U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1 

19–006 

" ! HOUSE OF REPRESENTATIVES 

112TH CONGRESS

2d Session 

REPORT

2012

112–546 

House Calendar No. 140 

RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S. 

DEPARTMENT OF JUSTICE, IN CONTEMPT OF CONGRESS FOR 

REFUSAL TO COMPLY WITH A SUBPOENA DULY ISSUED BY THE 

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

REPORT 

OF THE

COMMITTEE ON OVERSIGHT AND GOVERNMENT 

REFORM 

HOUSE OF REPRESENTATIVES 

together with 

ADDITIONAL AND MINORITY VIEWS 

JUNE 22, 2012.—Referred to the House Calendar and ordered to be 

printed 


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(III) 

C O N T E N T S 

Page 

I. EXECUTIVE SUMMARY ............................................. 2 

II. AUTHORITY AND PURPOSE ..................................... 2 

III. BACKGROUND ON THE COMMITTEE’S INVESTIGATION .................................................................... 3 

IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF THE DEPARTMENT OF JUSTICE ................................................... 4 

A. The ATF Phoenix Field Division ............................ 5 

B. The United States Attorney’s Office for the District of Arizona ....................................................... 6 

C. ATF Headquarters ................................................... 7 

D. THE Criminal Division ........................................... 8 

1. Coordination with ATF ..................................... 8 

2. Wiretaps ............................................................. 10 

E. The Office of the Deputy Attorney General ........... 11 

V. THE COMMITTEE’S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY GENERAL HOLDER ........ 12 

A. Events Leading Up to the Subpoena ...................... 12 

B. Subpoena Schedule Requests .................................. 14 

C. Attempts of Accommodation by the Committee, 

Lack of Compliance by the Justice Department . 21 

1. In Camera Reviews ............................................ 22 

2. Redacted Documents .......................................... 22 

3. Privilege Log ...................................................... 24 

4. Assertions of Non-Compliance .......................... 25 

5. Failure to Turn Over Documents ...................... 37 

VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE ........................................................................ 38 

VII. HISTORICAL PERSPECTIVES ON CONTEMPT ..... 40 

A. Past Instances of Contempt .................................... 40 

B. Document Productions ............................................. 42 

VIII. RULES REQUIREMENTS ........................................... 45 


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House Calendar No. 140 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–546 

RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES 

FIND ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S. DEPARTMENT OF 

JUSTICE, IN CONTEMPT OF CONGRESS FOR REFUSAL TO COMPLY WITH 

A SUBPOENA DULY ISSUED BY THE COMMITTEE ON OVERSIGHT AND 

GOVERNMENT REFORM 

JUNE 22, 2012.—Referred to the House Calendar and ordered to be printed 

Mr. ISSA, from the Committee on Oversight and Government 

Reform, submitted the following 

R E P O R T 

together with 

ADDITIONAL AND MINORITY VIEWS 

The Committee on Oversight and Government Reform, having 

considered this Report, report favorably thereon and recommend 

that the Report be approved. 

The form of the resolution that the Committee on Oversight 

and Government Reform would recommend to the House of Representatives for citing Eric H. Holder, Jr., Attorney General, U.S. 

Department of Justice, for contempt of Congress pursuant to this 

report is as follows: 

Resolved, That Eric H. Holder, Jr., Attorney General of the 

United States, shall be found to be in contempt of Congress for failure to comply with a congressional subpoena. 

Resolved, That pursuant to 2 U.S.C. 192 and 194, the Speaker 

of the House of Representatives shall certify the report of the Committee on Oversight and Government Reform, detailing the refusal 

of Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, to produce documents to the Committee on Oversight and Government Reform as directed by subpoena, to the United States Attorney for the District of Columbia, to the end that Mr. Holder be 

proceeded against in the manner and form provided by law. 

Resolved, That the Speaker of the House shall otherwise take 

all appropriate action to enforce the subpoena. 


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1McGrain v. Daugherty, 273 U.S. 135, 174 (1927). 2Watkins v. United States, 354 U.S. 178, 187 (1957). 3 U.S. CONST., art. I, 5, clause 2. 

4 House rule X, clause (4)(c)(2). 

I. EXECUTIVE SUMMARY 

The Department of Justice has refused to comply with congressional subpoenas related to Operation Fast and Furious, an Administration initiative that allowed around two thousand firearms to 

fall into the hands of drug cartels and may have led to the death 

of a U.S. Border Patrol Agent. The consequences of the lack of 

judgment that permitted such an operation to occur are tragic. 

The Department’s refusal to work with Congress to ensure that 

it has fully complied with the Committee’s efforts to compel the 

production of documents and information related to this controversy is inexcusable and cannot stand. Those responsible for allowing Fast and Furious to proceed and those who are preventing 

the truth about the operation from coming out must be held accountable for their actions. 

Having exhausted all available options in obtaining compliance, 

the Chairman of the Oversight and Government Reform Committee 

recommends that Congress find the Attorney General in contempt 

for his failure to comply with the subpoena issued to him. 

II. AUTHORITY AND PURPOSE 

An important corollary to the powers expressly granted to Congress by the Constitution is the implicit responsibility to perform 

rigorous oversight of the Executive Branch. The U.S. Supreme 

Court has recognized this Congressional power on numerous occasions. For example, in McGrain v. Daugherty, the Court held that 

‘‘the power of inquiry—with process to enforce it—is an essential 

and appropriate auxiliary to the legislative function. . . . A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change, and where the legislative body does not 

itself possess the requisite information—which not infrequently is 

true—recourse must be had to others who do possess it.’’ 1 Further, 

in Watkins v. United States, Chief Justice Warren wrote for the 

majority: ‘‘The power of Congress to conduct investigations is inherent in the legislative process. That power is broad.’’ 2

Both the Legislative Reorganization Act of 1946 (P.L. 79–601), 

which directed House and Senate Committees to ‘‘exercise continuous watchfulness’’ over Executive Branch programs under their 

jurisdiction, and the Legislative Reorganization Act of 1970 (P.L. 

91–510), which authorized committees to ‘‘review and study, on a 

continuing basis, the application, administration and execution’’ of 

laws, codify the oversight powers of Congress. 

The Committee on Oversight and Government Reform is a standing committee of the House of Representatives, duly established 

pursuant to the Rules of the House of Representatives, which are 

adopted pursuant to the Rulemaking Clause of the Constitution.3

House rule X grants to the Committee broad oversight jurisdiction, 

including authority to ‘‘conduct investigations of any matter without regard to clause 1, 2, 3, or this clause [of House rule X] conferring jurisdiction over the matter to another standing committee.’’ 4


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5 Id. 6 House rule XI, clause (2)(m)(1)(B). 

7 House rule XI, clause (2)(m)(3)(A)(i). 

The rules direct the Committee to make available ‘‘the findings and 

recommendations of the committee . . . to any other standing committee having jurisdiction over the matter involved.’’ 5

House rule XI specifically authorizes the Committee to ‘‘require, 

by subpoena or otherwise, the attendance and testimony of such 

witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary.’’ 6 The rule further provides that the ‘‘power to authorize 

and issue subpoenas’’ may be delegated to the Committee chairman.7 The subpoenas discussed in this report were issued pursuant 

to this authority. 

The Committee’s investigation into actions by senior officials in 

the U.S. Department of Justice and the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF) in designing, implementing, and 

supervising the execution of Operation Fast and Furious, and subsequently providing false denials to Congress, is being undertaken 

pursuant to the authority delegated to the Committee under House 

Rule X as described above. 

The oversight and legislative purposes of the investigations are 

(1) to examine and expose any possible malfeasance, abuse of authority, or violation of existing law on the part of the executive 

branch with regard to the conception and implementation of Operation Fast and Furious, and (2) based on the results of the investigation, to assess whether the conduct uncovered may warrant additions or modifications to federal law and to make appropriate legislative recommendations. 

In particular, the Committee’s investigation has highlighted the 

need to obtain information that will aid Congress in considering 

whether a revision of the statutory provisions governing the approval of federal wiretap applications may be necessary. The major 

breakdown in the process that occurred with respect to the Fast 

and Furious wiretap applications necessitates careful examination 

of the facts before proposing a legislative remedy. Procedural improvements may need to be codified in statute to mandate immediate action in the face of highly objectionable information relating 

to operational tactics and details contained in future applications. 

The Committee’s investigation has called into question the ability 

of ATF to carry out its statutory mission and the ability of the Department of Justice to adequately supervise it. The information 

sought is needed to consider legislative remedies to restructure 

ATF as needed. 

III. BACKGROUND ON THE COMMITTEE’S 

INVESTIGATION 

In February 2011, the Oversight and Government Reform Committee joined Senator Charles E. Grassley, Ranking Member of the 

Senate Committee on the Judiciary, in investigating Operation 

Fast and Furious, a program conducted by ATF. On March 16, 

2011, Chairman Darrell Issa wrote to then-Acting ATF Director 

Kenneth E. Melson requesting documents and information regarding Fast and Furious. Responding for Melson and ATF, the DepartVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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ment of Justice did not provide any documents or information to 

the Committee by the March 30, 2011, deadline. The Committee 

issued a subpoena to Melson the next day. The Department produced zero pages of non-public documents pursuant to that subpoena until June 10, 2011, on the eve of the Committee’s first Fast 

and Furious hearing. 

On June 13, 2011, the Committee held a hearing entitled ‘‘Obstruction of Justice: Does the Justice Department Have to Respond 

to a Lawfully Issued and Valid Congressional Subpoena?’’ The 

Committee held a second hearing on June 15, 2011, entitled ‘‘Operation Fast and Furious: Reckless Decisions, Tragic Outcomes.’’ The 

Committee held a third hearing on July 26, 2011, entitled ‘‘Operation Fast and Furious: The Other Side of the Border.’’ 

On October 11, 2011, the Justice Department informed the Committee its document production pursuant to the March 31, 2011, 

subpoena was complete. The next day, the Committee issued a detailed subpoena to Attorney General Eric Holder for additional documents related to Fast and Furious. 

On February 2, 2012, the Committee held a hearing entitled 

‘‘Fast and Furious: Management Failures at the Department of 

Justice.’’ The Attorney General testified at that hearing. 

The Committee has issued two staff reports documenting its initial investigative findings. The first, The Department of Justice’s 

Operation Fast and Furious: Accounts of ATF Agents, was released 

on June 14, 2011. The second, The Department of Justice’s Operation Fast and Furious: Fueling Cartel Violence, was released on 

July 26, 2011. 

Throughout the investigation, the Committee has made numerous attempts to accommodate the interests of the Department of 

Justice. Committee staff has conducted numerous meetings and 

phone conversations with Department lawyers to clarify and highlight priorities with respect to the subpoenas. Committee staff has 

been flexible in scheduling dates for transcribed interviews; agreed 

to review certain documents in camera; allowed extensions of production deadlines; agreed to postpone interviewing the Department’s key Fast and Furious trial witness; and narrowed the scope 

of documents the Department must produce to be in compliance 

with the subpoena and to avoid contempt proceedings. 

Despite the Committee’s flexibility, the Department has refused 

to produce certain documents to the Committee. The Department 

has represented on numerous occasions that it will not produce 

broad categories of documents. The Department has not provided 

a privilege log delineating with particularity why certain documents are being withheld. 

The Department’s efforts at accommodation and ability to work 

with the Committee regarding its investigation into Fast and Furious have been wholly inadequate. The Committee requires the subpoenaed documents to meet its constitutionally mandated oversight 

and legislative duties. 

IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT 

ALL LEVELS OF THE DEPARTMENT OF JUSTICE 

The story of Operation Fast and Furious is one of widespread 

dysfunction across numerous components of the Department of Justice. This dysfunction allowed Fast and Furious to originate and 


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8 E-mail from [Dep’t of Justice] on behalf of Deputy Att’y Gen. David Ogden to Kathryn 

Ruemmler, et al. (Oct. 26, 2009). 9Transcribed Interview of Special Agent Peter Forcelli, at 53–54 (Apr. 28, 2011). 

grow at a local level before senior officials at Department of Justice 

headquarters ultimately approved and authorized it. The dysfunction within and among Department components continues to this 

day. 

A. THE ATF PHOENIX FIELD DIVISION

In October 2009, the Office of the Deputy Attorney General 

(ODAG) in Washington, D.C. promulgated a new strategy to combat gun trafficking along the Southwest Border. This new strategy 

directed federal law enforcement to shift its focus away from seizing firearms from criminals as soon as possible, and to focus instead on identifying members of trafficking networks. The Office of 

the Deputy Attorney General shared this strategy with the heads 

of many Department components, including ATF.8

Members of the ATF Phoenix Field Division, led by Special Agent 

in Charge Bill Newell, became familiar with this new strategy and 

used it in creating Fast and Furious. In mid-November 2009, just 

weeks after the strategy was issued, Fast and Furious began. Its 

objective was to establish a nexus between straw purchasers of firearms in the United States and Mexican drug-trafficking organizations (DTOs) operating on both sides of the United States-Mexico 

border. Straw purchasers are individuals who are legally entitled 

to purchase firearms for themselves, but who unlawfully purchase 

weapons with the intent to transfer them to someone else, in this 

case DTOs or other criminals. 

During Fast and Furious, ATF agents used an investigative technique known as ‘‘gunwalking’’—that is, allowing illegally-purchased 

weapons to be transferred to third parties without attempting to 

disrupt or deter the illegal activity. ATF agents abandoned surveillance on known straw purchasers after they illegally purchased 

weapons that ATF agents knew were destined for Mexican drug 

cartels. Many of these transactions established probable cause for 

agents to interdict the weapons or arrest the possessors, something 

every agent was trained to do. Yet, Fast and Furious aimed instead 

to allow the transfer of these guns to third parties. In this manner, 

the guns fell into the hands of DTOs, and many would turn up at 

crime scenes. ATF then traced these guns to their original straw 

purchaser, in an attempt to establish a connection between that individual and the DTO. 

Federal Firearms Licensees (FFLs), who cooperated with ATF, 

were an integral component of Fast and Furious. Although some 

FFLs were reluctant to continue selling weapons to suspicious 

straw purchasers, ATF encouraged them to do so, reassuring the 

FFLs that ATF was monitoring the buyers and that the weapons 

would not fall into the wrong hands.9 ATF worked with FFLs on 

or about the date of sale to obtain the unique serial number of each 

firearm sold. Agents entered these serial numbers into ATF’s Suspect Gun Database within days after the purchase. Once these firearms were recovered at crime scenes, the Suspect Gun Database allowed for expedited tracing of the firearms to their original purchasers. 


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10 E-mail from Kevin Simpson, Intelligence Officer, Phoenix FIG, ATF, to David Voth (Dec. 

18, 2009). 11 Id. 12 Id. 13Phoenix Group VII, Phoenix Field Division, ATF, Briefing Paper (Jan. 8, 2010). 14Transcribed Interview of Special Agent in Charge William Newell, at 32–33 (June 8, 2011). 

By December 18, 2009, ATF agents assigned to Fast and Furious 

had already identified fifteen interconnected straw purchasers in 

the targeted gun trafficking ring. These straw purchasers had already purchased 500 firearms.10 In a biweekly update to Bill Newell, ATF Group Supervisor David Voth explained that 50 of the 500 

firearms purchased by straw buyers had already been recovered in 

Mexico or near the Mexican border.11 These guns had time-tocrimes of as little as one day, strongly indicating straw purchasing.12

Starting in late 2009, many line agents objected vociferously to 

some of the techniques used during Fast and Furious, including 

gunwalking. The investigation continued for another year, however, 

until shortly after December 15, 2010, when two weapons from 

Fast and Furious were recovered at the murder scene of U.S. Border Patrol Agent Brian Terry. 

Pursuant to the Deputy Attorney General’s strategy, in late January 2010 the ATF Phoenix Field Division applied for Fast and Furious to become an Organized Crime Drug Enforcement Task Force 

(OCDETF) case. In preparation for the OCDETF application process, the ATF Phoenix Field Division prepared a briefing paper detailing the investigative strategy employed in Fast and Furious. 

This document was not initially produced by the Department pursuant to its subpoena, but rather was obtained by a confidential 

source. The briefing paper stated: 

Currently our strategy is to allow the transfer of firearms to continue to take place, albeit at a much slower 

pace, in order to further the investigation and allow for the 

identification of additional co-conspirators who would continue to operate and illegally traffic firearms to Mexican 

DTOs which are perpetrating armed violence along the 

Southwest Border.13

Fast and Furious was approved as an OCDETF case, and this 

designation resulted in new operational funding. Additionally, Fast 

and Furious became a prosecutor-led OCDETF Strike Force case, 

meaning that ATF would join with the Federal Bureau of Investigation, Drug Enforcement Administration, Internal Revenue 

Service, and Immigrations and Customs Enforcement under the 

leadership of the U.S. Attorney’s Office for the District of Arizona. 

B. THE UNITED STATES ATTORNEY’S OFFICE FOR THE DISTRICT OF

ARIZONA

The U.S. Attorney’s Office for the District of Arizona led the Fast 

and Furious OCDETF Strike Force. Although ATF was the lead 

law enforcement agency for Fast and Furious, its agents took direction from prosecutors in the U.S. Attorney’s Office. The lead federal 

prosecutor for Fast and Furious was Assistant U.S. Attorney 

Emory Hurley, who played an integral role in the day-to-day, tactical management of the case.14


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15Transcribed Interview of Special Agent Larry Alt, at 94 (Apr. 27, 2011). 16 Interview with Lorren Leadmon, Intelligence Operations Analyst, Washington, D.C., July 

5, 2011 [hereinafter Leadmon Interview]. 17Oversight of the U.S. Department of Justice: Hearing Before the S. Comm. on the Judiciary, 

112th Cong. (May 4, 2011) (Questions for the Record of Hon. Eric H. Holder, Jr., Att’y Gen. of 

the U.S.). 18Leadmon Interview, supra note 16. 19Transcribed Interview of Deputy Ass’t Dir. Steve Martin, ATF, at 36 (July 6, 2011) [hereinafter Martin Tr.]. 

Many ATF agents working on Operation Fast and Furious came 

to believe that some of the most basic law enforcement techniques 

used to interdict weapons required the explicit approval of the U.S. 

Attorney’s Office, and specifically from Hurley. On numerous occasions, Hurley and other federal prosecutors withheld this approval, 

to the mounting frustration of ATF agents.15 The U.S. Attorney’s 

Office chose not to use other available investigative tools common 

in gun trafficking cases, such as civil forfeitures and seizure warrants, during the seminal periods of Fast and Furious. 

The U.S. Attorney’s Office advised ATF that agents needed to 

meet unnecessarily strict evidentiary standards in order to speak 

with suspects, temporarily detain them, or interdict weapons. 

ATF’s reliance on this advice from the U.S. Attorney’s Office during 

Fast and Furious resulted in many lost opportunities to interdict 

weapons. 

In addition to leading the Fast and Furious OCDETF task force, 

the U.S. Attorney’s Office was instrumental in preparing the wiretap applications that were submitted to the Justice Department’s 

Criminal Division. Federal prosecutors in Arizona filed at least six 

of these applications, each containing immense detail about operational tactics and specific information about straw purchasers, in 

federal court after Department headquarters authorized them. 

C. ATF HEADQUARTERS

Fast and Furious first came to the attention of ATF Headquarters on December 8, 2009, just weeks after the case was officially opened in Phoenix. ATF’s Office of Strategic Information and 

Intelligence (OSII) briefed senior ATF personnel about the case on 

December 8, 2009, discussing in detail a large recovery of Fast and 

Furious weapons in Naco, Sonora, Mexico.16

The next day, December 9, 2009, the Acting ATF Director first 

learned about Fast and Furious and the large recovery of weapons 

that had already occurred.17 The following week, OSII briefed senior ATF officials about another large cache of Fast and Furious 

weapons that had been recovered in Mexico.18

On January 5, 2010, OSII presented senior ATF officials with a 

summary of all of the weapons that could be linked to known straw 

purchasers in Fast and Furious. In just two months, these straw 

purchasers bought a total of 685 guns. This number raised the ire 

of several individuals in the room, who expressed concerns about 

the growing operation.19

On March 5, 2010, ATF headquarters hosted a larger, more detailed briefing on Operation Fast and Furious. David Voth, the 

Group Supervisor overseeing Fast and Furious, traveled from Phoenix to give the presentation. He gave an extremely detailed synopsis of the status of the investigation, including the number of 

guns purchased, weapons seizures to date, money spent by straw 


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20See generally ‘‘Operation the Fast and the Furious’’ Presentation, Mar. 5, 2010. 21 E-mail from Mark Chait to Kenneth Melson and William Hoover (Feb. 24, 2010) [HOGR 

001426]. 22Transcribed Interview of William Hoover, ATF Deputy Director, at 9 (July 21, 2011). 23 Id. at 72. 24 E-mail from Douglas Palmer, Supervisor Group V, ATF, to William Newell, ATF (Apr. 27, 

2010). 25 E-mail from Kenneth Melson to Mark Chait, et al., (July 14, 2010) [HOGR 002084]. 26 E-mail from Mark Chait to William Newell (Oct. 29, 2010) [HOGR 001890]. 27 E-mail from Jason Weinstein to Lanny Breuer (Sept. 10, 2009) [HOGR 003378]. 

purchasers, and organizational charts of the relationships among 

straw purchasers and to members of the Sinaloa drug cartel. At 

that point, the straw purchasers had bought 1,026 weapons, costing 

nearly $650,000.20

NATF’s Phoenix Field Division informed ATF headquarters of 

large weapons recoveries tracing back to Fast and Furious. The 

Phoenix Field Division had frequently forwarded these updates directly to Deputy ATF Director Billy Hoover and Acting ATF Director Ken Melson.21 When Hoover learned about how large Fast and 

Furious had grown in March 2010, he finally ordered the development of an exit strategy.22 This exit strategy, something Hoover 

had never before requested in any other case, was a timeline for 

ATF to wind down the case.23

Though Hoover commissioned the exit strategy in March, he did 

not receive it until early May. The three-page document outlined 

a 30-, 60-, and 90-day strategy for winding down Fast and Furious 

and handing it over to the U.S. Attorney’s Office for prosecution.24

In July 2010, Acting Director Melson expressed concern about 

the number of weapons flowing to Mexico,25 and in October 2010 

the Assistant Director for Field Operations, the number three official in ATF, expressed concern that ATF had not yet halted the 

straw purchasing activity in Fast and Furious.26 Despite these concerns, however, the U.S. Attorney’s Office continued to delay the 

indictments, and no one at ATF headquarters ordered the Phoenix 

Field Division to simply arrest the straw purchasers in order to 

take them off the street. The members of the firearms trafficking 

ring were not arrested until two weapons from Fast and Furious 

were found at the murder scene of Border Patrol Agent Brian 

Terry. 

D. THE CRIMINAL DIVISION

1. COORDINATION WITH ATF

In early September 2009, according to Department e-mails, ATF 

and the Department of Justice’s Criminal Division began discussions ‘‘to talk about ways CRM [Criminal Division] and ATF can 

coordinate on gun trafficking and gang-related initiatives.’’ 27 Early 

on in these discussions, Lanny Breuer, Assistant Attorney General 

for the Criminal Division, sent an attorney to help the U.S. Attorney’s Office in Arizona prosecute ATF cases. The first case chosen 

for prosecution was Operation Wide Receiver, a year-long ATF 

Phoenix Field Division investigation initiated in 2006, which involved several hundred guns being walked. The U.S. Attorney’s Office in Arizona, objecting to the tactics used in Wide Receiver, had 

previously refused to prosecute the case. 

According to James Trusty, a senior official in the Criminal Division’s Gang Unit, in September 2009 Assistant Attorney General 


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28 E-mail from James Trusty to Laura Gwinn (Sept. 2, 2009) [HOGR 003375]. 29 E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) [HOGR 003376]. 30 E-mail from Laura Gwinn to James Trusty (Sept. 3, 2009) [HOGR 003377]. 31 E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 2009) [HOGR 003403]. 32 E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 2009) [HOGR 003403]. 33 E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010) [HOGR 002832]. 34Meeting on ‘‘Weapons Seizures in Mexico w/ Lanny Breuer’’ at Robert F. Kennedy Building, 

Room 2107, Jan. 5, 2010, 10:00 AM [HOGR 001987]. 

Breuer was ‘‘VERY interested in the Arizona gun trafficking case 

[Wide Receiver], and he is traveling out [to Arizona] around 9/21. 

Consequently, he asked us for a ‘briefing’ on that case before the 

21st rolls around.’’ 28 The next day, according to Trusty, Breuer’s 

chief of staff ‘‘mentioned the case again, so there is clearly great 

attention/interest from the front office.’’ 29

When the Criminal Division prosecutor arrived in Arizona, she 

gave Trusty her impressions of the case. Her e-mail stated: 

Case involves 300 to 500 guns. . . . It is my understanding that a lot of these guns ‘‘walked’’. Whether some 

or all of that was intentional is not known.30

Discussions between ATF and the Criminal Division regarding 

inter-departmental coordination continued over the next few 

months. On December 3, 2009, the Acting ATF Director e-mailed 

Breuer about this cooperation. He stated: 

Lanny: We have decided to take a little different approach with regard to seizures of multiple weapons in 

Mexico. Assuming the guns are traced, instead of working 

each trace almost independently of the other traces from 

the seizure, I want to coordinate and monitor the work on 

all of them collectively as if the seizure was one case.31

Breuer responded: 

We think this is a terrific idea and a great way to approach the investigations of these seizures. Our Gang Unit 

will be assigning an attorney to help you coordinate this 

effort.32

Kevin Carwile, Chief of the Gang Unit, assigned an attorney, Joe 

Cooley, to assist ATF, and Operation Fast and Furious was selected as a recipient of this assistance. Shortly after his assignment, Cooley had to rearrange his holiday plans to attend a significant briefing on Fast and Furious.33

Cooley was assigned to Fast and Furious for the next three 

months. He advised the lead federal prosecutor, Emory Hurley, and 

received detailed briefings on operational details. Cooley, though, 

was not the only Criminal Division attorney involved with Fast and 

Furious during this time period. The head of the division, Lanny 

Breuer, met with ATF officials about the case, including Deputy Director Billy Hoover and Assistant Director for Field Operations 

Mark Chait.34

Given the initial involvement of the Criminal Division with Fast 

and Furious in the early stages of the investigation, senior officials 

in Criminal Division should have been greatly alarmed about what 

they learned about the case. These officials should have halted the 

program, especially given their prior knowledge of gunwalking in 

Wide Receiver, which was run by the same leadership in the same 

ATF field division. 


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35Martin Tr. at 100. 36 E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010, 9:00 a.m.) [HOGR DOJ 

2382]. 37Letter from Dep Att’y Gen. James M. Cole Chairman Darrell Issa et al., at 6 (Jan. 27, 2012) 

[hereinafter Cole Letter]. 38 Id. 39See 18 U.S.C. § 2516(1). 40See, e.g., Memorandum from Lanny A. Breuer, Ass’t Att’y Gen., Criminal Division to Paul 

M. O’Brien, Director, Office of Enforcement Operations, Criminal Division, Authorization for 

Interception Order Application, Mar. 10, 2010. 41 Bureau of Alcohol, Tobacco, Firearms, and Explosives, ‘‘ATF’s Mission,’’ http://www.atf.gov/ 

about/mission (last visited May 1, 2012). 

On March 5, 2010, Cooley attended a briefing about Fast and Furious. The detailed briefing highlighted the large number of weapons the gun trafficking ring had purchased and discussed recoveries of those weapons in Mexico. According to Steve Martin, Deputy Assistant Director in ATF’s Office of Strategic Intelligence and 

Information, everyone in the room knew the weapons from Fast 

and Furious were being linked to a Mexican cartel.35 Two weeks 

later, in mid-March 2010, Carwile pulled Cooley off Fast and Furious, when the U.S. Attorney’s Office informed him that it had the 

case under control.36

2. WIRETAPS

At about the same time, senior lawyers in the Criminal Division 

authorized wiretap applications for Fast and Furious to be submitted to a federal judge. Fast and Furious involved the use of 

seven wiretaps between March and July of 2010. 

In a letter to Chairman Issa, the Deputy Attorney General acknowledged that the Office of Enforcement Operations (OEO), part 

of the Justice Department’s Criminal Division, is ‘‘primarily responsible for the Department’s statutory wiretap authorizations.’’ 37

According to the letter, lawyers in OEO review these wiretap packages to ensure that they ‘‘meet statutory requirements and DOJ 

policies.’’ 38 When OEO completes its review of a wiretap package, 

federal law provides that the Attorney General or his designee—in 

practice, a Deputy Assistant Attorney General in the Criminal Division—reviews and authorizes it.39 Each wiretap package includes 

an affidavit which details the factual basis upon which the authorization is sought. Each application for Fast and Furious included 

a memorandum from Assistant Attorney General Breuer to Paul 

O’Brien, Director of OEO, authorizing the interception application.40

The Criminal Division’s approval of the wiretap applications in 

Fast and Furious violated Department of Justice policy. The core 

mission of the Bureau of Alcohol, Tobacco, Firearms, and Explosives is to ‘‘protect[ ] our communities from . . . the illegal use and 

trafficking of firearms.’’ 41

The wiretap applications document the extensive involvement of 

the Criminal Division in Fast and Furious. These applications were 

constructed from raw data contained in hundreds of Reports of Investigation (ROI); the Department of Justice failed to produce any 

of these ROI in response to the Committee’s subpoena. The Criminal Division authorized Fast and Furious wiretap applications on 

March 10, 2010; April 15, 2010; May 6, 2010; May 14, 2010; June 

1, 2010; and July 1, 2010. Deputy Assistant Attorney General 

Jason Weinstein, Deputy Assistant Attorney General Kenneth 


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42 USDOJ: About Department of Justice Agencies, available at http://www.justice.gov/agencies/ 

index-org.html (last visited May. 1, 2012). 43Transcribed Interview of Acting Dir. Kenneth Melson, at 25 (July 4, 2011). 44 ‘‘Operation the Fast and the Furious,’’ March 12, 2010 [HOGR 002820—HOGR 002823]. 45 Id. 46 Id. 47 Id. 48 E-mail from Edward N. Siskel to Mark R. Chait (July 14, 2010) [HOGR 002847]. 

Blanco, and Deputy Assistant Attorney General John Keeney 

signed these applications on behalf of Assistant Attorney General 

Lanny Breuer. 

E. THE OFFICE OF THE DEPUTY ATTORNEY GENERAL

The Office of the Deputy Attorney General (ODAG) maintained 

close involvement in Operation Fast and Furious. In the Justice 

Department, ATF reports to the Deputy Attorney General (DAG).42

In practice, an official in the Office of the Deputy Attorney General 

is responsible for managing the ATF portfolio. This official monitors the operations of ATF, and raises potential ATF issues to the 

attention of the DAG.43 During the pendency of Fast and Furious, 

this official was Associate Deputy Attorney General Edward Siskel. 

Officials in ODAG became familiar with Fast and Furious as 

early as March 2010. On March 12, 2010, Siskel and then-Acting 

DAG Gary Grindler received an extensive briefing on Fast and Furious during a monthly meeting with the ATF’s Acting Director and 

Deputy Director. This briefing presented Grindler with overwhelming evidence of illegal straw purchasing during Fast and Furious. The presentation included a chart of the names of the straw 

purchasers, 31 in all, and the number of weapons they had acquired to date, 1,026.44 Three of these straw purchasers had already purchased over 100 weapons each, with one straw purchaser 

having already acquired over 300 weapons. During this briefing, 

Grindler learned that buyers had paid cash for every single gun.45

A map of Mexico detailed locations of recoveries of weapons purchased through Fast and Furious, including some at crime 

scenes.46 The briefing also covered the use of stash houses where 

weapons bought during Fast and Furious were stored before being 

transported to Mexico. Grindler learned of some of the unique investigative techniques ATF was using during Fast and Furious.47

Despite receiving all of this information, then-Deputy Attorney 

General Gary Grindler did not order Fast and Furious to be shut 

down, nor did he follow-up with ATF or his staff about the investigation. 

Throughout the summer of 2010, ATF officials remained in close 

contact with their ODAG supervisors regarding Fast and Furious. 

Fast and Furious was a topic in each of the monthly meetings between ATF and the DAG. ATF apprised Ed Siskel of significant recoveries of Fast and Furious weapons, as well as of notable 

progress in the investigation, and Siskel indicated to ATF that he 

was monitoring it.48 In mid-December 2010, after Fast and Furious 

had been ongoing for over a year, Grindler received more details 

about the program. On December 15, 2010, Border Patrol Agent 

Brian Terry was killed. Two Fast and Furious weapons were recovered at the scene of his murder. Two days later, Associate Deputy 

Attorney General Brad Smith sent Grindler and four ODAG officials an e-mail detailing the circumstances of Terry’s murder and 


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49 E-mail from Assoc. Deputy Att’y Gen. Brad Smith to Deputy Att’y Gen. Gary Grindler, et 

al. (Dec. 17, 2010) [HOGR 002875–002881]. 50Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth Melson (Mar. 16, 2011) 

[hereinafter Mar. 16 Letter]. 51Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (May 5, 2011). 52Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth Melson (June 8, 2011). 53Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (June 10, 2011). 54 Id. 55Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Sep. 1, 2011). 

its connection to Fast and Furious.49 Smith attached a four-page 

summary of the Fast and Furious investigation. 

V. THE COMMITTEE’S OCTOBER 12, 2011, SUBPOENA TO 

ATTORNEY GENERAL HOLDER 

On October 12, 2011, the Committee issued a subpoena to Attorney General Eric Holder, demanding documents related to the Department of Justice’s involvement with Operation Fast and Furious. The subpoena was issued following six months of constant refusals by the Justice Department to cooperate with the Committee’s investigation into Operation Fast and Furious. 

A. EVENTS LEADING UP TO THE SUBPOENA

On March 16, 2011, Chairman Issa sent a letter to then-ATF 

Acting Director Ken Melson asking for information and documents 

pertaining to Operation Fast and Furious.50 Late in the afternoon 

of March 30, 2011, the Department, on behalf of ATF and Melson, 

informed the Committee that it would not provide any documents 

pursuant to the letter. The Committee informed the Department it 

planned to issue a subpoena. On March 31, 2011, the Committee 

issued a subpoena to Ken Melson for the documents. 

On May 2, 2011, Committee staff reviewed documents the Department made available for in camera review at Department 

headquarters. Many of these documents contained partial or full 

redactions. Following this review, Chairman Issa wrote to the Department on May 5, 2011, asking the Department to produce all 

documents responsive to the Committee’s subpoena forthwith.51

That same day, senior Department officials met with Committee 

staff and acknowledged ‘‘there’s a there, there’’ regarding the legitimacy of the congressional inquiry into Fast and Furious. 

In spite of Chairman Issa’s May 5, 2011, letter, during the two 

months following the issuance of the subpoena, the Department 

produced zero pages of non-public documents. On June 8, 2011, the 

Committee again wrote to the Department requesting complete 

production of all documents by June 10, 2011.52 The Department 

responded on June 10, 2011, stating ‘‘complete production of all 

documents by June 10, 2011, . . . is not possible.’’ 53 At 7:49 p.m. 

that evening, just three days before a scheduled Committee hearing 

on the obligation of the Department of Justice to cooperate with 

congressional oversight, the Department finally produced its first 

non-public documents to the Committee, totaling 69 pages.54

Over the next six weeks, through July 21, 2011, the Department 

produced an additional 1,286 pages of documents. The Department 

produced no additional documents until September 1, 2011, when 

it produced 193 pages of documents.55 On September 30, 2011, the 


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56Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles 

Grassley (Sep. 30, 2011). 57Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Oct. 11, 2011) [hereinafter Oct. 11 Letter]. 58Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder 

(July 11, 2011). 59Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Oct. 31, 2011) [hereinafter Oct. 31 Letter]. 60Letter from Chairman Darrell Issa and Senator Charles Grassley to FBI Dir. Robert 

Mueller (July 11, 2011) [hereinafter Mueller Letter]. 61Letter from Chairman Darrell Issa and Senator Charles Grassley to DEA Adm’r Michele 

Leonhart (July 15, 2011). 62Letter from DEA Adm’r Michele Leonhart to Chairman Darrell Issa and Senator Charles 

Grassley (July 22, 2011). 63Letter from Chairman Darrell Issa and Senator Charles Grassley to Acting U.S. Att’y Ann 

Scheel (Sep. 1, 2011). 64Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles 

Grassley (Dec. 6, 2011) [hereinafter Dec. 6 Letter]. 

Department produced 97 pages of documents.56 On October 11, 

2011, the Department produced 56 pages of documents.57

Early in the investigation, the Committee received hundreds of 

pertinent documents from whistleblowers. Many of the documents 

the whistleblowers provided were not among the 2,050 pages that 

the Department had produced by October 11, 2011, demonstrating 

that the Department was withholding materials responsive to the 

subpoena. 

The Committee requested additional documents from the Department as the investigation proceeded during the summer of 2011. 

On July 11, 2011, Chairman Issa and Senator Grassley wrote to 

the Attorney General requesting documents from twelve people in 

Justice Department headquarters pertaining to Fast and Furious.58

The Justice Department first responded to this letter on October 

31, 2011, nearly four months later.59

On July 11, 2011, Chairman Issa and Senator Grassley sent a 

letter to the FBI requesting documents relating to the FBI’s role 

in the Fast and Furious OCDETF investigation.60 The letter requested information and documents pertaining to paid FBI informants who were the target of the Fast and Furious investigation. 

The FBI never produced any of the documents requested in this 

letter. 

On July 15, 2011, Chairman Issa and Senator Grassley sent a 

letter to the DEA requesting documents pertaining to another target of the Fast and Furious investigation.61 The DEA was aware 

of this target before Fast and Furious became an OCDETF case, 

a fact that raises serious questions about the lack of informationsharing among Department components. Though DEA responded to 

the letter on July 22, 2011, it, too, did not provide any of the requested documents.62

On September 1, 2011, Chairman Issa and Senator Grassley 

wrote to the Acting U.S. Attorney in Arizona requesting documents 

and communications pertaining to Fast and Furious.63 As the office 

responsible for leading Fast and Furious, the Arizona U.S. Attorney’s Office possesses a large volume of documents relevant to the 

Committee’s investigation. The Department of Justice, on behalf of 

the U.S. Attorney’s Office for the District of Arizona, did not respond to this letter until December 6, 2011, the eve of the Attorney 

General’s testimony before the House Judiciary Committee.64

On September 27, 2011, Chairman Issa and Senator Grassley 

sent a letter to the Attorney General raising questions about inforVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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65Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder 

(Sep. 27, 2011). 66Oct. 11 Letter, supra note 57. 67 Id. 

mation-sharing among Department components, the Department’s 

cooperation with Congress, and FBI documents requested in the 

July 11, 2011, letter to FBI Director Mueller.65 To date, the Department has not responded to this letter. 

The Department wrote to Chairman Issa on October 11, 2011, 

stating it had ‘‘substantially concluded [its] efforts to respond to the 

Committee requests set forth in the subpoena and the letter of 

June 8th.’’ 66 The letter further stated: 

[O]ther documents have not been produced or made 

available for these same reasons because neither redacting 

them nor making them available for review (as opposed to 

production) was sufficient to address our concerns. Our 

disclosure of the vast majority of the withheld material is 

prohibited by statute. These records pertain to matters occurring before a grand jury, as well as investigative activities under seal or the disclosure of which is prohibited by 

law . . . we also have not disclosed certain confidential investigative and prosecutorial documents, the disclosure of 

which would, in our judgment, compromise the pending 

criminal investigations and prosecution. These include core 

investigative and prosecutorial material, such as Reports 

of Investigation and drafts of court filings. 

Finally . . . we have also withheld internal communications that were generated in the course of the Department’s effort to respond to congressional and media inquiries about Operation Fast and Furious. These records were 

created in 2011, well after the completion of the investigative portion of Operation Fast and Furious that the Committee has been reviewing and after the charging decisions 

reflected in the January 25, 2011, indictments. Thus, they 

were not part of the communications regarding the development and implementation of the strategy decisions that 

have not been the focus of the Committee’s inquiry . . . 

Disclosure would have a chilling effect on agency officials’ 

deliberations about how to respond to inquiries from Congress or the media. Such a chill on internal communications would interfere with our ability to respond as effectively and efficiently as possible to congressional oversight 

requests.67

The following day, on October 12, 2011, after the Department announced its intention to cease producing documents responsive to 

the Committee’s March 31, 2011, subpoena to Melson, the Committee issued a subpoena to Attorney General Eric Holder demanding documents relating to Fast and Furious. 

B. SUBPOENA SCHEDULE REQUESTS

In the weeks following the issuance of the subpoena, Committee 

staff worked closely with Department lawyers to provide clarifications about subpoena categories, and to assist the Department in 

prioritizing documents for production. Committee and Department 


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68 E-mail from Office of Leg. Affairs Staff, U.S. Dep’t of Justice, to Investigations Staff, H. 

Comm. on Oversight and Gov’t Reform (Oct. 31, 2011) [hereinafter OLA e-mail]. 69Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa (May 15, 2012), at 4 

[hereinafter May 15 Cole Letter]. 

staff engaged in discussions spanning several weeks to enable the 

Department to better understand what the Committee was specifically seeking. During these conversations, the Committee clearly 

articulated its investigative priorities as reflected in the subpoena 

schedule. The Department memorialized these priorities with specificity in an October 31, 2011, e-mail from the Office of Legislative 

Affairs.68

Despite the Department’s acknowledgement that it understands 

what the Committee was seeking, it has yet to provide a single document for 11 out of the 22 categories contained in the subpoena 

schedule. The Department has not adequately complied with the 

Committee’s subpoena, and it has unequivocally stated its refusal 

to comply with entire categories of the subpoena altogether. In a 

letter to Chairman Issa on May 15, 2012, the Department stated 

that it had delivered or made available for review documents responsive to 13 of the 22 categories of the subpoena.69

A review of each of the 22 schedule categories in the subpoena 

reflects the Department’s clear understanding of the documents 

sought by the Committee for each category. Below is a listing of 

each category of the subpoena schedule, followed by what the Department has explained is its understanding of what the Committee is seeking for each category. 

1. All communications referring or relating to Operation Fast and 

Furious, the Jacob Chambers case, or any Organized Crime Drug 

Enforcement Task Force (OCDETF) firearms trafficking case based 

in Phoenix, Arizona, to or from the following individuals: 

a. Eric Holder, Jr., Attorney General; 

b. David Ogden, Former Deputy Attorney General; 

c. Gary Grindler, Office of the Attorney General and former 

Acting Deputy Attorney General; 

d. James Cole, Deputy Attorney General; 

e. Lanny Breuer, Assistant Attorney General; 

f. Ronald Weich, Assistant Attorney General; 

g. Kenneth Blanco, Deputy Assistant Attorney General; 

h. Jason Weinstein, Deputy Assistant Attorney General; 

i. John Keeney, Deputy Assistant Attorney General; 

j. Bruce Swartz, Deputy Assistant Attorney General; 

k. Matt Axelrod, Associate Deputy Attorney General; 

l. Ed Siskel, former Associate Deputy Attorney General; 

m. Brad Smith, Office of the Deputy Attorney General; 

n. Kevin Carwile, Section Chief, Capital Case Unit, Criminal 

Division; 

o. Joseph Cooley, Criminal Fraud Section, Criminal Division; 

and, 

p. James Trusty, Acting Chief, Organized Crime and Gang 

Section. 

Department Response: In late October 2011, the Department acknowledged that it had ‘‘already begun searches of some of the 

custodians listed here relating to Fast and Furious, such as in reVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00019 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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70OLA e-mail. 71 Id. 72May 15 Cole Letter, at 4. 73 Id. 

sponse to the Chairman’s letter of 7/11/11.’’ 70 Still, it has produced 

no documents since the issuance of the subpoena pursuant to subpoena categories 1(a), 1(b), 1(g), 1(i), and 1(k), only two documents 

pursuant to subpoena category 1(d), and very few documents pursuant to subpoena category 1(j) and 1(l). 

2. All communications between and among Department of Justice 

(DOJ) employees and Executive Office of the President employees, 

including but not limited to Associate Communications Director 

Eric Schultz, referring or relating to Operation Fast and Furious 

or any other firearms trafficking cases. 

Department Response: The Department acknowledged that the 

Committee identified several people likely to be custodians of these 

documents.71 Though the Department has stated it has produced 

documents pursuant to this subpoena category, the Committee has 

not found any documents produced by the Department responsive 

to this subpoena category.72

3. All communications between DOJ employees and Executive 

Office of the President employees referring or relating to the President’s March 22, 2011, interview with Jorge Ramos of Univision. 

Department Response: The Department represented that it would 

‘‘check on communications with WH Press Office in the time period 

preceding the President’s 3/22/11 interview,’’ and that it had identified the most likely custodians of those documents.73 Nonetheless, 

it has produced no documents responsive to this subpoena category. 

The Department has not informed the Committee that no documents exist responsive to this schedule number. 

4. All documents and communications referring or relating to any 

instances prior to February 4, 2011, where the Bureau of Alcohol, 

Tobacco, Firearms and Explosives (ATF) failed to interdict weapons 

that had been illegally purchased or transferred. 

Department Response: The Department has produced some documents responsive to this subpoena category. 

5. All documents and communications referring or relating to any 

instances prior to February 4, 2011, where ATF broke off surveillance of weapons and subsequently became aware that those weapons entered Mexico. 

Department Response: The Department has produced documents 

responsive to this subpoena category. 

Most of the responsive documents the Department has produced 

pursuant to the subpoena pertain to categories 4 and 5 and relate 

to earlier cases the Department has described as involving 

gunwalking. The Department produced these documents strategically, advancing its own narrative about why Fast and Furious was 

neither an isolated nor a unique program. It has attempted to accomplish this objective by simultaneously producing documents to 

the media and the Committee. 

6. All documents and communications referring or relating to the 

murder of Immigrations and Customs Enforcement Agent Jaime 

Zapata, including, but not limited to, documents and communications regarding Zapata’s mission when he was murdered, Form for 

Reporting Information That May Become Testimony (FD–302), phoVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00020 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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74 Id. 75 Id. 76May 15 Cole Letter, at 4. 77Sharyl Attkisson, Second gun used in ICE agent murder linked to ATF undercover operation, (Feb. 22, 2012, 5:29 P.M.), http://www.cbsnews.com/8301-31727_162-57383089-10391695/ 

second-gun-used-in-ice-agent-murder-linked-to-atf-undercover-operation/. 78 Id. 79OLA e-mail, supra note 68. 80 Id. 

tographs of the crime scene, and investigative reports prepared by 

the FBI. 

Department Response: The Department ‘‘understand[s] that the 

Zapata family has complained that they’ve been ‘kept in the dark’ 

about this matter’’ which necessitated this subpoena category.74

The Department ‘‘conferred with the U.S. Attorney’s Office . . . 

which we hope will be helpful to them and perhaps address the 

concerns that are the basis of this item.’’ 75 Though the Department 

has stated it has produced documents pursuant to this subpoena 

category, the Committee has not found any documents produced by 

the Department responsive to this subpoena category.76

In late February 2012, press accounts revealed that prosecutors 

had recently sentenced a second individual in relation to the murder of Immigration and Customs Enforcement (ICE) Agent Jaime 

Zapata. One news article stated that ‘‘[n]obody was more astonished to learn of the case than Zapata’s parents, who didn’t know 

that [the defendant] had been arrested or linked to their son’s murder.’’ 77 Press accounts alleged that the defendant had been ‘‘under 

ATF surveillance for at least six months before a rifle he trafficked 

was used in Zapata’s murder’’—a situation similar to what took 

place during Fast and Furious.78 Despite this revelation, the Department failed to produce any documents responsive to this subpoena category. 

7. All communications to or from William Newell, former Special 

Agent-in-Charge for ATF’s Phoenix Field Division, between: 

a. December 14, 2010 to January 25, 2011; and, 

b. March 16, 2009 to March 19, 2009. 

Department Response: The Department has not produced any 

documents responsive to subpoena category 7(b), despite its understanding that the Committee sought documents pertaining ‘‘to communications with [Executive Office of the President] staff regarding 

gun control policy’’ within a specific and narrow timeframe.79 The 

Department has not informed the Committee that no documents 

exist responsive to this schedule number. 

8. All Reports of Investigation (ROIs) related to Operation Fast 

and Furious or ATF Case Number 785115–10–0004. 

Department Response: Department representatives contended 

that this subpoena category ‘‘presents some significant issues for’’ 

the Department due to current and potential future indictments.80

The Department has not produced any documents responsive to 

this subpoena category. The Department has not informed the 

Committee that no documents exist responsive to this schedule 

number. 

9. All communications between and among Matt Axelrod, Kenneth Melson, and William Hoover referring or relating to ROIs 

identified pursuant to Paragraph 8. 

Department Response: The Department acknowledged its understanding that this request specifically pertained to ‘‘emails Ken 


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81 Id. 82 Id. 

sent to Matt and Billy, expressing concerns, perhaps in March 

2011, [that] are core to [the Committee’s] work, and we’ll look at 

those.’’ 81 Still, it has produced no documents pursuant to this subpoena category. The Department has not informed the Committee 

that no documents exist responsive to this schedule number. 

10. All documents and communications between and among 

former U.S. Attorney Dennis Burke, Attorney General Eric Holder, 

Jr., former Acting Deputy Attorney General Gary Grindler, Deputy 

Attorney General James Cole, Assistant Attorney General Lanny 

Breuer, and Deputy Assistant Attorney General Jason Weinstein 

referring or relating to Operation Fast and Furious or any 

OCDETF case originating in Arizona. 

Department Response: The Department has produced some documents responsive to this subpoena category. 

A complete production of these documents is crucial to allow Congress to understand how senior Department officials came to know 

that the February 4, 2011, letter to Senator Grassley was false, 

why it took so long for the Department to withdraw the letter despite months of congressional pressure to do so, and why the Department obstructed the congressional investigation for nearly a 

year. These documents will show the reactions of top officials when 

confronted with evidence about gunwalking in Fast and Furious. 

The documents will also show whether these officials knew about, 

or were surprised to learn of, the gunwalking. Additionally, these 

documents will reveal the identities of Department officials who orchestrated various forms of retaliation against the whistleblowers. 

11. All communications sent or received between: 

a. December 16, 2009 and December 18, 2009; and, 

b. March 9, 2011, and March 14, 2011, to or from the following individuals: 

i. Emory Hurley, Assistant U.S. Attorney, Office of the 

U.S. Attorney for the District of Arizona; 

ii. Michael Morrissey, Assistant U.S. Attorney, Office of 

the U.S. Attorney for the District of Arizona; 

iii. Patrick Cunningham, Chief, Criminal Division, Office 

of the U.S. Attorney for the District of Arizona; 

iv. David Voth, Group Supervisor, ATF; and, 

v. Hope MacAllister, Special Agent, ATF. 

Department Response: The Department acknowledged that it 

‘‘will first search these custodians for records re a) the Howard 

meeting in 12/09; and b) the ROI or memo that was written during 

this time period relating to the Howard mtng in 12/09.’’ 82 Although 

the Department has produced documents that are purportedly responsive to this category, these documents do not pertain to the 

subject matter that the Department understands that the Committee is seeking. 

12. All communications sent or received between December 15, 

2010, and December 17, 2010, to or from the following individuals 

in the U.S. Attorney’s Office for the District of Arizona: 

a. Dennis Burke, former United States Attorney; 

b. Emory Hurley, Assistant United States Attorney; 

c. Michael Morrissey, Assistant United States Attorney; and, 


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83 Id. 84 Id. 85 Id. 86 Id. 

d. Patrick Cunningham, Chief of the Criminal Division. 

Department Response: The Department understood that the Committee’s ‘‘primary interest here is in the communications during 

this time period that relate to the Terry death and, per our conversation, we will start with those.’’ 83 Although the Department 

has produced some documents responsive to this subpoena category, it has not represented that it has produced all responsive 

documents in this category. 

13. All communications sent or received between August 7, 2009, 

and March 19, 2011, between and among former Ambassador to 

Mexico Carlos Pascual; Assistant Attorney General Lanny Breuer; 

and Deputy Assistant Attorney General Bruce Swartz. 

Department Response: The Department acknowledged that it 

‘‘understand[s] the Committee’s focus here is Firearms Trafficking 

issues along the SW Border, not limited to Fast & Furious.’’ 84 The 

Department has produced some documents responsive to this subpoena category. 

14. All communications sent or received between August 7, 2009, 

and March 19, 2011, between and among former Ambassador to 

Mexico Carlos Pascual and any Department of Justice employee 

based in Mexico City referring or relating to firearms trafficking 

initiatives, Operation Fast and Furious or any firearms trafficking 

case based in Arizona, or any visits by Assistant Attorney General 

Lanny Breuer to Mexico. 

Department Response: The Department has produced only a 

handful of pages responsive to this subpoena category, even though 

it ‘‘understand[s] that [the Committee] wants [the Department] to 

approach this effort with efficiency.’’ 85 Despite the Committee’s request for an efficient effort, the Department produced a key document regarding Attorney General Lanny Breuer three and a half 

months after the subpoena was issued, after several previous document productions, and long after Breuer testified before Congress 

and could be questioned about the document. Given the importance 

of the contents of the document and the request for an efficient effort on the part of the Department in this subpoena category, it is 

inconceivable that the Department did not discover this document 

months prior to its production. The Department’s actions suggest 

that it kept this document hidden for strategic and public relations 

reasons. 

15. Any FD–302 relating to targets, suspects, defendants, or their 

associates, bosses, or financiers in the Fast and Furious investigation, including but not limited to any FD–302s ATF Special Agent 

Hope MacAllister provided to ATF leadership during the calendar 

year 2011. 

Department Response: The Department ‘‘understand[s] that [the 

Committee’s] primary focus here is the 5 FBI 302s that were provided to SA MacAllister, which she later gave to Messrs. Hoover 

and Melson.’’ 86 Despite the specificity of this document request, the 

Department has not produced any documents responsive to this 

schedule number. The Department has not informed the Committee that no documents exist responsive to this schedule number. 


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87 Id. 88 Id. 89 Id. 90 Id. 91 Id. 

16. Any investigative reports prepared by the FBI or Drug Enforcement Administration (DEA) referring or relating to targets, 

suspects, or defendants in the Fast and Furious case. 

Department Response: The Department was ‘‘uncertain about the 

volume here,’’ regarding the amount of documents, and pledged to 

‘‘work[ ] on this [with] DEA and FBI.’’ 87 Despite this pledge, it has 

produced no documents responsive to this subpoena category. The 

Department has not informed the Committee that no documents 

exist responsive to this schedule number. 

17. Any investigative reports prepared by the FBI or DEA relating to the individuals described to Committee staff at the October 

5, 2011, briefing at Justice Department headquarters as Target 

Number 1 and Target Number 2. 

Department Response: The Department acknowledged that it 

‘‘think[s] we understand this item.’’ 88 Despite this understanding, 

it has produced no documents responsive to this subpoena category. 

The Department has not informed the Committee that no documents exist responsive to this schedule number. 

18. All documents and communications in the possession, custody 

or control of the DEA referring or relating to Manuel Fabian CelisAcosta. 

Department Response: The Department agreed to ‘‘start with 

records regarding information that DEA shared with ATF about 

Acosta, which we understand to be the focus of your interest in this 

item.’’ 89 Despite this understanding, the Department has produced 

no documents responsive to this subpoena category. The Department has not informed the Committee that no documents exist responsive to this schedule number. 

19. All documents and communications between and among FBI 

employees in Arizona and the FBI Laboratory, including but not 

limited to employees in the Firearms/Toolmark Unit, referring or 

relating to the firearms recovered during the course of the investigation of Brian Terry’s death. 

Department Response: The Department’s understanding was that 

‘‘[the Committee’s] focus here is how evidence was tagged at the 

scene of Agent Terry’s murder, how evidence was processed, how 

the FBI ballistics report was prepared and what it means.’’ 90 Despite this clear understanding, the Department has produced no 

documents responsive to this subpoena category. The Department 

has not informed the Committee that no documents exist responsive to this schedule number. 

20. All agendas, meeting notes, meeting minutes, and follow-up 

reports for the Attorney General’s Advisory Committee of U.S. Attorneys between March 1, 2009, and July 31, 2011, referring or relating to Operation Fast and Furious. 

Department Response: This category asks for documents from the 

Attorney General’s Advisory Committee within a clearly specified 

date range. Despite the fact that the Department has acknowledged this category ‘‘is clear,’’ the Department has produced no documents responsive to this subpoena category.91 The Department 


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92 Id. 93 Id. 94Fast and Furious: Management Failures at the Department of Justice: Hearing Before the 

H. Comm. on Oversight and Gov’t Reform, 112th Cong. (Feb. 2, 2012) (Statement of Hon. Eric 

H. Holder, Jr., Att’y Gen. of the U.S.). 95 Id. 

has not informed the Committee that no documents exist responsive to this schedule number. 

21. All weekly reports and memoranda for the Attorney General, 

either directly or through the Deputy Attorney General, from any 

employee in the Criminal Division, ATF, DEA, FBI, or the National 

Drug Intelligence Center created between November 1, 2009 and 

September 30, 2011. 

Department Response: This category asks for weekly reports and 

memoranda to the Attorney General from five different Department components ‘‘regarding ATF cases re firearms trafficking.’’ 92

The Department has produced some documents responsive to this 

subpoena category. 

22. All surveillance tapes recorded by pole cameras inside the 

Lone Wolf Trading Co. store between 12:00 a.m. on October 3, 

2010, and 12:00 a.m. on October 7, 2010. 

Department Response: This category asks for all ATF surveillance 

tapes from Lone Wolf Trading Company between two specified 

dates in October 2010. Both the Committee and the Department 

‘‘understand a break-in occurred’’ at that time.93 The Department 

has produced no documents responsive to this subpoena category. 

The Department has not informed the Committee that no documents exist responsive to this schedule number. 

C. ATTEMPTS OF ACCOMMODATION BY THE COMMITTEE, LACK OF

COMPLIANCE BY THE JUSTICE DEPARTMENT

In public statements, the Department has maintained that it remains committed to ‘‘work[ing] to accommodate the Committee’s legitimate oversight needs.’’ 94 The Department, however, believes it 

is the sole arbiter of what is ‘‘legitimate.’’ In turn, the Committee 

has gone to great lengths to accommodate the Department’s interests as an Executive Branch agency. Unfortunately, the Department’s actions have not matched its rhetoric. Instead, it has chosen 

to prolong the investigation and impugn the motives of the Committee. A statement the Attorney General made at the February 2, 

2012, hearing was emblematic of the Department’s posture with respect to the investigation: 

But I also think that if we are going to really get ahead 

here, if we are really going to make some progress, we 

need to put aside the political gotcha games in an election 

year and focus on matters that are extremely serious.95

This attitude with respect to a legitimate congressional inquiry 

has permeated the Department’s ranks. Had the Department demonstrated a willingness to cooperate with this investigation from 

the outset—instead of attempting to cover up its own internal mismanagement—this investigation likely would have concluded well 

before the election year even began. The Department has intentionally withheld documents for months, only to release a selected 


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96On Friday January 27, 2012, just days before the Attorney General testified before Congress, documents were delivered to the Senate Judiciary Committee so late in the evening that 

a disc of files had to be slipped under the door. This is not only an extreme inconvenience for 

congressional staff but also deprives staff of the ability to review the materials in a timely manner. 97 2 U.S.C. 192 states, in pertinent part: 

Every person who having been summoned as a witness by the authority of either House of 

Congress to give testimony or to produce papers upon any matter under inquiry before . . . any 

committee of either House of Congress, willfully makes default . . . shall be deemed guilty of 

a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months. 

few on the eve of the testimony of Department officials.96 The Department has impeded the ability of a co-equal branch of government to perform its constitutional duty to conduct Executive 

Branch oversight. By any measure, it has obstructed and slowed 

the Committee’s work. 

The Committee has been unfailingly patient in working with Department representatives to obtain information the Committee requires to complete its investigation. The Department’s progress has 

been unacceptably slow in responding to the October 12, 2011, subpoena issued to the Attorney General. Complying with the Committee’s subpoena is not optional. Indeed, the failure to produce documents pursuant to a congressional subpoena is a violation of federal law.97 Because the Department has not cited any legal authority as the basis for withholding documents pursuant to the subpoena its efforts to accommodate the Committee’s constitutional obligation to conduct oversight of the Executive Branch are incomplete. 

1. IN CAMERA REVIEWS

In an attempt to accommodate the Justice Department’s interests, Committee staff has viewed documents responsive to the subpoena that the Department has identified as sensitive in camera at 

Department headquarters. Committee staff has visited the Department on April 12, May 4, June 17, October 12, and November 3, 

2011, as well as on January 30 and February 27, 2012 to view 

these documents. Many of the documents made available for in 

camera review, however, have been repetitive in nature. Many 

other documents seemingly do not contain any sensitive parts that 

require them to be viewed in camera. Other documents are altogether non-responsive to the subpoena. 

Committee staff has spent dozens of hours at Department headquarters reviewing these documents. In addition, the Department 

has identified hundreds of other sensitive documents responsive to 

the subpoena, which it refuses to make available even for in camera review, instead withholding them from the Committee altogether. The Committee has made these accommodations to the Department at the expense of not being able to make these documents 

available for review by Committee Members. 

2. REDACTED DOCUMENTS

The Department has redacted varying portions of many of the 

documents it has produced. These redactions purportedly protect 

ongoing criminal investigations and prosecutions, as well as other 

sensitive data. The Department has so heavily redacted some documents produced to Congress that they are unintelligible. There appears to be no objective, consistent criteria delineating why some 


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98Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (May 2, 2011). 99Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (June 14, 2011). 100Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (July 18, 2011). 101 E-mail from Office of Leg. Affairs Staff, U.S. Dep’t of Justice, to Staff, H. Comm. on Oversight and Gov’t Reform (July 28, 2011). 

documents were redacted, only provided in camera, or withheld entirely. 

On the evening of May 2, 2011, Department of Justice representatives notified the Committee that the Department was planning 

to make approximately 400 pages of documents available for an in 

camera review at its headquarters.98 Committee staff went to review those documents on May 4, 2011, only to discover they were 

partially, or in some cases almost completely, redacted. Since these 

documents were only made available pursuant to Committee’s first 

subpoena and only on an in camera basis, redactions were inappropriate and unnecessary. 

On June 14, 2011, the Department produced 65 pages of documents to the Committee in a production labeled ‘‘Batch 4.’’ 99 Of 

these 65 pages, every single one was at least partially redacted, 44 

were completely redacted, and 61 had redactions covering more 

than half of the page. 

On July 18, 2011, after more than a month of discussions between Committee and Department staff, the Department finally included a redaction code that identifies the reason for each redaction 

within a document.100 While the Department has used this redaction code in subsequent document productions to the Committee, 

documents produced and redacted prior to July 18, 2011, do not 

have the benefit of associated redaction codes for each redaction. 

The Department has over-redacted certain documents. The Committee has obtained many of these documents through whistleblowers and has compared some of them with those produced by 

the Department. In some instances, the Department redacted more 

text than necessary, making it unnecessarily difficult and sometimes impossible for the Committee, absent the documents provided by whistleblowers, to investigate decisions made by Department officials. 

Further, any documents made available pursuant to the Committee’s subpoenas must not have any redactions. To fully and properly investigate the decisions made by Department officials during 

Fast and Furious, the Committee requires access to documents in 

their entirety. The Department has not complied with this requirement. 

The Committee does recognize the importance of privacy interests and other legitimate reasons the Department has for redacting 

portions of documents produced to the Committee. The Committee 

has attempted to accommodate the Department’s stated concerns 

related to documents it believes are sensitive. The Committee intended to release 230 pages of documents in support of its July 26, 

2011, report entitled The Department of Justice’s Operation Fast 

and Furious: Fueling Cartel Violence, and gave the Department an 

opportunity to suggest its own redactions before the documents became public.101 These actions are consistent with the Committee’s 

willingness to accommodate the Department’s interests. 


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102Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Jan. 31, 2012) [hereinafter 

Jan. 31 Letter]. 103Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Feb. 14, 2012) (emphasis in 

original) [hereinafter Feb. 14 Letter]. 

3. PRIVILEGE LOG

Mindful of the Justice Department’s prerogatives as an Executive 

Branch agency, the Committee has offered the opportunity for the 

Department to prepare a privilege log of documents responsive to 

the subpoena but withheld from production. A privilege log would 

outline the documents withheld and the specific grounds for withholding. Such a log would serve as the basis for negotiation between the Committee and the Department about prioritizing the 

documents for potential production. 

On January 31, 2012, Chairman Issa wrote to the Attorney General. He said: 

Should you choose to continue to withhold documents 

pursuant to the subpoena, you must create a detailed 

privilege log explaining why the Department is refusing to 

produce each document. If the Department continues to obstruct the congressional inquiry by not providing documents and information, this Committee will have no alternative but to move forward with proceedings to hold you 

in contempt of Congress.102

On February 14, 2012, Chairman Issa again wrote to the Attorney General. He said: 

We cannot wait any longer for the Department’s cooperation. As such please specify a date by which you expected 

the Department to produce all documents responsive to 

the subpoena. In addition, please specify a Department 

representative who will interface with the Committee for 

production purposes . . . This person’s primary responsibility should be to identify for the Committee all documents the Department has determined to be responsive to 

the subpoena but is refusing to produce, and should provide a privilege log of the documents delineating why each 

one is being withheld from Congress. Please direct this individual to produce this log to the Committee without further delay.103

On several occasions, Committee staff has asked the Department 

to provide such a privilege log, including a listing, category-by-category, of documents the Department has located pursuant to the 

subpoena and the reason the Department will not produce those 

documents. Despite these requests, however, the Department has 

neither produced a privilege log nor responded to this aspect of 

Chairman Issa’s letters of January 31, 2012, and February 14, 

2012. 

The Department has not informed the Committee that it has 

been unable to locate certain documents. This suggests that the Department is not producing responsive documents in its possession. 

Since the Department will not produce a privilege log, it has failed 

to make a good faith effort to accommodate the Committee’s legitimate oversight interests. 


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104Mar. 16 Letter, supra note 50. 105 Id. 106Teleconference between Committee Staff and U.S. Dep’t of Justice Office of Leg. Affairs Staff 

(Mar. 30, 2011). 107Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 1, 2011). 

4. ASSERTIONS OF NON-COMPLIANCE

The Committee’s investigation into Operation Fast and Furious 

is replete with instances in which the Justice Department has 

openly acknowledged it would not comply with the Committee’s requests. These pronouncements began with the March 31, 2011, 

subpoena to the former Acting ATF Director, continued through the 

Committee’s October 12, 2011, subpoena to the Attorney General, 

and persist to this day. 

(a) March 31, 2011, Subpoena 

On March 16, 2011, Chairman Issa sent a letter to the then-Acting ATF Director requesting documents about Fast and Furious.104

As part of this request, Chairman Issa asked for a ‘‘list of individuals responsible for authorizing the decision to ‘walk’ guns to Mexico in order to follow them and capture a ‘bigger fish.’ ’’ 105 On the 

afternoon of March 30, 2011, the deadline given in Chairman Issa’s 

letter, Department staff participated in a conference call with Committee staff. During that call, Department staff expressed a lack of 

understanding over the meaning of the word ‘‘list.’’ 106 Department 

officials further informed Committee staff that the Department 

would not produce documents by the deadline and were uncertain 

when they would produce documents in the future. Committee staff 

understood this response to mean the Department did not intend 

to cooperate with the Committee’s investigation. 

The next day Chairman Issa authorized a subpoena for the Acting ATF Director. The following day, the Department wrote to 

Chairman Issa. Assistant Attorney General Ronald Weich wrote: 

As you know, the Department has been working with 

the Committee to provide documents responsive to its 

March 16 request to the Bureau of Alcohol, Tobacco, Firearms and Explosives. Yesterday, we informed Committee 

staff that we intended to produce a number of responsive 

documents within the next week. As we explained, there 

are some documents that we would be unable to provide 

without compromising the Department’s ongoing criminal 

investigation into the death of Agent Brian Terry as well 

as other investigations and prosecutions, but we would 

seek to work productively with the Committee to find 

other ways to be responsive to its needs.107

Despite the Department’s stated intention to produce documents 

within the next week, it produced no documents for over two 

months, until June 10, 2011. In the interim, the Department made 

little effort to work with the Committee to define the scope of the 

documents required by the subpoena. 

On April 8, 2011, the Department wrote to Chairman Issa to inform the Committee that it had located documents responsive to 

the subpoena. Assistant Attorney General Weich wrote that the Department did not plan to share many of these materials with the 

Committee. His letter stated: 


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108Letter from Ass’t Atty’y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 8, 2011). 109 Id. 110Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Apr. 8, 2011). 

To date, our search has located several law enforcement 

sensitive documents responsive to the requests in your letter and the subpoena. We have substantial confidentiality 

interests in these documents because they contain information about ATF strategies and procedures that could be 

used by individuals seeking to evade our law enforcement 

efforts. We are prepared to make these documents, with 

some redactions, available for review by Committee staff 

at the Department. They will bear redactions to protect information about ongoing criminal investigations, investigative targets, internal deliberations about law enforcement 

options, and communications with foreign government representatives. In addition, we notified Committee staff that 

we have identified certain publicly available documents 

that are responsive. While our efforts to identify responsive documents are continuing, many of your requests seek 

records relating to ongoing criminal investigations. Based 

upon the Department’s longstanding policy regarding the 

confidentiality of ongoing criminal investigations, we are 

not in a position to disclose such documents, nor can we 

confirm or deny the existence of records in our ongoing investigative files. This policy is based on our strong need to 

protect the independence and effectiveness of our law enforcement efforts.108

The letter cited prior Department policy in support of its position 

of non-compliance: 

We are dedicated to holding Agent Terry’s killer or killers responsible through the criminal justice process that is 

currently underway, but we are not in a position to provide 

additional information at this time regarding this active 

criminal investigation for the reasons set forth above. 

...109

On June 14, 2011, after the Department had produced 194 pages 

of non-public documents pursuant to the subpoena, the Department 

informed the Committee that it was deliberately withholding certain documents: 

As with previous oversight matters, we have not provided access to documents that contain detailed information about our investigative activities where their disclosure would harm our pending investigations and prosecutions. This includes information that would identify investigative subjects, sensitive techniques, anticipated actions, 

and other details that would assist individuals in evading 

our law enforcement efforts. Our judgments begin with the 

premise that we will disclose as much as possible that is 

responsive to the Committee’s interests, consistent with 

our responsibilities to bring to justice those who are responsible for the death of Agent Terry and those who violate federal firearms laws.110


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111Letter from Chairman Darrell Issa and Senator Charles Grassley to Att’y Gen. Eric Holder 

(July 5, 2011). 112Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles 

Grassley (July 6, 2011). 113Mueller Letter, supra note 60. 114Letter from Stephen Kelley, Ass’t Dir., FBI Office of Congressional Affairs, to Chairman 

Darrell Issa and Senator Charles Grassley (Aug. 12, 2011). 

The June 14, 2011, letter arrived one day after the Committee 

held a hearing featuring constitutional experts discussing the legal 

obligations of the Department to comply with a congressional subpoena. The Department’s letter did not address the views expressed 

at the hearing, instead reiterating its internal policy. The letter 

noted that the Department would not provide access to documents 

discussing its use of ‘‘sensitive techniques’’—even though these 

techniques were central to the Committee’s investigation. 

On July 5, 2011, Chairman Issa and Senator Grassley wrote to 

the Department about serious issues involving the lack of information sharing among Department components, in particular, between the FBI and DEA.111 These issues raised the possibility that 

the Department had been deliberately concealing information about 

Fast and Furious from the Committee, including the roles of its 

component agencies. The next day, the Department responded. It 

wrote: 

Your letter raises concerns about the alleged role of 

other agencies in matters that you say touch on Operation 

Fast and Furious. Chairman Issa’s staff previously raised 

this issue with representatives of the Department and it is 

my understanding that discussions about whether and how 

to provide any such sensitive law enforcement information 

have been ongoing. . . .112

On July 11, 2011, Chairman Issa and Senator Grassley wrote to 

the FBI requesting information on the issue of information sharing 

within the Department. The letter included a request for information relating to the murder of Immigrations and Customs Enforcement Agent Jaime Zapata.113 On August 12, 2011, the FBI responded. It wrote: 

Your letter also asks for specific information related to 

the crime scene and events leading to the murder of ICE 

Agent Jaime Zapata in Mexico on February 15, 2011. As 

you know, crime scene evidence and the circumstances of 

a crime are generally not made public in an ongoing investigation. Furthermore, the investigative reports of an ongoing investigation are kept confidential during the investigation to preserve the integrity of the investigation and 

to ensure its successful conclusion. We regret that we cannot provide more details about the investigation at this 

time, but we need to ensure all appropriate steps are 

taken to protect the integrity of the investigation.114

The FBI did not provide any documents to the Committee regarding the information sharing issues raised, though it did offer 

to provide a briefing to staff. It delivered that briefing nearly two 

months later, on October 5, 2011. 

On October 11, 2011, the Department wrote to Chairman Issa. 

The Department stated: 


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115Oct. 11 Letter, supra note 57. 116 Id. 117Oct. 31 Letter, supra note 59. 

We believe that we have now substantially concluded 

our efforts to respond to the Committee requests set forth 

in the subpoena and the letter of June 8th.115

The Department was well aware that the Committee was struggling to understand how the Department created its February 4, 

2011, letter to Senator Grassley, which the Committee believed to 

contain false information. To that end, the Department stated: 

As we have previously explained to Committee staff, we 

have also withheld internal communications that were 

generated in the course of the Department’s effort to respond to congressional and media inquiries about Operation Fast and Furious. These records were created in 

2011, well after the completion of the investigative portion 

of Operation Fast and Furious that the Committee has 

been reviewing and after the charging decisions reflected 

in the January 25, 2011, indictments. Thus, they were not 

part of the communications regarding the development and 

implementation of the strategy decisions that have been 

the focus of the Committee’s inquiry. It is longstanding Executive Branch practice not to disclose documents falling 

into this category because disclosure would implicate substantial Executive Branch confidentiality interests and 

separation of powers principles. Disclosure would have a 

chilling effect on agency officials’ deliberations about how 

to respond to inquiries from Congress or the media. Such 

a chill on internal communications would interfere with 

our ability to respond as effectively and efficiently as possible to congressional oversight requests.116

The next day, the Committee issued a subpoena to Attorney General Holder. 

(b) October 12, 2011, Subpoena 

On October 31, 2011, the Department produced its first batch of 

documents pursuant to the Committee’s October 12, 2011, subpoena.117 This production consisted of 652 pages. Of these 652 

pages, 116 were about the Kingery case, a case that the Department wanted to highlight in an attempt to discredit some of the 

original Fast and Furious whistleblowers. Twenty-eight additional 

pages were about an operation from the prior administration, the 

Hernandez case, and 245 pages were about another operation from 

the prior administration, Operation Wide Receiver. 

Although the subpoena covered documents from the Hernandez 

and Wide Receiver cases, their inclusion into the first production 

batch under the subpoena was indicative of the Department’s strategy in responding to the subpoena. The Department briefed the 

press on these documents at the same time as it produced them to 

the Committee. The Department seemed more interested in spin 

control than in complying with the congressional subpoena. Sixty 

percent of the documents in this first production were related to either Kingery, Hernandez, or Wide Receiver, and therefore, unreVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00032 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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118Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa and Senator Charles 

Grassley (Dec. 2, 2011). 119 Id. 120Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa and Senator Charles 

Grassley (Dec. 13, 2011). 121Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Jan. 5, 2012). 122 Cole Letter, supra note 37. 123 Id. 

lated to the gravamen of the Committee’s investigation into Fast 

and Furious. 

On December 2, 2011, shortly before the Attorney General’s testimony before the House Judiciary Committee, the Department produced 1,364 pages of documents pertaining to the creation of its 

February 4, 2011, letter.118 Despite its statements in the October 

11, 2011, letter, the Department, through a letter from Deputy Attorney General James Cole, publicly admitted under pressure its 

obvious misstatements, formally acknowledging that the February 

4, 2011, letter ‘‘contains inaccuracies.’’ 119

On December 13, 2011, on the eve of the Committee’s interview 

with Gary Grindler, Chief of Staff to the Attorney General, the Department produced 19 pages of responsive documents.120

On January 5, 2012, the Department produced 482 pages of documents responsive to the subpoena.121 Of these 482 pages, 304 of 

them, or 63 percent, were related to the Wide Receiver case. This 

production brought the total number of pages produced pursuant to 

Wide Receiver to 549, nearly 100 more than the Department had 

produced at that time regarding Fast and Furious in three document productions. 

On January 27, 2012, the Department produced 486 pages of documents pursuant to the October 12, 2011, subpoena.122 In its cover 

letter, the Department stated, ‘‘[t]he majority of materials produced 

today are responsive to items 7, 11 and 12 of your October 11 subpoena.’’ There are no documents in the production, however, responsive to items 7(b) or 11(b)(i–v). The Department wrote in its 

January 27 cover letter: 

We are producing or making available for review materials that are responsive to these items, most of which pertain to the specific investigations that we have already 

identified to the Committee. We are not, however, providing materials pertaining to other matters, such as documents regarding ATF cases that do not appear to involve 

the inappropriate tactics under review by the Committee; 

non-ATF cases, except for certain information relating to 

the death of Customs and Border Protection Agent Brian 

Terry; administrative matters; and personal records.123

The Department refused to produce documents pursuant to the 

subpoena regarding investigations that it had not previously specified to the Committee, or investigations that ‘‘do not appear’’ to involve inappropriate tactics. In doing so, the Department made itself 

the sole arbiter of the Committee’s investigative interests, as well 

as of the use of ‘‘inappropriate’’ tactics. The Department has prevented Congress from executing its constitutionally mandated oversight function, preferring instead to self-regulate. 

The October 12, 2011, subpoena, however, covers all investigations in which ATF failed to interdict weapons that had been illeVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00033 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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124 Jan. 31 Letter, supra note 102. 125Letter from Deputy Att’y Gen. James Cole to Chairman Darrell Issa (Feb. 1, 2012) [hereinafter Feb. 1 Letter]. 126Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Feb. 16, 2012) [hereinafter Feb. 16 Letter]. 127Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Feb. 27, 2012). 128Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (Mar. 2, 2012). 

gally purchased or transferred—not just those cases previously 

identified by the Department. The subpoena does not give the Department the authority to define which tactics are inappropriate. 

Rather, the language in sections 4 and 5 of the subpoena schedule 

is clear. The Department’s refusal to cooperate on this front and 

only produce documents about investigations that it had previously 

identified—documents that support the Department’s press strategy—is in violation of its obligation to cooperate with congressional 

oversight. 

On January 31, 2012, Chairman Issa again wrote to the Attorney 

General, this time asking that the Department produce all documents pursuant to the subpoena by February 9, 2012.124 The following day, the Department responded. It stated: 

Your most recent letter asks that we complete the production process under the October 11, 2011, subpoena by 

February 9, 2012. The broad scope of the Committee’s requests and the volume or material to be collected, processed and reviewed in response make it impossible to meet 

that deadline, despite our good faith efforts. We will continue in good faith to produce materials, but it simply will 

not be possible to finish the collection, processing and review of materials by the date sought in your most recent 

letter.125

Yet, as discussed in Section V.B above, the Department was 

acutely aware in October 2011, approximately three months earlier, exactly what categories of documents the Committee was seeking. In response to the subpoena, the Department had, up to February 1, 2012, produced more documents relating to a single operation years before Fast and Furious even began than it had relating to Operation Fast and Furious itself. 

On February 16, 2012, the Department produced 304 pages of 

documents pursuant to the subpoena.126 The production included 

nearly 60 pages of publicly available and previously produced information, as well as other documents previously produced to the 

Committee. 

On February 27, 2012, the Department produced eight pages 

pursuant to the subpoena.127 These eight pages, given to the Committee by a whistleblower ten months earlier, were produced only 

because a transcribed interview with a former Associate Deputy Attorney General was to take place the next day. 

On March 2, 2012, the Department produced 26 pages of documents pursuant to the October 12, 2011, subpoena.128 Five of these 

documents were about the Kingery case. Fourteen documents—over 

half of the production—related to Wide Receiver. Seven pages were 

duplicate copies of a press release already produced to the Committee. 

On March 16, 2012, the Department produced 357 pages of documents pursuant to the subpoena. Three hundred seven of these 


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129The most recent production by the Department, on May 15, 2012, ended with Bates number HOGR 006988. 130May 15 Cole Letter, supra note 69. 131Oversight Hearing on the United States Department of Justice: Hearing Before the H. 

Comm. on the Judiciary, 112th Cong. (Dec. 8, 2011) (Test. of Hon. Eric H. Holder, Jr., Att’y Gen. 

of the U.S.). 

pages, or 86 percent, related to the Hernandez and Medrano cases 

from the prior Administration. Twenty other pages had been previously produced by the Department, and seven pages were publicly available on the Justice Department’s website. 

On April 3, 2012, the Department produced 116 pages of documents pursuant to the subpoena. Forty four of these pages, or 38 

percent, related to cases other than Fast and Furious. On April 19, 

2012, the Department produced 188 pages of documents pursuant 

to the subpoena. 

On May 15, 2012, the Department produced 29 pages of documents pursuant to the subpoena. Ten of these pages, or 36 percent, 

related to cases other than Fast and Furious. 

The Department has produced a total of 6,988 pages to the Committee to date.129 Though the Department recently stated that it 

has ‘‘provided documents to the Committee at least twice every 

month since late last year,’’ the Department has not produced any 

documents to the Committee in over 30 days.130

(c) Post-February 4, 2011, Documents 

Many of the documents the October 12, 2011, subpoena requires 

were created or produced after February 4, 2011. The Department 

first responded to Congress about Fast and Furious on this date. 

The Department has steadfastly refused to make any documents 

created after February 4, 2011, available to the Committee. 

The Department’s actions following the February 4, 2011, letter 

to Senator Grassley are crucial in determining how it responded to 

the serious allegations raised by the whistleblowers. The October 

12, 2011, subpoena covers documents that would help Congress understand what the Department knew about Fast and Furious, including when and how it discovered its February 4 letter was false, 

and the Department’s efforts to conceal that information from Congress and the public. Such documents would include those relating 

to actions the Department took to silence or retaliate against Fast 

and Furious whistleblowers and to find out what had happened, 

and how the Department assessed the culpability of those involved 

in the program. 

The Attorney General first expressed the Department’s position 

regarding documents created after February 4, 2011, in his testimony before the House Judiciary Committee on December 8, 2011. 

In no uncertain terms, he stated: 

[W]ith regard to the Justice Department as a whole— 

and I’m certainly a member of the Justice Department— 

we will not provide memos after February the 4th . . . emails, memos—consistent with the way in which the Department of Justice has always conducted itself in its 

interactions.131

He again impressed this point upon Committee Members later in 

the hearing: 


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132 Id. 133Transcribed Interview of Gary Grindler, Chief of Staff to the Att’y Gen., at 22 (Dec. 14, 

2011) [hereinafter Grindler Tr.]. 134 Id. 135Transcribed Interview of Jason Weinstein, Deputy Ass’t Att’y Gen. at 177 (Jan. 10, 2012). 136Transcribed Interview of Dennis K. Burke at 158–60 (Dec. 13, 2011). 137 Id. at 158–59. 

Well, with the regard to provision of e-mails, I thought 

I’ve made it clear that after February the 4th it is not our 

intention to provide e-mail information consistent with the 

way in which the Justice Department has always conducted itself.132

The Department reiterated this position less than a week later 

in a December 14, 2011, transcribed interview of Gary Grindler, 

the Attorney General’s Chief of Staff. Department counsel broadened the Department’s position with respect to sharing documents 

created after February 4, 2011, in refusing to allow Grindler to answer any questions relating to conversations that he had with anyone in the Department regarding Fast and Furious after February 

4, 2011. Grindler stated: 

What I am saying is that the Attorney General made it 

clear at his testimony last week that we are not providing 

information to the committee subsequent to the February 

4th letter.133

Department counsel expanded the position the Attorney General 

articulated regarding documentary evidence at the House Judiciary 

Committee hearing to include testimonial evidence as well.134

Given the initial response by the Department to the congressional 

inquiry into Fast and Furious, the comments by Department counsel created a barrier preventing Congress from obtaining vital information about Fast and Furious. 

The Department has maintained this position during additional 

transcribed interviews. In an interview with Deputy Assistant Attorney General Jason Weinstein on January 10, 2012, Department 

counsel prohibited him from responding to an entire line of questioning about his interactions with the Arizona U.S. Attorney’s Office because it ‘‘implicates the post-February 4th period.’’ 135

Understanding the post-February 4th period is critical to the 

Committee’s investigation. Furthermore, documents from this period are responsive to the October 12, 2011, subpoena. For example, following the February 4, 2011, letter, Jason Weinstein, at the 

behest of Assistant Attorney General Breuer, prepared an analytical review of Fast and Furious.136 Weinstein interviewed Emory 

Hurley and Patrick Cunningham of the Arizona U.S. Attorney’s office as part of this review.137 The document that resulted from 

Weinstein’s analysis specifically discussed issues relevant to the 

Committee’s inquiry. To date, the Department has not produced 

documents related to Weinstein’s review to the Committee. 

Chairman Issa has sent several letters urging the Department to 

produce documents pertaining to the Fast and Furious from the 

post-indictment period, and raising the possibility of contempt if 

the Attorney General chose not to comply. Initially, the Department refused to produce any documents created after January 25, 

2011, the date that the case was unsealed. On November 9, 2011, 

Chairman Issa wrote to the Department: 


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138Letter from Chairman Darrell Issa to Ass’t Att’y Gen. Ronald Weich (Nov. 9, 2011). 139See, e.g., Grindler Tr. at 22. 140 Jan. 31 Letter, supra note 102. 

Over the past six months, Senator Grassley and I have 

asked for this information on many occasions, and each 

time we have been told it would not be produced. This information is covered by the subpoena served on the Attorney General on October 12, 2011, and I expect it to be produced no later than Wednesday, November 16, at 5:00 p.m. 

Failure to comply with this request will leave me with no 

other alternative than the use of compulsory process to obtain your testimony under oath. 

* * * * * * * 

Understanding the Department’s actions after Congress 

started asking questions about Fast and Furious is crucial. 

As you know, substantial effort was expended to hide the 

actions of the Department from Congress . . . I expect 

nothing less than full compliance with all aspects of the 

subpoena, including complete production of documents created after the indictments were unsealed on January 25, 

2011.138

On December 2, 2011, the Department produced documents pertaining to its February 4, 2011, response to Senator Grassley. 

When the Attorney General testified before Congress on December 

8, 2011, he created a new cutoff date of February 4, 2011, after 

which no documents would be produced to Congress, despite the 

fact that such documents were covered by the October 12, 2011, 

subpoena. In support of this position regarding post-February 4, 

2011, documents, in transcribed interviews, Department representatives have asserted a ‘‘separation of powers’’ privilege without further explanation or citation to legal authority.139 The Department 

has not cited any legal authority to support this new, extremely 

broad assertion of privilege. 

On January 31, 2012, Chairman Issa wrote to the Attorney General about this new, arbitrary date created by the Department, and 

raised the possibility of contempt: 

In short, the Committee requires full compliance with all 

aspects of the subpoena, including complete production of 

documents created after the Department’s February 4, 

2011, letter. . . . If the Department continues to obstruct 

the congressional inquiry by not providing documents and 

information, this Committee will have no alternative but 

to move forward with proceedings to hold you in contempt 

of Congress.140

The Department responded the following day. It said: 

To the extent responsive materials exist that post-date 

congressional review of this matter and were not generated in that context or to respond to media inquiries, 

and likewise do not implicate other recognized Department 

interests in confidentiality (for example, matters occurring 

before a grand jury, investigative activities under seal or 

the disclosure of which is prohibited by law, core investigaVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00037 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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141Feb. 1 Letter, supra note 125. 142 Id. 

tive information, or matters reflecting internal Department 

deliberations), we intend to provide them.141

The Department quoted from its October 11, 2011, letter, stating: 

[A]s we have previously explained to Committee staff, 

we have also withheld internal communications that were 

generated in the course of the Department’s effort to respond to congressional and media inquiries about Operation Fast and Furious. These records were created in 

2011, well after the completion of the investigative portion 

of Operation Fast and Furious that the Committee has 

been reviewing and after the charging decisions reflected 

in the January 25, 2011, indictments. Thus, they were not 

part of the communications regarding the development and 

implementation of the strategy decisions that have been 

the focus of the Committee’s inquiry. It is longstanding Executive Branch practice not to disclose documents falling 

into this category because disclosure would implicate substantial Executive Branch confidentiality interests and 

separation of powers principles. Disclosure would have a 

chilling effect on agency officials’ deliberations about how 

to respond to inquiries from Congress or the media. Such 

a chill on internal communications would interfere with 

our ability to respond as effectively and efficiently as possible to congressional oversight requests.142

On February 14, 2012, Chairman Issa again wrote to the Department regarding post-February 4, 2011, documents, and again 

raised the possibility of contempt: 

Complying with the Committee’s subpoena is not optional. Indeed, the failure to produce documents pursuant 

to a congressional subpoena is a violation of federal law. 

The Department’s letter suggests that its failure to 

produce, among other things, ‘‘deliberative documents and 

other internal communications generated in response to 

congressional oversight requests’’ is based on the premise 

that ‘‘disclosure would compromise substantial separation 

of powers principles and Executive Branch confidentiality 

interests.’’ Your February 4, 2011, cut-off date of providing 

documents to the Committee is entirely arbitrary, and 

comes from a ‘‘separation of powers’’ privilege that does 

not actually exist. 

You cite no legal authority to support your new, extremely broad assertion. To the contrary, as you know, 

Congress possesses the ‘‘power of inquiry.’’ Furthermore, 

‘‘the issuance of a subpoena pursuant to an authorized investigation is . . . an indispensable ingredient of lawmaking.’’ Because the Department has not cited any legal 

authority as the basis for withholding documents, or provided the Committee with a privilege log with respect to 

documents withheld, its efforts to accommodate the ComVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00038 Fmt 6659 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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143Feb. 14 Letter, supra note 103. 144 Id (emphasis in original). 

mittee’s constitutional obligation to conduct oversight of 

the Executive Branch are incomplete.143

* * * * * * * 

Please specify a date by which you expect the Department to produce all documents responsive to the subpoena. 

In addition, please specify a Department representative 

who will interface with the Committee for production purposes. This individual should also serve as the conduit for 

dealing with possible contempt proceedings, should the Department continue to ignore the Committee’s subpoena.144

On February 16, 2012, the Department responded. The response 

did not address the post-February 4, 2011, documents, nor did it 

address the possibility of contempt. The Department’s letter stated: 

We have produced documents to the Committee on a 

rolling basis; since late last year these productions have 

occurred approximately twice a month. It is our intent to 

adhere to this rolling production schedule until we have 

completed the process of producing all responsive documents to which the Committee is entitled, consistent with 

the longstanding policies of the Executive Branch across 

administrations of both parties. Moreover, we intend to 

send a letter soon memorializing our discussions with your 

staff about the status of our production of documents within the various categories of the subpoena. 

Our efforts to cooperate with the Committee have been 

a significant undertaking, involving a great deal of hard 

work by a large number of Department employees. The Department has been committed to providing the documents 

and information necessary to allow the Committee to satisfy its core oversight interests regarding the use of inappropriate tactics in Fast and Furious. 

The Department, however, has yet to produce any documents 

pursuant to the subpoena created after February 4, 2011. Despite 

warnings by Chairman Issa that the Committee would initiate contempt if the Department failed to comply with the subpoena, the 

Department has refused to produce documents. 

(d) Interview Requests 

In addition to the October 12, 2011, subpoena, the Committee 

has requested to interview key individuals in Operation Fast and 

Furious and related programs. The Committee accommodated the 

Department’s request to delay an interview with Hope MacAllister, 

the lead case agent for Operation Fast and Furious, despite her 

vast knowledge of the program. The Committee agreed to this accommodation due to the Department’s expressed concern about 

interviewing a key witness prior to trial. 

Throughout the investigation, the Department has had an evolving policy with regard to witnesses that excluded ever-broader categories of witnesses from participating in volunteer interviews. The 

Department first refused to allow line attorneys to testify in transcribed interviews, and then it prevented first-line supervisors from 


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145Feb. 16 Letter, supra note 126. 146Dec. 6 Letter, supra note 64. 147Letter from Tobin Romero, Williams & Connolly LLP, to Chairman Darrell Issa (Jan. 19, 

2012). 148Letter from Chairman Darrell Issa to Att’y Gen. Eric Holder (Jan. 24, 2012). 

testifying. Next, the Department refused to make Senate-confirmed 

Department officials available for transcribed interviews. One such 

Senate-confirmed official, Assistant Attorney General Lanny 

Breuer, is a central focus in the Committee’s investigation. On February 16, 2012, the Department retreated somewhat from its position, noting in a letter to the Committee that it was ‘‘prepared to 

work with [the Committee] to find a mutually agreeable date for 

[Breuer] to appear and answer the Committee’s questions, whether 

or not that appearance is public.’’ 145 The Department has urged 

the Committee to reconsider this interview request. 

While the Department has facilitated a dozen interviews to avoid 

compulsory depositions, there have been several instances in which 

the Department has refused to cooperate with the Committee in 

scheduling interviews. The Department has stated that it would 

not make available certain individuals that the Committee has requested to interview. On December 6, 2011, the Department wrote: 

We would like to defer any final decisions about the 

Committee’s request for Mr. Swartz’s interview until we 

have identified any responsive documents, some of which 

may implicate equities of another agency. The remaining 

employees you have asked to interview are all career employees who are either line prosecutors or first- or secondlevel supervisors. James Trusty and Michael Morrissey 

were first-level supervisors during the time period covered 

by the Fast and Furious investigation, and Kevin Carwile 

was a second-level supervisor. The remaining three employees you have asked to interview—Emory Hurley, Serra 

Tsethlikai, and Joseph Cooley—are line prosecutors. We 

are not prepared to make any of these attorneys available 

for interviews.146

The Department did, however, make Patrick Cunningham, Chief 

of the Criminal Division for the U.S. Attorney’s Office in Arizona, 

available for an interview. The Committee had been requesting to 

interview Cunningham since summer 2011. The Department finally 

allowed access to Cunningham for an interview in December 2011. 

Cunningham chose to retain private counsel instead of Department 

counsel. On January 17, 2012, Cunningham canceled his interview 

scheduled for the Committee on January 19, 2012. 

Chairman Issa issued a subpoena to Cunningham to appear for 

a deposition on January 24, 2012. In a letter dated January 19, 

2012, Cunningham’s counsel informed the Committee that 

Cunningham would ‘‘assert his constitutional privilege not to be 

compelled to be a witness against himself.’’ 147 On January 24, 

2012, Chairman Issa wrote to the Attorney General to express that 

the absence of Cunningham’s testimony would make it ‘‘difficult to 

gauge the veracity of some of the Department’s claims’’ regarding 

Fast and Furious.148

On January 27, 2012, Cunningham left the Department of Justice. After months of Committee requests, the Department finally 

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ment. The actions of the Department in delaying the interview and 

Cunningham’s own assertion of the Fifth Amendment privilege delayed and denied the Committee the benefit of his testimony. 

5. FAILURE TO TURN OVER DOCUMENTS

The Department has failed to turn over any documents pertaining to three main categories contained in the October 12, 2011, 

subpoena. 

(a) Who at Justice Department Headquarters Should Have Known 

of the Reckless Tactics 

The Committee is seeking documents relating to who had access 

to information about the objectionable tactics used in Operation 

Fast and Furious, who approved the use of these tactics, and what 

information was available to those individuals when they approved 

the tactics. Documents that whistleblowers have provided to the 

Committee indicate that those officials were the senior officials in 

the Criminal Division, including Lanny Breuer and one of his top 

deputies, Jason Weinstein. 

Documents in this category include those relating to the preparation of the wiretap applications, as well as certain ATF, DEA, and 

FBI Reports of Investigation. Key decision makers at Justice Department headquarters relied on these and other documents to approve the investigation. 

(b) How the Department Concluded that Fast and Furious was 

‘‘Fundamentally Flawed’’ 

The Committee requires documents from the Department relating to how officials learned about whistleblower allegations and 

what actions they took as a result. The Committee is investigating 

not just management of Operation Fast and Furious, but also the 

Department’s efforts to slow and otherwise interfere with the Committee’s investigation. 

For months after the congressional inquiry began, the Department refused to acknowledge that anything improper occurred during Fast and Furious. At a May 5, 2011, meeting with Committee 

staff, a Department representative first acknowledged that ‘‘there’s 

a there, there.’’ The Attorney General acknowledged publicly that 

Fast and Furious was ‘‘fundamentally flawed’’ on October 7, 2011. 

On December 2, 2011, the Department finally admitted that its 

February 4, 2011, letter to Senator Grassley contained false information—something Congress had been telling the Department for 

over seven months. 

Documents in this category include those that explain how the 

Department responded to the crisis in the wake of the death of 

U.S. Border Patrol Agent Brian Terry. These documents will reveal 

when the Department realized it had a problem, and what actions 

it took to resolve that problem. These documents will also show 

whether senior Department officials were surprised to learn that 

gunwalking occurred during Fast and Furious, or if they already 

knew that to be the case. These documents will also identify who 

at the Department was responsible for authorizing retaliation 

against the whistleblowers. The documents may also show the Department’s assignment of responsibility to officials who knew about 

the reckless conduct or were negligent during Fast and Furious. 


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149Letter from Speaker John Boehner et al. to Att’y Gen. Eric Holder (May 18, 2012). 150May 15 Cole Letter, supra note 69. 

(c) How the Inter-Agency Task Force Failed 

The Organized Crime Drug Enforcement Task Force (OCDETF) 

program was created to coordinate inter-agency information sharing. As early as December 2009, the DEA shared information with 

ATF that should have led to arrests and the identification of the 

gun trafficking network that Fast and Furious sought to uncover. 

The Committee has received information suggesting that, after arrests were made one year later, ATF discovered that two Mexican 

drug cartel associates at the top of the Fast and Furious network 

had been designated as national security assets by the FBI, and at 

times have been paid FBI informants. Because of this cooperation, 

these associates are considered by some to be unindictable. 

Documents in this category will reveal the extent of the lack of 

information-sharing among DEA, FBI, and ATF. Although the Deputy Attorney General is aware of this problem, he has expressed 

little interest in resolving it. 

VI. ADDITIONAL ACCOMMODATIONS BY THE 

COMMITTEE 

As discussed above in Section V.C.5, the Department has failed 

to turn over any documents responsive to three main categories 

covered by the October 12, 2011, subpoena: 

(a) Who at Justice Department Headquarters Should Have 

Known of the Reckless Tactics; 

(b) How the Department Concluded that Fast and Furious 

was ‘‘Fundamentally Flawed’’; and, 

(c) How the Inter-Agency Task Force Failed. 

The Committee notified the Justice Department on multiple occasions that its failure to produce any documents responsive to these 

three categories would force the Committee to begin contempt proceedings against the Attorney General. 

On May 18, 2012, Chairman Issa, along with Speaker John 

Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin 

McCarthy, wrote a letter to the Attorney General. As an accommodation to the Department, the letter offered to narrow the scope of 

documents the Department needed to provide in order to avoid contempt proceedings. 149 Documents in category (c) are outside the 

scope of the narrowed request, and so the Department no longer 

needed to produce them to avoid contempt proceedings, even 

though such documents are covered by the October 12, 2011, subpoena. 

The Committee also obtained copies of wiretap applications authorized by senior Department officials during Operation Fast and 

Furious. These documents, given to the Committee by whistleblowers, shined light on category (a). Still, many subpoenaed documents under this category have been deliberately withheld by the 

Department. These documents are critical to understanding who is 

responsible for failing to promptly stop Fast and Furious. The Department has cited such documents as ‘‘core investigative’’ materials that pertain to ‘‘pending law enforcement matters.’’ 150 To accommodate the Department’s interest in successfully prosecuting 

criminal defendants in this case, the Committee is willing to accept 


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151 In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir 1997). 

production of these documents after the current prosecutions of the 

20 straw purchasers indicted in January 2011, have concluded at 

the trial level. This deferment should in no way be interpreted as 

the Committee ceding its legitimate right to receive these documents, but instead solely as an accommodation meant to alleviate 

the Department’s concerns about preserving the integrity of the ongoing prosecutions. 

In addition to deferring production of category (a) documents, the 

Committee is also willing to view these documents in camera with 

limited redactions. These accommodations represent a significant 

commitment on the part of the Committee to negotiating in good 

faith to avoid contempt. 

Unlike documents in category (a), the Department has no legitimate interest in limiting the Committee’s access to documents in 

category (b). On February 4, 2011, the Department wrote a letter 

to Congress categorically denying that gunwalking had occurred. 

This letter was false. Still, it was not withdrawn until December 

2011. The Committee has a right to know how the Department 

learned that gunwalking did in fact occur, and how it handled the 

fallout internally. The deliberative process privilege is not recognized by Congress as a matter of law and precedent. By sending 

a letter that contained false and misleading statements, the Department forfeited any reasonable expectation that the Committee 

would accommodate its interest in withholding deliberative process 

documents. 

On June 20, 2012, minutes before the start of the Committee’s 

meeting to consider a resolution holding the Attorney General in 

contempt, the Committee received a letter from Deputy Attorney 

General James Cole claiming that the President asserted executive 

privilege over certain documents covered by the subpoena. The 

Committee has a number of concerns about the validity of this assertion: 

1. The assertion was transparently not a valid claim of privilege given its last minute nature; 

2. The assertion was obstructive given that it could have and 

should have been asserted months ago, but was not until literally the day of the contempt mark-up; 

3. The assertion is eight months late. It should have been 

made by October 25, 2011, the subpoena return date; 

4. To this moment, the President himself has not indicated 

that he is asserting executive privilege; 

5. The assertion is transparently invalid in that it is not 

credible that every document withheld involves a 

‘‘communication[ ] authored or solicited and received by those 

members of an immediate White House adviser’s staff who 

have broad and significant responsibility for investigating and 

formulating the advice to be given the President on the 

particular matter to which the communications relate,’’; 151

6. The assertion is transparently invalid where the Justice 

Department has provided no details by which the Committee 

might evaluate the applicability of the privilege, such as the 

senders and recipients of the documents; 


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152Todd Garvey & Alissa M. Dolan, Congressional Research Service, Congress’s Contempt 

Power: Law, History, Practice, & Procedure, no. RL34097, Apr. 15, 2008 [hereinafter CRS Contempt Report]. 153 Id. 154 Id. 155 Id. 156 Id. 

7. Even if the privilege were valid as an initial matter, which 

it is not, it certainly has been overcome here, as: (i) the Committee has demonstrated a sufficient need for the documents as 

they are likely to contain evidence important to the Committee’s inquiry and (ii) the documents sought cannot be obtained 

any other way. The Committee has spent 16 months investigating, talking to dozens of individuals, and collecting documents from many sources. The remaining documents are ones 

uniquely in the possession of the Justice Department; and, 

8. Without these documents, the Committee’s important legislative work will continue to be stymied. The documents are 

necessary to evaluate what government reform is necessary 

within the Justice Department to avoid the problems uncovered by the investigation in the future. 

The President has now asserted executive privilege. This assertion, however, does not change the fact that Attorney General Eric 

Holder Jr. is in contempt of Congress today for failing to turn over 

lawfully subpoenaed documents explaining the Department’s role 

in withdrawing the false letter it sent to Congress. 

VII. HISTORICAL PERSPECTIVES ON CONTEMPT 

Contempt proceedings in Congress date back over 215 years. 

These proceedings provide Congress a valuable mechanism for adjudicating its interests. Congressional history is replete with examples of the pursuit of contempt proceedings by House committees 

when faced with strident resistance to their constitutional authority to exercise investigative power. 

A. PAST INSTANCES OF CONTEMPT

Congress first exercised its contempt authority in 1795 when 

three Members of the House charged two businessmen, Robert 

Randall and Charles Whitney, with offering bribes in exchange for 

the passage of legislation granting Randall and his business partners several million acres bordering Lake Erie. 152 This first contempt proceeding began with a resolution by the House deeming 

the allegations were adequate ‘‘evidence of an attempt to corrupt,’’ 

and the House reported a corresponding resolution that was referred to a special committee. 153 The special committee reported a 

resolution recommending formal proceedings against Randall and 

Whitney ‘‘at the bar of the House.’’ 154

The House adopted the committee resolution which laid out the 

procedure for the contempt proceeding. Interrogatories were exchanged, testimony was received, Randall and Whitney were provided counsel, and at the conclusion, on January 4, 1796, the 

House voted 78–17 to adopt a resolution finding Randall guilty of 

contempt. 155 As punishment Randall was ‘‘ordered [ ] to be 

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157 Id. 158 Id.: quoting Asher C. Hinds, Precedents of the House of Representatives, Sec. 1603 (1907). 159 Id. 160 Id. at 5. 161 Id. at 6. 162 Id. at 14. 163 Id. 164Wm. Holmes Brown et al., House Practice: A Guide to the Rules, Precedents, and Procedures of the House, 450 (2011). 165 Id. at 20, 22. 166David E. Rosenbaum, Panel Votes to Charge Reno With Contempt of Congress, N.Y. TIMES 

(Aug. 7, 1998). 167 Id. 168Laurie Kellman, Waxman Threatens Mukasey With Contempt Over Leak, U.S.A. TODAY 

(July 8, 2008); Richard Simon, White House Says No to Congress’ EPA Subpoena, L.A. TIMES 

(June 21, 2008). 169Press Release, Rep. Henry Waxman, Chairman Waxman Warns Attorney General of Scheduled Contempt Vote (July 8, 2008) http://oversight-archive.waxman.house.gov/story.asp?ID=2067 

(last visited Feb. 22, 2012); Press Release, Rep. Henry Waxman, Chairman Waxman Schedules 

Continued 

tained until January 13, 1796, when the House passed a resolution 

discharging him. 157 In contrast, Whitney ‘‘was absolved of any 

wrongdoing,’’ since his actions were against a ‘‘member-elect’’ and 

occurred ‘‘away from the seat of government.’’ 158

Congressional records do not demonstrate any question or hesitation regarding whether Congress possesses the power to hold individuals in contempt.159 Moreover, there was no question that 

Congress could punish a non-Member for contempt.160 Since the 

first contempt proceeding, numerous congressional committees 

have pursued contempt against obstinate administration officials 

as well as private citizens who failed to cooperate with congressional investigations.161 Since the first proceeding against Randall 

and Whitney, House committees, whether standing or select, have 

served as the vehicle used to lay the foundation for contempt proceedings in the House.162

On August 3, 1983, the House passed a privileged resolution citing Environmental Protection Agency Administrator Anne Gorsuch 

Burford with contempt of Congress for failing to produce documents to a House subcommittee pursuant to a subpoena.163 This 

was the first occasion the House cited a cabinet-level executive 

branch member for contempt of Congress.164 A subsequent agreement between the House and the Administrator, as well as prosecutorial discretion, was the base for not enforcing the contempt citation against Burford.165

Within the past fifteen years the Committee on Oversight and 

Government Reform has undertaken or prepared for contempt proceedings on multiple occasions. In 1998, Chairman Dan Burton 

held a vote recommending contempt for Attorney General Janet 

Reno based on her failure to comply with a subpoena issued in connection with the Committee’s investigation into campaign finance 

law violations.166 On August 7, 1998, the Committee held Attorney 

General Reno in contempt by a vote of 24 to 18.167

During the 110th Congress, Chairman Henry Waxman threatened and scheduled contempt proceedings against several Administration officials.168 Contempt reports were drafted against Attorney 

General Michael B. Mukasey, Stephen L. Johnson, Administrator 

of the U.S. Environmental Protection Agency, and Susan E. Dudley, Administrator of the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. Business meetings to consider these drafts were scheduled.169


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Contempt Vote (June 13, 2008) http://oversight-archive.waxman.house.gov/story.asp?ID=2012 

(last visited Feb. 22, 2012). 170 CRS Contempt Report at 54–55. 171 Id. 172See H. Res. 982. 173 Id. 174 Id. 175 Id. 176Philip Shenon, House Votes to Issue Contempt Citations, N.Y. TIMES (Feb. 15, 2008). 177 CRS Contempt Report at 54–55. 178 Id. 

Former Attorney General Mukasey’s draft contempt report charged 

him with failing to produce documents in connection to the Committee’s investigation of the release of classified information. According to their draft contempt reports, Administrators Johnson 

and Dudley failed to cooperate with the Committee’s lengthy investigation into California’s petition for a waiver to regulate greenhouse gas emissions from motor vehicles and the revision of the national ambient air quality standards for ozone. 

Most recently, the House Judiciary Committee pursued contempt 

against former White House Counsel Harriet Miers and White 

House Chief of Staff Joshua Bolten.170 On June 13, 2007, the Committee served subpoenas on Miers and Bolten.171 After attempts at 

accommodations from both sides, the Committee determined that 

Miers and Bolten did not satisfactorily comply with the subpoenas. 

On July 25, 2007, the Committee voted, 22–17, to hold Miers and 

Bolten in contempt of Congress. 

On February 14, 2008, the full House, with most Republicans abstaining, voted to hold Miers and Bolten in criminal contempt of 

Congress by a margin of 223–42.172 One hundred seventy-three 

Members of Congress did not cast a vote either in favor or against 

the resolution.173 All but nine Members who abstained were Republican.174 Only three Republicans supported the contempt resolution for Miers and Bolten.175 This marked the first contempt vote 

by Congress with respect to the Executive Branch since the Reagan 

Administration.176 The resolutions passed by the House allowed 

Congress to exercise all available remedies in the pursuit of contempt.177 The House Judiciary Committee’s action against Miers 

marked the first time that a former administration official had ever 

been held in contempt.178

B. DOCUMENT PRODUCTIONS

The Department has refused to produce thousands of documents 

pursuant to the October 12, 2011, subpoena because it claims certain documents are Law Enforcement Sensitive, others pertain to 

ongoing criminal investigations, and others relate to internal deliberative process. 

During the past ten years, the Committee on Oversight and Government Reform has undertaken a number of investigations that 

resulted in strong opposition from the Executive Branch regarding 

document productions. These investigations include regulatory decisions of the Environmental Protection Agency (EPA), the leak of 

CIA operative Valerie Plame’s identity, and the fratricide of Army 

Corporal Patrick Tillman. In all cases during the 110th Congress, 

the Administration produced an overwhelming amount of documents, sheltering a narrow few by asserting executive privilege. 


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179 H. Comm. on Oversight and Gov’t Ref. Minority Additional Views, EPA, OIRA Investigations & Exec. Privilege Claims; Missed Opportunities by Majority to Complete Investigations, Oct. 

22, 2008. 180 Id. 181 Id. 182 Id. 183 Id. 184 Id. 185 Id. 186 Id. 

In 2008, the Committee received or reviewed in camera all agency-level documents related to the EPA’s decision regarding California’s request for a rule waiver, numbering approximately 27,000 

pages in total.179 According to a Committee Report, the EPA withheld only 32 documents related to the California waiver decision 

based on executive privilege. These included notes of telephone 

calls or meetings in the White House ‘‘involving at least one highranking EPA official and at least one high-ranking White House official.’’ 180 The White House Counsel informed the Committee that 

these documents represented ‘‘deliberations at the very highest 

level of government.’’ 181

During the Committee’s 2008 investigation into the Administration’s promulgation of ozone standards, the EPA produced or allowed in camera review of over 35,000 pages of documents. The 

President asserted executive privilege over a narrow set of documents, encompassing approximately 35 pages. One such document 

included ‘‘talking points for the EPA Administrator to use in a 

meeting with [the President].’’ 182

In furtherance of the Committee’s ozone regulation investigation, 

OIRA produced or allowed in camera review of 7,500 documents.183

Documents produced by EPA and OIRA represented pre-decisional 

opinions of career scientists and agency counsel.184 These documents were sensitive because some, if not all, related to ongoing 

litigation.185 The OIRA Administrator withheld a certain number 

of documents that were communications between OIRA and certain 

White House officials, and the President ultimately ‘‘claimed executive privilege over these documents.’’ 186

Also during the 110th Congress, the Committee investigated the 

revelation of CIA operative Valerie Plame’s identity in the news 

media. The Committee’s investigation was contemporaneous with 

the Department of Justice’s criminal investigation into the leak of 

this classified information—a situation nearly identical to the Committee’s current investigation into Operation Fast and Furious. 

Pursuant to the Committee’s investigation, the Justice Department produced FBI reports of witness interviews, commonly referred to as ‘‘302s.’’ Specifically, documents reviewed by the Committee staff during the Valerie Plame investigation included the 

following: 

FBI interviews of federal officials who did not work in the 

White House, as well as interviews of relevant private individuals . . . total of 224 pages of records of FBI interview reports 

with 31 individuals, including materials related to a former 

Secretary, Deputy Secretary, Undersecretary [sic], and two Assistant Secretaries of State, and other former or current CIA 


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187 H. Comm. on Oversight and Gov’t Ref. Draft Report, U.S. House of Reps. Regarding President Bush’s Assertion of Exec. Privilege in Response to the Comm. Subpoena to Att’y Gen. Michael B. Mukasey, http://oversight-archive.waxman.house.gov/documents/20081205114333.pdf 

(last visited Mar. 5, 2012). 188 Id. 189 Id. 190 Id. 191 Id. 192 H. Comm. on Oversight and Gov’t Ref. Comm. Report, Misleading Information From the 

Battlefield: the Tillman & Lynch Episodes, H. Rep. 110–858, Sept. 16, 2008. 193 Id. 194 Id. 

and State Department officials, including the Vice President’s 

CIA briefer.187

To accommodate the Committee, the Department permitted in 

camera review of the following: 

[D]ocuments include[ing] redacted reports of the FBI 

interview with Mr. Libby, Andrew Card, Karl Rove, 

Condoleezza Rice, Stephen Hadley, Dan Bartlett, and Scott 

McClellan and another 104 pages of additional interview 

reports of the Director of Central Intelligence, and eight 

other White House or Office of the Vice President officials.188

The only documents the Justice Department declined to produce 

were the FBI 302s with respect to the interviews of the President 

and the Vice President.189 Ultimately, the Committee relented in 

its pursuit of the President’s 302.190 The Committee, however, persisted in its request for the Vice President’s 302. As a result, the 

President asserted executive privilege over that particular document.191

The Committee specifically included 302s in its October 12, 2011, 

subpoena to the Attorney General regarding Fast and Furious. 

These subpoenaed 302s do not include FBI interviews with White 

House personnel, or even any other Executive Branch employee. 

Still, in spite of past precedent, the Department has refused to 

produce those documents to the Committee or to allow staff an in 

camera review. 

In the 110th Congress, the Committee investigated the fratricide 

of Army Corporal Patrick Tillman and the veracity of the account 

of the capture and rescue of Army Private Jessica Lynch.192 The 

Committee employed a multitude of investigative tools, including 

hearings, transcribed interviews, and non-transcribed interviews. 

The Administration produced thousands of documents.193 The Committee requested the following: 

[T]he White House produce all documents received or 

generated by any official in the Executive Office of the 

President from April 22 until July 1, 2004, that related to 

Corporal Tillman. The Committee reviewed approximately 

1,500 pages produced in response to this request. The documents produced to the Committee included e-mail communications between senior White House officials holding 

the title of ‘‘Assistant to the President.’’ According to the 

White House, the White House withheld from the Committee only preliminary drafts of the speech President 

Bush delivered at the White House Correspondents’ Dinner on May 1, 2004.194


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195 Id.; The minority views by Hon. Tom Davis states that the Comm. received 50,000 pages 

of documents and reviewed additional documents in camera. 196Letter from Ass’t Att’y Gen. Ronald Weich to Chairman Darrell Issa (May 15, 2012). 

The Department of Defense produced over 31,000 responsive documents, and the Committee received an unprecedented level of access to documents and personnel.195

The Oversight and Government Reform Committee’s investigations over the past five years demonstrate ample precedent for the 

production of a wide array of documents from the Executive 

Branch. In these investigations, the Committee received predecisional deliberative regulatory documents, documents pertaining 

to ongoing investigations, and communications between and among 

senior advisors to the President. The Committee’s October 12, 

2011, subpoena calls for many of these same materials, including 

302s and deliberative documents. Still, the Justice Department refuses to comply. 

Further, the number of documents the Department has produced 

during the Committee’s Fast and Furious investigation pales in 

comparison to those produced in conjunction with the Committee’s 

prior investigations. In separate EPA investigations, the Committee received 27,000 documents and 35,000 documents respectively. In the Patrick Tillman investigation, the Committee received 31,000 documents. Moreover, in the Valerie Plame investigation, the Committee received access to highly sensitive materials 

despite the fact that the Justice Department was conducting a parallel criminal investigation. 

As of May 15, 2012, in the Fast and Furious investigation, in the 

light most favorable to the Department of Justice, it has ‘‘provided 

the Committee over 7,600 pages of documents’’—a small fraction of 

what has been produced to the Committee in prior investigations 

and of what the Department has produced to the Inspector General 

in this matter.196 This small number reflects the Department’s lack 

of cooperation since the Committee sent its first letter to the Department about Fast and Furious on March 16, 2011. 

VIII. RULES REQUIREMENTS 

EXPLANATION OF AMENDMENTS

Mr. Gowdy offered an amendment that updated the Committee’s 

Report to reflect that the President asserted the executive privilege 

over certain documents subpoenaed by the Committee. The amendment also updated the Report to include the Committee’s concerns 

about the validity of the President’s assertion of the executive 

privilege. The amendment was agreed to by a recorded vote. 

COMMITTEE CONSIDERATION

On June 20, 2012, the Committee on Oversight and Government 

Reform met in open session with a quorum present to consider a 

report of contempt against Eric H. Holder, Jr., the Attorney General of the United States, for failure to comply with a Congressional subpoena. The Committee approved the Report by a roll call 

vote of 23–17 and ordered the Report reported favorably to the 

House. 


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ROLL CALL VOTES

The following recorded votes were taken during consideration of 

the contempt Report: 

1. Mr. Welch offered an amendment to add language to the Executive Summary stating that contempt proceedings at this time are 

unwarranted because the Committee has not met with former Attorney General Michael Mukasey. 

The amendment was defeated by a recorded vote of 14 Yeas to 

23 Nays. 

Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, Tierney, Lynch, Connolly, Quigley, Davis, Braley, Welch, Murphy and 

Speier. 

Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, 

Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, 

Farenthold and Kelly. 

2. Mr. Lynch offered an amendment asking for an itemized accounting of the costs associated with the Fast and Furious investigation. 

The amendment was defeated by a vote of 15 Yeas to 23 Nays. 

Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, Tierney, Clay, Lynch, Connolly, Quigley, Davis, Braley, Welch, Murphy 

and Speier. 

Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, 

Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, 

Farenthold and Kelly. 

3. Ms. Maloney offered an amendment to add language to the Executive Summary stating that contempt proceedings at this time 

are unwarranted because the Committee has not held a public 

hearing with the former head of the Bureau of Alcohol, Tobacco, 

Firearms and Explosives, Kenneth Melson. 

The amendment was defeated by a vote of 16 Yeas to 23 Nays. 

Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, Welch, 

Murphy and Speier. 

Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, 

Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, 

Farenthold and Kelly. 

4. Mr. Gowdy offered an amendment that updated the Committee’s Report to reflect that the President asserted the executive 

privilege over certain documents subpoenaed by the Committee. 

The amendment also updated the Report to include the Committee’s concerns about the validity of the President’s assertion of the 

executive privilege. The amendment was agreed to by a recorded 

vote. 

The amendment was agreed to by a vote of 23 Yeas to 17 Nays. 

Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, 

Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, 

Farenthold and Kelly. 


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Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, Welch, 

Yarmuth, Murphy and Speier. 

5. The Resolution was favorably reported, as amended, to the 

House, a quorum being present, by a vote of 23 Yeas to 17 Nays. 

Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, Jordan, 

Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, Guinta, 

Farenthold and Kelly. 

Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, Welch, 

Yarmuth, Murphy and Speier. 

APPLICATION OF LAW TO THE LEGISLATIVE BRANCH

Section 102(b)(3) of Public Law 104–1 requires a description of 

the application of this bill to the legislative branch where the bill 

relates to the terms and conditions of employment or access to public services and accommodations. The Report does not relate to employment or access to public services and accommodations. 

STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS OF

THE COMMITTEE

In compliance with clause 3(c)(1) of rule XIII and clause (2)(b)(1) 

of rule X of the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in the 

descriptive portions of this Report. 

STATEMENT OF GENERAL PERFORMANCE GOALS AND OBJECTIVES

In accordance with clause 3(c)(4) of rule XIII of the Rules of the 

House of Representatives, the Committee states that pursuant to 

clause 3(c)(4) of rule XIII of the Rules of the House of Representatives, the Report will assist the House of Representatives in considering whether to cite Attorney General Eric H. Holder, Jr. for contempt for failing to comply with a valid congressional subpoena. 

CONSTITUTIONAL AUTHORITY STATEMENT

The Committee finds the authority for this Report in article 1, 

section 1 of the Constitution. 

FEDERAL ADVISORY COMMITTEE ACT

The Committee finds that the Report does not establish or authorize the establishment of an advisory committee within the definition of 5 U.S.C. App., Section 5(b). 

EARMARK IDENTIFICATION

The Report does not include any congressional earmarks, limited 

tax benefits, or limited tariff benefits as defined in clause 9 of rule 

XXI. 


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UNFUNDED MANDATE STATEMENT, COMMITTEE ESTIMATE, BUDGET

AUTHORITY AND CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

The Committee finds that clauses 3(c)(2), 3(c)(3), and 3(d)(1) of 

rule XIII of the Rules of the House of Representatives, sections 

308(a) and 402 of the Congressional Budget Act of 1974, and section 423 of the Congressional Budget and Impoundment Control 

Act (as amended by Section 101(a)(2) of the Unfunded Mandates 

Reform Act, P.L. 104–4) are inapplicable to this Report. Therefore, 

the Committee did not request or receive a cost estimate from the 

Congressional Budget Office and makes no findings as to the budgetary impacts of this Report or costs incurred to carry out the report. 

CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

This Report makes no changes in any existing federal statute. 


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ADDITIONAL VIEWS 

Report of the Committee on Oversight and Government 

Reform 

Resolution Recommending that the House of Representatives Find Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt of Congress for Refusal 

to Comply with a Subpoena Duly Issued by the Committee 

on Oversight and Government Reform 

‘‘The Department of Justice’s Operation Fast and Furious: Accounts of ATF Agents’’ Joint Staff Report, prepared for Representative Darrell Issa, Chairman, House Committee on Oversight and 

Government Reform, and Senator Charles Grassley, Ranking Member, Senate Committee on the Judiciary. 

‘‘The Department of Justice’s Operation Fast and Furious: Fueling Cartel Violence’’ Joint Staff Report, prepared for Representative 

Darrell Issa, Chairman, House Committee on Oversight and Government Reform, and Senator Charles Grassley, Ranking Member, 

Senate Committee on the Judiciary. 


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MINORITY VIEWS 

Report of the Committee on Oversight and Government 

Reform 

Resolution Recommending that the House of Representatives Find Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt of Congress for Refusal 

to Comply with a Subpoena Duly Issued by the Committee 

on Oversight and Government Reform 

On June 20, 2012, the Committee adopted on a strictly party-line 

vote a report and resolution (hereinafter ‘‘Contempt Citation’’) concluding that Attorney General Eric H. Holder, Jr., the chief law enforcement officer of the United States, should be held in contempt 

of Congress for declining to produce certain documents pursuant to 

the Committee’s investigation of ‘‘gunwalking’’ during Operation 

Fast and Furious and previous operations. 

Committee Democrats were unanimous in their opposition to the 

Contempt Citation. These dissenting views conclude that Congress 

has a Constitutional responsibility to conduct vigorous oversight of 

the executive branch, but that holding the Attorney General in contempt would be an extreme, unprecedented action based on partisan election-year politics rather than the facts uncovered during 

the investigation. 

These views find that the Committee failed to honor its Constitutional responsibility to avoid unnecessary conflict with the executive branch by seeking reasonable accommodations when possible. 

The Committee flatly rejected a fair and reasonable offer made by 

the Attorney General to provide additional internal deliberative 

documents sought by the Committee in exchange for a good faith 

commitment toward resolving the contempt dispute. Instead, the 

Committee has repeatedly shifted the goalposts in this investigation after failing to find evidence to support its unsubstantiated allegations. 

The Contempt Citation adopted by the Committee contains serious and significant errors, omissions, and misrepresentations. To 

address these inaccuracies, these views hereby incorporate and attach the 95-page staff report issued by Ranking Member Elijah 

Cummings in January 2012, which provides a comprehensive analysis of the evidence obtained during the Committee’s investigation. 

I. THE COMMITTEE’S ACTIONS HAVE BEEN HIGHLY PARTISAN

The Committee’s contempt vote on June 20, 2012, was the culmination of one of the most highly politicized congressional investigations in decades. It was based on numerous unsubstantiated allegations that targeted the Obama Administration for political purposes, and it ignored documented evidence of gunwalking operations during the previous administration. 

During the Committee’s 16-month investigation, the Committee 

refused all Democratic requests for witnesses and hearings. In one 

of the most significant flaws of the investigation, the Chairman refused multiple requests to hold a public hearing with Kenneth 

Melson, the former head of ATF, the agency responsible for conVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00165 Fmt 6604 Sfmt 6604 E:\HR\OC\HR546.XXX HR546

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ducting these operations.1 The Chairman’s refusal came after Mr. 

Melson told Committee investigators privately in July 2011 that he 

never informed senior officials at the Justice Department about 

gunwalking during Operation Fast and Furious because he was unaware of it himself.2 Mr. Melson’s statements directly contradict 

the claim in the Contempt Citation that senior Justice Department 

officials were aware of gunwalking because Mr. Melson briefed 

Gary Grindler, then-Acting Deputy Attorney General, in March 

2010.3

Despite promising that he would be ‘‘investigating a president of 

my own party because many of the issues we’re working on began 

on [sic] President Bush,’’ the Chairman also refused multiple requests for former Attorney General Michael Mukasey to testify before the Committee or to meet with Committee Members informally 

to discuss the origination and evolution of gunwalking operations 

since 2006.4 Documents obtained during the investigation indicate 

that Mr. Mukasey was briefed personally on botched efforts to coordinate firearm interdictions with Mexican law enforcement officials in 2007 and was informed directly that such efforts would be 

expanded during his tenure.5

The Committee also failed to conduct interviews of other key figures. For example, the Committee did not respond to a request to 

interview Alice Fisher, who served as Assistant Attorney General 

in charge of the Criminal Division from 2005 to 2008, about her 

role in authorizing wiretaps in Operation Wide Receiver, or to a request to interview Deputy Assistant Attorney General Kenneth 

Blanco, who also authorized wiretaps in Operation Fast and Furious and still works at the Department, but who was placed in his 

position under the Bush Administration in April 2008.6 No explanation for these refusals has been given. 

During the Committee business meeting on June 20, 2012, every 

Democratic amendment to correct the Contempt Citation by noting 

these facts was defeated on strictly party-line votes. 

II. HOLDING THE ATTORNEY GENERAL IN CONTEMPT WOULD BE

UNPRECEDENTED

The House of Representatives has never in its history held an Attorney General in contempt of Congress. The only precedent referenced in the Contempt Citation for holding a sitting Attorney 

General in contempt for refusing to provide documents is this Committee’s vote in 1998 to hold then-Attorney General Janet Reno in 

contempt during the campaign finance investigation conducted by 

then-Chairman Dan Burton.7

Chairman Burton’s investigation was widely discredited, and the 

decision to hold the Attorney General in contempt was criticized by 

editorial boards across the country as ‘‘a gross abuse of his powers 

as chairman of the committee,’’ 8 a ‘‘fishing expedition,’’ 9 ‘‘laced 

with palpable political motives,’’ 10 and ‘‘showboating.’’ 11 That action was so partisan and so widely discredited that Newt Gingrich, 

who was then Speaker, did not bring it to the House Floor for a 

vote.12

Similarly, numerous commentators and editorial boards have 

criticized Chairman Issa’s recent actions as ‘‘a monstrous witch 


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163 

hunt,’’ 13 ‘‘a pointless partisan fight,’’ 14 and ‘‘dysfunctional Washington as usual.’’ 15

III. THE COMMITTEE HAS HELD THE ATTORNEY GENERAL TO AN

IMPOSSIBLE STANDARD

For more than a year, the Committee has held the Attorney General to an impossible standard by demanding documents he is prohibited by law from producing. 

One of the key sets of documents demanded during this investigation has been federal wiretap applications submitted by law enforcement agents in order to obtain a federal court’s approval to secretly monitor the telephone calls of individuals suspected of gun 

trafficking. 

The federal wiretapping statute, which was passed by Congress 

and signed by President Lyndon B. Johnson on June 19, 1968, provides for a penalty of up to five years in prison for the unauthorized disclosure of wiretap communications and prohibits the unauthorized disclosure of wiretap applications approved by federal 

judges, who must seal them to protect against their disclosure.16

The statute states: 

Each application for an order authorizing or approving 

the interception of a wire, oral, or electronic communication under this chapter shall be made in writing upon oath 

or affirmation to a judge of competent jurisdiction. Applications made and orders granted under this chapter shall be 

sealed by the judge.17

Similarly, in 1940, Congress passed a statute giving the Supreme 

Court the power to prescribe rules of pleading, practice, and procedure in criminal cases.18 In 1946, the modern grand jury secrecy 

rule was codified as Rule 6(e) of the Federal Rules of Criminal Procedure, which provides for criminal penalties for disclosing grand 

jury information.19

The Department has explained this to the Committee repeatedly, 

including in a letter on May 15, 2012: 

Our disclosure to this oversight Committee of some material sought by the October 11 subpoena, such as records 

covered by grand jury secrecy rules and federal wiretap 

applications and related information, is prohibited by law 

or court orders.20

Despite these legal prohibitions, the Chairman continued to 

threaten to hold the Attorney General in contempt for protecting 

these documents. He also publicly accused the Attorney General of 

a ‘‘cover-up,’’ 21 claimed he was ‘‘obstructing’’ the Committee’s investigation,22 asserted that he is willing to ‘‘deceive the public,’’ 23

and stated on national television that he ‘‘lied.’’ 24

IV. THE DOCUMENTS AT ISSUE IN THE CONTEMPT CITATION ARE

NOT ABOUT GUNWALKING

The documents at issue in the Contempt Citation are not related 

to the Committee’s investigation into how gunwalking was initiated 

and utilized in Operation Fast and Furious. 


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Over the past year, the Department of Justice has produced 

thousands of pages of documents, the Committee has interviewed 

two dozen officials, and the Attorney General has testified before 

Congress nine times. 

In January, Ranking Member Cummings issued a comprehensive 

95-page staff report documenting that Operation Fast and Furious 

was in fact the fourth in a series of gunwalking operations run by 

ATF’s Phoenix field division over a span of five years beginning in 

2006. Three prior operations—Operation Wide Receiver (2006– 

2007), the Hernandez case (2007), and the Medrano case (2008)— 

occurred during the Bush Administration. All four operations were 

overseen by the same ATF Special Agent in Charge in Phoenix.25

The Committee has obtained no evidence that the Attorney General was aware that gunwalking was being used. To the contrary, 

as soon as he learned of its use, the Attorney General halted it, ordered an Inspector General investigation, and implemented significant internal reform measures.26

After finding no evidence of wrongdoing by the Attorney General, 

the Committee’s investigation shifted to focusing on a single letter 

sent by the Department’s Office of Legislative Affairs to Senator 

Charles Grassley on February 4, 2011. This letter initially denied 

allegations that ATF ‘‘knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico’’ 

and stated that ‘‘ATF makes every effort to interdict weapons that 

have been purchased illegally and prevent their transportation to 

Mexico.’’ 27

The Department has acknowledged that its letter was inaccurate 

and has formally withdrawn it. On December 2, 2011, the Department wrote that ‘‘facts have come to light during the course of this 

investigation that indicate that the February 4 letter contains inaccuracies.’’ 28

Acknowledging these inaccuracies, the Department also provided 

the Committee with 1,300 pages of internal deliberative documents 

relating to how the letter to Senator Grassley was drafted. These 

documents demonstrate that officials in the Office of Legislative Affairs who were responsible for drafting the letter did not intentionally mislead Congress, but instead relied on inaccurate assertions and strong denials from officials ‘‘in the best position to know 

the relevant facts: ATF and the U.S. Attorney’s Office in Arizona, 

both of which had responsibility for Operation Fast and Furious.’’ 29

Despite receiving these documents explaining how the letter to 

Senator Grassley was drafted, the Committee moved the goalposts 

and demanded additional internal documents created after February 4, 2011, the date the letter to Senator Grassley was sent. It 

is unclear why the Committee needs these documents. This narrow 

subset of additional documents—which have nothing to do with 

how gunwalking was initiated in Operation Fast and Furious—is 

now the sole basis cited in the Contempt Citation for holding the 

Attorney General in contempt.30

V. THE COMMITTEE REFUSED A GOOD FAITH OFFER BY THE

ATTORNEY GENERAL FOR ADDITIONAL DOCUMENTS

The Committee failed to honor its Constitutional responsibility to 

avoid unnecessary conflict with the Executive Branch by seeking 


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reasonable accommodations when possible. On the evening before 

the Committee’s contempt vote, the Attorney General met with 

Chairman Issa, Ranking Member Cummings, Senator Grassley, 

and Senator Patrick Leahy. The Attorney General offered to take 

the following steps in response to the Committee’s demands for additional documents. Specifically, the Attorney General: 

(1) offered to provide additional internal deliberative Department documents, created even after February 4, 2011; 

(2) offered a substantive briefing on the Department’s 

actions relating to how they determined the letter contained inaccuracies; 

(3) agreed to Senator Grassley’s request during the 

meeting to provide a description of the categories of documents that would be produced and withheld; and 

(4) agreed to answer additional substantive requests for 

information from the Committee. 

The Attorney General noted that his offer included documents 

and information that went even beyond those demanded in the 

Committee’s subpoena. In exchange, the Attorney General asked 

the Chairman for a good faith commitment to work towards a final 

resolution of the contempt issue.31

Chairman Issa did not make any substantive changes to his position. Instead, he declined to commit to a good faith effort to work 

towards resolving the contempt issue and flatly refused the Attorney General’s offer. 

There is no question that the Constitution authorizes Congress 

to conduct rigorous investigations in support of its legislative functions.32 The Constitution also requires Congress and the executive 

branch to seek to accommodate each other’s interests and to avoid 

unnecessary conflict. As the D.C. Circuit has held: 

[E]ach branch should take cognizance of an implicit constitutional mandate to seek optimal accommodation 

through a realistic evaluation of the needs of the conflicting branches in the particular fact situation.33

Similarly, then-Attorney General William French Smith, who 

served under President Ronald Reagan, observed: 

The accommodation required is not simply an exchange 

of concessions or a test of political strength. It is an obligation of each branch to make a principled effort to acknowledge, and if possible to meet, the legitimate needs of the 

other branch.34

VI. THE COMMITTEE’S DECISION TO PRESS FORWARD WITH CONTEMPT LED TO THE ADMINISTRATION’S ASSERTION OF EXECUTIVE

PRIVILEGE

After the Chairman refused the Attorney General’s good faith 

offer—and it became clear that a Committee contempt vote was inevitable—the President asserted executive privilege over the narrow category of documents still at issue. The Administration made 

clear that it was still willing to negotiate on Congress’ access to the 

documents if contempt could be resolved. 


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On June 20, 2012, Deputy Attorney General James Cole wrote to 

the Chairman to inform the Committee that ‘‘the President, in light 

of the Committee’s decision to hold the contempt vote, has asserted 

executive privilege over the relevant post-February 4 documents.’’ 35 An accompanying letter from Attorney General Holder 

described the documents covered by the privilege as limited to ‘‘internal Department ‘documents from after February 4, 2011, related 

to the Department’s response to Congress.’ ’’ 36

Claims by House Speaker John Boehner and others that the Administration’s assertion of executive privilege raises questions 

about the President’s personal knowledge of gunwalking reflect a 

misunderstanding of the scope of the privilege asserted.37 Regarding the narrow subset of documents covered by the assertion, the 

letter from Attorney General explained: 

They were not generated in the course of the conduct of 

Fast and Furious. Instead, they were created after the investigative tactics at issue in that operation had terminated and in the course of the Department’s deliberative 

process concerning how to respond to congressional and related media inquiries into that operation.38

The Attorney General’s letter also explained the Administration’s 

legal rationale for invoking executive privilege over internal deliberative Justice Department documents, citing opinions from former 

Attorneys General Michael B. Mukasey, John Ashcroft, William 

French Smith, and Janet Reno, as well as former Solicitor General 

and Acting Attorney General Paul D. Clement.39 The letter also 

quoted the Supreme Court in United States v. Nixon, writing: 

The threat of compelled disclosure of confidential Executive Branch deliberative material can discourage robust 

and candid deliberations, for ‘‘[h]uman experience teaches 

that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the 

decisionmaking process.’’ . . . Thus, Presidents have repeatedly asserted executive privilege to protect confidential 

Executive Branch deliberative materials from congressional subpoena.40

VII. THE COMMITTEE FAILED TO RESPONSIBLY CONSIDER THE

EXECUTIVE PRIVILEGE ASSERTION

Despite requests from several Committee Members, the Committee did not delay or postpone the business meeting in order to 

responsibly examine the Administration’s assertion of executive 

privilege and determine whether it would be appropriate to continue contempt proceedings against the Attorney General. 

Instead of following the example of previous Committee Chairmen who put off contempt proceedings in order to conduct a serious 

and careful review of presidential assertions of executive privilege, 

Chairman Issa stated that ‘‘I claim not to be a constitutional scholar’’ and proceeded with the contempt vote.41

In contrast, former Committee Chairman Henry Waxman put off 

a contempt vote after President George W. Bush asserted executive 


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privilege in the investigation into the leak of the covert status of 

CIA operative Valerie Plame.42 He took the same course of action 

after President Bush asserted executive privilege over documents 

relating to the Environmental Protection Agency’s ozone regulation 

on the same day as a scheduled contempt vote. At the time, he 

stated: 

I want to talk with my colleagues on both sides of the 

aisle about this new development. I want to learn more 

about the assertion and the basis for this assertion of the 

executive privilege.43

Although the Committee ultimately disagreed with the validity of 

President Bush’s assertions of executive privilege, in neither case 

did the Committee go forward with contempt proceedings against 

the officials named in the contempt citations. 

Similarly, Rep. John Dingell, as Chairman of the Energy and 

Commerce Committee during that Committee’s 1981 investigation 

into the Department of Interior, received an assertion of executive 

privilege from the Reagan Administration regarding documents 

pertaining to the administration of the Mineral Lands Leasing 

Act.44 Before proceeding to contempt, the Committee held two separate hearings on the executive privilege assertion, and the Committee invited the Attorney General to testify regarding his legal 

opinion supporting the claim of executive privilege.45

VIII. THE INVESTIGATION HAS BEEN CHARACTERIZED BY

UNSUBSTANTIATED CLAIMS

The Committee’s investigation of ATF gunwalking operations has 

been characterized by a series of unfortunate and unsubstantiated 

allegations against the Obama Administration that turned out to 

be inaccurate. 

For example, during an interview on national television on October 16, 2011, the Chairman accused the Federal Bureau of Investigation (FBI) of concealing evidence of the murder of Agent Brian 

Terry by hiding a ‘‘third gun’’ found at the murder scene.46 The 

FBI demonstrated quickly that this claim was unsubstantiated.47

Although the Chairman admitted during a subsequent hearing that 

‘‘we do go down blind alleys regularly,’’ no apology was issued to 

the law enforcement agents that were accused of a cover-up.48

At the same time, the Chairman has defended the previous Administration’s operations as ‘‘coordinated.’’ 49 In response to a question about gunwalking during the Bush Administration, the Chairman stated: 

We know that under the Bush Administration there 

were similar operations, but they were coordinated with 

Mexico. They made every effort to keep their eyes on the 

weapons the whole time.50

To the contrary, the staff report issued by Ranking Member 

Cummings on January 31, 2012, documents at least three operations during the previous Administration in which coordination efforts were either non-existent or severely deficient.51

In addition, the Chairman has stated repeatedly that senior Justice Department officials were ‘‘fully aware’’ of gunwalking in OperVerDate Mar 15 2010 09:03 Jun 23, 2012 Jkt 019006 PO 00000 Frm 00171 Fmt 6604 Sfmt 6602 E:\HR\OC\HR546.XXX HR546

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ation Fast and Furious.52 After conducting two dozen transcribed 

interviews, none of the officials and agents involved said they informed the Attorney General or other senior Department officials 

about gunwalking in Operation Fast and Furious. Instead, the 

heads of the agencies responsible for the operation—ATF and the 

U.S. Attorney’s Office—told Committee investigators just the opposite, that they never informed senior Department officials about 

gunwalking in Operation Fast and Furious because they were unaware of it.53

Finally, the Chairman has promoted an extreme conspiracy theory that the Obama Administration intentionally designed Operation Fast and Furious to promote gunwalking. He stated in December 2011 that the Administration ‘‘made a crisis and they are 

using this crisis to somehow take away or limit people’s second 

amendment rights.’’ 54 This offensive claim has also been made by 

Rush Limbaugh and other conservative media personalities during 

the course of the investigation. For example, on June 20, 2011, Mr. 

Limbaugh stated: 

The real reason for Operation Gunrunner or Fast and 

Furious, whatever they want to call it now, the purpose of 

this was so that Obama and the rest of the Democrats can 

scream bloody murder about the lack of gun control in the 

U.S., which is causing all the murders in Mexico. This was 

a setup from the get-go.55

Another conservative commentator stated that ‘‘their political 

agenda behind this entire thing was to blame American gun shops 

for cartel violence in America in order to push an anti-Second 

Amendment, more regulations on these gun shops.’’ 56 Yet another 

one stated: 

This was purely a political operation. You send the guns 

down to Mexico, therefore you support the political narrative that the Obama administration wanted supported. 

That all these American guns are flooding Mexico, they’re 

the cause of the violence in Mexico, and therefore we need 

draconian gun control laws here in America.57

As recently as this month, Committee Member John Mica repeated this claim on Fox News. On June 15, 2012, he stated: 

People forget how all this started. This administration is 

a gun control administration. They tried to put the violence in Mexico on the blame of the United States. So they 

concocted this scheme and actually sending our federal 

agents, sending guns down there, and trying to cook some 

little deal to say that we have got to get more guns under 

control.58

There is no evidence to support this conspiracy theory. To the 

contrary, the documents obtained and interviews conducted by the 

Committee demonstrate that gunwalking began in 2006, was used 

in three operations during the Bush Administration, and was a 

misguided tactic utilized by the ATF field division in Phoenix.59


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NOTES

1Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on Oversight and 

Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and 

Government Reform (Oct. 28, 2011). 2 House Committee on Oversight and Government Reform, Transcribed Interview of Kenneth 

E. Melson (July 4, 2011). 3 House Committee on Oversight and Government Reform, Report of the Committee on Oversight and Government Reform on Resolution Recommending that the House of Representatives 

Find Eric H. Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt of Congress 

for Refusal to Comply with a Subpoena Duly Issued by the Committee on Oversight and Government Reform, at 11 (June 14, 2012) (‘‘Contempt Citation’’). 4The Daily Rundown, MSNBC (Nov. 3, 2010) (online at http://videocafe.crooksandliars.com/ 

david/darrell-issa-obama-must-answer-several-hundr); Letter from Rep. Elijah E. Cummings, 

Ranking Member, House Committee on Oversight and Government Reform, to Rep. Darrell E. 

Issa, Chairman, House Committee on Oversight and Government Reform (June 5, 2012); Letter 

from Rep. Elijah E. Cummings, Ranking Member, House Committee on Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform (Feb. 2, 2012); Letter from Rep. Elijah E. Cummings, Ranking Member, House 

Committee on Oversight and Government Reform, to Rep. Darrell E. Issa, Chairman, House 

Committee on Oversight and Government Reform (Nov. 4, 2011). 5Department of Justice, Meeting of the Attorney General with Mexican Attorney General Medina Mora (Nov. 16, 2007). 6Letter from Rep. Elijah E. Cummings, Ranking Member, House Committee on Oversight and 

Government Reform, to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and 

Government Reform (June 5, 2012). 7 House Committee on Government Reform and Oversight, Contempt of Congress: Refusal of 

Attorney General Janet Reno to Produce Documents Subpoenaed By the Government Reform and 

Oversight Committee, 105th Cong. (1998) (H. Rept. 105–728). 8The Contempt Citation, Washington Post (Sept. 22, 1998). 9 Buck Stops With Reno; Appointing an Independent Counsel in Campaign Contribution Case: 

That Decision is Reno’s Alone to Make on the Basis of Her Information and Her Interpretation 

of the Law, Los Angeles Times (Aug. 6, 1998). 10Tell Him No, Ms. Reno!, Miami Herald (Aug. 6, 1998). 11Give Reno Some Room, St. Petersburg Times (Aug. 6, 1998). 12 Congressional Research Service, Congressional Contempt Power and the Enforcement of 

Congressional Subpoenas: Law, History, Practice, and Procedure (May 8, 2012). 13 Juan Williams, Issa’s Monstrous Witch Hunt, The Hill (May 14, 2012). 14 A Pointless Partisan Fight, New York Times (June 20, 2012). 15 Holder Contempt Vote is Dysfunctional Washington as Usual, Baltimore Sun (June 21, 

2012). See also Eugene Robinson, GOP Witch Hunt for Eric Holder Reflects Bigger Problem, 

Washington Post (June 21, 2012); Paul Barrett, In Contempt of Government Reform, 

Businessweek (June 20, 2012); Dana Milbank, Republicans’ Attempt to Hold Holder in Contempt 

is Uphill Battle, Washington Post (June 20, 2012) (describing the ‘‘contemptible antics’’ of the 

Committee’s contempt proceedings); Sandra Hernandez, Partisan Politics Plague Probe of ‘Fast 

and Furious,’ Los Angeles Times (‘‘Issa’s demand loses some of its credibility and lapses into 

political theater when he threatens Atty. Gen. Eric H. Holder Jr. with criminal contempt for 

failing to cooperate’’) (Mar. 29, 2012). 16The White House, Statement by the President Upon Signing the Omnibus Crime Control and 

Safe Streets Act of 1968 (June 19, 1968); 18 U.S.C. 2511(4)(a) (providing that violators ‘‘shall 

be fined under this title or imprisoned not more than five years, or both’’); 18 U.S.C. 2511(1)(e) 

(covering any person who ‘‘intentionally discloses, or endeavors to disclose, to any other person 

the contents of any wire, oral, or electronic communication, intercepted by means authorized’’ 

under this chapter). 17 18 U.S.C. 2518(1), 2518(8). 18Sumner Courts Act, Pub. L. No. 76–675, 54 Stat. 688 (1940). 19Fed. R. Crim. Pro. 6(e)(7) (providing that a knowing violation of Rule 6 ‘‘may be punished 

as a contempt of court’’); 18 U.S.C. 401(3) (providing that a ‘‘court of the United States shall 

have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its 

authority’’). 20Letter from James M. Cole, Deputy Attorney General, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform (May 15, 2012). 21Letter from Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, to Eric H. Holder, Jr., Attorney General, Department of Justice (Jan. 31, 2012). 22Letter from Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, to Eric H. Holder, Jr., Attorney General, Department of Justice (Oct. 9, 2011). 23Letter from Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, to Eric H. Holder, Jr., Attorney General, Department of Justice (Jan. 31, 2012). 24On the Record with Greta Van Susteren, Fox News (June 7, 2012) (online at 

www.foxnews.com/on-air/on-the-record/2012/06/08/issas-fast-and-furious-frustration-bubbles-overholders-truth-not-consistent-facts?page=2). 25Minority Staff, House Committee on Oversight and Government Reform, Fatally Flawed: 

Five Years of Gunwalking in Arizona (Jan. 2012) (online at http://democrats.oversight.house.gov/ 

index.php?option=comlcontent&task=view&id=5575&Itemid=104). 26 Id.; House Committee on the Judiciary, Testimony of Eric H. Holder, Jr., Attorney General, 

Department of Justice, Oversight of the United States Department of Justice (June 7, 2012). 


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27Letter from Ronald Weich, Assistant Attorney General, Office of Legislative Affairs, Department of Justice, to Sen. Charles E. Grassley, Ranking Member, Senate Committee on the Judiciary (Feb. 4, 2011). 28Letter from James M. Cole, Deputy Attorney General, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on Oversight and Government Reform, et al. (Dec. 2, 

2011). 29 Id. 30 Contempt Citation, at 41–42. 31 Id. 32 Congressional Research Service, Congressional Oversight Manual (June 10, 2011). 33 United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977). 34 5 Op. Off. Legal Counsel. 27, 31 (1981). 35Letter from James M. Cole, Deputy Attorney General, Department of Justice, to Rep. Darrell E. Issa, Chairman, House Oversight and Government Reform (June 20, 2012). 36Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to Barack H. 

Obama, President (June 19, 2012) (quoting Letter from Rep. Darrell E. Issa, Chairman, House 

Committee on Oversight and Government Reform, to Eric H. Holder, Jr., Attorney General, Department of Justice (June 13, 2012)). 37Fast and Furious: How President Obama and John Boehner Got to the Brink, Politico (June 

22, 2012) (quoting Speaker John A. Boehner as stating that the ‘‘decision to invoke executive 

privilege is an admission that White House officials were involved in decisions that misled the 

Congress and have covered up the truth’’); House Committee on Oversight and Government Reform, Business Meeting (June 20, 2012) (quoting Rep. James Lankford as stating ‘‘we weren’t 

even aware that the President was engaged in the deliberations’’ and Rep. Jason E. Chaffetz 

stating that the assertion means that the President ‘‘somehow was personally involved’’). 38Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to Barack H. 

Obama, President (June 19, 2012) (quoting Letter from Rep. Darrell E. Issa, Chairman, House 

Committee on Oversight and Government Reform, to Eric H. Holder, Jr., Attorney General, Department of Justice (June 13, 2012)). 39Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to Barack H. 

Obama, President (June 19, 2012) (quoting Letter from Michael B. Mukasey, Attorney General, 

Department of Justice, to George W. Bush, President (June 19, 2008); Letter from Paul D. Clement, Solicitor General and Acting Attorney General, Department of Justice, to George W. Bush, 

President (June 27, 2007); Letter from John D. Ashcroft, Attorney General, Department of Justice, to George W. Bush, President (Dec. 10, 2001); 23 Op. Off. Legal Counsel 1, 1–2 (1999) (opinion of Attorney General Janet W. Reno); 5 Op. Off. Legal Counsel 27,29–31 (1981) (opinion of 

Attorney General William French Smith)). 40Letter from Eric H. Holder, Jr., Attorney General, Department of Justice, to Barack H. 

Obama, President (June 19, 2012) (citing United States v. Nixon, 418 U.S. 683, 705 (1974)). 41 House Committee on Oversight and Government Reform, Statement of Chairman Darrell 

E. Issa, Business Meeting (June 20, 2012). 42 House Committee on Oversight and Government Reform, Report Regarding President Bush’s 

Assertion of Executive Privilege in Response to the Committee Subpoena to Attorney General Michael B. Mukasey, 110th Cong. (2008). 43 House Committee on Oversight and Government Reform, Statement of Chairman Henry A. 

Waxman, Hearing on the Johnson and Dudley Contempt of Congress Resolutions, 110th Cong. 

(June 20, 2008). 44 House Committee on Energy and Commerce, Congressional Proceedings Against Interior 

Secretary James G. Watt for Withholding Subpoenaed Documents And For Failure to Answer 

Questions Relating to Reciprocity Under the Mineral Lands Leasing Act, 97th Cong. (Sept. 30, 

1982) (H. Rept. 97–898). 45 Id. 46Face the Nation, CBS News (Oct. 16, 2011) (online at www.cbsnews.com/stories/2011/10/16/ 

ftn/main20121072.shtml). 47Justice Department Accuses Issa of ‘‘Mischaracterizing’’ Evidence in Probe of Operation Fast 

and Furious, Fox News (Oct. 17, 2011) (online at www.foxnews.com/politics/2011/10/17/justicedepartment-accuses-issa-mischaracterizing-evidence-in-probe-operation/#ixzz1xiMQtvoh). 48 House Committee on Oversight and Government Reform, Hearing on Operation Fast and 

Furious: Management Failures at the Department of Justice (Feb. 2, 2012). 49Face the Nation, CBS News (Oct. 16, 2011) (online at www.cbsnews.com/stories/2011/10/16/ 

ftn/main20121072.shtml). 50 Id. 51Minority Staff, House Committee on Oversight and Government Reform, Fatally Flawed: 

Five Years of Gunwalking in Arizona (Jan. 2012) (online at http://democrats.oversight.house.gov/ 

index.php?option=comlcontent&task=view&id=5575&Itemid=104). 52The Roger Hedgecock Show (Nov. 21, 2011) (online at www.youtube.com/ 

watch?v=pGYUxuBNxk0). 53 House Committee on Oversight and Government Reform, Transcribed Interview of Kenneth 

E. Melson (July 4, 2011); House Committee on Oversight and Government Reform, Transcribed 

Interview of Dennis K. Burke (Aug. 18, 2011). 54 Hannity, Fox News (Dec. 8. 2011) (online at http://video.foxnews.com/v/1317212270001/holder-on-the-hot-seat-over-fast--furious). 55The Rush Limbaugh Show (June 20, 2011) (online at www.rushlimbaugh.com/daily/2011/06/ 

20/onlthelcuttingledgelwelcoveredlthelfastlandlfuriouslstorylinlmarch). 56O’Reilly Factor, Fox News (Apr. 16, 2012) (online at www.foxnews.com/on-air/oreilly/2012/ 

04/17/will-fast-and-furious-hurt-obamas-re-election-chances). 57 American Newsroom, Fox News (Mar. 12, 2012) (online at http://video.foxnews.com/v/ 

1502683781001/tea-party-turning-up-the-heat-on-fast--furious). 


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58 Hannity, Fox News (June 15, 2012) (online at http://video.foxnews.com/v/1691933147001). 59Minority Staff, House Committee on Oversight and Government Reform, Fatally Flawed: 

Five Years of Gunwalking in Arizona (Jan. 2011) (online at http://democrats.oversight.house.gov/ 

images/stories/minoritylreportl13112.pdf) 

ELIJAH E. CUMMINGS. 

CAROLYN B. MALONEY. 

WM. LACY CLAY. 

ELEANOR HOLMES-NORTON. 

DANNY K. DAVIS. 

JOHN F. TIERNEY. 

STEPHEN F. LYNCH. 

CHRISTOPHER MURPHY. 

MIKE QUIGLEY. 

DENNIS J. KUCINICH. 

EDOLPHUS TOWNS. 

GERALD E. CONNOLLY. 

PETER WELCH. 

JOHN YARMUTH. 

JACKIE SPEIER. 


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pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 203 HR546.133
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pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 204 HR546.134
195 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 205 HR546.135
196 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 206 HR546.136
197 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 207 HR546.137
198 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 208 HR546.138
199 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 209 HR546.139
200 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 210 HR546.140
201 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 211 HR546.141
202 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 212 HR546.142
203 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 213 HR546.143
204 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 214 HR546.144
205 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 215 HR546.145
206 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 216 HR546.146
207 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 217 HR546.147
208 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 218 HR546.148
209 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 219 HR546.149
210 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 220 HR546.150
211 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 221 HR546.151
212 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 222 HR546.152
213 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 223 HR546.153
214 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 224 HR546.154
215 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 225 HR546.155
216 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 226 HR546.156
217 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 227 HR546.157
218 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 228 HR546.158
219 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 229 HR546.159
220 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 230 HR546.160
221 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 231 HR546.161
222 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 232 HR546.162
223 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 233 HR546.163
224 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 234 HR546.164
225 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 235 HR546.165
226 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 236 HR546.166
227 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 237 HR546.167
228 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 238 HR546.168
229 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 239 HR546.169
230 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 240 HR546.170
231 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 241 HR546.171
232 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 242 HR546.172
233 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 243 HR546.173
234 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 244 HR546.174
235 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 245 HR546.175
236 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 246 HR546.176
237 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 247 HR546.177
238 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 248 HR546.178
239 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 249 HR546.179
240 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 250 HR546.180
241 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 251 HR546.181
242 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 252 HR546.182
243 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 253 HR546.183
244 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 254 HR546.184
245 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 255 HR546.185
246 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 256 HR546.186
247 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 257 HR546.187
248 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 258 HR546.188
249 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 259 HR546.189
250 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 260 HR546.190
251 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 261 HR546.191
252 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 262 HR546.192
253 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 263 HR546.193
254 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 264 HR546.194
255 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 265 HR546.195
256 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 266 HR546.196
257 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 267 HR546.197
258 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 268 HR546.198
259 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 269 HR546.199
260 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 270 HR546.200
261 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 271 HR546.201
262 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 272 HR546.202
263 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 273 HR546.203
264 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 274 HR546.204
265 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 275 HR546.205
266 


pwalker on DSK7TPTVN1PROD with HEARINGInsert graphic folio 276 HR546.206