Attorney General Eric Holder today offered to produce a key category of internal Justice Department documents related to House Republicans’ “Fast and Furious” gun-walking probe and to negotiate the details with House Oversight and Government Reform Chairman Darrell Issa (R-Calif.).
“The Department’s willingness to provide these materials is a serious, good faith effort to bring this matter to an amicable resolution,” Holder wrote in a letter to Issa dated today.
An Issa spokeswoman threw some cold water on the letter, however, saying there is still uncertainty about what the attorney general intends to offer.
The documents at issue are internal communications from after the DOJ sent a Feb. 4, 2011, letter to Senate Judiciary ranking member Chuck Grassley (R-Iowa) broadly denying that the tactics at the heart of the Fast and Furious operation were ever used.
In December 2011, the DOJ conceded that the operation was “fundamentally flawed” and rescinded the letter, as well as provided internal communications from the period during which the letter was drafted.
Issa has said that internal communications from after the letter was drafted and sent are key to understanding how senior DOJ officials realized the February 2011 letter was false, including whether officials were surprised to learn the tactics had been used.
Holder is offering to produce documents “explaining how the Department’s understanding of the facts of Fast and Furious evolved during the post-February 4 period, and the process that led to the withdrawal of the February 4 letter” and provide a briefing about how the top levels of the DOJ came to understand that the operation was “fundamentally flawed.”
Issa spokeswoman Becca Glover Watkins said: "The DOJ letter only seems to indicate a willingness to offer a selective telling rather than full disclosure of key events that occurred after Feb. 4, 2011. We expect the Justice Department to quickly provide necessary details about how it is prepared to alter its opposition to producing subpoenaed documents."
Issa has said that if Holder produces the post-Feb. 4 documents a committee vote on holding the attorney general in contempt of Congress, scheduled for next week, will likely be unnecessary.
“If the Attorney General decides to produce these subpoenaed documents, I am confident we can reach agreement on other materials and render the process of contempt unnecessary,” Issa said in a Monday release announcing the scheduling of the committee’s contempt vote.
In Fast and Furious, agents for the Bureau of Alcohol, Tobacco, Firearms and Explosives allowed assault guns to “walk,” which meant ending surveillance on weapons suspected to be en route to Mexican drug cartels.
The tactic, which was intended to allow agents to track criminal networks by finding the guns at crime scenes, was condemned after two guns that were part of the operation were found at Border Patrol Agent Brian Terry’s murder scene.
Rep. Elijah Cummings (D-Md.), the ranking member of the Oversight and Government Reform Committee, hit back at the draft contempt resolution. He said holding a sitting attorney general in contempt of Congress would be a departure from precedent.
“Holding the Attorney General in contempt of Congress for protecting these documents is an extreme and blatant abuse of the Congressional contempt power that undermines the credibility of the Committee,” Democratic committee staff said in a memo dated today.
The memo outlining Cummings’ views on the contempt vote says it would be “irresponsible, unprecedented and contrary to the rule of law.”
However, a report by the Congressional Research Service on Congressional oversight of the DOJ offers a broad view of Congress’s legal authority to demand internal documents.
The report says that from 1920 to 2007, Congress has “consistently sought and obtained” internal Justice documents and successfully demanded information “from the Attorney General down to subordinate personnel,” adding that court precedents have affirmed broad Congressional investigative authority in nearly every instance, regardless of whether the documents relate to ongoing criminal investigations.
Democratic staff said the CRS memo is about the bounds of Congress’s legal authority while the Cummings memo is focused on how Congress has used that authority, adding that a sitting attorney general has never been held in contempt of Congress.
Cummings’ memo also addresses the broader set of documents at issue in the draft contempt report, which include some documents the DOJ has declined to release, saying they relate to ongoing criminal investigations.
In the memo, Cummings says the DOJ is legally barred from releasing some of the documents that Issa subpoenaed, including federal wiretap applications — which have been obtained by Issa but not yet seen by the public — that are under fierce dispute.
“It contradicts the rule of law to hold the Attorney General in contempt for abiding by a federal criminal statute, which is precisely what the Contempt Citation does,” the memo says, citing federal wiretap statutes.
The memo says it is “inappropriate” for the DOJ to release documents relating to ongoing criminal investigations, quoting GOP lawyer Theodore Olson from 1984, when he was serving as assistant attorney general in the Reagan administration.
“Since the early part of the 19th century, Presidents have steadfastly protected the confidentiality and integrity of investigative files from untimely, inappropriate, or uncontrollable access by the other branches, particularly the legislature,” Olson said then.
The memo also notes that Rep. Henry Waxman (D-Calif.), when he was serving as Oversight and Government Reform chairman in 2007, agreed to a request from U.S. Attorney Patrick Fitzgerald to delay his investigation into the Valerie Plame leak case until after Fitzgerald had convicted Lewis “Scooter” Libby.
Rep. Dan Burton (R-Ind.), the memo notes, brought contempt proceedings when he was Oversight chairman against then-Attorney General Janet Reno in 1998 at the committee level. The contempt vote was never brought to the House floor and Burton’s investigation was “widely discredited,” the memo says.
The CRS report says that Congress’s investigative authority of the DOJ is not limited by whether the documents it seeks are related to an ongoing criminal investigation.
“The courts have also explicitly held that agencies may not deny Congress access to agency documents, even in situations where the inquiry may result in the exposure of criminal corruption or maladministration of agency officials,” the report says.
Frederick Hill, a spokesman for Issa, said in response to Cummings’ statements that although the draft contempt report dealt with the wider universe of documents, the final contempt report will be narrowed to just the post-Feb. 4 documents.
“This opinion-based memo is based on outdated and inaccurate characterizations of the committee’s positions. The committee has clearly articulated that any final contempt resolution would focus on the failure to produce documents from after February 4, 2011, and not on documents created during the criminal investigation,” Hill said.
Rep. Elijah Cummings, D-Md., right, hugs Harold Schaitberger, General President of the International Association of Fire Fighters, after the Congressman spoke at the IAFF's Legislative Conference General Session at the Hyatt Regency on Capitol Hill, March 9, 2015. The day featured addresses by members of Congress and Vice President Joe Biden.