or her breath, but if Congress does pull an ‘Ollie North’ with Cunningham, or any of the witnesses it seeks to depose on Fast and Furious, expect the narrative to change. The irony alone, in a case that so closely resembles Iran-Contra, may provide the MSM with a much-needed jolt: Cunningham reprises North’s role when Congress, challenged by his close hold on the 5th Amendment, compels him to testify by granting him use or (less likely) transactional immunity.

Don’t remember the way it worked with North? Consider the following, pulled from court documents…

In November of 1986, a Lebanese newspaper reported that the United States had secretly sold weapons to Iran. Two months later, Congress established two committees charged with investigating the sales of arms to Iran, the diversion of proceeds therefrom to rebels (or “Contras”) fighting in Nicaragua, and the attempted cover-up of these activities (controversial events popularly known as “the Iran/Contra Affair”). In July of 1987, Lieutenant Colonel Oliver L. North, a former member of the National Security Council (“NSC”) staff, testified before the Iran/Contra congressional committees. North asserted his Fifth Amendment right not to testify before the committees, but the government compelled his testimony by a grant of use immunity pursuant to 18 U.S.C. Sec. 6002. North testified for six days. His testimony was carried live on national television and radio, replayed on news shows, and analyzed in the public media.

The government compelled North’s testimony before Congress during an investigation into the possible illegal export of arms. Sound familiar?

Yes. And then what happens? North is indicted and convicted in 1989 on three counts…

Contemporaneously with the congressional investigation, and pursuant to the Independent Counsel statute, 28 U.S.C. Secs. 591-599, the Special Division of this Court, see 28 U.S.C. Sec. 49, appointed Lawrence E. Walsh as Independent Counsel (“IC”) and charged him with the investigation and prosecution of any criminal wrongdoing by government officials in the Iran/Contra events. As a result of the efforts of the IC, North was indicted and tried on twelve counts arising from his role in the Iran/Contra Affair. After extensive pretrial proceedings and a twelve-week trial, North was convicted in May of 1989 on three counts: aiding and abetting an endeavor to obstruct Congress in violation of 18 U.S.C. Secs. 1505 and 2 (“Count 6”); destroying, altering, or removing official NSC documents in violation of 18 U.S.C. Sec. 2071 (“Count 9”); and accepting an illegal gratuity, consisting of a security system for his home, in violation of 18 U.S.C. Sec. 201(c)(1)(B) (“Count 10”). North now appeals his convictions on these counts.

The story, of course, doesn’t end there. In 1990, North’s attorney challenges his client’s conviction before the Court of Appeals, and North, having taken the fall for Iran-Contra, is off the hook…

Because of the length and complexity of our disposition of North’s appeal, we summarize our holdings.
(1) The District Court erred in failing to hold a full hearing as required by Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), to ensure that the IC made no use of North’s immunized congressional testimony. North’s convictions on all three counts are therefore vacated and remanded to the District Court for a Kastigar proceeding consistent with this opinion.

In plainspeak, what the Appeals Court concluded was that, despite the special prosecutor’s rigorous efforts to specify the quantity and content of evidence his team had gathered before North testified in front of Congress, despite Walsh’s submission of this evidence to Congress and other relevant authorities, witnesses involved in North’s prosecution by the federal court after he’d testified on the Hill had indeed been influenced by his initial, immunized testimony. North’s conviction was vacated.

Was North ‘over-protected’?

Democrats, of course, were incensed. There was a push to bring the case to a higher court, the Supreme Court, but that didn’t happen. So we are left, two days before another hearing into an investigation about the possible illegal export of arms, with a dilemma. If Congress compels Patrick Cunningham to testify with use immunity, what are the chances this man will take the fall, challenge any convictions that may result, and walk away, like North, a hero in the eyes of the present Administration and his party?

Clearly, the Issa-Grassley Committee must be pondering the same questions, measuring the distance between the law and realpolitik, and weighing their options.

Here’s what’s at stake. For the better part of a year, the Issa-Grassley Committee, as well as the House and Senate Judiciary Committees, have been homing in on Fast and Furious, hot on a trail investigators plainly believe may lead to the Office of the Attorney General and into the executive offices of DOJ, DHS, State, and even the White House.

Does the narrative include a political subtext? Of course. Rep. Elijah Cummings (D-Md) has issued a Democratic rebuttal of the ‘conspiracy theories’ he believes are the real stuff of the current investigation. The report is good news for Obama supporters, who contend the investigation is a ‘witch-hunt,’ a claim echoed by Attorney General Eric Holder himself. The Attorney General told the press that media focus and much of the public attention devoted to Fast and Furious reflects a kind of latent racism directed at Holder and President Obama because “You know…we’re both African-Americans.”

So there.

Let me ask you another question. Would you hear applause from the Right, from pro-gun advocates, if Fast and Furious turned out to be nothing more than an operational cover for a ideological campaign to support gun control?


But let’s not forget this bit of euphemistic wisdom, observations gleaned from politics, late 20th century: “Even paranoids have enemies.” And, says author Kathryn Olmstead, “Even conspiracy theories have roots.”

The roots are what Darrell Issa (R-CA) will be digging for on February 2nd.

Get on with it

Forget the politics–keep drilling.

More than 300 deaths and assaults have already been linked to that cache of US-supplied weapons, including the murders of two US enforcement agents gunned down by Mexican thugs carrying AK-47s provided by ATF. Senior ICE Agent Jamie Zapata, headquartered in Mexico, was killed by cartel assassins when he stopped at a checkpoint enroute to Mexico City. Zapata was unarmed, per dictum of the Mexican government, and traveling in a clearly marked US government vehicle.

US Border Patrol Brian Terry, a former marine, was gunned down on US soil, and the weapon his assailant used to end Terry’s life was an AK-47 that ATF allowed to walk across the US-Mexico border. Terry’s family wants to know what’s what. They want to know who authored Fast and Furious, whose wish was father to the act, and, if it is determined that laws were broken, the family wants to see “justice done.”

Do we owe them that much? DOJ, which refuses to comment, suggests no.

Here’s what Congress already knows: ATF had no provisions in place at any time to interdict the weapons before they could be used in the commission of a crime, or to track the arms after straw buyers walked the guns across the border into Mexico.

So much, say skeptics, for the ‘botched operation theory’–if it quacks like a duck, and walks like a duck, well, there it is.

The only discernible operational objective, given that ATF did enter serial numbers belonging to the weapons into its eTrace database, appears to have been an attempt to jury-rig the number of ‘illegal’ weapons Mexican authorities recovered from crime scenes and sent back to ATF for identification.

The goal?

Reason, the 1+1=2 kind, tells us the aim must have been to support claims that the real source of cartel violence has been the willingness of US gun dealers, scofflaws all, to sell weapons to cartel straw buyers. In other words, the United States is to blame, to a larger-than-life extent, for the death of 50,000 Mexican civilians over the past five years.

Factor in the worst-kept secret at DOJ–that its policymakers, as well as officials at DHS and State, are designated hitters on the anti-gun team–and you’ve given the conspiracists yet another reason to believe.

Another plot-thickener: ATF’s part in supplying these weapons to straw buyers who trafficked them illegally into Mexico would never have come to light had not ATF Senior Agent John Dodson, one of the officers tasked with implementing the operation in Phoenix, blown the whistle to Congress after being informed that one of ATF’s weapons was linked to the slaying of US Border Patrol Agent Brian Terry.

Committee goals

Here’s what Representative Issa and Senator Grassley are after, the aims of the House Oversight Committee:

Key Goals of Investigation
1.Expose the full scope of Fast and Furious
2.Deliver the Fast and Furious facts to the American people
3.Eliminate the program’s dangerous investigative techniques
4.Discover who is responsible for starting Fast and Furious
5.Discover who is responsible for implementing Fast and Furious
6.Discover which high-level government officials knew about Fast and Furious
7.Discover which high-level government officials approved Fast and Furious
8.Expose high-level government officials who failed to stop Fast and Furious
9.Hold accountable those responsible for Fast and Furious
10.Protect taxpayers’ rights to Congressional oversight of the Executive Branch

I’m thinking 4, and 6 through 9 are the big numbers at this point in the game.

There’s more, of course, a chart titled Fast and Furious key players offers readers a clear picture of ‘who’s who’ in this expanding legal tangle and how each player may be linked to the others.

Patrick Cunningham, who just resigned from his position with DOJ as AUSA, Chief of the Criminal Division, Phoenix, wants off this chart, and we don’t wonder why.

Cunningham, a close associate of former Arizona Governor Janet Napolitano, is the man Eric Holder says wrote a February 4th letter on DOJ stationary and sent it, full of ‘inaccuracies’ about ATF’s ‘gunwalking’ activities, to the House Oversight Committee.

DOJ says Cunningham lied

When the House Oversight Committee obtained incontrovertible evidence that ATF had, in fact, been ‘walking’ guns into Mexico with no plans for interdiction in place, Holder invented a remedy anyone who’s ever regretted pushing the ‘send’ button too quickly will appreciate–the Attorney General merely ‘retracted’ the letter he says his man Cunningham peppered with lies. Took it back, deleting, rendering insubstantial and non-material anything that might have briefly qualified as a falsehood via a little well-placed pressure on what Holder apparently believes is reality’s secret backspace key.

All gone.

But is it, really? The paper and the writing could have disappeared, the letter’s claims lost in a legal shell game, but the author, his recollections intact, remains. Patrick Cunningham, a highly placed US attorney who had handled scores of export control and trafficking cases since the mid-1980s for law enforcement in Arizona, is between a political rock and the hard place called a criminal investigation. And Cunningham, who just this week resigned from Justice and went to work for a private sector firm, needs to live to fight another day.

And this, of course, is where the Fifth Amendment comes into play.

The Fifth Amendment to the Constitution is a wondrous thing. Rooted in the idea (scroll back to 17th century England) that no one’s testimony (gained via torture, duress, or just plain stupidity) can be used in a court of law to incriminate oneself, the Fifth, once claimed, cannot be construed as an admission of guilt or even an admission that one knows, somehow, someway, that a crime has been committed. That’s how the law interprets the Fifth.

In real life, as we know, silence is, in fact, often interpreted as a protective device, and yes, an admission or suggestion that the guy taking the Fifth does so because he knows enough about holes to stop digging. Immediately.

When Patrick Cunningham appeared before the House Oversight Committee on January 24, the former Chief of the Criminal Division in Phoenix refused to give more than his name and title, a move that Representative Darrell Issa (R-Calif) clearly views as significant.

From Fox News:

Chairman Darrell Issa called the decision a “startling development” and in a letter to Attorney General Eric Holder wrote that the refusal to testify implies that “Mr. Cunningham may have engaged in criminal conduct with respect to Fast and Furious is a major escalation of the department’s culpability.

Now, Issa knows that Cunningham’s decision to take the Fifth cannot legally be construed as an implied admission of guilt. But he still takes the shot. Why? Because, within the context of the ongoing investigation into Fast and Furious, even Joe Sixpack will argue that this 1+1 equals 2.

There’s more:

Issa said Justice Department officials claim Cunningham misinformed them about Fast and Furious as the department prepared its initial response to Congress’ inquiry into the failed program. Cunningham’s lawyer denies those allegations.

Yes, you heard it right. Believe it or not, Cunningham’s lawyer not only rose to the bait, he swallowed it whole, declaring outright that “Cunningham is innocent.”

Why is this important? Because taking the Fifth only works if the defendant substitutes his or right to remain silent for a plea, and Cunningham’s lawyer has clearly entered a second-hand plea for his client–‘innocent.’ Astonishing. The Cunningham legal team, it seems, wants to have its cake and eat it too…

Bad strategy. Cunningham, whom I’m betting almost everyone believes would really like to get up there and wallop the bejesus out of his prosecutors/persecutors, has to understand the hand he’s been dealt–full, my friends, of wild cards.

Cunningham’s options

He’s got a new job in the private sector–the name of the firm appears to be a secret, but I suspect it has close ties to the Democratic party. So Cunningham may believe he can play it safe by taking an ‘Ollie North’–if the Committee’s next move is to grant the man immunity–and emerge tarnished, hugely indebted, but whole, a free man and maybe still employed, or he can hold fast to his Fifth and pray the House Oversight Committee passes him by.

Bypassing Cunningham is a move Issa and Grassley have probably already considered, and it may be the smartest way to go, given the North scenario. But there are other, maybe better, options for the Committee. According to Big Government, “…a determined Congressman Issa has demanded that Cunningham’s underling, Michael Morrissey, Assistant United States Attorney, ‘speak with Committee investigators about his role in and knowledge of Operation Fast and Furious.'”

DOJ is already pushing back.

Since August, the Department has identified Patrick Cunningham as the best person in the U.S. Attorney’s Office to provide information about Fast and Furious to the Committee. The Department has refused to make Michael Morrissey and Emory Hurley, both Assistant United States Attorneys supervised by Mr. Cunningham, available to speak with the Committee, citing a policy of not making “line attorneys” available for congressional scrutiny. Mr. Morrissey, however, was Mr. Hurley’s direct supervisor, and an integral part of Fast and Furious. Importantly, both Morrissey and Hurley are unique in their possession of key factual knowledge about Fast and Furious not readily available from any other source.


DOJ has long maintained that Congress has no business handing out subpeonas to ‘line managers’ and that the House Oversight Committee should focus only on the big fish. Morrissey, it seems, may be almost as valuable to the Committee as Cunningham, and Hurley, who was also assigned to the Criminal Division before DOJ shuffled him into Civil, is strong backup. So the question now, of course, is whether Morrissey, and other DOJ officials in line behind him, are all, each and every one, prepared to take the Fifth.


And they’re costing taxpayers millions.

Without Cunningham, Morrissey, or Hurley, the upcoming hearing on February 2 may only be yet another chance for Issa and Holder to bounce one another off the sides of the cage, good for headlines, bad for taxpayers eager for a reasonable return on their money.

The key to maintaining momentum, as Issa clearly understands, is finding a player willing to talk, someone ready to name the guys who gave him his ‘orders’ in return for that ‘get out of jail free’ card.

Identify every ‘who’–all the way to the top–and the ‘why’ will follow.

Give Cunningham immunity, and there’s a chance he may be the last man standing. The fall guy.

But what do I know? Under pressure, and given the right deal, Cunningham might sing like the proverbial canary. There’s always the chance that convictions, in this scenario, might not be vacated down the road, that people might go to jail. And that’s the risk for Cunningham and his cohorts down the managerial line. Given this kind of jeopardy, Ollie North may be too tough an act to follow.



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.