Fast and Furious: 

Obstruction of Congress by the Department of Justice

JOINT STAFF REPORT

Part III 

Prepared for 

Hon. Jason Chaffetz, Chairman

U.S. House of Representatives

Committee on Oversight and Government Reform

Hon. Charles E. Grassley, Chairman

U.S. Senate

Committee on the Judiciary

115th Congress

June 7, 2017
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Table of Contents

I. Executive Summary ........................................................................................................... 3

1. Failure to Provide Answers for the Terry Family ........................................................ 5

2. Failure to Objectively Gather the Facts ......................................................................... 8

3. Lack of Respect for Congressional Oversight............................................................. 11

4. Attorney General’s Priority on Politics and Spin ....................................................... 13

II. Findings.............................................................................................................................. 16

III. Prologue............................................................................................................................. 22

IV. Initial Response to Congressional Inquiry.................................................................. 45

V. Post-February 4 Letter.................................................................................................... 64

1. Public Silence and Referral to Inspector General...................................................... 64

2. Whistleblowers Go Public .............................................................................................. 82

VI. Congressional Subpoena for ATF................................................................................ 107

1. Deadline for Documents .............................................................................................. 107

2. Response to Subpoena.................................................................................................. 115

3. “It Remains Our Understanding” ............................................................................... 120

4. Wiretap Applications ................................................................................................... 137

VII. Continued Obstruction.................................................................................................. 157

1. Blocking Witness Interviews....................................................................................... 157

2. Deputy Attorney General Cole’s Confirmation ......................................................... 166

VIII. Road to Subpoena for Justice Department................................................................ 193

1. Melson Comes Forward................................................................................................ 193

2. Full Spin Mode ............................................................................................................... 203

3. Failure to Correct Record ............................................................................................ 214

4. Revelation of Further Justice Department Role ....................................................... 228

IX. Postscript: Missing Documents ................................................................................... 253

X. Conclusion ....................................................................................................................... 258

XI. Appendix: Table of Names............................................................................................ 260
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I. Executive Summary

This report is the third in a series of joint staff reports, the first of which was released in 

2012. Part I, released on July 31, 2012, described the role of the Bureau of Alcohol, Tobacco, 

Firearms, and Explosives (ATF) in Operation Fast and Furious. Part II, released on October 29, 

2012, described the Department of Justice’s (DOJ) role in approving the operation and failing to 

halt its tactics, both at the local level (U.S. Attorney’s Office for the District of Arizona) and at 

the national level (Department of Justice headquarters in Washington, D.C., so-called “Main 

Justice”). This report, Part III, describes the Justice Department’s response to the congressional 

investigation of Operation Fast and Furious primarily between the period from February 4, 2011 

through the date of the House Oversight Committee subpoena, October 11, 2011. A subsequent 

report, Part IV, will further address the congressional investigation, but will examine the period 

after the House subpoena and through the date of contempt, June 28, 2012. 

Initially, the principal focus of the investigation was on understanding Operation Fast and 

Furious itself. Specifically, the Committees sought to determine: (i) whether there was any 

malfeasance, abuse of authority, failed supervision, or violation of existing law, and (ii) whether 

the facts uncovered suggested the need for additions to, or modification of, existing federal laws. 

In the course of that investigation, nearly six years ago, the Justice Department wrote to 

Congress and falsely denied that law enforcement officers allowed straw purchasers to buy 

firearms illegally in the United States and traffic them without being apprehended. On February 

4, 2011, Assistant Attorney General Ron Weich signed a letter that claimed, “ATF makes every 

effort to interdict weapons that have been purchased illegally and prevent their transportation to 

Mexico.”

1

 Since that false denial, the Committees have investigated why the Department of 

Justice misled Congress and failed to correct its misrepresentation in a timely manner. Despite 

the Department’s refusal to cooperate, the investigation developed with the cooperation of DOJ 

whistleblowers, and especially Acting ATF Director Melson’s testimony on July 4, 2011. 

Although Director Melson testified that the Department deliberately sought to obstruct Congress, 

prior to the lengthy litigation with the Department in court, the Committees had scant access to 

most of the documents that corroborate his testimony and illustrate the Department’s tactics in 

detail. 

On October 11, 2011, the House Committee on Oversight and Government Reform 

issued a subpoena to Attorney General Eric Holder for documents related to Operation Fast and

Furious. In response to a question about the subpoena during a press conference, Holder stated: 

“We’ll look at the subpoenas. I’m sure we will undoubtedly comply with them.”

2

 

 

1 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (Feb. 4, 2011), available at https://oversight.house.gov/wp-content/uploads/2012/08/February-4-2011-

Weich-to-Grassley.pdf.

2 CNN Newsroom, Transcript, Oct. 11, 2011, available at

http://edition.cnn.com/TRANSCRIPTS/1110/11/cnr.06.html.
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Holder, however, withheld thousands of key documents, and asked the President to assert 

executive privilege over all documents related to the Department’s responses to questions from 

Congress about Fast and Furious. The President obliged and asserted the privilege, but the 

Department never produced a privilege log. On June 28, 2012, the U.S. House of 

Representatives voted to hold Holder in contempt of Congress and to authorize a lawsuit to 

obtain the withheld documents. 

Pursuant to that litigation, in August 2014, a federal judge ordered the Justice Department 

to produce some of the documents to the Oversight Committee and to produce a privilege log for 

the withheld documents for which the Department was asserting executive privilege. The 

Department subsequently produced previously withheld documents without claiming any 

privilege, demonstrating that the Department had dishonestly claimed the executive privilege to 

hide documents from Congress and obstruct the investigation. 

The produced documents showed Holder was significantly more involved in the response 

to Congress’s investigation than had previously been understood. Many key documents are still 

being withheld, but the body of evidence available at this point is sufficiently robust to conclude 

that there are fundamental flaws in the Department’s approach to responding to congressional 

requests for documents and information generally, and in the Department’s tactics in dealing 

with questions about the Fast and Furious case in particular.

The new documents showed—for the first time—how Justice Department officials 

communicated about the congressional investigation, and specifically what they said. The 

communications occurred between the February 4, 2011 letter from Weich and October 11, 

2011, when Chairman Issa issued the subpoena. The documents reveal a highly politicized 

climate at Main Justice, focused more on spin and obfuscation than getting the facts right or

being transparent. These documents, along with those previously released related to the drafting 

of the February 4, 2011 letter from Weich, enabled the Committees to reconstruct a detailed 

timeline of the Justice Department’s response to a significant and serious congressional 

investigation. This report presents that timeline, which illustrates how Justice Department 

officials calibrated the Department’s responses to Congress, the media, and the family of slain 

Border Patrol Agent Brian Terry with the intent of limiting the amount of disclosed information

as much as possible. 

 

This report collects and presents key documents and communications generated in 

response to the congressional investigation of Fast and Furious. The key documents are 

reproduced in chronological order, with additional background information and other facts 

included for context. The report also describes four categories of deficiencies in the Justice 

Department’s response to the Fast and Furious scandal. The documents and communications 

show: 

1. Failure to provide answers for the Terry Family: Documents show the Department did 

not take care to make sure the Terry family received information and support. On the 

contrary, the Department appears to have viewed the Terry family as a public relations 

nuisance. 
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2. Failure to objectively gather the facts: The Department’s internal investigation of the 

allegations first raised by whistleblowers to Senator Grassley’s office was deeply flawed. 

Documents show senior officials at Main Justice conducted a cursory inquiry and 

accepted at face value the information they received from the ATF and the U.S. 

Attorney’s Office in Arizona—the very offices responsible for the misconduct. 

3. Lack of respect for congressional oversight: The documents show senior Justice 

Department officials—including the Attorney General—had a disdain for the 

congressional oversight function. The tactics that staff in the Office of Legislative 

Affairs and elsewhere used to delay and withhold information from Congress are 

consistent with the tone set by the Department’s senior leaders. 

4. The Department’s priority on politics and spin came from the Attorney General:

The documents show Attorney General Holder was managing key aspects of the 

Department’s responses to Congress and to media inquiries rather than focusing on 

managing DOJ’s law enforcement components. The documents do not show the 

Attorney General devising a strategy to minimize the danger to public safety by tracking

down more than 2,000 firearms that were lost along the southwest border, nor do they 

show the Attorney General coordinating assistance for the Terry family. Instead, the 

documents show that Holder spent a great deal of time considering the political 

implications of the various milestone events throughout 2011.

To date, the Department has failed to provide internal documents and communications 

between the October 12, 2011 subpoena and the Justice Department’s retraction of its letter to 

Senator Grassley on December 2, 2011. Questions remain about the Department’s response to 

the congressional investigation. For years, Attorneys General refused to produce key documents 

that would explain:

 Which DOJ officials were responsible for providing Congress with false information;

 How, when, and why the Department discovered that the February 4, 2011 letter was 

false;

 Why it took so long for the Department to withdraw the letter; and

 Why the Department continued to obstruct the Committee’s investigation in the interim. 

Still, the documents that the Justice Department has produced to Congress show the 

Department’s approach to responding to congressional inquiries about its programs. 

1. Failure to Provide Answers for the Terry Family

Late on the night of December 14, 2010, a U.S. Border Patrol Tactical Unit (BORTAC) 

encountered a “rip crew”—a group of armed bandits—in Peck Canyon, Rio Rico, Arizona, about 

25 miles north of Nogales. A firefight ensued. Border Patrol Agent Brian Terry was hit by a 

single bullet. Shortly after midnight, Terry lost consciousness and died en route to the hospital, 

according to testimony from fellow agents on the scene. He was 40 years old.
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Two AK-47 type assault rifles were recovered at the scene of Terry’s murder and traced 

to Operation Fast and Furious. A straw purchaser with known connections to the Mexican drug 

cartels had purchased the firearms from a shop in Glendale, Arizona on January 16, 2010. ATF 

had been aware of the purchaser’s connection to a straw purchasing ring since it conducted 

surveillance of him on November 25, 2009. However, pursuant to the Fast and Furious 

operational strategy, ATF agents took no actions to disrupt the straw purchase. 

At the time of Terry’s murder, officials at ATF, the U.S. Attorney’s Office, and the 

Justice Department knew about the tactics forming the basis of Operation Fast and Furious. In 

fact, on December 15, 2010—the day after Terry’s murder—ATF connected the firearms found 

at the murder scene to Operation Fast and Furious. But no one told the Terry family. Josephine 

Terry, Brian’s mother, first heard about Operation Fast and Furious from reporters who started 

calling for her reaction.3

In the subsequent weeks and months, the Terry family searched for answers about Brian’s 

murder. On February 8, 2011, Carolyn Terry, Brian’s stepmother, emailed Senator Grassley’s 

office and asked for help. She wrote:

It’s hard to accept that our son was shot and murdered with a gun that was 

bought in the U.S. We have not had any contact from the Border Patrol or 

any other agents since returning home on the 22nd of [January]. Our calls 

are not returned. I truly feel that our son’s death is a cover-up and they 

hope that we will go away. That will not happen. We want to know who 

allowed the sale of that gun that murdered our son. Any help will [be] 

appreciated. We are the victims of this case and we want some answers.4 

Senator Grassley included that email in a letter to Attorney General Holder on February 9, 2011.5 

Documents show Holder agreed with Senator Grassley that the Terry family deserved answers. 

According to an email from Gary Grindler, Holder’s Chief of Staff, to Assistant Attorney 

General Lisa Monaco, Holder was “particularly concerned” about “the assertion that there has 

been no contact with the victim’s family.”

6

 Monaco replied: “It sounds like [D]ennis’ office has 

been in contact with the family and that there are multiple factions in the family.”

7

 

However, officials in the U.S. Attorney’s Office seemingly disregarded Holder’s message 

that the Terry family deserved answers. Justice Department officials discussed the Terry family 

disrespectfully. For example, in a February 23, 2011 email, an official in the U.S. Attorney’s 

Office for the District of Arizona referred to the family as “disgruntled.”

8

 On March 10, 2011, 

U.S. Attorney Dennis Burke met in Michigan with various members of the Terry family and 

provided them with false information.

9

 According to the family, not only did Burke deny that 

 

3

Fernanda Santos, A Family Pulled Into the Fray Over an Agent’s Death, N.Y. TIMES, Sept. 20, 2012.

4 Email from Carolyn Terry to Staff, Office of Sen. Charles E. Grassley (Feb. 8, 2011). 

5 Letter from Hon. Charles E. Grassley, Ranking Mem., S. Comm. on the Judiciary, to Eric Holder, Att’y Gen., U.S. 

Dep’t of Justice (Feb. 9, 2011), at 3. 

6 Email from Gary Grindler to Lisa Monaco (Feb. 10, 2011) [DOJ-FF-06033].

7 Email from Lisa Monaco to Gary Grindler (Feb. 10, 2011) [DOJ-FF-06033].

8 Email from Robert Sherwood to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06847].

9

See email from Robert Heyer to Dennis Burke (Mar. 9, 2011) [DOJ-FF-11502–03].
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the firearms recovered at the scene of Agent Terry’s murder were connected to Operation Fast 

and Furious, “he told them that the weapons found at Agent Terry’s murder scene were sold out 

of a Texas shop, not an Arizona shop.”

10

Emails show that Burke and his colleagues deliberately limited the amount of truthful 

information to share with the Terry family, and made those determinations based on concerns 

about media coverage. Days after Burke’s meeting in Michigan, he and his colleagues in the 

U.S. Attorney’s Office were discussing their strategy for communicating with the Terry family. 

Assistant U.S. Attorney Jesse Figueroa emailed Burke and several others:

We are making a mistake by attempting to reason with the stepmother and 

the brother. Lisa and I have been dealing with them since the start of this 

case. . . . Stepmom is irrational and I firmly believe she and the brother 

enjoy being in the limelight. Whatever they are told will not change their 

irrationality and will just cause them to contact the news. If they learned 

about our hope for a wire I have no doubt that would have been on the 

news also. We should deal only with the intelligent side of the 

family . . . .11 

In June 2011, the Terry family was still searching for answers. Josephine Terry testified before 

the House Committee on Oversight and Government Reform on June 15, 2011. She told the 

Committee that most of what she knew about Brian’s murder and Operation Fast and Furious 

came from the media. She testified: “We haven’t really got anything direct—phone calls or 

nothing from anybody.”

12

More than five years after Brian’s murder, the Terry family still wonders about key 

details of Operation Fast and Furious. Brian’s sister Michelle gave a statement to a media outlet 

on the fifth anniversary of her brother’s murder. She stated:

It has been 5 years since Brian was killed in the line of duty in the desert 

outside of Rio Rico, AZ. To date, only members of the foreign criminal 

element responsible for his death have been held accountable while 

members of the U.S. Government directly responsible for equipping them 

through Operation Fast and Furious have only been moved or promoted. 

Our family is dedicated to getting the answers that all of us as Americans 

deserve, as well as continuing to keep Brian’s legacy alive and in the 

forefront.13 

 

10 Dep’t of Justice, Office of Inspector Gen., A Review of ATF’s Operation Fast and Furious and Related Matters 

(Sep. 2012, re-issued Nov. 2012) [hereinafter DOJ OIG report], at 343 fn. 259.

11 Email from Jesse Figueroa to Dennis Burke, et al. (Mar. 13, 2011) [DOJ-FF-11776–77].

12 Operation Fast and Furious: Reckless Decisions, Tragic Outcomes: Hearing before the H. Comm. on Oversight 

and Gov’t Reform, 112th Cong. (June 15, 2011) (testimony of Josephine Terry).

13 Bob Price, Five Years Later: Family of Slain Border Patrol Agent Brian Terry Still Seeks Justice, BREITBART, 

Dec. 15, 2015, available at http://www.breitbart.com/texas/2015/12/15/five-years-later-family-of-slain-borderpatrol-agent-brian-terry-still-seeks-justice. 
Page | 8

The Justice Department’s obstruction of Congress’s investigation contributed to the Terry 

family’s inability to find answers. The Department withheld information from Congress that

would have answered many of the Terry family’s key questions about Brian’s murder. 

2. Failure to Objectively Gather the Facts

On January 27, 2011, Senator Grassley wrote to the Justice Department expressing 

concern about alleged gunwalking in Operation Fast and Furious and its possible relationship to 

Terry’s murder. The Justice Department responded to Senator Grassley’s letter on February 4, 

2011, and declared ATF never “knowingly allowed the sale of assault weapons to a straw 

purchaser who then transported them into Mexico” and “makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation to Mexico.”

14

 The letter did 

not mention the firearms recovered at the murder scene of Agent Terry. 

The statements made by the Justice Department on February 4, 2011, were blatantly 

false, and nearly ten months later, on December 2, 2011, the Justice Department finally admitted 

as much and formally withdrew the letter. Documents reveal a flawed internal investigation by 

the Justice Department, in which the Department allowed people with conflicts of interest to 

influence the investigation. Senior officials at Main Justice conducted a cursory inquiry, in 

which they failed to vet information they received from the very individuals whose conduct was 

at issue. The Justice Department repeatedly denied ATF allowed firearms to walk despite 

receiving contrary information from reliable sources. 

The Office of the Deputy Attorney General (ODAG) coordinated the Justice 

Department’s internal review. Rather than conduct an independent review, however, documents 

show ODAG deferred to the Criminal Division, the U.S. Attorney’s Office for the District of 

Arizona, and ATF. All three of these entities had a major conflict of interest and had reason to 

be concerned about the negative portrayal of the operation and their involvement in it.15 

Documents show that when the Justice Department sent the February 4, 2011 letter to 

Congress, Main Justice had received information directly conflicting with the statements they 

made in the letter. For example, a few days after Agent Terry’s murder, on December 17, 2010, 

ODAG received a briefing paper indicating firearms recovered from the scene of the murder 

were linked to Operation Fast and Furious.

16

 Similarly, in early February 2011, the Deputy 

Director of ATF, William Hoover sent ODAG and DOJ’s Office of Legislative Affairs (OLA) a 

memorandum describing a specific instance where ATF let firearms walk.17 

 

14 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (Feb. 4, 2011), available at https://oversight.house.gov/wp-content/uploads/2012/08/February-4-2011-

Weich-to-Grassley.pdf. 

15 Transcript, Interview of Kenneth E. Melson by the Staff of the H. Comm. on Oversight & Government Reform 

and S. Comm. on the Judiciary (July 4, 2011) [hereinafter Melson Transcript], at 36–37.

16 Email from Brad Smith to Gary Grindler, et al. (Dec. 17, 2010) [HOGR 002875–81]; attachment to email from 

Brad Smith to Gary Grindler, et al. (Dec. 17, 2010) [HOGR 002875–81].

17 Email from Mark Chait to William Hoover (Feb. 3, 2011); Telephone interview of William Hoover, Deputy Dir., 

Bureau of Alcohol, Tobacco, Firearms & Explosives by S. Comm. on the Judiciary minority staff (Feb. 1, 2012). 
Page | 9

Despite receiving this information, there is no evidence that ODAG thoroughly reviewed 

it before sending the February 4, 2011 letter to Congress. Instead, ODAG worked with Deputy 

Assistant Attorney General Jason Weinstein from the Criminal Division to gather information for 

the response, and Weinstein encouraged OLA to use strong language denying Senator Grassley’s 

allegations.18 ODAG and OLA quickly got the letter to Congress out the door denying the 

whistleblower’s allegations. 

After the February 4 letter to Congress, the Justice Department continued to deny the 

operation had deadly consequences despite evidence to the contrary. Early in the review, 

Matthew Axelrod—who moved from the Criminal Division to ODAG to manage the 

Department’s response to Congress—identified materials indicating firearms may have been 

allowed to walk during the operation. Further, ATF Acting Director Kenneth Melson 

highlighted for Axelrod specific sections of the wiretap applications that were concerning and 

were potential “land mine[s]” for the Criminal Division.19 Yet, on May 2, 2011, the Justice 

Department sent Senator Grassley a letter reaffirming its position that “ATF’s Operation Fast 

and Furious did not knowingly permit straw buyers to take guns to Mexico.”

20

Officials closest to Operation Fast and Furious thwarted ODAG and OLA’s attempts to 

provide complete and accurate responses to congressional inquiries. The Criminal Division had 

approved six wiretap applications for Operation Fast and Furious, each of which included details 

about the tactics that formed the basis of the operation. At least one of the applications 

“suggested there was probable cause to believe that straw purchasers were taking guns across the 

border.”

21

 Upon reviewing the wiretap applications, the DOJ Office of Inspector General (DOJ 

OIG) concluded: “We found that the affidavits described specific incidents that would suggest to 

a prosecutor who was focused on the question of investigative tactics that ATF was employing a 

strategy of not interdicting weapons or arresting known straw purchasers.”

22

Officials in the Criminal Division strongly encouraged ODAG and the Office of Attorney 

General to publicly assert that the Criminal Division does not approve of an investigation when it 

approves a wiretap application. Matthew Miller, head of DOJ’s Office of Public Affairs, pushed 

back and told Assistant Attorney General Lanny Breuer, head of DOJ’s Criminal Division: “I 

think people will accuse us of playing with semantics when we say that you did not authorize 

Fast and Furious, but they find out that CRM did authorize wiretaps. That’s why I find the 

statement problematic and recommended against it, and why I don’t want [the Office of Public 

Affairs] to say it.”

23

 Ultimately, on May 4, 2011, the Justice Department issued a statement that 

 

18 See, e.g., email from Jason Weinstein to Faith Burton, et al. (Feb. 2, 2011) [DOJ-FF-23332–33]. 

19 Email from Kenneth Melson to Matthew Axelrod (Mar. 31, 2011) [DOJ-FF-02895]. 

20 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice, to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (May 2, 2011). The DOJ OIG also concluded that with respect to the May 2 letter, “the Department 

knew or should have known that the February 4 letter could no longer be defended in its entirety” and “the 

Department should not have made this statement.” DOJ OIG Report at 415.

21 Melson Transcript at 36-37.

22 DOJ OIG report at 277.

23 Email from Matthew Miller to Lanny Breuer (May 3, 2011) [DOJ-FF-28895]. 
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did not mention Breuer and instead stated the operation was approved by the U.S. Attorney’s 

Office for the District of Arizona.

24

It is difficult to understand why the Justice Department uncritically accepted and repeated 

the claims of the officials accused of wrongdoing without taking steps to gather and verify facts 

more objectively. Documents show ODAG recognized the need to uncover the truth. On 

February 10, 2011, Gary Grindler emailed Deputy Chief of Staff Monty Wilkinson stating,

“ODAG needs to be pushing ATF on what took place here.”

25

 On February 23, 2011, Eric 

Holder told senior officials at Main Justice: “We need answers on this. Not defensive bs- real 

answers.”

26

However, the Justice Department failed to uncover the truth or to provide accurate 

answers to the Terry family and Congress in a timely manner. The DOJ OIG reported that the 

Justice Department’s internal inquiry was flawed. Regarding the February 4, 2011 letter to 

Senator Grassley, DOJ OIG stated:

[T]he Department is ultimately responsible for representations that it 

makes to Congress. . . . [A] poorly executed information gathering and 

drafting process and questionable judgments by Department officials 

contributed to the inclusion of inaccurate information in the February 4 

letter, and therefore the Department shares responsibility for issuing an 

inaccurate letter with the component officials they relied upon for 

information.27

* * *

The allegation in Sen. Grassley’s January 27 letter that ATF had 

sanctioned the sale of hundreds of assault weapons contained the 

implication that among these weapons were two that may have been used 

in a firefight that resulted in the death of a federal law enforcement officer. 

We do not believe that the gravity of this allegation was met with an 

equally serious effort by the Department to determine whether ATF and 

the U.S. Attorney’s Office had allowed the sale of hundreds of weapons to 

straw purchasers. This was particularly the case in this instance because 

the Department knew that hundreds of assault weapons had indeed been 

sold to straw purchasers during the Fast and Furious investigation and that 

two of those firearms had in fact been found at the scene of Agent Terry’s 

murder.28

* * *

 

24 Sharyl Attkisson, DOJ’s Breuer authorized wiretap in ATF Fast and Furious case, CBS NEWS (May 4, 2011). 

25 Email from Gary Grindler to Monty Wilkinson (Feb. 10, 2011) [HOGR 007063–64]. 

26 Email from Eric Holder to Gary Grindler, et al. (Feb. 23, 2011) [DOJ-FF-04271]. 

27 DOJ OIG report at 396.

28 Id. at 397; see also 405-06. 
Page | 11

[I]n a unique circumstance such as this, where a credible allegation has 

been made regarding potentially serious misconduct involving those 

components, deference to officials close to the activity at issue should be 

tempered by the recognition that those officials are also invested in a 

positive portrayal of the activity and their alleged involvement in it. As 

such, officials who should be knowledgeable and forthcoming about the 

activity may be inclined, perhaps even unintentionally, to shade or ignore 

unhelpful facts when providing information about their conduct to senior 

Department officials. This is particularly true where, as here, Congress 

seeks specific information concerning allegations of improper activities.29

The DOJ OIG report highlighted how easy it was to detect the operation’s problems once 

DOJ began really looking:

When Department and ATF officials began to closely review Operation 

Fast and Furious in March 2011, it did not take long for them to read the 

Title III affidavits and ROIs from the case and determine that there were 

questions that needed to be resolved about Operation Fast and Furious. By 

this time, based on what they were learning about Operation Fast and 

Furious and other ATF firearms investigations, senior officials, including 

Cole and Weich, began having doubts about some of the statements in the 

February 4 letter. Melson read the Title III affidavits on an airplane flight, 

and immediately raised concerns. Axelrod read most of the ROIs from the 

case over a weekend, and immediately asked questions of the U.S. 

Attorney’s Office about potentially problematic investigative steps in 

Operation Fast and Furious.30

Similarly, on August 4, 2011—six full months after DOJ’s initial denial—Deputy Assistant 

Attorney General Weinstein expressed doubts about his initial assessment, emailing officials in 

the Office of the Attorney General:

Within the past month or so I’ve had the opportunity to review, for the 

first time, some of the reports from the case. Some of what I have seen in 

those reports . . . is in tension with what I was told during that February 

call with the USAO. . . . [A]t a minimum, based on the additional 

information I have now seen, I would not have reached the same 

conclusions as I did in that summary.31

3. Lack of Respect for Congressional Oversight

In April 2016—more than five years after the first congressional document request and

four years since the first congressional subpoena for Fast and Furious documents—a federal 

 

29 Id. at 398.

30 Id. at 277.

31 Email from Jason Weinstein to Stuart Goldberg, et al. (Aug. 4, 2011) [DOJ-FF-56090–93] (emphasis added).
Page | 12

judge ordered the Department of Justice to turn over documents to Congress relating to the Fast 

and Furious case. DOJ had withheld those documents for years by claiming executive privilege. 

However, in this case where the judiciary compelled disclosure of such documents, the 

Committees were able to see the uncooperative, often obstructionist tactics employed by the 

Executive Branch.

Senator Grassley initially wrote to ATF Director Kenneth Melson on January 27, 2011, 

seeking information about whether ATF allowed firearms to be transported to Mexico. Upon 

receiving the letter, ATF officials emailed about their initial plan to “hide and punt” on the 

information requested.32 DOJ resisted briefing Grassley’s staffers.33 DOJ officials also told 

ATF that Grassley’s “allegations are infuriating.”

34

 Throughout Senator Grassley and Chairman 

Darrell Issa’s investigation, DOJ withheld documents and information. DOJ refused to provide 

documents voluntarily in response to a March 16, 2011 document request from Chairman Darrell 

Issa. Consequently, the Committee issued a subpoena for documents on March 30, 2011. DOJ 

officials discussed internally how to respond, with one official advising against suggesting that 

DOJ would “provide a ‘substantial’ number of documents.”

35

 He clarified that DOJ would

“provide only some and withhold a substantial number.”

36

One DOJ official apparently sought to interfere with Senator Grassley’s requests for 

information merely because he was a member of the minority party in the Senate at the time,

writing: “I also am reluctant to empower Grassley’s attempt as [ranking minority member] to 

conduct oversight by organizing a briefing.”

37

 In another email, a DOJ official wrote: “We are 

giving Chair Issa part of our story on the case (while saying we cannot answer all their 

questions) . . . .”

38 Meanwhile, in contrast to its refusal to voluntarily cooperate with the 

Republican minority in the Senate, DOJ invited cooperation with the Democrat minority in the 

House. For example, DOJ sought information from Ranking Member Cummings’ staff about 

potential contempt-related proceedings.39

As the Committee’s investigation escalated, DOJ continued to limit the Committees’

access to information. In April, one DOJ official wrote in an email, “[W]e disagree with . . . 

offering Issa and Grassley a meeting with the AG at this relatively early stage of the oversight 

skirmish.”

40

 That same official advised, “It seems unwise to telegraph additional concessions at 

this point.”

41

 In a May 30, 2011 email, a DOJ official wrote, “I do think it would be a mistake to 

allow [Senator Grassley staff’s] participation for free.”

42

 A similar mentality went on for 

 

32 Email from Gregory Rasnake to Kenneth Melson (Jan. 27, 2011) [HOGR 003673].

33 Email from Lanny Breuer to Jason Weinstein (Feb. 2, 2011) [HOGR 004057–58].

34 Email from Jason Weinstein to Gregory Rasnake (Feb. 2, 2011) [HOGR 004253–54].

35 Email from Paul Colborn to Ron Weich (Apr. 1, 2011) [DOJ-FF-21335–37].

36 Email from Paul Colborn to Ron Weich (Apr. 1, 2011) [DOJ-FF-21335–37].

37 Email from Paul Colborn to Matthew Axelrod and Faith Burton (Apr. 5, 2011) [DOJ-FF-22792–96].

38 Email from Patrick Cunningham to Dennis Burke (Apr. 6, 2011) [DOJ-FF-20707–09] (emphasis added).

39 Email from Matthew Axelrod to Faith Burton, et al. (Apr. 7, 2011) [DOJ-FF-23225]; email from Robert Weiner to 

Matthew Axelrod (Apr. 8, 2011) [DOJ-FF-23225].

40 Email from Ron Weich to James Cole, et al. (Apr. 27, 2011) [DOJ-FF-27557].

41 Email from Ron Weich to Lisa Monaco and James Cole (Apr. 28, 2011) [DOJ-FF-27700–01].

42 Email from Ron Weich to Matthew Axelrod (May 30, 2011) [DOJ-FF-34115–17].
Page | 13

months.43 In a June 6, 2011 email, a DOJ official wrote, “If we have done our job right Grassley 

is feeling discomfort.”

44

When DOJ staff proposed simple accommodations to assist the Committees’

investigative efforts, they were rebuffed. On May 29, 2011, a DOJ official suggested producing 

some documents based on a Committee staff request, saying, “Seems to me that makes our 

insistence on a Chairman’s letter silly.”

45

 Another official vetoed the idea, stating, “We 

accommodate chairmen, not committee staff.”

46

After ATF Acting Director Melson agreed to cooperate with the Committee’s 

investigation, DOJ’s position hardened further. On July 6, 2011, a DOJ legislative affairs 

official wrote, “I’d stay away from a representation that we’ll fully cooperate in the future.”

47

 

DOJ officials appeared to presume partisan control over Ranking Member Cummings’ staff and 

complained when it was difficult to coordinate behind the scenes to DOJ’s satisfaction. One 

DOJ official wrote, “[I]t isn’t easy to script the minority in this situation.”

48

 The Attorney 

General encouraged his subordinates in response to news coverage of Fast and Furious: “Hit 

back HARD.”

49

 By October 6, 2011, senior DOJ officials wrote, “Relationships with Hill are 

irrelevant now[.]”

50

Meanwhile, as described above, as early as March 2011, DOJ officials learned details

making clear the information DOJ had provided Congress was false. Even when Deputy 

Assistant Attorney General Weinstein reversed his position on August 4, 2011, the Department 

waited four months before publicly reversing course. Only on December 2, 2011, did DOJ send

a letter to Chairman Issa and Senator Grassley withdrawing its February 4, 2011 letter, citing 

inaccuracies in the letter.51 For at the four months prior, the Justice Department appears to have 

deliberately allowed a falsehood to Congress to stand.

4. Attorney General’s Priority on Politics and Spin 

Documents obtained by Congress demonstrate the Department’s failure to adequately 

supervise field offices or to focus on fixing the problems brought to light in the controversy over 

Operation Fast and Furious. Instead, senior leaders of the Department, including Attorney 

General Eric Holder, were disproportionately fixated on countering the congressional 

investigation, massaging the media, and protecting the Department’s public image.

 

43 See email from Ron Weich to Faith Burton, et al. (May 29, 2011) [DOJ-FF-34115–17].

44 Email from Ron Weich to Matthew Axelrod, et al. (June 6, 2011) [DOJ-FF-36195–96]. 

45 Email from Matthew Axelrod to Tracy Schmaler, et al. (May 27, 2011) [DOJ-FF-34115–17].

46 Email from Paul Colborn to Matthew Axelrod, et al. (May 29, 2011) [DOJ-FF-34115–17].

47 Email from Faith Burton to Tracy Schmaler (July 6, 2011) [DOJ-FF-48038].

48 Email from Ron Weich to Jason Weinstein (July 25, 2011) [DOJ-FF-53039].

49 Email from Eric Holder to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-01354–01360].

50 Email from Gary Grindler to Eric Holder (Oct. 6, 2011) [DOJ-FF-61664–66].

51 Letter from James Cole, Deputy Att’y Gen., Dep’t of Justice, to Darrell Issa, Chairman, Comm. on Oversight & 

Gov’t Reform, and Charles Grassley, Ranking Mem., S. Comm. on the Judiciary (Dec. 2, 2011), at 1, available at 

http://www.grassley.senate.gov/sites/default/files/judiciary/upload/ATF-12-02-11-Cover-letter-from-Cole-onDocument-Drop.pdf. 
Page | 14

According to documents obtained by Congress, Holder was most active at times of 

heightened congressional scrutiny or media attention. Emails sent to the Attorney General 

regarding ongoing media and congressional matters ranged from the mundane to the strategic 

stonewalling of Congress. For example, on October 5, 2011, Matthew Miller, from DOJ Public 

Affairs, spectacularly missed the mark when criticizing others for failing to spin damaging 

documents to the press before turning them over to Congress. Miller wrote, “The whole point of 

the review is to find things like this and come up with plans for dealing with them.”

52

 Holder 

forwarded that email to his Chief of Staff, Gary Grindler, with the comment, “I agree.”

53

 For 

Miller and Holder “the whole point” of gathering information about what happened was not to 

learn lessons for improvement or hold people accountable for failures, but rather to prepare for 

how to spin it to the press.

Holder frequently expressed his disdain for congressional scrutiny. For example, on 

April 15, 2011, the Attorney General wrote to his senior advisers: “Issa and his idiot cronies 

never gave a damn about this when all that was happening was that thousands of Mexicans were 

being killed with guns from our country. All they want to do—in reality—is cripple ATF and 

suck up to the gun lobby. Politics at its worst—maybe the media will get it.”

54

 Holder was 

setting the tone from the top-down. Later in the year, Holder reiterated his disdain for Chairman 

Issa when he emailed his senior advisers in response to a news article citing Chairman Issa, 

“Why don’t we just answer this asshole by stating the facts and go on offense . . . .”

55

Much of the email correspondence from Holder obtained by Congress concerned 

preparation for and perception of congressional testimony and media articles. For example, in 

response to a Washington Post article about the joint Issa-Grassley report, Holder instructed his 

senior advisers to “[h]it back HARD.”

56

 On an email chain regarding a Wall Street Journal 

article and the subject of the authorization of wiretaps, Holder cautioned his senior advisers:

“[E]veryone get ready—this isn’t about facts.”

57

The matter was such a high priority for the Attorney General that on July 20, 2011, Chief 

of Staff Gary Grindler emailed Steven Reich and Tracy Schmaler, “The AG wants both of you to 

stick around after the 9:15 each day to discuss the status of the ATF matter.”

58

Holder also involved himself in the particulars of ATF Director Ken Melson’s 

resignation. In order to quell any speculation on the pending departure of Melson, the Attorney 

General emailed his senior advisers to instruct employees to “close the door to [Melson’s] 

office” so no one could see it was empty.59 Holder was also concerned with the perception of 

coupling Melson’s departure with Dennis Burke’s resignation. Other U.S. Attorneys were upset 

that the two occurred at the same time. Holder explained to his senior advisers that “by doing it 

 

52 Email from Matthew Miller to Eric Holder (Oct. 5, 2011) [DOJ-FF-61785].

53 Email from Eric Holder to Gary Grindler (Oct. 6, 2011) [DOJ-FF-61785].

54 Email from Eric Holder to Gary Grindler, et al. (Apr. 15, 2011) [DOJ-FF-04550–51].

55 Email from Eric Holder to Tracy Schmaler, et al. (Oct. 5, 2011) [DOJ-FF-61786].

56 Email from Eric Holder to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-01354–01360].

57 Email from Eric Holder to Mythili Raman, et al. (May 4, 2011) [DOJ-FF-00656–58].

58 Email from Gary Grindler to Steven Reich and Tracy Schmaler (July 20, 2011) [DOJ-FF-51254].

59 Email from Eric Holder to Gary Grindler, et al. (Aug. 28, 2011) [DOJ-FF-01272–73].
Page | 15

together we have a one day story where Ken is the lead and Dennis gets 2nd place treatment.”

60

 

Expressing more frustration with other U.S. Attorney reactions to Burke’s resignation, Holder 

emailed his Chief of Staff Gary Grinder later that night: “Some people can kiss my ass.”

61

Holder’s focus on public relations rather than on understanding and fixing the problems 

that led to Fast and Furious impeded congressional oversight and created a hostile climate 

wherein the Department officials who were negotiating with the Committees were chilled from 

making routine accommodations. Without such accommodations and compromise, the scandal 

could only escalate, which eventually led to the Attorney General being held in contempt of 

Congress.

[INTENTIONALLY BLANK]

 

60 Email from Eric Holder to Channing Phillips, et al. (Aug. 30, 2011) [DOJ-FF-57990–91].

61 Email from Eric Holder to Gary Grindler (Aug. 30, 2011) [DOJ-FF-58633–34].
Page | 16

II. Findings

 III. Prologue

FINDING: In October 2010, senior Justice Department officials in Washington 

were aware that ATF had allowed firearms to “walk” in Operation Wide 

Receiver. At that time, those officials began to formulate a media 

strategy to minimize public scrutiny of that controversial tactic.

FINDING: Within hours of Agent Terry’s death, ATF and the U.S. Attorney’s Office 

in Arizona were aware that firearms found at the murder scene were 

connected to Operation Fast and Furious. That information was 

immediately communicated to Justice Department officials in 

Washington.

FINDING: Justice Department officials from Washington did not attend the press 

conference to announce indictments related to Fast and Furious 

because of public relations concerns arising from a desire to avoid 

tough questions about gunwalking and Agent Terry’s murder.

FINDING: Justice Department officials in Arizona were relieved no mention of 

Border Patrol Agent Brian Terry came up at a press conference 

announcing indictments from Operation Fast and Furious. 

 IV. Initial Response to Congressional Investigation

FINDING: At the time ATF received Senator Grassley’s letter, ATF and Justice 

Department officials in Washington knew firearms walked into Mexico, 

and that there was a connection between those firearms and the Terry 

murder. Acting Director Melson initially sought permission from the 

Department of Justice to open up a line of communication with Senator 

Grassley and get answers for him. However, the Justice Department 

instead decided to stonewall Senator Grassley, and did not 

acknowledge the Fast and Furious connection to the Terry murder 

until August 31, 2011. 

FINDING: The Justice Department did not take seriously Senator Grassley’s letter 

or the obligation to uncover the truth about Fast and Furious and the 

Terry murder, relying almost exclusively on information from the 

individuals accused of wrongdoing and failing to give credence to even 

departmental information conflicting with those individuals’ accounts. 
Page | 17

FINDING: Documents and testimony show as of February 4, 2011, when the 

Justice Department wrote to Senator Grassley that “ATF makes every 

effort to interdict” firearms purchased by straws, Department officials 

in Washington had information that detailed at least one instance in 

Fast and Furious where ATF allowed firearms to walk.

 V. Post-February 4 Letter

1. Public Silence and Referral to Inspector General

FINDING: Only after Senator Grassley made clear he had obtained evidence 

through whistleblowers did some senior DOJ officials identify a need to 

independently evaluate ATF’s claims.

FINDING: Justice Department officials made a strategic decision to withhold 

specific answers about Fast and Furious and the Terry murder from 

Senator Grassley. 

FINDING: The Justice Department did not reach out in a meaningful way to the 

Terry family to provide support and answers. In fact, Department 

officials who were tasked with that outreach were hostile to the Terry 

family’s pleas for answers, and even mocked the Terry family. The 

Terry family was only provided information the Justice Department 

intended to make public. 

FINDING: The Justice Department’s internal investigation of Fast and Furious 

was deeply flawed. Despite instructions from Attorney General Holder 

to find “real answers,” Deputy Assistant Attorney General Jason 

Weinstein still took at face value the information provided by the U.S. 

Attorney’s Office in Arizona—the very officials who were the subjects 

of the investigation. Only five months after his review would Weinstein 

read the case reports for the first time and express doubts about his 

initial conclusions.

2. Whistleblowers Go Public

FINDING: It was not until whistleblowers went public with details about Fast and 

Furious in early March 2011 that the Justice Department started to 

seriously consider the implications of the tragic operation. Still, the 

Department mainly focused on responding to the media and public 

relations fallout from those revelations. 
Page | 18

FINDING: When the possibility arose that the Mexican government would initiate 

its own investigation, an official in the Criminal Division proposed 

“disingenuously” relying on the Inspector General’s investigation to 

“shelve the Mexican inquiry.”

FINDING: As early as March 2011, Associate Deputy Attorney General Matt 

Axelrod discovered multiple examples of ATF failing to interdict 

firearms when probable cause existed to do so. When he raised this 

issue with the U.S. Attorney’s Office for the District of Arizona, they 

pointed to wiretap affidavits that included these facts, suggesting the 

Criminal Division at Main Justice sanctioned the strategy by approving 

the wiretap applications. While others at DOJ swiftly began reviewing 

the affidavits, no office at DOJ was willing to acknowledge its errors.

FINDING: Instead of reconsidering its position when a second ATF whistleblower 

went public with details about Fast and Furious, Justice Department 

officials circulated negative information about the whistleblower.

 VI. Congressional Subpoena for ATF

1. Deadline for Documents

FINDING: ATF Acting Director Kenneth Melson notified Main Justice officials that 

details in the wiretap applications approved by DOJ’s Criminal Division 

undermined the Department’s representations to Congress. However, 

the revelation took a back seat to DOJ’s maneuvering to avoid a 

congressional subpoena and frame public opinion and press coverage 

regarding the subpoena.

2. Response to Subpoena

FINDING: Paul Colborn, an official in the Justice Department’s Office of Legal 

Counsel, played a significant role in obstructing Congress’s oversight. 

Colborn advised against providing information to Senator Grassley and 

strategized to withhold information from Chairman Issa.

3. “It Remains Our Understanding”

FINDING: Even as it obtained further evidence of the flawed tactics of Operation 

Fast and Furious, the Justice Department continued to stonewall 

Congress’s oversight, responding only to the threat of Department 

nominees being held up by Congress.
Page | 19

FINDING: Despite the Justice Department having clear facts showing it had sent 

Congress incorrect information on February 4, 2011, the Department 

continued to view the situation as a mere “oversight skirmish” and 

doubled down on its denials to Congress.

4. Wiretap Applications

FINDING: Senior Justice Department officials, including the Attorney General, 

spent a great deal of time and energy to devising a strategy to square 

their desire to protect Assistant Attorney General Lanny Breuer from 

scrutiny with the fact that the Fast and Furious wiretaps, which 

detailed the reckless tactics that were used in the operation, were 

approved under Breuer’s name.

FINDING: Because of Main Justice’s approval of the wiretap applications, officials 

in the U.S. Attorney’s Office in Arizona, including U.S. Attorney Dennis 

Burke, perceived the Department’s public statement regarding 

approval for Fast and Furious as unfair to them. 

 VII. Continued Obstruction

1. Blocking Witness Interviews

FINDING: Even after the Justice Department acknowledged Congress’s oversight 

had identified legitimate problems with Fast and Furious, throughout 

the summer of 2011 Justice Department officials continued to look for 

every opportunity to limit the information provided to Congress. The 

documents do not show those officials considering the legal risks the 

Department created for witnesses who were exposed to subpoenas 

because of the Department’s strategy. 

2. Deputy Attorney General Cole’s Confirmation

FINDING: DOJ officials, including the Attorney General, carefully calculated which 

documents to release, and to whom. Officials sought to create the 

appearance that the Department was complying with the various 

congressional requests in exchange for getting nominations through 

the Senate, but undercut the efforts of those who worked to actually 

cooperate with Congress’s oversight.
Page | 20

 VII. Road to Subpoena for Justice Department

1. Melson Comes Forward

FINDING: After ATF Acting Director Kenneth Melson began cooperating with the 

congressional investigation, Justice Department officials worked 

furiously to undermine key elements of Melson’s testimony while 

obtaining a full transcript of his interview. 

2. Full Spin Mode

FINDING: In late July 2011, the Attorney General began receiving daily briefings 

about Fast and Furious, and Justice Department officials worked 

actively behind the scenes to influence Congress’s investigation. For 

example, Assistant Attorney General for Legislative Affairs Ron Weich 

attempted to “script” the House Oversight Committee’s Democrat staff 

and urged FBI legislative affairs official Stephen Kelly to provide less

information to Senator Grassley’s staff but to continue to talk to them 

“to gather intelligence.”

FINDING: When a joint congressional staff report on Operation Fast and Furious 

highlighted the involvement of the Justice Department’s Criminal 

Division and the U.S. Attorney’s Office for the District of Arizona, the 

Department immediately launched an aggressive effort to counteract 

the report. 

FINDING: Assistant Attorney General Weich continued to obstruct the flow of 

information to the Committees, chiding FBI legislative affairs official 

Stephen Kelly for even meeting with congressional staff before “we 

have our shared facts straight.” 

3. Failure to Correct Record

FINDING: Even after Assistant Deputy Attorney General Jason Weinstein notified 

the Attorney General’s staff that his initial assessment of Operation 

Fast and Furious was incorrect, DOJ failed for four more months to 

correct its misrepresentation to Congress. Instead, Associate Deputy 

Attorney General Matt Axelrod urged ATF’s congressional liaison to 

provide only “high level” statements, such as that the congressional 

investigation “has been a distraction.” 
Page | 21

FINDING: Attorney General Holder was heavily involved in the timing and public 

relations aspects of the removal of ATF Acting Director Melson, going 

so far as to order Melson’s door be closed so as to avoid the 

information leaking that Melson had cleaned out his office over the 

weekend. Holder was especially concerned about avoiding the 

appearance that Melson was a “fall guy.” 

4. Revelation of Further Justice Department Role

FINDING: Department officials tried to divert attention towards a different ATF 

operation during the Bush administration—known as Operation Wide 

Receiver—to politicize the Fast and Furious investigation. 

FINDING: The public revelation that Attorney General Holder received 

memoranda on Fast and Furious in July 2010 sent senior Justice 

Department leadership into a frenzy, with Holder ordering top 

Department officials to push back hard. In response, DOJ undertook an 

aggressive public relations campaign, recruiting law enforcement 

surrogates to defend Holder.

FINDING: Senior Justice Department leadership was irate that the Department’s 

internal investigators had not leaked certain documents in a more 

strategic way to lessen their impact. Thereafter, Holder sought “intel” 

on the individuals criticizing him, from members of Congress to local 

sheriffs, even asking about the political affiliations of a group of 

sheriffs who called on him to resign.

 VII. Postscript: Missing Documents

FINDING: The Justice Department has failed to produce documents for the period 

from October 11, 2011, to June 28, 2012. These documents cover such 

key events as the Department’s decision to send Assistant Attorney 

General Lanny Breuer to Congress to testify regarding his knowledge of 

gunwalking, contradicting Attorney General Holder’s assertions that 

knowledge of the tactics “reache[d] into the upper levels of the Justice 

Department.”

FINDING: The Justice Department has gone to great lengths to withhold the 

documents that show when the Department became aware of the 

problems with Fast and Furious and why it ultimately decided when it 

did to correct the falsehood it had provided to Congress. The 

Department refused to produce to Congress emails such as Weinstein’s 

raising concerns about DOJ’s position, eventually allowing Attorney 

General Holder to be held in contempt as a result.
Page | 22

III. Prologue

FINDING: In October 2010, senior Justice Department officials in Washington 

were aware that ATF had allowed firearms to “walk” in Operation Wide 

Receiver. At that time, those officials began to formulate a media 

strategy to minimize public scrutiny of that controversial tactic.

Part II of the Committees’ staff report detailed the work of the Department of Justice 

(DOJ) Criminal Division and its Gang Unit in prosecuting Operation Wide Receiver. In the fall 

of 2010, DOJ officials discussed a draft press release announcing indictments related to the 

operation.

On Sunday, October 17, 2010, Deputy Assistant Attorney General Jason Weinstein 

emailed James Trusty, Acting Chief of the DOJ Criminal Division Gang Unit, about whether 

Assistant Attorney General Breuer should participate in a press conference relating to Operation 

Fast and Furious, given the use of gunwalking in Operation Wide Receiver:

62

The next morning, on Monday, October 18, 2010, Trusty responded:63

On Friday, October 22, 2010, Laura Sweeney, a public affairs official assigned to the 

Criminal Division, emailed Criminal Division Gang Unit Assistant U.S. Attorney Laura Gwinn, 

copying Trusty and Sweeney’s assistant Alisa Finelli:64

 

62 Email from Jason Weinstein to James Trusty (Oct. 17, 2010) [HOGR 002864].

63 Email from James Trusty to Jason Weinstein (Oct. 18, 2010) [HOGR 002864].

64 Email from Laura Sweeney to Laura Gwinn (Oct. 22, 2010) [HOGR 003529–32].

“It’s a tricky case, given the number of guns that have 

walked, but it is a significant set of prosecutions.”

“It’s not going to be any big surprise 

that a bunch of US guns are being used 

in MX, so I’m not sure how much grief 

we get for ‘guns walking’.”
Page | 23

Trusty wrote back:65

Sweeney replied: “Agree—just want to start thinking about the questions. Definitely agree it 

shouldn’t deter us from doing press.”

66

 

On Tuesday, November 9, 2010, the DOJ OIG released a report that heavily criticized 

ATF’s Project Gunrunner.

67

 Sweeney emailed Gwinn:68

Less than an hour later, Sweeney sent out a hyperlink to the report:69

 

65 Email from James Trusty to Laura Gwinn (Oct. 22, 2010) [HOGR 003529–32].

66 Email from Laura Sweeney to Laura Gwinn (Oct. 22, 2010) [HOGR 003529–32].

67 Dep’t of Justice, Office of Inspector Gen., Evaluations & Inspections Div., Review of ATF’s Project Gunrunner 

(Nov. 2010) (I-2011-001), available at https://oig.justice.gov/reports/ATF/e1101.pdf. 

68 Email from Laura Sweeney to Laura Gwinn (Nov. 9, 2010) [HOGR 003535–36].

69 Email from Laura Sweeney to Laura Gwinn (Nov. 9, 2010) [HOGR 003535–36].

“Note, the IG report on ATF’s project gunrunner just came 

out today (highly critical) so I want to chat with some folks 

about whether we should issue this release or not.” 

“[T]he only obstacle will be explaining why we 

let them continue to send guns to Mexico while 

we were investigating.”

“I think we can navigate through this 

stuff fine.”
Page | 24

Gwinn responded:70

Sweeney soon elevated the question to Weinstein for a decision:71

 

70 Email from Laura Gwinn to Laura Sweeney (Nov. 9, 2010) [HOGR 003535–36].

71 Email from Laura Sweeney to Jason Weinstein (Nov. 9, 2010) [HOGR 003537–38].

“Do you want me to answer the question of why they didn’t 

stop the other 200? If so, I will need to talk to you as opposed 

to putting in an e-mail.”

“The question will 

be of course – why 

didn’t they stop 

the other 200+?”

“While I think this is a very good case, I’m wondering 

whether it’s a good idea to announce a case where 200 

guns were smuggled across the border on the same day a 

reporter came out saying ATF isn’t doing a good job 

stopping guns from crossing the border.”

“I’m just not sure we’ll actually end up getting good press, so much 

as giving legs and a specific, prescient example for the IG’s report”
Page | 25

After a follow-up email from Sweeney, Weinstein and Trusty both responded:72

On Saturday, November 13, 2010, Criminal Division Chief of Staff Mythili Raman 

inquired about the issue:73

 

72 Email from Laura Sweeney to James Trusty and Jason Weinstein (Nov. 9, 2010) [HOGR 003537–38].

73 Email from Mythili Raman to Jason Weinstein (Nov. 13, 2010) [HOGR 003541].

“I lean against it”

“It’s a tough call but given the IG report, I’m learning toward not doing it”
Page | 26

Weinstein replied:

74

Ultimately, the Justice Department did not do press on the Operation Wide Receiver 

indictments.75

On Tuesday, November 16, 2010, Phoenix Assistant U.S. Attorney Emory Hurley 

informed U.S. Attorney for the District of Arizona Dennis Burke and the other leadership of the 

Arizona U.S. Attorney’s Office that Operation Fast and Furious firearms had been recovered in 

connection with the kidnapping and murder of the brother of a Mexican State Attorney 

General:76

 

74 Email from Jason Weinstein to Mythili Raman (Nov. 13, 2010) [HOGR 003541].

75 Although the indictments in the case were unsealed on January 25, 2011, the same day as the indictments in 

Operation Fast and Furious, the Criminal Division’s awareness of the case’s tactics would not become public 

knowledge until almost October 31, 2011, when Assistant Attorney General Lanny Breuer issued a public statement 

apologizing for his failure to alert others in DOJ to the ATF gunwalking in Operation Wide Receiver.

76 Email from Emory Hurley to Dennis Burke, et al. (Nov. 16, 2010) [HOGR 003059].

“Lots of guns allowed to go south . . . I agreed the 

case would be weaved into anti-ATF story”

“[T]wo of the guns recovered . . . come back to two of the defendants 

who will be charged in the Fast and Furious T3 case.”

“ATF is also currently approaching some of the participants to 

see if they can develop them as cooperators”
Page | 27

On Wednesday, November 24, 2010, Burke described his views on the case to the U.S. 

Attorney for the Western District of Washington:77

On Tuesday, December 14, 2010, Attorney General Holder’s Deputy Chief of Staff 

Monty Wilkinson emailed Burke. There was no text in the message, but the subject of the email 

asked if Burke was available for a call:78

An hour later, Burke sent an email to his staff with the subject “Fast and Furious”:

79

As the U.S. Attorney’s Office in Arizona and Justice Department officials were weighing 

whether to publicize prosecutions related to Operation Fast and Furious, one of the guns that 

traced back to the operation was tied to the murder of U.S. Border Patrol Agent Brian Terry. 

Terry was an agent with the U.S. Border Patrol’s Tactical Unit, known as BORTAC. 

 

77 Email from Dennis Burke to Jenny Durkan (Nov. 24, 2010) [HOGR 003068].

78 Email from Monty Wilkinson to Dennis Burke (Dec. 14, 2010) [HOGR 003074].

79 Email from Dennis Burke to Patrick Cunningham (Dec. 14, 2010) [HOGR 003070].

“Some of the weapons . . . have been directly 

traced to murders of elected officials in Mexico 

by the Cartels, so Katie-bar-the door when we 

unveil this baby.”
Page | 28

Late on the night of December 14, 2010, Terry’s BORTAC team encountered a “rip 

crew”—a group of armed bandits—in Peck Canyon, Rio Rico, Arizona, about 25 miles north of 

Nogales. According to a Federal Bureau of Investigation (FBI) affidavit:80

In the ensuing firefight, one bullet hit Agent Terry.

Early on the morning of Wednesday, December 15, 2010, Burke emailed Wilkinson:81

 

80 Affidavit of Scott Hunter, Special Agent, Fed. Bureau of Investigation, Dec. 29, 2010, Case No. 10-10251M.

81 Email from Dennis Burke to Monty Wilkinson (Dec. 15, 2010) [HOGR 003073].
Page | 29

Minutes later, Burke received an email notifying him of the incident:82

One hour later, Burke received an update:83

[INTENTIONALLY BLANK]

 

82 Email from Carl Jaigobind to [distribution list] (Dec. 15, 2010) [HOGR 005872].

83 Email from Marco Lopez to Dennis Burke (Dec. 15, 2010) [HOGR 005872].
Page | 30

Later that morning, Burke forwarded the emails to Wilkinson, who responded:84

Later that morning, officials in the U.S. Attorney’s Office for the District of Arizona 

circulated the message sent by Border Patrol Tucson Sector Deputy Chief Richard Barlow to all 

Tucson Sector employees:

85

 

84 Email from Monty Wilkinson to Dennis Burke (Dec. 15, 2010) [HOGR 005872].

85 Email from John Evans to Rachel Hernandez, et al. (Dec. 15, 2010) [HOGR 005888].
Page | 31

Burke forwarded the update to Wilkinson, who replied:86

That evening, Deputy Chief Barlow announced Agent Terry’s death at a press conference in 

Tucson, Arizona.

Border Patrol Deputy Chief of the Tucson Sector Richard Barlow speaks during a press 

conference, Wednesday, December 15, 2010 in Tucson, Arizona, about Border Patrol 

Agent Brian A. Terry (photo by Dean Knuth, Associated Press)

FINDING: Within hours of Agent Terry’s death, ATF and the U.S. Attorney’s Office in 

Arizona were aware that firearms found at the murder scene were connected 

to Operation Fast and Furious. That information was immediately 

communicated to Justice Department officials in Washington.

After attending the press conference, the Assistant U.S. Attorney in charge of the Tucson 

field office emailed Burke:87

 

86 Email from Monty Wilkinson to Dennis Burke (Dec. 15, 2010) [HOGR 005888].

87 Email from Shelley Clemens to Dennis Burke and Ann Scheel (Dec. 15, 2010) [HOGR 003076–77].
Page | 32

Two hours later, Burke and First Assistant U.S. Attorney Ann Scheel responded:88 

When Burke forwarded Clemens’ email to Wilkinson and alerted him to the connection, 

Wilkinson responded:89

 

88 Email from Dennis Burke to Shelley Clemens and Ann Scheel (Dec. 15, 2010) [HOGR 003076–77]; email from 

Ann Scheel to Dennis Burke and Shelley Clemens (Dec. 15, 2010) [HOGR 003076–77].

89 Email from Monty Wilkinson to Dennis Burke (Dec. 15, 2010) [HOGR 005917].

“The guns found in the desert near the murder[ed] 

BP officer connect back to the investigation we 

were going to talk about . . .”

“Nate Grey was here and advised that the 2 guns are tied to an on-going Phoenix ATF inv.”

“The guns tie back to Emory’s Fast and Furious case.”
Page | 33

At 11:41 p.m. that night, ATF Special Agent David Voth, the Group Supervisor over 

Operation Fast and Furious, emailed his supervisors, including Bill Newell, the ATF Special 

Agent in Charge of the ATF Phoenix Field Division:

90

The next morning, on Thursday, December 16, 2010, Voth again emailed his supervisors:91 

That same day, ATF Deputy Director William Hoover emailed Brad Smith and Mark 

Michalic, officials in the Office of the Deputy Attorney General, to send them information about 

Operation Fast and Furious and about the firearms recovered at the scene of Terry’s murder:

92

 

90 Email from David Voth to William Newell, et al. (Dec. 15, 2010) [HOGR 002017].

91 Email from David Voth to William Newell and George Gillett (Dec. 16, 2010) [DOJ-FF-57028].

92 Email from William Hoover to Brad Smith and Mark Michalic (Dec. 16, 2010) [HOGR 002871–72].

“This way we do not divulge our current case (Fast & 

Furious) or the Border Patrol shooting case.”

“Emory . . . saw the wisdom in not charging the AK-47 rifles 

in question so as to not complicate the FBI’s investigation.”
Page | 34

The next morning, on Friday, December 17, 2010, Smith forwarded six pages of 

information he had received from Hoover to Acting Deputy Attorney General Gary Grindler:93 

* * *

 

93 Email from Brad Smith to Gary Grindler, et al. (Dec. 17, 2010) [HOGR 002875–81].

“The second . . . gives you the 

information re the firearms 

recovered at the scene of the 

homicide of the CBP Officer.”

“Two of the 

weapons 

recovered from 

the scene have 

been linked to . . . 

a straw firearms 

purchaser that ATF 

and USAO for 

Arizona have been 

investigating since 

November 2009 as 

part of its larger 

Fast and Furious 

operation.”
Page | 35

The attached briefing paper read, in part:94

On Tuesday, December 21, 2010, Gwinn emailed Sweeney:95

However, later that night Burke emailed Wilkinson:96

 

94 Attachment to email from Brad Smith to Gary Grindler, et al. (Dec. 17, 2010) [HOGR 002875–81].

95 Email from Laura Gwinn to Laura Sweeney (Dec. 21, 2011) [HOGR 003081].

96 Email from Dennis Burke to Monty Wilkinson (Dec. 21, 2010) [HOGR 006614].

“Phx USAO is going to be doing a HUGE gun trafficking 

indictment . . . . Supposedly the AG will be coming out . . . .”

“[F]irearms were 

in ATF’s . . .

Suspect Gun 

Database due to 

their association 

to . . . ‘Fast and 

Furious’”

“Avila . . . is one 

of [] straw 

firearms 

purchasers 

identified . . . and 

recommended . . . 

for prosecution”
Page | 36

Wilkinson responded, “Ok . . . . I’ll call tomorrow.”

97

On Wednesday, December 22, 2010, Agent Terry’s funeral service was held in Detroit, 

Michigan. 

Law-enforcement officers carry the casket of Border Patrol officer and former U.S. Marine 

Brian Terry out of Greater Grace Temple in northwest Detroit after his funeral service

(photo by John T. Greilick, Associated Press)

That same day, allegations regarding ATF gunwalking appeared on Internet message boards 

primarily used by ATF agents.

FINDING: Justice Department officials from Washington did not attend the press 

conference to announce indictments related to Fast and Furious 

because of public relations concerns arising from a desire to avoid 

tough questions about gunwalking and Agent Terry’s murder.

On Wednesday, January 5, 2011, Patrick Cunningham, the Arizona U.S. Attorney’s 

Office Criminal Division Chief, emailed regarding whether James Cole, newly recess appointed 

as Deputy Attorney General, would attend:98

 

97 Email from Monty Wilkinson to Dennis Burke (Dec. 21, 2010) [HOGR 006614].

98 Email from Patrick Cunningham to Dennis Burke, et al. (Jan. 5, 2011) [HOGR 003087].

“I would not recommend the AG announce this case.”
Page | 37

That day, ATF Chief Counsel Steve Rubenstein emailed ATF Acting Director Ken 

Melson, advising against disclosing the connection between the Terry murder and Operation Fast 

and Furious:

99

Melson responded:100

[INTENTIONALLY BLANK]

 

99 Email from Steve Rubenstein to Kenneth Melson (Jan. 5, 2010) [DOJ-FF-44185].

100 Email from Kenneth Melson to Steve Rubenstein (Jan. 5, 2010) [DOJ-FF-44185].

“Have we heard from the New DAG that he 

is not attending?” 

“‘[W]ord is’ that Phoenix FD . . . 

‘[a]llegedly approved more than 500 AR15 type rifles . . . to be ‘walked’ into 

Mexico.’”

“‘[O]ne of those . . . is rumored to [be] linked to the recent killing of a Border Patrol Officer’”

“The disclosure of this information has a potential deleterious effect on ATF’s undercover operations.”
Page | 38

On Tuesday, January 11, 2011, just three days after U.S. Representative Gabrielle 

Giffords and others were tragically shot in Tucson, SAC Newell emailed the Chief of ATF’s 

Public Affairs Division at headquarters, Scot Thomasson:101 

By the next day, Wednesday, January 12, 2011, ATF’s Public Affairs Division had 

prepared internal talking points that specifically anticipated the issue of gunwalking would come 

up.102 The sample questions in the internal document included:

Some media reports, referencing an anonymous ATF official, claim that 

ATF knowingly ‘walked’ about 1,900 firearms across the U.S.-Mexico 

border as part of this operation. What can you tell me about that?

* * *

We understand that a firearm bought in connection with this ATF 

investigation was used to murder Border Patrol Agent Brian A. Terry. 

Can you please comment on this information?103

On Wednesday, January 19, 2011, ATF and the U.S. Attorney’s Office indicted twenty 

defendants, charging them mainly with straw buying for the Mexican drug cartels.104 The 

indictment was to be unsealed and announced at a press conference the following week. The 

indictment was named after Jaime Avila, the straw purchaser who had purchased the two 

firearms found at the Terry murder scene on January 16, 2010. 

FINDING: Justice Department officials in Arizona were relieved no mention of 

Border Patrol Agent Brian Terry came up at a press conference 

announcing indictments from Operation Fast and Furious. 

 

101 Email from William Newell to Scot Thomasson, ATF (Jan. 11, 2011) [HOGR 005479].

102 ATF Official Statements, “Operation: Fast and Furious and Corresponding Investigations” (Jan. 12, 2011) 

[HOGR 005543–46].

103 Id. at 2.

104 Press Release, Dennis K. Burke, Office of the United States Attorney for the District of Arizona, Grand Juries 

Indict 34 Suspects in Drug and Firearms Trafficking Organization (Jan. 25, 2011).
Page | 39

As the press conference approached, Arizona U.S. Attorney’s Office officials discussed 

whether to publicly disclose a connection between the Terry murder and Operation Fast and 

Furious:105

On Thursday, January 20, 2011, senior ATF leaders received an email from an attorney 

at ATF headquarters stating:106

 

105 Email from Patrick Cunningham to Mike Morrissey, et al. (Jan. 19, 2011) [HOGR 006016]. Attorney General 

Holder was asked at a May 3, 2011 hearing before the House Judiciary Committee about the connection. He 

responded: “I don’t know that to be factually accurate. I don’t know. I’ve heard that.” U.S. Dep’t of Justice:

Hearing before the H. Comm. on the Judiciary, 112th Cong. 46 (May 3, 2011) (No. 112-127), available at

https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66154/pdf/CHRG-112hhrg66154.pdf.. The connection would not 

be publicly confirmed by DOJ until August 31, 2011, months after Senator Grassley’s January 27, 2011 letter to 

ATF asking about the connection. Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Darrell Issa, 

Chairman, H. Comm. on Oversight and Gov’t Reform, and Charles Grassley, Ranking Mem., S. Comm. on the 

Judiciary (Aug. 31, 2011).

106 Email from Barry Orlow to William Hoover, et al. (Jan. 20, 2011) [HOGR 001583].

“As I understand it we plan to make no connections 

between the two cases in our public statements”

“‘ATF employees are looking to come forward and 

provide testimony and documentation about guns 

being illegally transported to Mexico”

“[‘]In order for these people to come forward, 

they require whistle-blower protection.’”
Page | 40

On Friday, January 21, 2011, Criminal Division Assistant U.S. Attorney James Trusty 

emailed:107

That same day, a memorial service to honor Agent Brian Terry was held in Tucson, 

Arizona.

Customs and Border Protection Commissioner Alan Bersin speaks at the memorial 

service for Agent Brian Terry (photo by Rick McCallum, Green Valley News)

[INTENTIONALLY BLANK]

 

107 Email from James Trusty to Laura Sweeney, et al. (Jan. 21, 2011) [HOGR 003583].

“[H]e is very much in agreement 

that Laura’s case should be 

considered part of the F&F story. 

They are related.” 
Page | 41

Border Patrol agents carry an altar with boots, firearm and helmet representing 

fallen agent Brian Terry at Kino Stadium on Friday after memorial service 

(photo by Jill Torrance, Associated Press)

On Monday, January 24, 2011, the day before the press conference in Phoenix 

announcing the unsealing of the indictments in Operation Fast and Furious and Operation Wide 

Receiver, Weinstein emailed:108

 

108 Email from Jason Weinstein to James Trusty and David Jaffe (Jan. 24, 2011) [HOGR 003585–86]. 

Weinstein would later claim that because “Wide Receiver was an old case [,] . . . I simply was not thinking about 

Wide Receiver as I assisted with the February 4th letter . . . .” Transcript, Interview of Jason Weinstein by the Staff 

of the H. Comm. on Oversight & Government Reform and S. Comm. on the Judiciary (Jan. 10, 2012), at 12. 

According to the DOJ OIG report, he told them: “I remembered, I wasn’t an amnesiac, I remembered that there was 

a case called Wide Receiver in which guns walked which I had reacted very strongly earlier and brought to ATF’s 

attention. But I was so focused on the Fast and Furious allegations and the insistence by the people that did the case 

that they weren’t, this wasn’t a gun walking case and I had viewed Wide Receiver as just ancient and aberrant. I just 

didn’t think about Wide Receiver as we were responding to this.” DOJ OIG report at 348. The OIG concluded: 

“We were not persuaded by Weinstein’s assertion that Operation Wide Receiver was properly viewed as an 

‘aberration’ that had no relevance to the allegations.” DOJ OIG report at 412, 466.

“Is this the one . . . where we inherited it after a lot of 

guns had been permitted to walk . . . ?”
Page | 42

Trusty replied:109

In response, Weinstein emailed:110

[INTENTIONALLY BLANK]

 

109 Email from James Trusty to Jason Weinstein and David Jaffe (Jan. 24, 2011) [HOGR 003585–86].

110 Email from Jason Weinstein to James Trusty (Jan. 24, 2011) [HOGR 003585–86].

“Everyone 

here agrees 

we should 

sit out this 

press conf”

“We will be a part of the press release because of the 8 

defendant case being connected to F&F”
Page | 43

Bill Newell, Special Agent in Charge of ATF’s Phoenix Field Division, speaks at the 

January 25, 2011 press conference, with U.S. Attorney Dennis Burke behind him

(right of Newell in photo) (photo by Matt York, Associated Press)

On Tuesday, January 25, 2011, the press conference took place in Phoenix. When 

Special Agent in Charge Newell was asked whether agents purposely allowed firearms to enter 

Mexico as part of an investigation, Newell answered, “Hell, no.”

111

After the press conference, Cunningham emailed:112

 

111 See H. Comm. on Oversight & Gov’t Reform and S. Comm. on the Judiciary Joint Staff Report, The Department 

of Justice’s Operation Fast and Furious: Accounts of ATF Agents , 112th Congress (June 14, 2011), at 47-49.

112 Email from Patrick Cunningham to John Evans (Jan. 25, 2011) [DOJ-FF-04873].

“[P]ress conference did not draw a question on Terry”

“Issue averted.”
Page | 44

Evans responded:113

[INTENTIONALLY BLANK]

 

113 Email from John Evans to Patrick Cunningham (Jan. 25, 2011) [DOJ-FF-04873].

“Another bullet brilliant dodged.”
Page | 45

IV. Initial Response to Congressional Inquiry

FINDING: At the time ATF received Senator Grassley’s letter, ATF and Justice 

Department officials in Washington knew firearms walked into Mexico, 

and that there was a connection between those firearms and the Terry 

murder. Acting Director Melson initially sought permission from the 

Department of Justice to open up a line of communication with Senator 

Grassley and get answers for him. However, the Justice Department 

instead decided to stonewall Senator Grassley, and did not 

acknowledge the Fast and Furious connection to the Terry murder 

until August 31, 2011. 

On Thursday, January 27, 2011, Senator Grassley wrote to ATF Acting Director 

Melson requesting information about operations involving firearms sales to straw purchasers, 

and connections between those firearms and the Terry’s murder.

114

 The letter stated:

Members of the Judiciary Committee have received numerous allegations that the 

ATF sanctioned the sale of hundreds of assault weapons to suspected straw 

purchasers, who then allegedly transported these weapons throughout the 

southwestern border area and into Mexico. According to the allegations, one of 

these individuals purchased three assault rifles with cash in Glendale, Arizona on 

January 16, 2010. Two of the weapons were then allegedly used in a firefight on 

December 14, 2010 against Customs and Border Protection (CBP) agents, killing 

CBP Agent Brian Terry. These extremely serious allegations were accompanied 

by detailed documentation which appears to lend credibility to the claims and 

partially corroborates them.115

Upon receipt of Senator Grassley’s letter, ATF immediately forwarded it to the DOJ 

OLA:

116

 

114 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Kenneth Melson, Acting Dir., 

Bureau of Alcohol, Tobacco, Firearms & Explosives (Jan. 27, 2011), available at 

http://www.grassley.senate.gov/sites/default/files/about/upload/Judiciary-01-27-11-letter-to-ATF-SW-Borderstrategy.pdf.

115 Id. 

116 Email from Gregory Rasnake to Ron Weich, et al. (Jan. 27, 2011) [HOGR 003637]. The DOJ OIG report states: 

“Upon receiving Sen. Grassley’s January 27 letter, officials in both the U.S. Attorney’s Office and at ATF 

immediately gathered information about the conduct of Jaime Avila, who had purchased the two weapons found at 

the Terry murder scene. This was not, however, the first time that such an effort had been undertaken. . . . 

[I]immediately following Agent Terry’s murder on December 15, and the discovery that two firearms found at the 

scene were connected to Operation Fast and Furious, both the U.S. Attorney’s Office in Arizona and ATF’s Phoenix 

Field Division undertook an immediate review of Avila’s straw purchasing activity, which resulted in Avila’s arrest 

on December 15. On December 16 and 17, memorandums were provided to the leadership of both ATF and the 

Department that summarized the Fast and Furious investigation and the details of Avila’s straw purchasing activity. 

However, despite learning about this connection between firearms found at the scene of Agent Terry’s murder and 

an ongoing ATF firearms trafficking investigation, the leadership of ATF and the Department took no further action 

to understand how this connection came about. As a result, when Sen. Grassley’s letter arrived on January 27, the 

leadership at ATF Headquarters and at the Department knew no more on that date about the link between Operation 
Page | 46

Later that afternoon, ATF Chief of Legislative Affairs Greg Rasnake informed his 

colleagues of the core issues Senator Grassley was examining:117

Melson responded: “Can you ask them for the documentation?”

118 Rasnake removed nonATF recipients from the email thread and responded:119

 

Fast and Furious and the firearms at the Terry murder scene than they did on December 17.” DOJ OIG report at 

333-34.

117 Email from Gregory Rasnake to Ron Weich, et al. (Jan. 27, 2011) [HOGR 003637].

118 Email from Kenneth Melson to Gregory Rasnake, et al. (Jan. 27, 2011) [HOGR 003673].

119 Email from Gregory Rasnake to Kenneth Melson (Jan. 27, 2011) [HOGR 003673].

“He wants these . . . addressed: . . . That firearms 

were sold to known or suspected traffickers in AZ and

. . . the [federal firearms licensee] . . . had concerns”

“They claim to have ‘documentation’ that confirms 

their concerns.”
Page | 47

Rasnake followed up with an email making the same pitch to Assistant Attorney General Ron 

Weich and Deputy Assistant Attorney General Mark Agrast, both in DOJ OLA.

120

 Weich 

responded:121

 

120 Email from Gregory Rasnake to Ron Weich and Mark Agrast (Jan. 27, 2011) [HOGR 003692].

121 Email from Ron Weich to Gregory Rasnake and Mark Agrast (Jan. 27, 2011) [HOGR 003692].

“My initial thoughts were to hide and punt, but 

after my conversation with Grassley’s staffers – I 

don’t believe that dog is gonna hunt.”

“[H]ow wonderful the thought of 

being able to conceal all of your 

evidence and spring it on the 

Defense at trial.”

“They are weighing the ‘craziness’ factor on this.”
Page | 48

Meanwhile, Melson emailed subordinates instructing them to compile information 

relevant to Brian Terry’s murder:

122

Melson later testified that he wanted to brief Senator Grassley’s staff on the specific case. 

And after receiving that letter, our first instinct and intuition was to 

directly march over to Senator Grassley’s office and brief him on what 

Fast and Furious was for purposes of explaining the concept and the role it 

played and how it got there, and where ATF was going in it. And we 

expressed that desire to the [Deputy Attorney General’s] office.123

Similarly, according to the OIG report: 

Melson told the OIG that after receiving the January 27 letter he also 

asked [Faith] Burton if he could meet with Sen. Grassley to “open up a 

line of communication and talk to them about what the issue is, and so we 

can get answers for him even though it was an ongoing case, you can get 

answers, and you can talk about investigative methodologies which don’t 

harm the ongoing case.” Melson stated that Burton told him that it would 

be against Department policy to discuss an open investigation and that he 

could not meet with Sen. Grassley.124

On Friday, January 28, 2011, Faith Burton emailed Ron Weich:125

[INTENTIONALLY BLANK]

 

122 Email from Kenneth Melson to William Hoover and Mark Chait (Jan. 27, 2011) [HOGR 003709].

123 Melson Transcript at 28. 

124 DOJ OIG report at 331.

125 Email from Faith Burton to Ron Weich (Jan. 28, 2011) [HOGR 003794].
Page | 49

FINDING: The Justice Department did not take seriously Senator Grassley’s letter 

or the obligation to uncover the truth about Fast and Furious and the 

Terry murder, relying almost exclusively on information from the 

individuals accused of wrongdoing and failing to give credence to even 

departmental information conflicting with those individuals’ accounts. 

On Monday, January 31, 2011, The Arizona Republic contacted the U.S. Attorney’s 

Office for the District of Arizona seeking a comment for a story about ATF’s and the USAO’s 

involvement in sanctioning firearms sales to straw purchasers:126

 

126 Email from Robert Sherwood to Patrick Cunningham, et al. (Jan. 31, 2011) [HOGR 003880].

“The gist of his story centers around 

[a firearms licensee] . . . working with 

ATF in real time allowing fraudulent 

sales to go through to make a case.”

“We talked with them about providing a briefing . . . 

to respond to the staff interests without getting into 

any non-public info regarding the pending matter.”
Page | 50

Later that night, U.S. Attorney Dennis Burke emailed DOJ officials and emphasized that ATF 

should respond immediately and strongly to Senator Grassley’s questions:127

Weinstein agreed, and offered to help prepare ATF to brief Senator Grassley:128

Assistant Attorney General for the Criminal Division Lanny Breuer responded directly to 

Weinstein, copying Chief of Staff Mythili Raman, asking, “What’s this about? What did 

Grassley say?”

129

 Weinstein responded:130 

 

127 Email from Jason Weinstein to Dennis Burke, et al. (Jan. 31, 2011) [DOJ-FF-04905–06].

128 Email from Jason Weinstein to Lanny Breuer (Feb. 1, 2011) [DOJ-FF-04905–06].

129 Email from Lanny Breuer to Jason Weinstein (Jan. 31, 2011) [HOGR 003929–30].

130 Email from Jason Weinstein to Lanny Breuer (Jan. 31, 2011) [HOGR 003929–30]. Weinstein used virtually the 

same language to describe the allegations to Breuer (“only prosecuted straws in the Fast and Furious case as 

opposed to the higher-level members of the organization”) that he had used to describe Wide Receiver to Breuer 

back in April 2010 (“ATF let a bunch of guns walk in an effort to get upstream conspirators but only got straws”). 

Email from Jason Weinstein to Lanny Breuer (Apr. 30, 2010) [HOGR 003485–86].

“This is a really important briefing for ATF – they 

need to nail it.”

“I worry that ATF will take 8 months to answer this when they 

should be refuting its underlying accusations right now.”
Page | 51

Immediately after finishing the email to Breuer and Raman, Weinstein followed up with 

Burke: “BTW, the assertion that one of the F&F guns killed Terry is just false, right?”

131

 Burke 

responded:132

Burke’s description of the connection between Fast and Furious and the Terry murder was 

inaccurate. The 2012 DOJ OIG report on Fast and Furious noted that “Burke’s inaccurate 

statements . . . clearly demonstrated a willingness to make assertions without 

regard for obvious and undisputed facts.”

133 The report concluded: “This 

 

131 Email from Jason Weinstein to Dennis Burke (Jan. 31, 2011) [HOGR 003932].

132 Email from Dennis Burke to Jason Weinstein (Jan. 31, 2011) [HOGR 003932].

133 DOJ OIG report at 344.

“Purchased at [federal firearms licensee] 

before the investigation began.”

“[H]e said that ATF ‘sanctioned’ sales to straw 

purchasers in [Fast and Furious]; and he asserts that 

one of the weapons from that case was used to kill 

CBP agent Brian Terry.”
Page | 52

inaccurate information was . . . significant because it was demonstrably false . 

. . .”

134

The next morning, on Tuesday, February 1, 2011, Weinstein repeated Burke’s false 

description to Breuer:135

The same morning, The Arizona Republic published a story about the connection between 

Fast and Furious and the Terry murder on the front page, under the headline, “Claims tie ATF 

sting to guns in shootout: Senator links gun buy to border agent’s death.”

136

 The story stated:

Bandits who gunned down a U.S. 

Border Patrol agent during a 

December firefight near Nogales may 

have been armed with assault rifles 

purchased from a Valley gun store in 

conjunction with a federal sting 

operation and subsequently smuggled 

into Mexico, according to a key 

member of the U.S. Senate Judiciary 

Committee.

* * *

Tom Mangan, an ATF spokesman in 

Phoenix, said he was ‘unaware of any 

guns allowed to go south of the 

border,’ either intentionally or 

inadvertently.137

 

134 DOJ OIG report at 461-62.

135 Email from Jason Weinstein to Lanny Breuer (Feb. 1, 2011) [HOGR 003938]. The DOJ OIG report noted: 

“Given Weinstein’s and Burke’s intense focus on the allegation that pertained to Avila’s purchase of weapons found 

at the murder scene, Burke’s inaccurate statement about a fact that was fundamental to this issue should have alerted 

Weinstein to be cautious about Burke’s reliability. It also should have caused Weinstein to ask more probing 

questions about Burke’s more general representations regarding the conduct of Operation Fast and Furious.” DOJ 

OIG report at 404.

136 Dennis Wagner, Claims tie ATF sting to guns in shootout: Senator links gun buy to border agent’s death, ARIZ.

REPUBLIC, Feb. 1, 2011, at A1, available at http://www.pressreader.com/usa/the-arizonarepublic/20110201/textview.

“ATF can and should strongly refute that”
Page | 53

Burke emailed Breuer about The Arizona Republic’s coverage of Senator Grassley’s 

inquiry. Burke was disappointed that ATF did not push back and refute key aspects of the 

story:138

On Wednesday, February 2, 2011, when Weinstein asked if he could participate in the 

briefing of Senator Grassley’s staff, Breuer advised that he should not:139

 

137 Id.

138 Email from Lanny Breuer to Dennis Burke (Feb. 1, 2011) [HOGR 003977]; email from Dennis Burke to Lanny 

Breuer (Feb. 1, 2011) [HOGR 003977]. See also Dennis Wagner, Claims tie ATF sting to guns in shootout: Senator 

links gun buy to border agent’s death, ARIZ. REPUBLIC, Feb. 1, 2011, at A1, available at 

http://www.pressreader.com/usa/the-arizona-republic/20110201/textview.

139 Email from Lanny Breuer to Jason Weinstein (Feb. 2, 2011) [HOGR 004057–58].

“They got smoked today in the 

Arizona Republic. Just smoked.”
Page | 54

Weinstein agreed:140

That afternoon, Weinstein recommended addressing in DOJ’s draft response to Senator 

Grassley the allegation that firearms found at the Terry murder scene were part of an ATF 

operation:141

When Burton circulated a draft of the letter to a wider group, Weinstein responded:142

 

140 Email from Jason Weinstein to Lanny Breuer (Feb. 2, 2011) [HOGR 004057–58].

141 Email from Jason Weinstein to Faith Burton (Feb. 2, 2011) [HOGR 004084].

142 Email from Jason Weinstein to Faith Burton, et al. (Feb. 2, 2011) [DOJ-FF-23332–33].

“[Y]ou probably shouldn’t unless 

absolutely necessary.”

“ATF will do a briefing . . . [A]re you ok with my going?”

“My thoughts exactly”

“[A]llegation relating to the weapons 

recovered from the Terry shooting . . . 

[is] the most salacious, and the most 

damaging to ATF”
Page | 55

“[T]he allegations here . . . are 

terribly damaging to ATF”
Page | 56

In reply, Rasnake emailed Weinstein:143

Weinstein responded:144

Weinstein also updated Burke about his interactions with Burton:145

That night Weinstein forwarded the draft letter to Breuer and Burke, who were together 

in Mexico:146 

 

143 Email from Gregory Rasnake to Jason Weinstein (Feb. 2, 011) [HOGR 004253–54].

144 Email from Jason Weinstein to Gregory Rasnake (Feb. 2, 2011) [HOGR 004253–54].

145 Email from Jason Weinstein to Dennis Burke (Feb. 2, 2011) [HOGR 004199–200].

146 Email from Jason Weinstein to Lanny Breuer and Dennis Burke (Feb. 2, 2011) [HOGR 004423–24].

“[Y]ou are the man for 

supporting us like that.”

“[W]e need to have a conf call . . . to discuss the 

Terry issue ASAP.”

“My boss and I are fervently 

supportive of ATF, and these 

allegations are infuriating”
Page | 57

Burke responded:147

Breuer added:148

FINDING: Documents and testimony show as of February 4, 2011, when the 

Justice Department wrote to Senator Grassley that “ATF makes every 

effort to interdict” firearms purchased by straws, Department officials 

in Washington had information that detailed at least one instance in 

Fast and Furious where ATF allowed firearms to walk.

Later that afternoon, Senator Grassley’s staff spoke by phone with Special Agent Gary 

Styers, an ATF agent in Texas who had previously been assigned to ATF’s Group VII in the 

Phoenix Field Division during Fast and Furious. That night, Ron Weich emailed Faith Burton:149

 

147 Email from Dennis Burke to Jason Weinstein and Lanny Breuer (Feb. 2, 2011) [HOGR 004423–24].

148 Email from Lanny Breuer to Jason Weinstein and Dennis Burke (Feb. 2, 2011) [HOGR 004423–24]. In 

November of that year, when asked whether he reviewed the February 4 letter before it was sent to Congress, Breuer 

testified: “Senator, again, I just want to be clear that, as I told you a moment ago, I regret that in April of 2010 that I 

did not draw the connection between Wide Receiver and Fast and Furious. Moreover, I regret that—that even . . . 

earlier this year that I didn’t draw that connection. In direct answer to your question, senator, I can say—I cannot 

say for sure whether I saw a draft of the letter that was sent to you. What I can tell you, senator, is at that time, I was 

in Mexico dealing with very real issues that we are all so committed to.” Combating International Organized 

Crime: Hearing before the S. Subcomm. on Crime and Terrorism, 112th Cong. 9 (Nov. 1, 2011) (No. J-112-49), 

available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg81638/pdf/CHRG-112shrg81638.pdf. The DOJ OIG 

report stated: “We agree that Breuer should have informed senior Department leadership that ATF had used tactics 

similar to those alleged in Sen. Grassley’s letters in a prior investigation.” DOJ OIG report at 414.

149 Email from Ron Weich to Faith Burton (Feb. 2, 2011) [DOJ-FF-04935].
Page | 58

The same evening, Brad Smith in the Deputy Attorney General’s Office also contacted 

Weich and Burton, copying Billy Hoover:150

Later that night, Smith forwarded Weich’s response to officials in the Deputy Attorney General’s 

office, adding an update:151

The next day, on Thursday, February 3, 2011, Special Agent Styers sent a 

memorandum up the chain of command documenting his interactions on the case.152 Special 

Agent Styers’ memorandum stated:153

 

150 Email from Brad Smith to Ron Weich and Faith Burton (Feb. 2, 2011) [DOJ-FF-04929–31].

151 Email from Brad Smith to Lisa Monaco, et al. (Feb. 2, 2011) [DOJ-FF-04929–31].

152 Email from Mark Chait to William Hoover (Feb. 3, 2011).

153 Memorandum from Gary Styers to Robert Champion, “Contact with Congressional Investigators” (Feb. 3, 2011), 

available at http://www.grassley.senate.gov/sites/default/files/judiciary/upload/ATF-12-14-11-Styers-memo.pdf, at 

3.
Page | 59

It continued:154

The memorandum also detailed a specific instance where ATF let firearms walk:155

The memorandum was transmitted that day to ATF Deputy Director Hoover.156 Hoover reported 

to the Committees that he promptly notified ATF Senior Counsel Brad Smith of the 

memorandum and stated that OLA staff were also aware of the memorandum.157 The same day, 

Faith Burton emailed Hoover and recommended a response in case agents asked for guidance on 

how to handle contacts from Senator Grassley’s staff:158

 

154 Id.

155 Id. at 2.

156 Email from Mark Chait to William Hoover (Feb. 3, 2011).

157 Telephone interview of S. Comm. on the Judiciary Minority Staff with William Hoover, Deputy Dir., Bureau of 

Alcohol, Tobacco, Firearms & Explosives (Feb. 1, 2012).

158 Email from Faith Burton to William Hoover, et al. (Feb. 3, 2011) [DOJ-FF-04945].

“[I]t is unheard 

of to have an 

active wiretap 

investigation 

without full time 

dedicated 

surveillance 

units on the 

ground.”

“[T]he case had 

systematically 

divided and 

isolated agents 

from the group”

“McAllister 

told all the 

agents to 

leave the 

immediate 

area.”

“[T]he vehicle that took possession of 

the firearms . . . left the area without 

agents following it.”
Page | 60

Ultimately, this language was not distributed to ATF employees.159

That night, Burke urged DOJ to issue the letter to Grassley as soon as possible:160

 

159 See letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. 

on the Judiciary (Apr. 28, 2011), at 1, available at http://oversight.house.gov/wp-content/uploads/2012/07/7-31-12-

FF-Part-I-FINAL-Appendix-II-1-of-3.pdf#page=109.

160 Email from Dennis Burke to Faith Burton, et al. (Feb. 3, 2011) [DOJ-FF-23339–43]. 

“Please send soon. Every version 

gets weaker.”
Page | 61

Greg Rasnake from ATF emailed:161

Later that night, Burke added further commentary:162

DOJ’s letter to Senator Grassley on Friday, February 4, 2011, stated: “ATF makes 

every effort to interdict weapons that have been purchased illegally and prevent their 

transportation to Mexico.”

163

 The letter made no mention of the firearms recovered at the 

murder scene of Border Patrol Agent Brian Terry. However, it did state:

We . . . want to protect investigations and the law enforcement personnel 

who directly conduct them from inappropriate political influence. For this 

reason, we respectfully request that Committee staff not contact law 

enforcement personnel seeking information about pending criminal 

investigations, including the death of Customs and Border Protection 

 

161 Email from Greg Rasnake to Jason Weinstein, et al. (Feb. 3, 2011) [DOJ-FF-23372].

162 Email from Dennis Burke to Ron Weich, et al. (Feb. 4, 2011) [DOJ-FF-23339–43].

163 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (Feb. 4, 2011), available at https://oversight.house.gov/wp-content/uploads/2012/08/February-4-2011-

Weich-to-Grassley.pdf.

“Are we still planning to get the 

letter out today?”

“Grassley’[s] staff, acting as willing stooges 

for the Gun Lobby”

“Just 

demonize 

ATF w/ a 

strategically

-timed 

repulsive 

letter”
Page | 62

Agent Brian Terry. . . . Please direct any inquiry into his killing to this 

office.164

The DOJ OIG report found that DOJ’s “information gathering and drafting process” was 

“poorly executed” and that DOJ failed to make a “serious effort” to investigate Senator 

Grassley’s allegations. It stated:

[T]he Department is ultimately responsible for representations that it 

makes to Congress. . . . [A] poorly executed information gathering and 

drafting process and questionable judgments by Department officials 

contributed to the inclusion of inaccurate information in the February 4 

letter, and therefore the Department shares responsibility for issuing an 

inaccurate letter with the component officials they relied upon for 

information.165

* * *

The allegation in Sen. Grassley’s January 27 letter that ATF had 

sanctioned the sale of hundreds of assault weapons contained the 

implication that among these weapons were two that may have been used 

in a firefight that resulted in the death of a federal law enforcement officer. 

We do not believe that the gravity of this allegation was met with an 

equally serious effort by the Department to determine whether ATF and 

the U.S. Attorney’s Office had allowed the sale of hundreds of weapons to 

straw purchasers. This was particularly the case in this instance because 

the Department knew that hundreds of assault weapons had indeed been 

sold to straw purchasers during the Fast and Furious investigation and that 

two of those firearms had in fact been found at the scene of Agent Terry’s 

murder.166

* * *

[I]n a unique circumstance such as this, where a credible allegation has 

been made regarding potentially serious misconduct involving those 

components, deference to officials close to the activity at issue should be 

tempered by the recognition that those officials are also invested in a 

positive portrayal of the activity and their alleged involvement in it. As 

such, officials who should be knowledgeable and forthcoming about the 

activity may be inclined, perhaps even unintentionally, to shade or ignore 

unhelpful facts when providing information about their conduct to senior 

 

164 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (Feb. 4, 2011), available at https://oversight.house.gov/wp-content/uploads/2012/08/February-4-2011-

Weich-to-Grassley.pdf.

165 DOJ OIG report at 396.

166 DOJ OIG report at 397.
Page | 63

Department officials. This is particularly true where, as here, Congress 

seeks specific information concerning allegations of improper activities.167

* * *

We concluded that during the drafting process Weinstein advocated for 

ATF and the U.S. Attorney’s Office rather than responsibly gathering 

information about their conduct of the Fast and Furious investigation. . . . 

[W]e found that he did so despite indications during the fact-gathering and 

letter-drafting process that should have alerted him to the fact that U.S. 

Attorney Dennis Burke, who provided emphatic assurances about ATF’s 

conduct, was an unreliable source of information. Moreover, Weinstein 

urged Burton to adopt an aggressive posture in the drafting of the response 

and sought to enlist the support of Burke and others in arguing against 

Burton’s more measured approach to the letter. We believe that 

Weinstein’s staunch support of ATF led him to lose perspective and 

provide Burton with information that distorted what a senior component 

official (Hoover) had told them about Avila’s status as a straw purchaser 

in November 2009.168

[INTENTIONALLY BLANK]

 

167 DOJ OIG report at 398.

168 DOJ OIG report at 398-99; see further DOJ OIG report at 405-06. 
Page | 64

V. Post-February 4 Letter

1. Public Silence and Referral to Inspector General

According to emails, at meetings with Mexican government officials in February 2011, 

Assistant Attorney General Breuer and ATF Acting Director Melson both suggested allowing 

firearms to travel from the United States into Mexico. On Friday, February 4, 2011, the day 

after Breuer returned from Mexico, Tony Garcia, DOJ’s attaché to the U.S. Embassy in Mexico 

City, emailed Criminal Division staff:169

The email closed:170

 

169 Email from Anthony Garcia to Adam Lurie (Feb. 4, 2011) [HOGR 005752–74].

170 Id.

“Breuer suggested allowing straw purchasers cross into Mexico”
Page | 65

On Tuesday, February 8, 2011, Garcia emailed:171

FINDING: Only after Senator Grassley made clear he had obtained evidence 

through whistleblowers did some senior DOJ officials identify a need to 

independently evaluate ATF’s claims.

Meanwhile, Senator Grassley and his staff pushed back on the claims in DOJ’s February 

4, 2011 letter. On Wednesday, February 9, 2011, DOJ officials circulated a news story 

reporting that DOJ denied the link between Operation Fast and Furious and the firearms 

recovered at the scene of Agent Terry’s death. The email reported that Senator Grassley’s staff

had received documentation supporting the whistleblower allegations:172

[INTENTIONALLY BLANK]

 

171 Email from Anthony Garcia to Mary Rodriguez and Jerold McMillen (Feb. 8, 2011) [HOGR 005761].

172 Email from Mary Gonzales to Ron Weich, et al. (Feb. 9, 2011) [DOJ-FF-05760–61].

“I raised the issue that there is an inherent risk in allowing weapons to pass from the US 

to Mexico; the possibility of the GoM not seizing the weapons; and the weapons being 

used to commit a crime in Mexico.”
Page | 66

Weinstein further forwarded the article to Breuer and Raman.173

That evening, Senator Grassley’s Senate Judiciary Committee Staff Director Kolan Davis 

emailed Weich to let him know a follow-up letter from Senator Grassley would be forthcoming 

that night.174 Reich replied:175

 

173 Email from Jason Weinstein to Mythili Raman and Lanny Breuer (Feb. 9, 2011) [DOJ-FF-05760–61].

174 Email from Kolan Davis to Ron Weich (Feb. 9, 2011) [DOJ-FF-04078].

175 Email from Ron Weich to Kolan Davis (Feb. 9, 2011) [DOJ-FF-04078].

“You’ll be getting a letter soon to your boss responding to 

the letter signed by you. This is pretty messy stuff.” 

“[W]e’ll stand by for your new letter.” 

“Grassley staffer mentions that 

documents have been 

provided with the 

whistleblower allegations.”
Page | 67

When Davis responded, Weich forwarded the email within DOJ:176

Senator Grassley’s letter to Attorney General Holder that night noted that so far DOJ’s 

response had been “little more than delay and denial.”

177

 The letter stated:

The Department said the ATF makes ‘every effort to interdict weapons 

that have been purchased illegally and prevent their transportation into 

Mexico.’ However, as I explained in my initial letter to Acting Director 

Melson, the allegations I received are supported by documentation. 

* * *

The Justice Department’s reply asked that Committee staff stop speaking 

to law enforcement personnel about these matters. However, if not for the 

bravery and patriotism of law enforcement personnel who were willing to 

put their careers on the line, this Committee would have been forced to 

rely on nothing more than rumors in the blogosphere and a Justice 

Department denial to resolve these allegations. We need more than that. 

To be an effective check on Executive Branch power, we need cold, hard 

facts.178

The letter closed:

I want to share with you a portion of an e-mail from Carolyn Terry, Agent 

Terry’s stepmother. She wrote yesterday: ‘. . . We want to know who 

allowed the sale of that gun that murdered our son. Any help will [be] 

appreciated. We are the victims of this case and we want some answers.’ 

 

176 Email from Ron Weich to Faith Burton, et al. (Feb. 9, 2011) [DOJ-FF-04078].

177 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of 

Justice (Feb. 9, 2011), available at http://www.grassley.senate.gov/sites/default/files/about/upload/Judiciary-02-09-

11-Letter-to-Holder-notifying-of-ATF-issues.pdf.

178 Id.

“[S]ounds like they think they have significant 

documents. Whatever, we’ll deal with it.” 
Page | 68

The Terry family deserves answers. The whistleblowers have expressed 

their desire to honor Agent Terry’s memory by disclosing this 

information. The Justice Department should work to do the same. The 

best way to honor his memory is to come clean.179

Weich forwarded the letter to a large group of DOJ officials and wrote:180

On Thursday, February 10, 2011, Grindler emailed Wilkinson about the letter from 

Senator Grassley and recommended they “dig into this situation” to “know more about it”:

181

 

179 Id. at 3.

180 Email from Ron Weich to Faith Burton, et al. (Feb. 9, 2011) [HOGR 007063–64].

181 Email from Gary Grindler to Monty Wilkinson (Feb. 10, 2011) [HOGR 007063–64].

“[C]onsider whether this letter alters the 

planned approach in any way”

“We need to dig into this 

situation. ODAG needs to be 

pushing ATF” 
Page | 69

Meanwhile, DOJ OLA continued to focus on how to avoid answering Senator Grassley’s 

questions. Burton parsed the language in Senator Grassley’s letter:182

Another Office of Legislative Affairs attorney followed up:183

Emails show that Senator Grassley’s letter raised concerns for Attorney General Holder. 

Specifically, Holder was concerned by the assertions that ATF encouraged a hesitant firearms 

dealer to continue to sell firearms to suspected traffickers, and that there had been no contact 

with Agent Terry’s family. Grindler relayed Holder’s concerns in an email to Lisa Monaco and 

Monty Wilkinson:184

 

182 Email from Faith Burton to Jason Weinstein (Feb. 10, 2011) [DOJ-FF-01725].

183 Email from Molly Gaston to Faith Burton and Jason Weinstein (Feb. 10, 2011) [DOJ-FF-01725].

184 Email from Gary Grindler to Lisa Monaco (Feb. 10, 2011) [DOJ-FF-06013].

“Don’t think it matters whether you get 

all the info about what happened . . . . 

This is cleverly written bait.”
Page | 70

Grindler forwarded Lisa Monaco’s initial reply to Holder:185

FINDING: Justice Department officials made a strategic decision to withhold 

specific answers about Fast and Furious and the Terry murder from 

Senator Grassley. 

That same day, ATF and Weinstein conducted the briefing for Senate Judiciary 

Committee staff. The talking points DOJ prepared for the briefing reiterated the same inaccurate 

information that was contained in the February 4, 2011 letter to Senator Grassley:186

 

185 Email from Gary Grindler to Eric Holder (Feb. 10, 2011) [DOJ-FF-06013].

186 Attachment to email from Jason Weinstein to Faith Burton, et al. (Feb. 10, 2011) [DOJ-FF-05819–25]. 

“[T]he AG is particularly concerned with . . . 

the statement that at least one gun dealer 

wanted to stop participating in sales”

“[M]onty and I spoke to [D]ennis this 

morning and asked him to . . . address 

outreach (or lack thereof) from cbp” 
Page | 71

After the briefing, one ATF employee emailed another: “Grassley brief went well.”

187

 When 

asked about the “climate/receptiveness to ATF in general,” they responded:188

On Saturday, February 12, 2011, Monaco forwarded Grindler an email she had 

received two days earlier from Brad Smith:189

Grindler forwarded the email chain to Holder the next morning and wrote:190

 

187 Email from [ATF employee] to [ATF employee] (Feb. 10, 2011) [DOJ-FF-26399–401].

188 Email from [ATF employee] to [ATF employee] (Feb. 10, 2011) [DOJ-FF-26399–401].

189 Email from Lisa Monaco to Gary Grindler (Feb. 12, 2011) [DOJ-FF-06206].

190 Email from Gary Grindler to Eric Holder (Feb. 13, 2011) [HOGR 007067].

“They (Grassley) seemed out on a limb . . . . [H]appy to 

give you a play by play . . . . Got some interesting intel.”

“ATF indicated that they hadn’t—and 

typically wouldn’t in these types of 

situations—engage Agent Terry’s family”

“This does not provide a complete or detailed 

answer . . . . We are working on it”
Page | 72

On Sunday, February 13, 2011, Breuer emailed Grindler:191

Grindler forwarded the email to Holder:192

On Tuesday, February 15, 2011, DOJ officials discussed a draft response to Senator 

Grassley’s February 9 letter. Burke emailed:193

 

191 Email from Lanny Breuer to Gary Grindler (Feb. 13, 2011) [DOJ-FF-06208].

192 Email from Gary Grindler to Eric Holder (Feb. 13, 2011) [DOJ-FF-06209].

193 Email from Dennis Burke to Faith Burton and Ron Weich (Feb. 15, 2011) [DOJ-FF-05265–66].

“From talking to Jason [Weinstein], my 

understanding is that OLA made the judgment 

not to address any of the specific allegations in 

Sen. Grassley’s letters during the briefing.”

“During the 

Q&A at the 

briefing, Sen. 

Grassley’s 

staffers asked 

a number of 

specific 

questions . . . 

which our 

folks declined 

to answer”

“Up to this point, our inquiries about the Grassley 

allegations have been at the U.S. Attorney/SAC 

level. If the AG would like us to look into those 

allegations further . . . [j]ust let us know”
Page | 73

On Wednesday, February 16, 2011, Senator Grassley wrote to Attorney General 

Holder.194 He noted that the briefers on February 10 “refused to answer specific questions about 

the facts and circumstances that led me to request the briefing.”

195

 He also identified the key 

question of the investigation: “When asked whether ATF had encouraged any gun dealer to 

proceed with sales to known or suspected traffickers such as [the individual whose guns were 

found at the scene of Terry’s death], the briefers only said they did not have any ‘personal 

knowledge’ of that.”

196

 Thus, he requested various documents from DOJ.

The letter prompted questions from Attorney General Holder, asking for further 

confirmation of the accuracy of the Department’s representations to Senator Grassley:

197

Weinstein merely contacted ATF and USAO officials in Arizona for information. As the 

subjects of the allegations, these officials had an interest in protecting themselves, rather than in 

uncovering facts that could undermine the integrity of their operation. Weinstein replied:198

 

194 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary, to Eric Holder, Att’y Gen., Dep’t of 

Justice (Feb. 16, 2011), available at http://www.grassley.senate.gov/sites/default/files/about/upload/Judiciary-02-16-

11-letter-to-Holder-follow-up-doc-request.pdf. 

195 Id. at 1.

196 Id.

197 Email from Gary Grindler to Lanny Breuer, et al. (Feb. 16, 2011) [DOJ-FF-06212–13].

198 Email from Jason Weinstein to Gary Grindler, et al. (Feb. 16, 2011) [DOJ-FF-06212–13].

“[W]e are tired of playing ‘gotcha’ games w/ your immature staff”

“Do we have info on whether a 

gun sold in the operation was 

used in the shooting?”
Page | 74

Grindler replied:199

Fifteen minutes later, Weinstein emailed Breuer and Raman: “I just spoke to him – it was easier 

than email.”

200

 

Meanwhile, Grindler forwarded Weinstein’s emails to Attorney General Holder:201

 

199 Email from Gary Grindler to Jason Weinstein, et al. (Feb. 16, 2011) [HOGR 007089–90].

200 Email from Jason Weinstein to Lanny Breuer and Mythili Raman (Feb. 16, 2011) [HOGR 007089–90].

201 Email from Gary Grindler to Eric Holder (Feb. 16, 2011) [DOJ-FF-06212–13].

“[W]e can say that these guns 

were recovered at the scene.”

“I would like more information”

“I still need to give you more 

details on this. . . . When we have 

a moment, I can fill you in.”
Page | 75

Holder responded:202

FINDING: The Justice Department did not reach out in a meaningful way to the 

Terry family to provide support and answers. In fact, Department 

officials who were tasked with that outreach were hostile to the Terry 

family’s pleas for answers, and even mocked the Terry family. The 

Terry family was only provided information the Justice Department 

intended to make public. 

As noted above, Senator Grassley’s February 9 letter included a plea from the mother of 

Brian Terry that “[w]e want to know who allowed the sale of that gun that murdered our son”

and that “we want some answers.” DOJ, however, provided no response to Senator Grassley 

throughout the rest of February. Even following instructions from Attorney General Holder, no 

one from ATF or the USAO contacted the family to explain the connection between Operation 

Fast and Furious and the firearms recovered at the scene of Agent Terry’s murder.

On Wednesday, February 23, 2011, Burke forwarded a news clipping to his 

colleagues:203

Scheel responded to Burke’s email:204

 

202 Email from Eric Holder to Gary Grindler (Feb. 16, 2011) [DOJ-FF-06212–13].

203 Email from Dennis Burke to Patrick Cunningham, et al. (Feb. 23, 2011) [DOJ-FF-06835–37].

“Unbelievable.”

“Ok- I’ll need this for the hearings”
Page | 76

Assistant U.S. Attorney John Evans replied:205

The Arizona U.S. Attorney’s Office officials further emailed:206

[INTENTIONALLY BLANK]

 

204 Email from Ann Scheel to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06835–37].

205 Email from John Evans to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06844–46].

206 Email from Patrick Cunningham to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06841–43].

“Grassley’s hard at work”

“It is what we will have to expect from 

this women [sic] and Terry’s brother for 

the rest of the case”
Page | 77

Later, another official in the office emailed:207

FINDING: The Justice Department’s internal investigation of Fast and Furious 

was deeply flawed. Despite instructions from Attorney General Holder 

to find “real answers,” Deputy Assistant Attorney General Jason 

Weinstein still took at face value the information provided by the U.S. 

Attorney’s Office in Arizona—the very officials who were the subjects 

of the investigation. Only five months after his review would Weinstein 

read the case reports for the first time and express doubts about his 

initial conclusions.

 

207 Email from Robert Sherwood to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06847].

“Fox News quoting disgruntled Terry Family members.”
Page | 78

That afternoon, DOJ learned about a segment that would air that night on the CBS 

Evening News.208 The story provided further details obtained from whistleblowers. In response, 

Grindler forwarded the release separately to Attorney General Holder and to press spokesman 

Matt Miller.209 Miller responded:210

Holder replied:211

Despite Holder’s instruction to find “real answers,” DOJ press official Laura Sweeney 

emailed:212

 

208 Sharyl Attkisson, Gunrunning scandal uncovered at the ATF, CBS NEWS, Feb. 24, 2011, available at

http://www.cbsnews.com/news/gunrunning-scandal-uncovered-at-the-atf. 

209 Email from Gary Grindler to Matthew Miller (Feb. 23, 2011) [DOJ-FF-06959]; email from Gary Grindler to Eric 

Holder (Feb. 23, 2011) [DOJ-FF-06959]. 

210 Email from Matthew Miller to Gary Grindler (Feb. 23, 2011) [DOJ-FF-06959].

211 Email from Eric Holder to Gary Grindler, et al. (Feb. 23, 2011) [DOJ-FF-04271].

212 Email from Laura Sweeney to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06810–12].

“I don’t trust what ATF has on it.”

“We need answers on this. Not 

defensive bs- real answers.”

“[D]idn’t mention 

Grassley at all”
Page | 79

ATF official Scot Thomasson added:213

After receiving Holder’s email, Grindler followed up with others, noting that the 

Attorney General would be testifying before Congress the next week:214

In response, Raman tasked Weinstein.215 Lisa Monaco asked Brad Smith to brief Wilkinson.216 

On Thursday, February 24, 2011, Smith responded:217

 

213 Email from Patrick Cunningham to Dennis Burke, et al. (Feb. 23, 2011) [DOJ-FF-06822–24].

214 Email from Gary Grindler to Lisa Monaco, et al. (Feb. 23, 2011) [DOJ-FF-04268].

215 Email from Mythili Raman to Gary Grindler, et al. (Feb. 23, 2011) [DOJ-FF-04279].

216 Email from Lisa Monaco to Brad Smith (Feb. 23, 2011) [HOGR 007016–17].

217 Email from Brad Smith to Monty Wilkinson (Feb. 23, 2011) [HOGR 007016–17]. 

“Bottom line: ATF categorically 

denies ever allowing any weapons 

to enter Mexico illegally”

“We agree 

that it’s time 

to go on the 

offensive”
Page | 80

That day, Weinstein again turned to Phoenix ATF and U.S. Attorney’s Office to help 

provide answers for the Attorney General, emailing SAC Newell and U.S. Attorney Burke:218

Weinstein’s email led to a phone call with Emory Hurley, the main prosecutor on 

Operation Fast and Furious in the U.S. Attorney’s Office for the District of Arizona. On this 

phone call, Hurley provided answers to Weinstein’s questions about firearms sales that should 

have put Weinstein on alert that the U.S. Attorney’s Office may have knowingly allowed 

firearms sales to suspected traffickers. However, Weinstein did not realize the significance of 

the answer until five months later, in July 2011. Weinstein refused to provide information 

regarding this phone call in his interview with Committee staff. However, the DOJ OIG report 

states:

Weinstein told the OIG that in order to gather information 

relevant to Sen. Grassley’s allegations, he asked Hurley to 

focus on those transactions that ATF and the U.S. Attorney’s 

Office knew about prior to the purchase. Specifically, 

Weinstein stated that he asked Hurley whether there were 

any purchases for which it was known in advance through a 

wire conversation that there was probable cause to believe 

that the sale would be illegal. Weinstein stated that Hurley 

“did not know the answer off the top of his head,” and the 

email noted that the U.S. Attorney’s Office would be 

providing this information at a later time. Weinstein told us 

that he was surprised by this because “the calls that give 

you probable cause before the guy walks in the door are . . . 

one of the things you’re hoping and praying to get through 

the wire.” He added that “the significance of [Hurley’s] failure 

to know that didn’t register with me until later,” when 

Weinstein read the ROIs about prospective purchases in the 

case in July 2011.219

 

218 Email from Jason Weinstein to William Newell and Dennis Burke (Feb. 24, 2011) [DOJ-FF-07194].

219 DOJ OIG report at 366-67. The OEO memorandum for the May 21, 2010 wiretap application, which Weinstein 

signed off on, provided a specific example.

“Can we have a call today to 

talk about the specific 

allegations in the story and 

the purported support for 

them?”
Page | 81

On Saturday, February 26, 2011, Weinstein emailed Goldberg, Wilkinson, and Moran a 

four-page summary of what he learned from the Arizona U.S. Attorney’s office and ATF.

220

 On

Sunday, February 27, 2011, Wilkinson forwarded the email to Attorney General Holder.

221

 

The next day, on Monday, February 28, 2011, DOJ referred Operation Fast and Furious to the 

OIG for investigation.222

The following are excerpts from Weinstein’s email:223

* * *

On Wednesday, March 2, 2011, DOJ responded to Senator Grassley’s February 9 and 

February 16 letters.224 Rather than responding to the concerns Senator Grassley had raised, the 

letter noted that DOJ appreciated the opportunity to brief Committee staff regarding ATF’s 

efforts to interdict firearms, and indicated that the Attorney General had asked the Acting 

 

220 Email from Jason Weinstein to Stuart Goldberg, et al. (Feb. 26, 2011) [DOJ-FF-07408–13].

221 Email from Monty Wilkinson to Eric Holder (Feb. 27, 2011) [DOJ-FF-07408–13]. The DOJ OIG report noted: 

“Weinstein’s summary did not indicate that he had authorized three of the wiretap applications referenced in his 

summary, or that he was familiar with the Fast and Furious investigation as a result of discussions he had with 

McMahon in April and May 2010.” DOJ OIG report at 366.

222 DOJ OIG report at 369.

223 Email from Jason Weinstein to Stuart Goldberg, et al. (Feb. 26, 2011) [DOJ-FF-07408–13].

224 Letter from Eric Holder, Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on the 

Judiciary (Mar. 2, 2011).

“[T]he DAG asked me to obtain more 

information about . . . ‘Fast and Furious’”

“[T]his investigation was conducted . . . 

thoughtfully, carefully, and strategically.”
Page | 82

Inspector General to “evaluate the concerns that have been raised about ATF investigative 

actions.”

225

2. Whistleblowers Go Public

FINDING: It was not until whistleblowers went public with details about Fast and 

Furious in early March 2011 that the Justice Department started to

seriously consider the implications of the tragic operation. Still, the 

Department mainly focused on responding to the media and public 

relations fallout from those revelations. 

On Thursday, March 3, 2011, Senator Grassley again wrote to DOJ, criticizing DOJ’s 

refusal to provide information and highlighting whistleblower documents that contradicted 

DOJ’s representations to Congress. After receiving this letter and after whistleblowers made 

public statements about gunwalking in Operation Fast and Furious, DOJ began to discuss the 

severity of the situation. Some DOJ officials recognized a need to examine more closely the 

facts, but some remained focused on saving face. It is clear from the emails that, as of March 

2011, DOJ lacked clarity on whether ATF permitted gunwalking in Operation Fast and Furious. 

Moreover, emails show that ATF and DOJ did not share the same definition of gunwalking—in 

fact, it seems that the issue of how to define gunwalking arose for the first time on March 10, 

2011.

Senator Grassley’s March 3, 2011 letter included documents obtained from 

whistleblowers and stated:226

There are many instances where the Justice Department and its 

components choose to provide information about pending investigations to 

Congress. These examples are not always officially documented, but often 

occur when there are particularly egregious allegations of government 

misconduct or there is an extremely high level of public interest in an 

investigation. Getting to the truth of the ATF whistleblower allegations in 

this case is extremely important to the family of Brian Terry and should be 

important to all Americans. There is no reason to wait the unknown 

number of years it might take for all of the trials and all of the appeals to 

be exhausted. The time for truth is now. . . . [P]lease explain how the 

denials in the Justice Department’s February 4, 2011 letter to me can be 

squared with the evidence.227

 

225 Id.

226 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of 

Justice (Mar. 3, 2011).

227 Id. at 4-5.
Page | 83

That evening, Smith emailed Schmaler, stating that ATF found a document that 

contradicted ATF’s prior statements that it “makes every effort to interdict weapons that have 

been purchased illegally and prevent their transportation to Mexico”:

228

* * *

Goldberg forwarded the email to Cole, who replied:229

 

228 Email from Brad Smith to Tracy Schmaler (Mar. 3, 2011) [DOJ-FF-09102–03].

229 Email from James Cole to Stuart Goldberg (Mar. 3, 2011) [DOJ-FF-09102–03].

“ATF found a document indicating that . . . an ATF agent 

witnessed a suspected straw purchaser resell firearms, but . . . 

broke off surveillance . . . and did not take him into custody”

“CBS will be running a story this 

evening concerning ATF’s Project 

Gunrunner activities”
Page | 84

Later that evening, ATF Special Agent John Dodson appeared on CBS Evening News in 

an interview with investigative reporter Sharyl Attkisson.230 The segment stated:

Dodson’s job is to stop gun trafficking across the border. Instead, he says 

he was ordered to sit by and watch it happen. Investigators call the tactic 

letting guns “walk.” . . . Dodson’s bosses say that never happened. Now, 

he’s risking his job to go public. “I’m boots on the ground here in 

Phoenix, telling you we’ve been doing it every day since I’ve been here,”

he said. “Here I am. Tell me I didn’t do the things I did. Tell me you 

didn’t order me to do the things I did. Tell me it didn’t happen. Now you

have a name on it. You have a face to put with it. Here I am. Someone 

now, tell me it didn’t happen.”

231

The story concluded:

Dodson said he hopes that speaking out helps Terry’s family. They 

haven’t been told much of anything about his murder – or where the bullet 

came from. “First of all, I’d tell them that I’m sorry. Second of all, I’d 

tell that I’ve done everything that I can for them to get to the truth,”

Dodson said. “After this, I don’t know what else I can do. But I hope 

they get it.”

232

 

230 Sharyl Attkisson, Agent: I was ordered to let U.S. guns into Mexico, CBS NEWS, Mar. 3, 2011, available at 

http://www.cbsnews.com/news/agent-i-was-ordered-to-let-us-guns-into-mexico-03-03-2011.

231 Id.

232 Id.

“We obviously need to get to the 

bottom of this.”
Page | 85

(photo from CBS Evening News)

After the CBS story aired, the Center for Public Integrity published a lengthy, detailed 

account of information whistleblowers had provided about the operation.233 When it was 

forwarded to Attorney General Holder, he replied:234

Grindler responded: “Not good.”

235

Sweeney sent the Center for Public Integrity story to Breuer and wrote:236

 

233 John Solomon, et al., ATF let hundreds of U.S. weapons fall into hands of suspected Mexican gunrunners, Center 

for Public Integrity (Mar. 3, 2011), https://www.publicintegrity.org/2011/03/03/2095/atf-let-hundreds-us-weaponsfall-hands-suspected-mexican-gunrunners.

234 Email from Eric Holder to Monty Wilkinson and Gary Grindler (Mar. 3, 2011) [DOJ-FF-08170–76].

235 Email from Gary Grindler to Monty Wilkinson and Eric Holder (Mar. 3, 2011) [DOJ-FF-08177–83].

“I hope there is another side to 

this story.”
Page | 86

Raman replied an hour later:237

Later, Weinstein emailed:238

Brad Smith in the Office of the Deputy Attorney General emailed Stuart Goldberg:239

 

236 Email from Laura Sweeney to Lanny Breuer (Mar. 3, 2011) [DOJ-FF-08828–34].

237 Email from Mythili Raman to Lanny Breuer and Laura Sweeney (Mar. 3, 2011) [DOJ-FF-08828–34].

238 Email from Jason Weinstein to Lanny Breur, et al. (Mar. 3, 2011) [DOJ-FF-08090].

239 Email from Brad Smith to Stuart Goldberg (Mar. 3, 2011) [DOJ-FF-09108–09].

“[T]his disgruntled agent fundamentally 

misunderstands what it means to have enough 

evidence to arrest a straw purchaser”

“Here it is - it does not mention you.”

“Just heard story on NPR. Report said this 

is as big as Ruby Ridge.”

“[S]he got the point about Lanny 

removed from some of the print stories.”
Page | 87

That same day, U.S. Ambassador to Mexico Carlos Pascual reached out to the Justice 

Department asking for a statement from DOJ to respond to fallout from the press:240

Officials from the State Department and ATF devised a plan for responding to the press coverage 

and, on Sunday, March 6, 2011, Breuer forwarded the plan to Deputy Attorney General James 

Cole:241

Meanwhile, that same day, Melson emailed Smith and several ATF officials:

242

 

240 Email from Carlos Pascual to William Newell, et al. (Mar. 5, 2011) [DOJ-FF-03634].

241 Email from James Cole to Lanny Breuer (Mar. 6, 2011) [DOJ-FF-03685].

242 Email from Kenneth Melson to Brad Smith, et al. (Mar. 6, 2011) [DOJ-FF-03672–73].

“[W]e’re getting trounced in the 

press and it’s going to get worse”
Page | 88

Smith responded:243

 

243 Email from Brad Smith to Kenneth Melson (Mar. 6, 2011) [DOJ-FF-03672–73].

“[W]e have the Phoenix SAC 

and ASAC in our offices this 

afternoon scrubbing Fast 

and Furious again”
Page | 89

On Monday, March 7, 2011, Sweeney emailed “question and answer” responses for a 

press conference where Breuer would be appearing alongside Attorney General Holder:

244

On Wednesday, March 9, 2011, Weinstein emailed Goldberg:245

Weinstein sent a virtually identical email to Grindler the next day.246

 

244 Email from Laura Sweeney to Jason Weinstein and Mythili Raman (Mar. 7, 2011) [DOJ-FF-11026–27].

245 Email from Jason Weinstein to Stuart Goldberg (Mar. 7, 2011) [HOGR 007221]. 

246 Email from Jason Weinstein to Gary Grindler (Mar. 8, 2011) [HOGR 007222]. In both emails, Weinstein failed 

to disclose that he had also became aware in 2010 of similar tactics in Operation Wide Receiver. The OIG report 

stated “Weinstein . . . told us that his knowledge of these incidents changed the way he viewed Operation Wide 

“[T]here’s concern if Lanny says at press 

conference with AG that he didn’t 

approve any such action, it passes the 

buck to the AG standing right there”

“[H]e mentioned 2 or 3 incidents in which an 

ATF agent . . . sent a CI, posing as a straw, in 

to a store to make a purchase and then had 

the CI hand those guns off to a trafficker.”

“[O]ne question we’ll have to figure out is 

whether a DOJ/Washington-issued 

statement . . . will just stir-up more 

controversy or attention”
Page | 90

The same afternoon, Schmaler emailed senior DOJ leadership regarding a brief segment 

by CBS’s Sharyl Attkisson regarding the network’s continuing coverage of the issue:247

Schmaler also emailed Ambassador Pascual and others at the State Department to notify them 

that the story referenced court documents that contradicted DOJ’s position that ATF did not have 

knowledge of firearms crossing the border to Mexico:248

 

Receiver. . . . Weinstein stated that ‘once I discovered that Wide Receiver wasn’t aberrant, my view was we’ve got 

to tell Congress, especially to the extent that gun walking had occurred on our watch.’” DOJ OIG report at 377-78. 

However, Weinstein said that that he did not advocate telling tell Congress about it until June 2011. DOJ OIG 

report at 378. The DOJ OIG concluded: “We were not persuaded by Weinstein’s assertion that Operation Wide 

Receiver was properly viewed as an ‘aberration’ that had no relevance to the allegations.” DOJ OIG report at 412; 

for a detailed discussion, see pp. 411-14.

247 Email from Tracy Schmaler to Gary Grindler, et al. (Mar. 9, 2011) [HOGR 007225]; see also Sharyl Attkisson, 

Documents point to ATF “gun running” since 2008, CBS NEWS, Mar. 8, 2011, available at 

http://www.cbsnews.com/news/documents-point-to-atf-gun-running-since-2008.

248 Email from Tracy Schmaler to Laura Sweeney and Alex Featherstone (Mar. 9, 2011) [DOJ-FF-03629–33].

“[A] recent report seemed to suggest court docs 

indicated there was knowledge of border crossing.”
Page | 91

Schmaler also flagged the court documents for Burke:

249

On Thursday, March 10, 2011, Burke met in Michigan with various members of the 

Terry family.250 According to the family, not only did Burke deny that the firearms recovered at 

the scene of Agent Terry’s murder were connected to Operation Fast and Furious, “he told them 

that the weapons found at Agent Terry’s murder scene were sold out of a Texas shop, not an 

Arizona shop.”

251

At a hearing of the Senate Appropriations Committee the same day, Senator Kay Bailey 

Hutchison asked Attorney General Holder about Fast and Furious. Emails show that Attorney 

General Holder voiced misgivings about ATF Deputy Director Billy Hoover’s assurances that 

ATF did not allow firearms to walk:

252

[INTENTIONALLY BLANK]

 

249 Email from Tracy Schmaler to Dennis Burke and Jessica Smith (Mar. 9, 2011) [DOJ-FF-11187–89].

250 See email from Robert Heyer to Dennis Burke (Mar. 9, 2011) [DOJ-FF-11502–03].

251 DOJ OIG report at 343 fn. 259.

252 Email from Eric Holder to Monty Wilkinson, et al. (Mar. 10, 2011) [HOGR 007232–34].

“[D]id notice the court docs 

referencing watching weapons cross.”

“CBS’ recent pathetic hit job”
Page | 92

Meanwhile, Melson attempted to obtain clarification from Lisa Monaco and Stuart 

Goldberg of the meaning of “letting guns walk”:

253

The next day, on Friday, March 11, 2011, Cole confirmed the definition of gunwalking, 

indicating that he and Holder were in agreement as to the definition:254

 

253 Email from Kenneth Melson to Stuart Goldberg and Lisa Monaco (Mar. 10, 2011) [DOJ-FF-11791–92].

254 Email from James Cole to Stuart Goldberg (Mar. 11, 2011) [DOJ-FF-11791–92].

“Do they really, really know?”

“[H]ope the AG understands that we did not 

allow guns to ‘walk’”

“Is his definition of ‘walk’ in tandem with the 

DAG’s instructions to the USA’s last evening?”

“Walking means letting it go when you

could arrest or legally stop.”
Page | 93

On Sunday, March 13, 2011, Jesse Figueroa of the U.S. Attorney’s Office for the 

District of Arizona emailed others within the Arizona office regarding the family of Border 

Patrol Agent Brian Terry:255

Burke urged that the discussion should be continued off-line:256

FINDING: When the possibility arose that the Mexican government would initiate 

its own investigation, an official in the Criminal Division proposed 

“disingenuously” relying on the Inspector General’s investigation to 

“shelve the Mexican inquiry.”

On Tuesday, March 15, 2011, Raman contacted Burke regarding “noises that they [the 

Mexican government] are opening a criminal investigation of ATF for Fast and Furious . . . .”

257

 

When Burke asked how this would “interplay w the DAG-imposed IG review,” DOJ Criminal 

Division Office of International Affairs Director Molly Warlow advised:258

 

255 Email from Jesse Figueroa to Dennis Burke, et al. (Mar. 13, 2011) [DOJ-FF-11776–77].

256 Email from Dennis Burke to Jesse Figueroa, et al. (Mar. 13, 2011) [DOJ-FF-11776–77].

257 Email from Mythili Raman to Dennis Burke (Mar. 15, 2011) [DOJ-FF-12159–61].

258 Email from Molly Warlow to Dennis Burke and Mythili Raman (Mar. 15, 2011) [DOJ-FF-12159-61].

“Stepmom is irrational 

and I firmly believe she 

and the brother enjoy 

being in the limelight.”

“I don’t want to do this by email.”
Page | 94

The same day, Burton forwarded a March 9 letter from House Judiciary Committee 

Republicans to Weinstein, Burke, and Gaston.259 The letter asked several questions about 

Operation Fast and Furious, including, “How many weapons have been allowed to pass to 

Mexico under the program known as ‘Fast and Furious’?”

260

 Burke responded:261

Burton forwarded the email to Weich and wrote: “Let’s confer when you have a minute.”

262

On Wednesday, March 16, 2011, when a DOJ official circulated a draft response to the 

House Judiciary Committee letter, Hoover emailed Weinstein:263

[INTENTIONALLY BLANK]

 

259 Email from Faith Burton to Jason Weinstein, et al. (Mar. 15, 2011) [DOJ-FF-12172].

260 Letter from Lamar Smith, Charmain, H. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of Justice 

(Mar. 9, 2011) available at https://judiciary.house.gov/pressrelease/republicanswantanswersonatfguntraffickingprogram.

261 Email from Dennis Burke to Faith Burton and Jason Weinstein (Mar. 15, 2011) [DOJ-FF-12172].

262 Email from Faith Burton to Ron Weich (Mar. 16, 2011) [DOJ-FF-12172].

263 Email from William Hoover to Jason Weinstein (Mar. 16, 2011) [DOJ-FF-12204–06].

“It shouldn’t have any interplay at all, unless we 

wanted to . . . invoke that as reason . . . to 

shelve the Mexican inquiry.”

“These Members should just 

saddle themselves up to the 

defense counsel’ table”
Page | 95

Subsequently, an ATF official emailed the broader DOJ group:264

That night, Weinstein emailed:265

The same day, House Oversight and Government Reform Committee Chairman Darrell 

Issa sent a letter to Melson asking for documents and information pertaining to Operation Fast 

 

264 Email from [ATF employee] to Faith Burton and Ron Weich (Mar. 16, 2011) [DOJ-FF-12213–14].

265 Email from Jason Weinstein to Mythili Raman and Matthew Axelrod (Mar. 16, 2011) [DOJ-FF-12826].

“We would rather not go down the road of 

how many firearms we seized.”

“[P]ull the sentence that notes how many weapons we’ve recovered.” 
Page | 96

and Furious.266 The next morning, on Thursday, March 17, 2011, Grindler forwarded the letter 

to Attorney General Holder and wrote:267

Shortly thereafter, DOJ moved Matt Axelrod from the Criminal Division to ODAG to manage 

DOJ’s response to the congressional investigation.

268

On Saturday, March 19, 2011, U.S. Ambassador to Mexico Carlos Pascual resigned.269 

CBS News cited diplomatic sources inside Mexico who said “from Mexico’s viewpoint, the ATF 

‘gunwalking’ scandal was the final straw in a series of controversies.”

270

FINDING: As early as March 2011, Associate Deputy Attorney General Matt 

Axelrod discovered multiple examples of ATF failing to interdict 

firearms when probable cause existed to do so. When he raised this 

issue with the U.S. Attorney’s Office for the District of Arizona, they 

pointed to wiretap affidavits that included these facts, suggesting the 

Criminal Division at Main Justice sanctioned the strategy by approving 

the wiretap applications. While others at DOJ swiftly began reviewing 

the affidavits, no office at DOJ was willing to acknowledge its errors.

 

266 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform to Kenneth Melson, Acting 

Director, ATF (Mar. 16, 2011), available at https://oversight.house.gov/wp-content/uploads/2012/08/March-16-

2011-Issa-to-Melson.pdf.

267 Email from Gary Grindler to Eric Holder (Mar. 17, 2011) [HOGR 007068].

268 See DOJ OIG report at 371-372.

269 Sharyl Attkisson, “Gunwalking” scandal final straw leading to resignation of U.S. ambassador to Mexico, CBS

NEWS, Mar. 20, 2011, available at http://www.cbsnews.com/news/gunwalking-scandal-final-straw-leading-toresignation-of-us-ambassador-to-mexico. 

270 Id.

“[W]e are not dealing with this 

situation as aggressively as we should.” 
Page | 97

On the morning of Monday, March 21, 2011, the Deputy Attorney General’s office 

asked the Criminal Division for language related to the scope and techniques used in Fast and 

Furious.271 Raman emailed within the Division:272

Weinstein subsequently sent the following:273

Warlow followed up on Weinstein’s email: “Serious damage is being done to our law 

enforcement relationship with Mexico, and frankly on a bilateral political level as well, because 

of what I suspect are ill-founded allegations in Mexican political and media circles about F and 

 

271 Email from Jason Weinstein to Deborah Johnston, et al. (Mar. 21, 2011) [DOJ-FF-17297–99].

272 Email from Mythili Raman to Jason Weinstein and Bruce Swartz (Mar. 21, 2011) [DOJ-FF-17461–62].

273 Email from Jason Weinstein to Deborah Johnston (Mar. 21, 2011) [DOJ-FF-17312–13]. The DOJ OIG report 

noted: “The e-mail message did not explicitly reference Operation Wide Receiver. As we discuss later in this 

chapter, Breuer also failed to inform the Department’s leadership of his knowledge of Operation Wide Receiver 

until well after February 4.” DOJ OIG report at 349 fn. 268.

“[T]here appeared 

to be some 

agreement that we 

should try to add 

some language to 

our congressional 

responses that 

captures . . . the 

fact that to date 

ATF has discovered 

only a few (nonF&F) instances 

where agents 

intentionally let 

guns ‘walk.’” 

“I don’t mind sticking our neck out on our cases 

where we are the ones that are looking for the facts”
Page | 98

F.”

274

 Yet she concluded the email by noting that she had been unable to get conclusive answers 

regarding the operation from others at DOJ:275

Within the Criminal Division, Raman emailed:

276

Weinstein responded:277

[INTENTIONALLY BLANK]

 

274 Email from Molly Warlow to Jason Weinstein, et al. (Mar. 21, 2011) [DOJ-FF-17269–70].

275 Email from Molly Warlow to Jason Weinstein, et al. (Mar. 21, 2011) [DOJ-FF-17269–70].

276 Email from Mythili Raman to Adam Lurie, et al. (Mar. 21, 2011) [DOJ-FF-17297–99].

277 Email from Jason Weinstein to Mythili Raman, et al. (Mar. 21, 2011) [DOJ-FF-17297–99]. 

“[T]he problem is that the facts 

have been a bit of a moving 

target on this case”

“No one seems to be able to say . . . whether this was or wasn’t . . . a[n] [undercover] investigation”
Page | 99

That same night, when CBS Evening News aired another segment on the case,278 Burke 

emailed the text to several colleagues in the Arizona U.S. Attorney’s Office:279 

On Tuesday, March 22, 2011, Burke emailed multiple officials at DOJ and ATF in 

response to a blog post from Representative Ted Poe:280

Late that night, President Obama was asked about Operation Fast and Furious by a 

Univision reporter. He responded: “There may be a situation here which a serious mistake was 

made and if that’s the case then we’ll find out and we’ll hold somebody accountable.”

281

 The 

next morning, on Wednesday, March 23, 2011, CBS News’ Sharyl Attkisson released a short 

three-paragraph story on the President’s statement.282 When the article was circulated in the 

Arizona U.S. Attorney’s Office, Burke responded:283 

[INTENTIONALLY BLANK]

 

278 Sharyl Attkisson, ATF gunwalking scandal: Second agent speaks out, CBS NEWS, Mar. 22, 2011, available at

http://www.cbsnews.com/news/atf-gunwalking-scandal-second-agent-speaks-out-22-03-2011/. 

279 Email from Dennis Burke to Patrick Cunningham (Mar. 21, 2011) [DOJ-FF-17816–17]. 

280 Email from Dennis Burke to Faith Burton, et al. (Mar. 22, 2011) [DOJ-FF-18234–36].

281 Sharyl Attkisson, Obama on “gunwalking”: Serious mistake may have been made, CBS NEWS, Mar. 23, 2011, 

available at http://www.cbsnews.com/news/obama-on-gunwalking-serious-mistake-may-have-been-made.

282 Id. 

283 Email from Dennis Burke to Robert Sherwood, et al. (Mar. 23, 2011) [DOJ-FF-19423].

“This is a really pathetic story.”

“He should 

just show up 

at the defense 

table for . . . 

our indicted 

gun 

traffickers.”
Page | 100

As of this point, Matt Axelrod had worked his way through a significant portion of the 

Department’s documents regarding the case.284 That night, he emailed Arizona U.S. Attorney’s 

Office Criminal Division Chief Patrick Cunningham regarding ATF “Reports of Investigation,”

or ROIs:285

 

284

 See email from Christopher Pellettiere to Stuart Lowrey, et al. (Mar. 21, 2011) [HOGR 007207].

285 Email from Matthew Axelrod to Patrick Cunningham (Mar. 23, 2011) [HOGR 007208–10].

“Lame.”

“ROIs where ATF surveils . . . transfer to a third party”

“ROIs where the Title III [wiretap] combined with the ATF 

surveillance potentially gives probable cause to arrest”
Page | 101

The next day, on Thursday, March 24, 2011, Cunningham sent Axelrod a lengthy email which 

described the transfer of a firearm from the original purchaser to a “second person.”

286

 The 

email began:287

Later that night, Axelrod responded:288

Meanwhile, Cunningham circulated to colleagues in the Arizona U.S. Attorney’s Office 

the responses he intended to send to six questions from Axelrod:289

 

286 Email from Patrick Cunningham to Matthew Axelrod (Mar. 24, 2011) [HOGR 007208–10].

287 Id.

288 Email from Matthew Axelrod to Patrick Cunningham (Mar. 24, 2011) [HOGR 007208–10].

289 Email from Patrick Cunningham to Dennis Burke, et al. (Mar. 24, 2011) [DOJ-FF-18937–42].

“I wanted to get you a quick response regarding 

the first transfers from a lawful purchaser to a 

second person and why prosecution and seizure 

of those weapons are so difficult.”

“On the legal analysis, I guess I do have a slightly different take.” 
Page | 102

The paragraph highlighted by Cunningham read:290

On Friday, March 25, 2011, Cunningham emailed the responses to Axelrod:291

Axelrod flagged the wiretap issue for Raman at the same time DOJ officials had become 

aware CBS Evening News planned to air a story on an additional whistleblower, ATF Attaché to 

Mexico Darren Gil. The segment that aired that evening on CBS Evening News stated:

In an exclusive interview with CBS News, the lead ATF official in 

Mexico at the time Darren Gil says somebody in the Justice Department 

did know about the case. Gil says his supervisor at ATF’s Washington 

D.C. headquarters told him point-blank the operation was approved even 

higher than ATF Director Kenneth Melson.292 

 

290 Id.

291 Email from Patrick Cunningham to Matthew Axelrod (Mar. 25, 2011) [DOJ-FF-19013–18].

292 Sharyl Attkisson, ATF gunwalking: Who knew, and how high up?, CBS NEWS, Mar. 25, 2011, available at

http://www.cbsnews.com/news/atf-gunwalking-who-knew-and-how-high-up.

“[T]he affidavits in support of the applications 

each laid out the significant facts”

“[N]ote that paragraph 4 recounts the DAG’s approval of our 

7 wiretap applications which recounted surveillance” 
Page | 103

The story also discussed a meeting in Mexico City between Breuer and Carlos Pascual, the U.S. 

Ambassador to Mexico, as well as a March 4, 2011 request from Senator Grassley to the State 

Department for any records related to the visit.293 

Shortly after Cunningham’s email, Raman emailed Sweeney:294

Soon thereafter, Raman requested an urgent review of the wiretap affidavits:

295

Paul O’Brien, the Director of the Office of Enforcement Operations (the office in the Criminal 

Division which does the initial review of wiretap applications), responded: “We are pulling the 

files.”

296

 By that night, a Criminal Division official was reviewing them.297

Meanwhile, Sweeney responded to the coming CBS News story:298

 

293 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Hillary Rodham Clinton, Sec’y, U.S. 

Dep’t of State (Mar. 4, 2011), available at http://www.cbsnews.com/htdocs/pdf/2011-03-.pdf.

294 Email from Mythili Raman to Laura Sweeney (Mar. 25, 2011)

295 Email from Mythili Raman to Jason Weinstein and Paul O’Brien (Mar. 25, 2011) [DOJ-FF-12835–36].

296 Email from Paul O’Brien to Mythili Raman and Jason Weinstein (Mar. 25, 2011) [DOJ-FF-12833–34].

297 Email from Adam Lurie to Mythili Raman, et al. (Mar. 25, 2011) [DOJ-FF-12833–34].

298 Email from Laura Sweeney to Mythili Raman (Mar. 25, 2011) [DOJ-FF-19811].

“[T]he Criminal Division does sign off on wiretaps”

“There seems to be a suggestion . . . that the 

Criminal Division would have . . . divined that 

there is a problem with guns walking.”
Page | 104

Deputy Assistant Attorney General Kenneth Blanco, who reviewed the March 10 and 

July 1 Fast and Furious wiretap applications in 2010, later responded to Raman’s initial email:299

Sweeney replied:300

FINDING: Instead of reconsidering its position when a second ATF whistleblower 

went public with details about Fast and Furious, Justice Department 

officials circulated negative information about the whistleblower.

 

299 Email from Kenneth Blanco to Mythili Raman and Laura Sweeney (Mar. 25, 2011) [DOJ-FF-19627].

300 Email from Laura Sweeney to Kenneth Blanco to Mythili Raman (Mar. 25, 2011) [DOJ-FF-19627].

“I think we go down a rabbit hole that generates more stories if 

we start swinging at the pitch from this CBS reporter”
Page | 105

Meanwhile, State Department officials in the U.S. Embassy in Mexico discussed 

Mexican news source El Universal covering the allegations in the CBS News story:301

Feeley forwarded the chain to Breuer:302

Breuer emailed back to Feeley, “Sure, [i]t’s such fiction.”

303

 Feeley replied:304

The next morning, on Saturday, March 26, 2011, Sweeney responded to the email chain:305

 

301 Email from Alex Featherstone to Carlos Pascual, et al. (Mar. 25, 2011) [DOJ-FF-19679–82].

302 Email from John Feeley to Lanny Breuer and Bruce Swartz (Mar. 25, 2011) [DOJ-FF-19683–85].

303 Email from Lanny Breuer to John Feeley (Mar. 26, 2011) [DOJ-FF-19679–82].

304 Email from John Feeley to Lanny Breuer (Mar. 26, 2011) [DOJ-FF-19679–82].

305 Email from Laura Sweeney to Lanny Breuer, et al. (Mar. 26, 2011) [DOJ-FF-19683–85].

“It is fiction and I’ll give you the background 

on this disgruntled former employee who was 

a problem from the time he arrived.” 

“Gil said that ATF Washington told him that 

Melson and DOJ’s Lanny Breuer were aware”

“[R]ead the CBS story 

carefully”
Page | 106

On Monday, March 28, 2011, Weich emailed Axelrod:306

On Tuesday, March 29, 2011, Molly Warlow of DOJ’s Criminal Division emailed 

Axelrod in response to edits to a State Department statement regarding Fast and Furious:307

The next morning Warlow followed up:308

 

306 Email from Ron Weich to Matthew Axelrod and Faith Burton (Mar. 28, 2011) [DOJ-FF-04250].

307 Email from Molly Warlow to Matthew Axelrod (Mar. 29, 2011) [DOJ-FF-20107–08].

308 Email from Molly Warlow to Matthew Axelrod (Mar. 30, 2011) [DOJ-FF-20107–08].

“[T]he ‘letting the guns walk’ issue is the most difficult”
Page | 107

VI. Congressional Subpoena for ATF

1. Deadline for Documents

FINDING: ATF Acting Director Kenneth Melson notified Main Justice officials that 

details in the wiretap applications approved by DOJ’s Criminal Division 

undermined the Department’s representations to Congress. However, 

the revelation took a back seat to DOJ’s maneuvering to avoid a 

congressional subpoena and frame public opinion and press coverage 

regarding the subpoena.

The deadline to respond to the document request in Chairman Issa’s March 16, 2011 

letter was five o’clock p.m. on Wednesday, March 30, 2011. That afternoon, Paul Colborn 

emailed:309

The email was forwarded up the chain to Attorney General Holder and other senior DOJ 

officials.310

That afternoon, Burton emailed:311

Later that evening, Hoover emailed regarding a request from Matt Axelrod:312

 

309 Email from Paul Colborn to Robert Weiner (Mar. 30, 2011) [DOJ-FF-21205].

310 Email from Monty Wilkinson to Eric Holder, et al. (Mar. 30, 2011) [DOJ-FF-21205].

311 Email from Faith Burton to Ron Weich (Mar. 30, 2011) [DOJ-FF-21137].

312 Email from [ATF employee] to William Hoover, et al. (Mar. 30, 2011) [DOJ-FF-21166–68].
Page | 108

Axelrod also emailed a group of individuals, including Melson, regarding setting up a meeting 

the next day:313

That night, Melson decided to read some of the wiretap applications for himself. He 

discovered that some the wiretap applications that U.S. Attorneys approved included affidavits 

suggesting there was probable cause to believe that straw purchasers were taking firearms across 

the border. He later told the Committees in a transcribed interview:

[W]hile flying to one of my divisions . . . , and I think it may have been on 

March 30th, I was reading through the some of the wiretap applications on 

the plane. In fact, I think I was the first, other than a couple of agents who 

 

313 Email Matthew Axelrod to Patrick Cunningham, et al. (Mar. 30, 2011) [DOJ-FF-21083–84].

“Mr. Issa and the committee have promised subpoenas 

if we do not meet their document demand”
Page | 109

reviewed all of the ROIs and everything, but missed the smoking guns.

I decided to have confidence that we’ve looked at everything, that I would 

read them all. So sitting on the plane, reading the wiretap affidavit and 

one of the wiretap affidavits – in fact, I think more than one, there was a 

statement in there prepared by the agents – the AUSA and reviewed by the 

Criminal Division that suggested there was probable cause to believe that 

straw purchasers were taking guns across the border.

Because they set out in the affidavit the various – the various border 

crossings of the straw purchasers. These were not observed border 

crossings. ATF did not know they were crossing the border ahead of time. 

These were from CBP’s, the Custom and Border Protection database. We 

could go back and see when people go and come north because there is no 

southbound transactional record.

But it was apparent to me that they were suggesting that there was 

probable cause to believe that this information – that these straw 

purchasers were taking guns across the border. So while on the plane, I 

drafted an e-mail to our people, and said, you know, you better back off, 

you better back off this statement, because – the statement in this letter, 

this February 4th letter to Senator Grassley, because I don’t believe we 

can say that in light of the information that our agent was swearing to 

before a federal district court judge to get the wiretap.314

Melson’s first email regarding the Title III—or “T III”—wiretap affidavit went to other officials 

at ATF:315

 

314 Melson Transcript at 36-37.

315 Email from Kenneth Melson to Christopher Pellettiere, et al. (Mar. 30, 2011) [HOGR 007212].

“By this time we knew Acosta was deep into it.”

“He was released to go into Mexico and we 

did not make contact with him thereafter.”
Page | 110

It was followed by a succession of other emails:316

Melson then sent Axelrod two emails regarding the affidavits:317

[INTENTIONALLY BLANK]

 

316 Email from Kenneth Melson to William Hoover, et al. (Mar. 30, 2011) [DOJ-FF-21164]; email from Kenneth 

Melson to William Hoover (Mar. 30, 2011) [DOJ-FF-21161].

317 Email from Kenneth Melson to Matthew Axelrod (Mar. 30, 2011) [DOJ-FF-02897]; email from Kenneth Melson 

to Matthew Axelrod (Mar. 30, 2011) [DOJ-FF-02894].

“More”

“It gets worse!”

“[Y]ou need to read the last T III affidavit . . . . 

Changes some things.”
Page | 111

Acting ATF Chief of Staff Chris Pellettiere responded:318

As his flight went late into the night, Melson again emailed:319

Melson sent one final email that night:320

 

318 Email from Christopher Pellettiere to Kenneth Melson, et al. (Mar. 30, 2011) [HOGR 007216–17]; email from 

Christopher Pellettiere to Kenneth Melson (Mar. 31, 2011) [HOGR 007216–17]. Ultimately, the April 4, 2011, 

response to House Judiciary Committee members provided only vague reassurances and did not provide the 

information requested. Rather than citing the fact that the interdiction numbers “square[d] poorly” with the number 

that were not seized, DOJ invoked other grounds for withholding the information: “Unfortunately, at this time, we 

are not in a position to answer your questions in greater detail. The Department has a long standing policy against 

the disclosure of non-public information about ongoing criminal investigations.” Letter from Ronald Weich, Asst. 

Att’y Gen., Dep’t of Justice to Randy J. Forbes, H. Comm. on the Judiciary (April 4, 2011), available at 

http://forbes.house.gov/uploadedfiles/response_from_doj.pdf, at 2.

319 Email from Kenneth Melson to Matthew Axelrod, et al. (Mar. 31, 2011) [DOJ-FF-02896].

320 Email from Kenneth Melson to Matthew Axelrod (Mar. 31, 2011) [DOJ-FF-02895].

“[O]ur statement about the straws not taking 

the guns over the border may not be correct.” 

“Hold the presses”

“[T]here was a . . . briefing where crim div 

atty apparently described guns as fungible.”
Page | 112

DOJ has produced no further communications indicating what Axelrod did with these emails.321 

However, Burke was on the same flight as Melson, and Melson said he told Burke of his 

concerns during a layover in Phoenix.322

The next day, Thursday, March 31, 2011, Axelrod convened his meeting to discuss the 

response to Chairman Issa’s letter.323 After the meeting, Faith Burton and Molly Gaston advised 

Oversight and Government Reform Committee staff the documents requested by Chairman Issa 

would not be forthcoming that week. Subsequently, Committee staff indicated to Weich that a 

subpoena was on its way, information Weich passed on to several DOJ officials. Shortly 

thereafter, Issa signed a subpoena for ATF Director Kenneth Melson.324

In response to an email about the impending subpoena, Wilkinson wrote:325

Shortly thereafter, he followed up with the same group:326

 

321 However, Axelrod told the OIG “his review of these materials raised additional questions about whether ATF had 

interdicted weapons where it had probable cause to do so.” DOJ OIG report at 373. Further, “Cole stated that 

Axelrod identified ‘a number of incidences where surveillance broke off.’ Our review indicates that Axelrod was 

particularly concerned with incidents in which ATF agents conducted surveillance of firearms purchases and the 

subsequent transfer of the firearms to third parties without seizing or interdicting the firearms.” Id. at 374.

322 Id. at 375.

323 See email from Matthew Axelrod to Patrick Cunningham, et al. (Mar. 30, 2011) [DOJ-FF-21083–84].

324 See H. Comm. on Oversight & Gov’t Reform, Press Release: Charmain Issa Subpoenas ATF for ‘Project 

Gunrunner’ Documents (April 1, 2011), available at https://oversight.house.gov/chairman-issa-subpoenas-atf-forproject-gunrunner-documents.

325 Email from Monty Wilkinson to Margaret Richardson, et al. (Mar. 31, 2011) [DOJ-FF-21229].

326 Email from Monty Wilkinson to Margaret Richardson, et al. (Mar. 31, 2011) [DOJ-FF-21228].

“I discussed with the AG.”
Page | 113

On a different thread, Lisa Monaco asked: “[W]hat’s the status of the response to [I]ssa 

that had been discussed to try to buy time?”

327

 Faith Burton recounted to her colleagues:328

DOJ Public Affairs Director Matthew Miller replied:329

Burton added in response:330

 

327 Email from Lisa Monaco to Ron Weich, et al. (Mar. 31, 2011) [DOJ-FF-21261–63].

328 Email from Faith Burton to Lisa Monaco, et al. (Mar. 31, 2011) [DOJ-FF-21261–63].

329 Email from Matthew Miller to Faith Burton, et al. (Mar. 31, 2011) [DOJ-FF-21261–63].

330 Email from Faith Burton to Matthew Miller, et al. (Mar. 31, 2011) [DOJ-FF-21335–37].

“[W]e did not promise to provide 

most of the docs.”
Page | 114

DOJ officials were divided on whether to respond through a press statement or a letter. 

Burton wrote:331

Miller emailed Weich and Richardson:332

He also made the case to the wider group:333

[INTENTIONALLY BLANK]

 

331 Email from Faith Burton to Matthew Miller, et al. (Mar. 31, 2011) [DOJ-FF-21261–63].

332 Email from Mathew Miller to Ron Weich and Margaret Richardson (Mar. 31, 2011) [DOJ-FF-21261–63].

333 Email from Matthew Miller to Faith Burton, et al. (Mar. 31, 2011) [DOJ-FF-21335–37].

“[O]therwise 

this will be 

portrayed as us 

stonewalling.” 
Page | 115

As the discussion about how to respond continued, Miller proceeded to press for a letter:334

Miller subsequently offered to draft the letter,335 at which point Burton emailed Weich:336

2. Response to Subpoena

FINDING: Paul Colborn, an official in the Justice Department’s Office of Legal 

Counsel, played a significant role in obstructing Congress’s oversight. 

Colborn advised against providing information to Senator Grassley and 

strategized to withhold information from Chairman Issa.

Later that night, after the subpoena for Melson was served by email, Paul Colborn wrote 

that he favored responding by letter:337

 

334 Email from Matthew Miller to Lisa Monaco, et al. (Mar. 31, 2011) [DOJ-FF-21335–37].

335 Email from Matthew Miller to Faith Burton, et al. (Mar. 31, 2011) [DOJ-FF-21335–37].

336 Email from Faith Burton to Ron Weich (Mar. 31, 2011) [DOJ-FF-21423–25].

337 Email from Paul Colborn to Ron Weich, et al. (Mar. 31, 2011) [DOJ-FF-21309–11].

“It’s essentially a press statement in letter form to get more bang.” 

“We can’t be driven in 

responding . . . by public 

affairs equities” 
Page | 116

However, on Friday, April 1, 2011, when Miller’s draft was circulated, Colborn wrote to Weich 

and others:338

To respond to the subpoena, DOJ officials strategized about how to produce as few 

documents as possible to Chairman Issa without angering the Committee or demonstrating the 

necessity of the subpoena. DOJ officials discussed coordination with Democrat House and 

Senate offices to obtain information about Issa’s plans and to help DOJ portray the investigation 

as partisan.

On Friday, April 1, 2011, Committee on Oversight and Government Reform Ranking 

Member Elijah Cummings released a letter criticizing the Committee’s subpoena. In response, 

DOJ officials discussed how to coordinate with a Democrat Senator to issue a similar letter.

Burke and Weich emailed:339

On Tuesday, April 5, 2011, when circulating a draft response letter to Senator Grassley’s 

March 15, 2011 letter to the Drug Enforcement Administration, Paul Colborn dismissed the 

suggestion of providing Senator Grassley’s staff a briefing:340

 

338 Email from Paul Colborn to Ron Weich (Apr. 1, 2011) [DOJ-FF-21335–37].

339 Email from Ron Weich to Dennis Burke (Apr. 3, 2011) [DOJ-FF-22553].

340 Email from Paul Colborn to Matthew Axelrod and Faith Burton (Apr. 5, 2011) [DOJ-FF-22792–96].

“[W]e’ll provide only some and 

withhold a substantial number”
Page | 117

The next day, on Wednesday, April 6, 2011, Cunningham emailed Burke:341

Late that night, Axelrod emailed Cole, Goldberg, and Monaco regarding the subpoena 

issued by Chairman Issa:342

 

341 Email from Patrick Cunningham to Dennis Burke (Apr. 6, 2011) [DOJ-FF-20707–09].

342 Email from Matthew Axelrod to James Cole (Apr. 7, 2011) [DOJ-FF-22824].

“I also am reluctant to empower Grassley’s attempt as 

RMM to conduct oversight by organizing a briefing”

“We are 

giving Chair 

Issa part of 

our story on 

the case”

“OLA feels it’s 

important that 

we demonstrate 

that . . . the 

subpoena was 

unnecessary”
Page | 118

On Thursday, April 7, 2011, Axelrod emailed a group of individuals regarding the letter 

to Chairman Issa: “Here is the latest version. It reflects a slightly changed approach. The idea is 

that we’ll produce some docs in paper (the budget docs, the OIG reports) and will provide access 

only to others.”

343

 Burton responded:

344

Colborn agreed and added:345

Later that night, Axelrod emailed with other DOJ officials regarding an upcoming 

Oversight and Government Reform Committee business meeting:346

 

343 Email from Matthew Axelrod to Paul Colborn, et al. (Apr. 7, 2011) [DOJ-FF-23001–02].

344 Email from Faith Burton to Matthew Axelrod, et al. (Apr. 7, 2011) [DOJ-FF-23001–02].

345 Email from Paul Colborn to Faith Burton, et al. (Apr. 7, 2011) [DOJ-FF-23001–02].

346 Email from Matthew Axelrod to Faith Burton, et al. (Apr. 7, 2011) [DOJ-FF-23225]; email from Robert Weiner 

to Matthew Axelrod (Apr. 8, 2011) [DOJ-FF-23225].

“I think that provision of publicly available 

docs in response to a congressional request . . . 

will serve only to anger the Committee. They 

will perceive it as disrespectful” 

“[T]hat what we chose to give them only some publicly available, 

non-responsive or marginally-responsive documents.”
Page | 119

On Friday, April 8, 2011, Axelrod emailed Burton, Colborn, Weiner, and Gaston after 

he learned about the business meeting scheduled for the following week.347 Burton responded:348

Monday, April 11, 2011 marked the return date on the Oversight and Government 

Reform Committee subpoena for Melson. That night, Melson, who less than two weeks prior 

had informed DOJ of the problems with its February 4 response to Senator Grassley, followed up 

on a suggestion to convene a panel to discuss policies and practices used in Fast and Furious:349

 

347 Email from Matthew Axelrod to Faith Burton, et al. (Apr. 7, 2011) [DOJ-FF-23226].

348 Email from Faith Burton to Matthew Axelrod, et al. (Apr. 8, 2011) [DOJ-FF-23226].

349 Email from Kenneth Melson to Matthew Axelrod (Apr. 11, 2011) [DOJ-FF-24155].

“HOGRC is holding a formal meeting 

next Wed morning, which . . . is a 

prerequisite to . . . contempt.”

“We’ve reached out to minority staff”

“[W]e want to convene a panel to advise us on the 

policies and practices in Fast and Furious”
Page | 120

Axelrod instructed Melson to wait:350

3. “It Remains Our Understanding”

FINDING: Even as it obtained further evidence of the flawed tactics of Operation 

Fast and Furious, the Justice Department continued to stonewall 

Congress’s oversight, responding only to the threat of Department 

nominees being held up by Congress.

On Tuesday, April 12, 2011 at 2:00 p.m., DOJ made the first documents available for in 

camera review in response to the subpoena. However, when Senator Grassley’s Judiciary 

Committee staff arrived for the review, they were turned away by DOJ. Weich emailed:351

[INTENTIONALLY BLANK]

 

350 Email from Matthew Axelrod to Kenneth Melson (Apr. 11, 2011) [DOJ-FF-24155].

351 Email from Ron Weich to Faith Burton and Molly Gaston (Apr. 12, 2011) [DOJ-FF-24361].

“Please don’t reach out to anyone yet on this”

“Grassley staffers are not to accompany 

the Issa staffers in reviewing docs”
Page | 121

Later that night, Weich emailed:352

On Wednesday, April 13, 2011, Senator Grassley sent Attorney General Holder a letter 

regarding the document review situation.353 The letter also attached further evidence 

documenting some of the problems with Operation Fast and Furious.354 The letter stated:

The Department’s failure to cooperate with my requests is especially 

troubling in light of the February 4, 2011, reply to my initial letter. In that 

reply, the Justice Department took the position that those allegations were 

“false” and specifically denied “that ATF ‘sanctioned’ or otherwise 

knowingly allowed the sale of assault weapons” to straw purchasers. The 

letter further claimed that “ATF makes every effort to interdict weapons 

that have been purchased illegally and prevent their transportation to 

Mexico.” I already provided evidence contradicting that denial in my 

February 9 and March 3 letters. In addition, attached you will find further 

documentation undermining the Department’s assertion. Specifically, the 

documents are emails between ATF officials and a Federal Firearms 

Licensee (FFL) in Arizona. These emails demonstrate that ATF instructed 

gun dealers to engage in suspicious sales despite the dealers’ concerns.

355

In addition to asking for access to documents, the letter concluded with just one question about 

the underlying investigation:

Do you stand by the assertion in the Department’s reply that the ATF 

whistleblower allegations are ‘false’ and specifically that ATF did not 

sanction or otherwise knowingly allow the sale of assault weapons to 

straw purchasers? If so, please explain why in light of the mounting 

evidence to the contrary.356

 

352 Email from Ron Weich to Faith Burton and Molly Gaston (Apr. 12, 2011) [DOJ-FF-24360].

353 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of 

Justice (Apr. 13, 2011), available at http://www.grassley.senate.gov/sites/default/files/about/upload/Judiciary-ATF04-13-11-letter-to-Holder-Docs-FFLs-2.pdf.

354 Id.

355 Letter from Charles Grassley, Ranking Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of 

Justice at 1-2 (Apr. 13, 2011).

356 Id. at 3.

“I had made no such assurance about 

simultaneous receipt of documents.”
Page | 122

On Thursday, April 14, 2011, Senator Grassley spoke on the floor of the Senate about 

Operation Fast and Furious and the Department of Justice’s inadequate responses to his 

document requests: “[I]ronically, I have provided more internal documents to the Justice

Department in this investigation than the Justice Department has provided to me.”

357

 Senator 

Grassley further explained the emails he’d obtained between ATF and one federal firearms 

licensee, noting: “The government put these firearms dealers in a completely unfair position. . . . 

[T]he government asks these gun dealers to keep selling to the bad guys even after the dealers 

warned it might end in tragedy.”

358

 He closed: “I have not exercised my right to object to any 

unanimous consent request on nominations because of this issue – yet. However, I want my 

colleagues and officials at the Justice Department to hear this loud and clear. If that’s what it 

takes, then I will take those actions.”

359

 

Within DOJ, Tracy Schmaler circulated Senator Grassley’s floor statement to senior 

officials:360

Grindler forwarded Schmaler’s email to Attorney General Holder, who responded:361

[INTENTIONALLY BLANK]

 

357 157 CONG. REC. S2474 (Apr. 14, 2011) (statement of Sen. Grassley).

358 Id. at S2475.

359 Id.

360 Email from Tracy Schmaler to Gary Grindler (Apr. 14, 2011) [DOJ-FF-24992–95].

361 Email from Eric Holder to Gary Grindler (Apr. 14, 2011) [DOJ-FF-24992–95].

“What are we doing to get him the docs?” 

“Note his reference to holding noms”
Page | 123

Senator Grassley’s floor statement compelled DOJ to change its position. Holder and Grindler 

wrote:362

That night, ATF Deputy Director Hoover forwarded Senator Grassley’s speech to 

Axelrod and wrote:363

[INTENTIONALLY BLANK]

 

362 Email from Gary Grindler to Eric Holder (Apr. 14, 2011) [DOJ-FF-24992–95]; email from Eric Holder to Gary 

Grindler (Apr. 14, 2011) [DOJ-FF-24992–95].

363 Email from William Hoover to Matthew Axelrod (Apr. 14, 2011) [HOGR 007201–007204].

“I am of the view that this needs to be done quickly”

“We need to move.”

“Please read ROI 486”
Page | 124

Axelrod obtained it from the Arizona U.S. Attorney’s Office:364

The same evening, officials in the Deputy Attorney General’s office emailed about a 

request from White House National Security Council staff for ongoing updates:365

On Friday, April 15, 2011, DOJ officials discussed Chairman Issa’s consideration of 

issuing subpoenas for witness testimony from a firearms dealer who cooperated in the Fast and 

Furious investigation. Grindler noted the escalation to Holder:366

Holder responded:367

 

364 Email from Patrick Cunningham to Matthew Axelrod (Apr. 14, 2011) [HOGR 007205].

365 Email from Deborah Johnston to Matthew Axelrod (Apr. 14, 2011) [DOJ-FF-25086].

366 Email from Gary Grindler to Eric Holder (Apr. 15, 2011) [DOJ-FF-04550–51].

367 Email from Eric Holder to Gary Grindler, et al. (Apr. 15, 2011) [DOJ-FF-04550–51].

“She is looking for updates on subpoenas we/ATF has 

received and testimony before Congress, etc.” 

“This keeps escalating”
Page | 125

Burton indicated that she expected Ranking Member Cummings to raise to Chairman Issa the 

Department’s concerns about exposing a potential cooperating witness to the public, and 

discourage him from doing so:

368

On Tuesday, April 19, 2011, DOJ officials discussed elevating a response letter to 

Chairman Issa to the attention of the White House Communications Office:369

 

368 Email from Faith Burton to Paul Colborn, et al. (Apr. 15, 2011) [DOJ-FF-25235–36].

369 Email from Paul Colborn to Lisa Monaco (Apr. 19, 2011) [DOJ-FF-25771].

“We have to be careful. His decision has 

to be truly his. If he testifies so be it.” 

“Issa and his idiot cronies never gave a damn about this . . . . All they 

want to do - in reality - is cripple ATF and suck up to the gun lobby.” 

“We also 

expect that 

RMM 

Cummings 

will talk 

with Issa

about this, 

noting his 

concerns”
Page | 126

On Wednesday, April 20, 2011, Chairman Issa sent Melson a letter in response.370 The 

letter stated:

It is unclear to which specific criminal investigations Mr. Weich is 

referring. Such a blanket prohibition, if accepted, would conceal the 

entirety of Project Gunrunner and Operation Fast and Furious from 

legitimate congressional scrutiny. This is unacceptable. As a co-equal 

branch of government, Congress has a right, even a constitutional 

obligation, to conduct oversight of the Executive Branch, including the 

Department of Justice.

* * *

Sometimes, we may take a deferential approach to the Department when 

we are both investigating a third[] party’s wrongdoing. Here, however, we 

are not conducting a concurrent investigation with the Department of 

Justice, but rather an independent investigation of the Department of 

Justice – specifically, allegations that the reckless and inappropriate 

decisions of Department officials have created a serious public safety 

hazard.371

As DOJ officials discussed the letter, Burton emailed:372

FINDING: Despite the Justice Department having clear facts showing it had sent 

Congress incorrect information on February 4, 2011, the Department 

 

370 H. Comm. on Oversight & Gov’t Reform, Press Release: Chairman Issa Chastises ATF for Refusal to Comply 

with Subpoena (Apr. 20, 2011), available at https://oversight.house.gov/chairman-issa-chastises-atf-for-refusal-tocomply-with-subpoena.

371 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform to Kenneth Melson, Acting Dir., 

Bureau of Alcohol, Tobacco, Firearms & Explosives (Apr. 20, 2011).

372 Email from Faith Burton to Matthew Axelrod, et al. (Apr 20, 2011) [DOJ-FF-25883–85].

“Committee staff understand our concerns” 
Page | 127

continued to view the situation as a mere “oversight skirmish” and 

doubled down on its denials to Congress.

On Friday, April 22, 2011, Melson circulated to senior DOJ officials a draft of a letter to 

new Mexican Attorney General Marisela Morales.

373

 Tracy Schmaler responded by questioning 

the level of detail Melson proposed to provide:374

The draft also stirred further questions among the officials:375

Axelrod replied:376

 

373 Email from Kenneth Melson to William Hoover (Apr. 19, 2011) [DOJ-FF-26548–50].

374 Email from Tracy Schmaler to Stuart Goldberg, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

375 Email from Stuart Goldberg to Tracy Schmaler, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

376 Email from Matthew Axelrod to Stuart Goldberg, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

“[D]o we have 100% 

confidence in the accuracy of 

this paragraph?”

“The first sentence, yes. The second 

sentence, no.”
Page | 128
Page | 129

Axelrod’s email led to further discussion among the officials:377

Schmaler tried to provide clarity:378

Goldberg wrote in response to Axelrod:379

 

377 Email from Matthew Axelrod to Stuart Goldberg, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

378 Email from Tracy Schmaler to Matthew Axelrod, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

379 Email from Stuart Goldberg to Matthew Axelrod, et al. (Apr. 22, 2011) [DOJ-FF-26555–57].

“Why set 

ourselves up 

to be 

accused of 

misleading” 
Page | 130

On a different chain discussing the same letter, Goldberg added:380

Axelrod concluded:381

On Monday, April 25, 2011, discussion continued on what could be said of Fast and 

Furious to the Government of Mexico:382

[INTENTIONALLY BLANK]

 

380 Email from Stuart Goldberg to Matthew Axelrod, et al. (Apr. 22, 2011) [DOJ-FF-26990–91].

381 Email from Matthew Axelrod to Tracy Schmaler, et al. (Apr. 22, 2011) [DOJ-FF-26548–50].

382 Email from Stuart Goldberg to Matthew Axelrod and Deborah Johnston (Apr. 25, 2011) [DOJ-FF-27159–60].

“[T]he reference to use of undercovers makes us queasy”

“The handful 

of occasions 

that the 

tactics in 

question 

were used in 

other . . . 

cases involve 

onesies and 

twosies.” 
Page | 131

Goldberg escalated the issue to Deputy Attorney General Cole:383

On Tuesday, April 26, 2016, Cole and Goldberg emailed regarding the final stages of 

the letter to Mexican Attorney General Morales:384

 

383 Email from Stuart Goldberg to James Cole (Apr. 25, 2011) [DOJ-FF-27159–60].

384 Email from Stuart Goldberg to James Cole (Apr. 26, 2011) [DOJ-FF-27216].

“I would be reluctant to recommend 

characterizing any aspect of FF until our team . . . 

figures out what actually took place.” 

“They believe I am being too reluctant and that 

we should give Marisela what she needs to fend 

off wild allegations in the press.” 
Page | 132

Goldberg forwarded the decision to Axelrod and wrote:385

[INTENTIONALLY BLANK]

 

385 Email from Stuart Goldberg to Matthew Axelrod (Apr. 26, 2011) [DOJ-FF-27214–15].

“I’m reluctant to say anything so definitive. 

We’ve been burned before.”
Page | 133

The same morning, DOJ became aware that one of the ATF whistleblowers had received 

a subpoena to testify at an upcoming hearing before the House Oversight and Government 

Reform Committee:386

On Wednesday, April 27, 2011, Burke emailed Wilkinson:387

 

386 Email from Matthew Axelrod to Lisa Monaco, et al. (Apr. 26, 2011) [DOJ-FF-27262–63].

387 Email from Monty Wilkinson to Dennis Burke (Apr. 27, 2011) [DOJ-FF-27520].

“All this is in jeopardy by what 

Grassley and Issa are doing, saying 

and erroneously feeding to their 

shill at CBS.” 
Page | 134

The same night, Weich emailed other DOJ officials:388

On Thursday, April 28, 2011, Cole emailed Attorney General Holder and others:389

 

388 Email from Ron Weich to James Cole, et al. (Apr. 27, 2011) [DOJ-FF-27557].

389 Email from James Cole to Eric Holder, et al. (Apr. 28, 2011) [DOJ-FF-01461].

“[W]e disagree with . . . offering Issa and Grassley a meeting with 

the AG at this relatively early stage of the oversight skirmish”

“[T]his is an extreme situation and involves 

positioning as well as substance” 
Page | 135

Holder responded: “Guess I agree with them. Let’s make the DAG offer.”

390

Later that afternoon, Weich emailed:391

On Monday, May 2, 2011, Attorney General Holder had a conference call with Senator 

Grassley. The call was scheduled to take place before Holder’s testimony in two successive days 

of oversight hearings, first before the House Judiciary Committee on May 3, and then before the 

Senate Judiciary Committee on May 4. According to Grassley: “I personally expressed my 

concern to the Attorney General about the accuracy of the Department’s replies in our telephone 

conversation . . . .”

392

 Grassley also raised concerns about whistleblower retaliation and 

allegations that officials in the U.S. Attorney’s Office for the District of Arizona were 

intentionally obstructing the congressional investigation.

That afternoon, DOJ sent Senator Grassley a response to his April 14 letter asking that 

DOJ revisit its position.393 According to Weich, the Department wanted to memorialize its 

position before the hearings that week.394 The letter, signed by Weich, stated: “It remains our 

understanding that ATF’s Operation Fast and Furious did not knowingly permit straw buyers to 

take guns into Mexico.”

395

 As Senator Grassley stated later that week: “I was stunned that just a

 

390 Email from Eric Holder to James Cole, et al. (Apr. 28, 2011) [DOJ-FF-01461].

391 Email from Ron Weich to Lisa Monaco and James Cole (Apr. 28, 2011) [DOJ-FF-27700–01]. 

392 Oversight of the U.S. Dep’t of Justice: Hearing before the S. Comm. on the Judiciary, 112th Cong. 3 (May 4, 

2011) (No. J-112-18), available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg73839/pdf/CHRG112shrg73839.pdf.

393 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice, to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (May 2, 2011), available at http://www.grassley.senate.gov/sites/default/files/about/upload/JudiciaryATF-05-02-11-letter-from-DOJ-denial-2-to-allegations.pdf.

394 DOJ OIG report at 383.

395 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice, to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (May 2, 2011), available at http://www.grassley.senate.gov/sites/default/files/about/upload/JudiciaryATF-05-02-11-letter-from-DOJ-denial-2-to-allegations.pdf.

“It seems unwise to telegraph additional 

concessions at this point”
Page | 136

few hours after our conversation, the Department sent another letter repeating the denial in 

slightly different words.”

396

With respect to that letter, the DOJ OIG later concluded:

[B]y the date of its May 2 letter to Sen. Grassley, senior Department 

officials responsible for drafting the letter knew or should have known that 

ATF had not made “every effort to interdict weapons purchased illegally 

and prevent their transportation to Mexico,” either in Operation Fast and 

Furious or other firearms trafficking investigations, and that the February 

4 letter contained inaccuracies. We therefore concluded that the 

Department knew or should have known that the February 4 letter could 

no longer be defended in its entirety when Department officials wrote to 

Sen. Grassley on May 2. . . . Given that senior Department officials’

confidence in the accuracy of the February 4 letter was decreasing rather 

than increasing as their internal review progressed, we found it troubling 

that the Department’s May 2 response letter to Sen. Grassley included a 

substantive statement – albeit a qualified one – regarding the Fast and 

Furious investigation.397

* * *

We believe that the Department should not have made this statement in its 

May response to Sen. Grassley. Regardless of whether there was any 

intent to draw a distinction between straw purchasers and third parties, 

senior Department officials knew or should have known that while ATF 

may not have allowed straw purchasers to buy firearms so that they 

themselves could take the guns to Mexico, ATF had in many instances 

allowed straw purchasers to buy firearms knowing that a third party would 

be transporting them to Mexico. The review of the Operation Fast and

Furious case file that had been conducted by Department officials to this 

point, including the Title III affidavits, indicated that suspects were buying 

guns for the purpose of getting them into Mexico. Moreover, ATF was 

aware from later seizures that some of those firearms did in fact end up in 

Mexico.398

[INTENTIONALLY BLANK]

 

396 Oversight of the U.S. Dep’t of Justice: Hearing before the S. Comm. on the Judiciary, 112th Cong. 3 (May 4, 

2011) (No. J-112-18), available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg73839/pdf/CHRG112shrg73839.pdf.

397 DOJ OIG report at 396.

398 DOJ OIG report at 415.
Page | 137

4. Wiretap Applications

FINDING: Senior Justice Department officials, including the Attorney General, 

spent a great deal of time and energy to devising a strategy to square 

their desire to protect Assistant Attorney General Lanny Breuer from 

scrutiny with the fact that the Fast and Furious wiretaps, which 

detailed the reckless tactics that were used in the operation, were 

approved under Breuer’s name.

The night of Monday, May 2, 2011, Holder emailed senior DOJ officials:399

Holder emailed back and forth with Deputy Attorney General Cole:400

On Tuesday, May 3, 2011, DOJ officials finished their final preparations for questions 

Holder might receive at the hearing:401

 

399 Email from Eric Holder to Ron Weich, et al. (May 2, 2011) [DOJ-FF-01443].

400 Email from James Cole to Eric Holder (May 2, 2011) [DOJ-FF-01443].

“DHS doubts his veracity.” 

“Only issue is whether 

he’s telling the truth.” 

“Says he wants to work out a 

way to get docs and not 

interfere with trials.” 
Page | 138

Grindler also asked:402

[INTENTIONALLY BLANK]

 

401 Email from Matthew Axelrod to Gary Grindler (May 3, 2011) [DOJ-FF-28769–70].

402 Email from Gary Grindler to Matthew Axelrod (May 3, 2011) [DOJ-FF-28778].

“I would try to avoid having him engage in the specifics.” 

“How do we explain . . . whether ATF knowingly 

allowed straw purchasers to take guns to Mexico”
Page | 139

Grindler forwarded Axelrod’s response to Holder:403

That afternoon, Chairman Issa and Senator Grassley sent their first joint letter to DOJ.404 

The letter stated:

As Senator Grassley discussed on the phone with you yesterday, we are 

very concerned that the Department chose to send a letter containing false 

statements in response to his initial inquiry into the ATF whistleblower 

allegations related to Operation Fast and Furious. . . . [W]e were surprised 

and disappointed to see the Department repeated once again, in slightly 

different language, its denial in a letter received shortly after your 

conversation with Senator Grassley. . . . We are extremely disappointed 

that you do not appear to be taking the issue seriously enough to ensure 

the Department’s representations are accurate, forthcoming, and complete. 

We will continue to probe and gather the facts independently, as it has 

become clear that we cannot rely on the Department’s self-serving 

statements to obtain any realistic picture of what happened.405

Senator Grassley added a hand-written note at the bottom of the letter: “P.S. You should check to 

see if you are getting accurate information from your staff. You might be ill-served.”

406

At the hearing that day, Chairman Issa asked Holder whether Breuer authorized 

Operation Fast and Furious.407 Holder responded: “I’m not sure whether Mr. Breuer authorized 

 

403 Email from Gary Grindler to Eric Holder (May 3, 2011) [DOJ-FF-28778].

404 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform and Charles Grassley, Ranking 

Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of Justice (May 3, 2011), available at 

http://www.grassley.senate.gov/sites/default/files/about/upload/Judiciary-ATF-05-03-11-Grassley-Issa-letter-toHolder-in-response-to-denial-2.pdf. 

405 Id. at 1-2.

406 Id. at 2.
Page | 140

it. You have to understand the way in which the Department operates although their 

operations—this one has gotten a great deal of publicity.”

408

 

Deputy Chief of Staff Amy Pope emailed Weich:409

That afternoon, a draft statement for the Attorney General to use to answer questions about 

Breuer was circulated in DOJ:410

[INTENTIONALLY BLANK]

 

407 U.S. Dep’t of Justice: Hearing before the H. Comm. on the Judiciary, 112th Cong. 45 (May 3, 2011) (No. 112-

127), available at https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66154/pdf/CHRG-112hhrg66154.pdf.

408 Id.

409 Email from Amy Pope to Ron Weich (May 3, 2011) [DOJ-FF-28966].

410 Email from Mythili Raman to Gary Grindler and Lisa Monaco (May 3, 2011) [DOJ-FF-28955–56].

“Can’t AG just say, ‘No. Lanny 

Breuer did not authorize it.’” 
Page | 141

In response to an email from Grindler, Axelrod provided a sample answer to the question 

of who authorized the operation:411

Raman added:412

Soon, Schmaler emailed:413

 

411 Email from Matthew Axelrod to Gary Grindler, et al. (May 3, 2011) [DOJ-FF-28955–56].

412 Email from Mythili Raman to Matthew Axelrod, et al. (May 3, 2011) [DOJ-FF-28961–62].

“We just want to make sure that the AG is armed 

with the answer if he is asked tomorrow . . . about 

Lanny’s . . . involvement.”
Page | 142

That evening, Weich and Pope emailed regarding Pope’s recommendation that Attorney 

General Holder definitively state that Breuer did not authorize the operation:414

As The Wall Street Journal requested a statement for an article it prepared to run 

regarding the Criminal Division’s role in approving wiretaps in Operation Fast and Furious, DOJ 

Public Affairs Director Matthew Miller recommended against issuing a statement specific to 

Breuer:415 

 

413 Email from Tracy Schmaler to Matthew Axelrod, et al. (May 3, 2011) [DOJ-FF-28985–86].

414 Email from Ron Weich to Amy Pope (May 3, 2011) [DOJ-FF-28966]; email from Amy Pope to Ron Weich 

(May 3, 2011) [DOJ-FF-28966].

415 Email from Matthew Miller to Lanny Breuer (May 3, 2011) [DOJ-FF-28895].

“[S]ome could view a denial of any role in f&f as being disingenuous.” 

“[T]he AG now knows to give a flat 

no if Grassley asks tomorrow.”
Page | 143

Breuer raised concerns with offering a statement in his name:416

In a separate chain, Miller emailed with Attorney General Holder:417

Miller added:418

 

416 Email from Lanny Breuer to Matthew Miller (May 3, 2011) [DOJ-FF-28895].

417 Email from Eric Holder to Matthew Miller (May 3, 2011) [DOJ-FF-28920–22].

“But frankly if we do give a statement, I do not 

understand why the statement should come from me.” 

”

“If we say this with respect to you, we will 

have to answer similar questions with a 

host of other Department officials.” 
Page | 144

When Holder offered to make the statement himself, Miller emailed:419

Referring to his testimony earlier that day, Holder replied to Miller: “I guess I started it.”

420

To Breuer, Miller emailed:421

 

418 Email from Matthew Miller to Eric Holder (May 3, 2011) [DOJ-FF-28920–22].

419 Email from Matthew Miller to Eric Holder and Gary Grindler (May 3, 2011) [DOJ-FF-28946–47].

420 Email from Matthew Miller to Eric Holder (May 3, 2011) [DOJ-FF-28946–47].

421 Email from Matthew Miller to Lanny Breuer (May 3, 2011) [DOJ-FF-28895].

“Lanny is concerned about 

his name being in it” 

“There is no good reason to put you in 

the middle of this.”

“Why not just attribute it to me?” 

“I can call you and explain the nuance.”
Page | 145

Similarly, Schmaler emailed:422

Later that night Axelrod responded to a document that had been circulated:423

On the morning of Wednesday, May 4, 2011, Senator Grassley made an opening 

statement at the Senate Judiciary Committee hearing, which stated:

The Department argues that the congressional investigation of these 

allegations threatened the ongoing criminal prosecutions of straw 

purchasers. Yet the Department and the ATF chose to wait and watch 

those same straw purchasers do business for over a year before charging 

them with any criminal conduct. It was only after the death of Terry that 

the straw purchasers were finally charged. I take exception to the notion 

that Congress must hold off on an investigation on the grounds that 

 

422 Email from Tracy Schmaler to Matthew Axelrod, et al. (May 3, 2011) [DOJ-FF-28985–86].

423 Email from Matthew Axelrod to Matthew Miller (May 3, 2011) [DOJ-FF-29652].

“I think people will accuse us of playing with 

semantics when we say that you did not 

authorize Fast and Furious, but they find out 

that CRM did authorize wiretaps.”

“[W]e run the risk of seeming disingenuous” 

“Seems to me a tough answer to give if he 

gets asked the direct question.” 
Page | 146

discovering the truth could hinder prosecutions. . . . Congress should not 

allow its fact-finding efforts to be stonewalled just because the details 

might be embarrassing to certain officials in the Department.424

Later, Grassley asked Attorney General Holder whether it could account for the location of 1,318 

firearms purchased by fifteen suspects after they had been identified as targets in the Operation 

Fast and Furious investigation.425 Holder said he was unable to answer the question but would 

report back to the Committee.426

Meanwhile, DOJ learned that cover pages accompanying wiretap applications signed off 

by DOJ’s Criminal Division in Operation Fast and Furious were about to become public:427

Axelrod forwarded Burton’s email to Raman, who emailed:428

Breuer forwarded the chain to Grindler:429

 

424 Oversight of the U.S. Dep’t of Justice: Hearing before the S. Comm. on the Judiciary, 112th Cong. 3-4 (May 4, 

2011) (No. J-112-18), available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg73839/pdf/CHRG112shrg73839.pdf.

425 Id. at 10. 

426 Id.

427 Email from Faith Burton to Matthew Axelrod (May 4, 2011) [DOJ-FF-30089–90].

428 Email from Mythili Raman to Bruce Swartz (May 4, 2011) [DOJ-FF-30070–71].

429 Email from Gary Grindler to Lanny Breuer (May 4, 2011) [DOJ-FF-30070–71].

“Sounds like someone must 

have leaked to the 

committee” 
Page | 147

Grindler forwarded the chain to Monaco, Wilkinson, and Stuart Goldberg,430 who responded:431

Throughout the day, Breuer exchanged similar emails on the question with Raman:432

 

430 Email from Gary Grindler to Lisa Monaco, et al. (May 4, 2011) [DOJ-FF-30406–07].

431 Email from Stuart Goldberg to Gary Grindler, et al. (May 4, 2011) [DOJ-FF-30406–07].

432 Email from Lanny Breuer to Mythili Raman (May 4, 2011) [DOJ-FF-30070–71]. 

“Should we open an investigation?”

“This is shocking.”

“I don’t think it is wise for the 

Department to open an investigation”
Page | 148

Meanwhile, when Grindler forwarded the news to Holder, the Attorney General 

forwarded it to Miller, asking:433

Miller responded:434

In Arizona, Scheel emailed her colleagues in the U.S. Attorney’s Office regarding how 

the wiretap application cover pages, transmitted by Assistant U.S. Attorney Shelley Clemens, 

had been produced to Congress:

435

The House Oversight and Government Reform Committee press release accompanying 

the excerpts of the wiretap cover pages stated: “Assistant Attorney General Lanny Breuer knew 

about and even approved a wiretap application for suspects targeted in Operation Fast and 

 

433 Email from Eric Holder to Matthew Miller (May 4, 2011) [DOJ-FF-30084].

434 Email from Matthew Miller to Eric Holder (May 4, 2011) [DOJ-FF-30089–90].

435 Email from Ann Scheel to Patrick Cunningham (May 4, 2011) [DOJ-FF-30297].

“[W]e need to be very careful to not do anything that 

looks like retaliation against whistleblowers.” 
Page | 149

Furious over a year ago.”

436

 Shortly thereafter, The Wall Street Journal released an article on the 

documents.437 The article triggered a flurry of email activity within DOJ regarding how to 

respond, with a particular focus on how to defend the Criminal Division’s role in approving 

wiretap applications. Breuer emailed Matt Miller in the press office:438

He followed up to Attorney General Holder and others, forwarding a link to the Wall Street 

Journal article:439

Attorney General Holder responded: “If we go out with something do we make it worse?”

440

 

Starting a new chain just with Holder, Breuer responded:441

 

436 H. Comm. on Oversight & Gov’t Reform, Press Release: What Attorney General Holder Won’t Tell on 

Controversial Gun Operation, Documents Do (May 4, 2011), available at https://oversight.house.gov/release/whatattorney-general-holder-wont-tell-on-controversial-gun-operation-documents-do. 

437 Evan Perez, Lawmakers Step Up Probe of Gun Trafficking Operation, WALL ST. J. (May 4, 2011), 

http://blogs.wsj.com/washwire/2011/05/04/lawmakers-step-up-probe-of-gun-trafficking-operation. 

438 Email from Lanny Breuer to Matthew Miller (May 4, 2011) [DOJ-FF-30289].

439 Email from Lanny Breuer to Eric Holder, et al. (May 4, 2011) [DOJ-FF-00656–58].

440 Email from Eric Holder to Lanny Breuer to, et al. (May 4, 2011) [DOJ-FF-00656–58].

441 Email from Lanny Breuer to Eric Holder (May 4, 2011) [DOJ-FF-30418].

“[W]e let this go on too long.”

“I would like to speak with you about . . . how 

we can effectively explain . . . that I did not 

authorize Fast and Furious.”

“I would hope we could have an effective and robust response.” 
Page | 150

In reply, Holder wrote:442

To the wider group, Breuer emailed:443

Holder replied:444

[INTENTIONALLY BLANK]

 

442 Email from Eric Holder to Lanny Breuer (May 4, 2011) [DOJ-FF-30418]. 

443 Email from Lanny Breuer to Eric Holder, et al. (May 4, 2011) [DOJ-FF-00656–58].

444 Email from Eric Holder to Lanny Breuer, et al. (May 4, 2011) [DOJ-FF-00656–58].

“If we go out with something do we make it worse?”

“Warning- that will not kill this”
Page | 151

Cole weighed in:445

Raman replied:446

She added:447

In response, Holder wrote:448

 

445 Email from James Cole to Eric Holder, et al. (May. 4, 2011) [DOJ-FF-00656–58].

446 Email from Mythili Raman to Eric Holder, et al. (May 4, 2011) [DOJ-FF-00656–58].

447 Id. Raman did not mention Breuer’s own proposal to Mexico in February 2011.

448 Email from Eric Holder to Mythili Raman, et al. (May 4, 2011) [DOJ-FF-00656–58].

“[T]his isn’t about facts”

“[T]he suggestion that by approving the filing of a wiretap application, we therefore approved the 

walking of guns into Mexico is harmful not just to the Division, but the Department.”
Page | 152

When Cole responded, Holder emailed just him:449

DOJ eventually issued a statement on May 4, 2011. It did not mention Breuer. It did, 

however, state that the operation was approved by the U.S. Attorney’s Office for the District of 

Arizona:

The review process for wiretap applications is a narrow assessment of 

whether a legal basis exists to support a surveillance request that 

ultimately goes before a judge for decision. These reviews are not 

approval of the underlying investigations or operations. As the department 

has stated, the Fast and Furious operation was approved by the U.S. 

Attorney’s Office for the District of Arizona and the ATF Phoenix Field 

Office. The investigation was subsequently approved by the multi-agency 

Organized Crime and Drug Enforcement Task Force (OCDETF) 

Program.450 

FINDING: Because of Main Justice’s approval of the wiretap applications, officials 

in the U.S. Attorney’s Office in Arizona, including U.S. Attorney Dennis 

Burke, perceived the Department’s public statement regarding 

approval for Fast and Furious as unfair to them. 

[INTENTIONALLY BLANK]

 

449 Email from James Cole to Eric Holder, et al. (May 4, 2011) [DOJ-FF-00656–58].

450 Sharyl Attkisson, DOJ’s Breuer authorized wiretap in ATF Fast and Furious case, CBS NEWS, May 4, 2011, 

available at http://www.cbsnews.com/news/dojs-breuer-authorized-wiretap-in-atf-fast-and-furious-case; cf. Evan 

Perez, Lawmakers Step Up Probe of Gun Trafficking Operation, WALL ST. J., May 4, 2011, 

http://blogs.wsj.com/washwire/2011/05/04/lawmakers-step-up-probe-of-gun-trafficking-operation. 
Page | 153

That evening, U.S. Attorney for the District of Columbia Ron Machen emailed Burke:451

The next morning, on Thursday, May 5, 2011, Burke forwarded Machen’s email to Ron Weich 

and wrote:452

Weich responded:453

Burke’s response was ultimately forwarded to Attorney General Holder:454

 

451 Email from Ronald Machen, Jr. to Dennis Burke (May 4, 2011) [DOJ-FF-04580–81].

452 Email from Dennis Burke to Ron Weich (May 5, 2011) [DOJ-FF-04580–81].

453 Email from Ron Weich to Dennis Burke (May 5, 2011) [DOJ-FF-04580–81].

454 Email from Monty Wilkinson to Eric Holder (May 5, 2011) [DOJ-FF-04580–81].
Page | 154

Holder emailed in response:455

Later that afternoon, Holder emailed:456

 

455 Email from Eric Holder to Monty Wilkinson, et al. (May 5, 2011) [DOJ-FF-04600–01].

456 Email from Eric Holder to Monty Wilkinson (May 5, 2011) [DOJ-FF-04580–81]. Marshall Jarrett served as the 

Director of the Executive Office of United States Attorneys.

“I[’]ll cc you.”
Page | 155

Meanwhile, Wilkinson and Burke emailed:457

In Arizona, U.S. Attorney Burke also wrote to staff in his office about the press 

statement:458 

First Assistant U.S. Attorney Scheel responded:459

[INTENTIONALLY BLANK]

 

457 Email from Monty Wilkinson to Dennis Burke (May 5, 2011) [DOJ-FF-04618–19]; email from Dennis Burke to 

Monty Wilkinson (May 5, 2011) [DOJ-FF-04618–19].

458 Email from Dennis Burke to Robert Sherwood (May 5, 2011) [DOJ-FF-30732–33].

459 Email from Ann Scheel to Robert Sherwood, et al. (May 5, 2011) [DOJ-FF-30732–33].

“Tracy gave that despicable quote to WSJ”

“Tracy’[s] quote in the WSJ is outrageous.”

“AG is sensitive to your concerns.”
Page | 156

That day, Axelrod, Hoover, and others met with staff from the House Oversight and 

Government Reform Committee. In the meeting, Axelrod acknowledged, “I certainly admit 

there is something to see,” and stated that it “looks like there’s [a] ‘there’ there.”

460

[INTENTIONALLY BLANK]

 

460 Meeting between U.S. Dep’t of Justice, Bureau of Alcohol, Tobaccos, Firearms & Explosives, and H. Comm. on 

Oversight & Gov’t Reform staff (May 5, 2011).

“I guess it’s every man for himself.”
Page | 157

VII. Continued Obstruction

1. Blocking Witness Interviews

FINDING: Even after the Justice Department acknowledged Congress’s oversight 

had identified legitimate problems with Fast and Furious, throughout 

the summer of 2011 Justice Department officials continued to look for 

every opportunity to limit the information provided to Congress. The 

documents do not show those officials considering the legal risks the 

Department created for witnesses who were exposed to subpoenas 

because of the Department’s strategy. 

On Monday, May 9, 2011, Senator Grassley announced on the floor of the Senate that he 

would not cooperate with moving the nomination of James Cole, who had been recess appointed 

as Deputy Attorney General, until DOJ cooperated with Congress’s investigation of Operation 

Fast and Furious.461 Senator Grassley stated:

To this day, the Justice Department has still not produced a single page of 

documents in response to my inquiries and has provided only previously 

released public documents in response to Chairman Issa. . . . I said on the 

floor on April 14 that if the Justice Department did not cooperate and 

provide the information we need, I would consider exercising my right to 

object to unanimous consent requests on a nomination. Since that time, I 

have received nothing but stonewalling from the Department. As the chief

operating officer of the Department, Mr. Cole is in a position to ensure the 

Justice Department meaningfully cooperates with my inquiries and 

complies with my document requests. He has failed to do so.462

On Tuesday, May 10, 2011, Gary Grindler emailed Attorney General Holder to let him 

know he had spoken with Burke about Fast and Furious:463

 

461 157 CONG. REC. S2762 (May 9, 2011) (statement of Sen. Charles Grassley), available at

https://www.congress.gov/crec/2011/05/09/CREC-2011-05-09-pt1-PgS2762.pdf. 

462 Id. at S2765. 

463 Email from Gary Grindler to Eric Holder (May 10, 2011) [DOJ-FF-31510–11].
Page | 158

Grindler’s email also included an update on a proposal that the Attorney General visit Tucson, 

Arizona as part of a previously planned southwest border trip.464 Attorney General Holder 

responded:465 

On Tuesday, May 17, 2011, Raman emailed Breuer about an upcoming House Judiciary 

subcommittee hearing and listed advantages and disadvantages of Breuer testifying:466 

On Wednesday, May 25, 2011, Cunningham emailed Matt Axelrod:467

 

464 Id. 

465 Email from Eric Holder to Gary Grindler (May 10, 2011) [DOJ-FF-31510–11]. 

466 Email from Mythili Raman to Lanny Breuer (May 17, 2011) [DOJ-FF-32984]. 

467 Email from Patrick Cunningham to Matthew Axelrod (May 25, 2011) [DOJ-FF-33889]. 

“Arizona just may not be the place right now 

while the controversy persists.”

“Issa could 

show up to 

ask you 

Fast and 

Furious 

questions”
Page | 159

That evening, Weich emailed several senior DOJ officials:468

Weich further wrote of Senator Grassley’s Committee Staff Director Kolan Davis:

469

Weich concluded the email: “Obviously there are still many moving parts. We need to work 

through each of the issues internally to decide whether we want to make further concessions or 

not . . . .”

470

On Friday, May 27, 2011, Senator Grassley’s office sent Ron Weich a list representing a 

list of requests that would represent a good faith effort on DOJ’s part toward meaningful 

cooperation with the joint investigation by Senate Judiciary Committee and House Oversight and 

Government Reform Committee staff into the ATF whistleblower allegations.471 The list chiefly 

included documents initially requested by Senator Grassley’s February 16, March 4, and March 

16 letters, as well as by letter and subpoena from the House Oversight and Government Reform 

Committee on March 16 and March 31.472 Grindler forwarded it to Cole:473

 

468 Email from Ron Weich to Gary Grindler, et al. (May 25, 2011) [DOJ-FF-33911–12].

469 Id.

470 Id.

471 Email from Kolan Davis to Ron Weich (May 27, 2011) [DOJ-FF-34081–86].

472 Attachment to email from Gary Grindler to James Cole (May 27, 2011) [DOJ-FF-34079–83].

473 Email from Gary Grindler to James Cole (May 27, 2011) [DOJ-FF-34079].

“[S]ee if there are some easy ones that we can ‘concede’ 

(knowing that we might concede them to Issa/Smith anyway)”
Page | 160

Later that night, Axelrod emailed:474

On Sunday, May 29, 2011, Paul Colborn responded:475

 

474 Email from Matthew Axelrod to Tracy Schmaler, et al. (May 27, 2011) [DOJ-FF-34115–17].

475 Email from Paul Colborn to Matthew Axelrod, et al. (May 29, 2011) [DOJ-FF-34115–17].

“Not very good news”

“Seems to me that makes our insistence on a Chairman’s Letter a little silly”
Page | 161

Weich added:476

Axelrod replied, in part regarding Senator Grassley’s Chief Investigative Counsel Jason 

Foster:

477

 

476 Email from Ron Weich to Faith Burton, et al. (May 29, 2011) [DOJ-FF-34115–17].

477 Email from Matthew Axelrod to Ron Weich, et al. (May 29, 2011) [DOJ-FF-34115–17].

“We accommodate chairman, 

not committee staff.”

“I have already made known . . . my objection to 

bargaining away OLA’s participation in the interviews.”

“[A]ccess to . . . 

interviews is one 

of the goodies 

we’re offering 

Grassley in the 

negotiation . . . , 

and so we 

should not give 

it away for free.”

“I disagree 

that 

excluding 

Foster would 

be the best 

way to get 

Grassley to 

come 

around”
Page | 162

Meanwhile, Weich and Burton emailed:478

On Monday, May 30, 2011, Weich narrowed the chain to just Axelrod:479

On Wednesday, June 1, 2011, Axelrod emailed Burke, Melson, and others:480

 

478 Email from Ron Weich to Faith Burton (May 29, 2011) [DOJ-FF-34118–19]; email from Faith Burton to Ron 

Weich (May 30, 2011) [DOJ-FF-34118–19].

479 Email from Ron Weich to Matthew Axelrod (May 30, 2011) [DOJ-FF-34115–17]. 

480 Email from Matthew Axelrod to Dennis Burke, et al. (June 1, 2011) [DOJ-FF-34202].

“I do think it would be a mistake to allow Foster’s 

participation for free.”

“It feels like we (OLA) are losing control”
Page | 163

Burke forwarded the email to Breuer, who responded:481

On a different chain that night, Weich emailed Burton and Axelrod regarding questions 

from Breuer’s Deputy Chief of Staff, Amy Pope:482

On Thursday, June 2, 2011, Axelrod learned of an incident involving a Mexican 

government-owned helicopter forced down in Jalisco, Mexico. The email stated in part:483

 

481 Email from Lanny Breuer to Dennis Burke (June 1, 2011) [DOJ-FF-34202].

482 Email from Ron Weich to Faith Burton and Matthew Axelrod (June 1, 2011) [DOJ-FF-34151].

483 Email from [ATF employee] to [ATF employee] and Matthew Axelrod (Jun. 2, 2011) [DOJ-FF-34778–79].

“[A]re we powerless to limit the 

witness’ testimony . . . ? How do 

we know he is a whistleblower?”

“State Dept has asked one of the CRM lawyers in the embassy to serve as Issa’s control 

officer. How do we manage Issa’s interaction . . . as he asks about F+F matters?”
Page | 164

Blogs were reporting the Fast and Furious firearms recovered at the scene, and Axelrod 

forwarded the chain to Schmaler, who responded:484

Axelrod added:485

Schmaler later sent a link to coverage of the issue by CBS News.486

On Friday, June 3, 2011, in response to a Question for the Record from Senator 

Grassley regarding the Criminal Division’s awareness of Operation Fast and Furious, Criminal 

Division officials discussed the need to disclose the Operation Fast and Furious wiretaps: 487

 

484 Email from Tracy Schmaler to Matthew Axelrod (June 2, 2011) [DOJ-FF-34778–79].

485 Email from Matthew Axelrod to Tracy Schmaler (June 2, 2011) [DOJ-FF-34778–79].

486 Email from Tracy Schmaler to Matthew Axelrod (June 2, 2011) [DOJ-FF-34778–79]; see also Sharyl Attkisson, 

‘Gunwalker’ guns linked to helicopter shooting, CBS NEWS, June 26, 2011, available at

http://www.cbsnews.com/news/gunwalker-guns-linked-to-helicopter-shooting.

487 Email from Amy Pope to Kevin Carwile (June 3, 2011) [DOJ-FF-36416–17].

“We know they know there are wiretaps”

“[ATF] emphasizes that the incident did not involve a 50cal . . . 

while ignoring the fact that it did involve 7.62s that may have 

been from F and F. Missing the forest for the trees.”
Page | 165

Officials also emailed about whether the requirement that Deputy Assistant Attorney Generals 

review wiretap applications arose from a statute, or merely DOJ policy:

488

Pope circulated draft language that would later be whittled down:489

Meanwhile, DOJ continued to discuss the transcribed interviews being conducted by 

Congress. Axelrod emailed Goldberg:490

 

488 Email from Mythili Raman to Greg Andres, et al. (June 3, 2011) [DOJ-FF-35961–62].

489 Email from Amy Pope to Greg Andres, et al. (June 6, 2011) [DOJ-FF-37016–17].

490 Email from Matthew Axelrod to Stuart Goldberg (June 3, 2011) [DOJ-FF-36418–19].

“A DAAG is required by Title 3 to approve the 

[wiretap applications]”

“[T]he 

applications in 

support of those 

wiretaps would 

have been 

reviewed by a 

Deputy Assistant 

Attorney 

General”
Page | 166

When Goldberg forwarded to Cole, Cole responded:491

2. Deputy Attorney General Cole’s Confirmation

FINDING: DOJ officials, including the Attorney General, carefully calculated which 

documents to release, and to whom. Officials sought to create the 

appearance that the Department was complying with the various 

congressional requests in exchange for getting nominations through 

the Senate, but undercut the efforts of those who worked to actually 

cooperate with aspects of Congress’s oversight.

On Saturday, June 4, 2011, as DOJ continued to block Senator’s Grassley’s staff from 

participating in witness interviews conducted by the Oversight Committee, Weich emailed:492

 

491 Email from James Cole to Stuart Goldberg (June 3, 2011) [DOJ-FF-36418–19].

492 Email from Ron Weich to Gary Grindler, et al. (June 4, 2011) [DOJ-FF-04644–45].

“It seems like we hit a nerve here, which I think may be 

good for current purposes.”
Page | 167

A few days later, on Monday, June 6, 2011, Axelrod sent an identical email to both ATF 

and the U.S. Attorney’s Office for the District of Arizona:493

Weich forwarded the email to Burton and Gaston:494

That afternoon, Axelrod emailed Grindler, David O’Neil, and Weich:495

Less than an hour later, Weich replied:

496

 

493 Email from Matthew Axelrod to Patrick Cunningham (June 6, 2011) [DOJ-FF-36080].

494 Email from Ron Weich to Faith Burton and Molly Gaston (June 6, 2011) [DOJ-FF-36144–45].

495 Email from Matthew Axelrod to Gary Grindler, et al. (June 6, 2011) [DOJ-FF-36195–96]. 

496 Email from Ron Weich to Matthew Axelrod, et al. (June 6, 2011) [DOJ-FF-36195–96]. 

“The Department is attempting to resolve its dispute with 

Senator Grassley . . . over his ability to conduct oversight”

“I think we can give much of what is 

sought, if it would result in confirmation.”
Page | 168

Meanwhile, Axelrod corresponded with House Oversight Chief Investigative Counsel 

Steve Castor over the interview of ATF witnesses:497

Subsequently, Axelrod forwarded the email to a broader group and wrote:498

 

497 Email from Matthew Axelrod to Faith Burton, et al. (June 6, 2011) [DOJ-FF-36563–64].

498 Email from Matthew Axelrod to Faith Burton and Paul Colborn (June 6, 2011) [DOJ-FF-36563–64].

“[T]here are important reasons for not giving Grassley everything he is asking for: it would 

embolden him in future fights and would ‘use up’ a lot of the material that we will eventually need 

to release to Issa . . . as the oversight struggle continues.”

“Are these witnesses ok with Sen 

Grassley’s staff participating?”

“If we have 

done our job 

right 

Grassley is 

feeling 

discomfort 

right now.”
Page | 169

Axelrod responded:499

Later, Burton and Colborn commented:500

When Axelrod forwarded in response his email to Castor from earlier in the day, Burton emailed 

Weich directly:501

 

499 Email from Matthew Axelrod to Faith Burton, et al. (June 6, 2011) [DOJ-FF-36563–64].

500 Email from Faith Burton to Matthew Axelrod (June 6, 2011) [DOJ-FF-36563–64]; email from Paul Colborn to 

Faith Burton and Matthew Axelrod (June 6, 2011) [DOJ-FF-36563–64].

501 Email from Faith Burton to Ron Weich (June 6, 2011) [DOJ-FF-36569–70].

“[W]hether the interviewees are ok with Jason 

[Foster] being there is irrelevant”

“I’m concerned that Matt is 

communicating independently with 

Staff here.”
Page | 170

That evening, Axelrod emailed Castor:502

When Castor responded, Axelrod again forwarded the email to Burton and Colborn:503

The next day, on Tuesday, June 7, 2011, Attorney General Holder met with Senator 

Grassley to work out a path forward on DOJ nominations and Senator Grassley’s investigation of 

Operation Fast and Furious.504 Grindler emailed:505

 

502 Email from Faith Burton to Ron Weich (June 6, 2011) [DOJ-FF-36571–72].

503 Email from Matthew Axelrod to Faith Burton and Paul Colborn (June 6, 2011) [DOJ-FF-36571–72].

504 See “Points for Meeting with Sens. Chambliss and Grassley re: Documents/Nominations,” attachment to email 

from Ron Weich to David O’Neil, et al. (Jun. 7, 2011) [DOJ-FF-37069–70].

505 Email from Gary Grindler to Matthew Axelrod and Stuart Goldbery (June 7, 2011) [DOJ-FF-37182].

“It strikes me as remarkably unusual that the Department is advising 

the Chairman on who can or cannot be present.”
Page | 171

Meanwhile, Weinstein indicated that he and Breuer would be meeting on Wednesday, 

June 8, 2011 regarding Operation Fast and Furious:506

That evening, Chairman Issa wrote to Acting Director Melson.507 The letter noted that 

despite the Committee’s subpoena and “dozens of telephone calls with DOJ’s Legislative Affairs 

office and officials in the Office of the Deputy Attorney General . . . the result of these 

communications . . . has been the production of no non-public documents by DOJ and ATF[.]”

508

 

It concluded: “Absent a complete production of documents pursuant to the subpoena by the dates 

mentioned, the Committee will be forced to evaluate whether contempt sanctions must be 

considered.”

509

Goldberg emailed the letter to Grindler and wrote:510

On Thursday, June 9, 2011, White House press official Eric Schultz emailed with Tracy 

Schmaler:511

 

506 Email from Jason Weinstein to James Trusty and Greg Andres (June 7, 2011) [DOJ-FF-37254].

507 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform to Kenneth Melson, Acting Dir., 

Bureau of Alcohol, Tobacco, Firearms & Explosives (June 8, 2011).

508 Id. at 1.

509 Id. at 2.

510 Email from Stuart Goldberg to Gary Grindler (June 7, 2011) [DOJ-FF-37271].

511 Emails between Eric Schultz, Tracy Schmaler, and Matthew Miller (June 9, 2011) [DOJ-FF-37738].

“[T]his seems to be a prelude for a 

contempt finding.”

“I have to meet with Lanny about Fast and Furious”
Page | 172

When Schmaler highlighted the points DOJ intended to make leading up the House Oversight 

Committee’s upcoming hearings, Schultz responded:512

[INTENTIONALLY BLANK]

 

512 Email from Eric Schultz to Tracy Schmaler and Matthew Miller (June 9, 2011) [DOJ-FF-37745–46].

“We are particularly interested in ya’ll making 

that second point on process”
Page | 173

Subsequently, Grinder emailed Attorney General Holder:513

Later that evening, White House Deputy Counsel Kathryn Ruemmler emailed Gary 

Grindler and Lisa Monaco:514

Monaco responded:515

[INTENTIONALLY BLANK]

On Friday, June 10, 2011, DOJ made its first production of non-public documents 

pursuant to the subpoena.516 The June 10 production totaled 69 pages.517

 

513 Email from Gary Grindler to Eric Holder (Jun. 9, 2011) [DOJ-FF-37713].

514 Email from Kathryn Ruemmler to Gary Grindler and Lisa Monaco (June 9, 2011) [DOJ-FF-37716].

515 Email from Lisa Monaco to Kathryn Ruemmler and Gary Grindler (June 9, 2011) [DOJ-FF-37716].

516 Report of the H. Comm. on Oversight & Gov’t Reform, Resolution Recommending that 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 

“Am concerned about the Wednesday 

hearing/Thursday business meeting that Issa is having”
Page | 174

As DOJ was preparing for the second House Oversight and Government Reform 

Committee hearing, scheduled for June 15, 2011, Axelrod emailed:518 

That afternoon, Schmaler noted:519

[INTENTIONALLY BLANK]

 

2012) at 4, available at https://oversight.house.gov/wp-content/uploads/2012/06/6-19-12-Fast-and-FuriousContempt-Report.pdf.

517 Letter from Ronald Weich, Ass’t Att’y Gen., Dep’t of Justice, to Darrell Issa, Chairman, H. Comm. on Oversight 

& Gov’t Reform (June 10, 2011).

518 Email from Matthew Axelrod to Ron Weich, et al. (June 11, 2011) [DOJ-FF-37766].

519 Email from Tracy Schmaler to Matthew Axelrod, et al. (June 10, 2011) [DOJ-FF-37319].

“Burke wants to know whether it’s proper for a Department employee to 

be testifying before Congress without having his testimony cleared”

“[T]erry points would be 

reactive only”
Page | 175

Only the background section of the talking points referenced the firearms connected to Operation 

Fast and Furious:520

That night Axelrod sent an email which indicated that some of the individuals involved in 

deciding what to turn over to Congress were the very same ATF Phoenix Field Division officials 

who had been a part of Operation Fast and Furious:521

 

520 Attachment to email from Tracy Schmaler to Matthew Axelrod, et al. (June 8, 2011) [DOJ-FF-37302–03].

521 Email from Matthew Axelrod to Mike Morrissey, et al. (June 11, 2011) [DOJ-FF-39257–58]. The DOJ OIG

report concluded Morrissey “failed to provide responsible oversight of Operation Fast and Furious.” Dep’t of 

Justice, Office of Inspector Gen., A Review of ATF’s Operation Fast and Furious and Related Matters (Sep. 2012), 

at 444–45. It also stated SAC Newell “bore ultimate responsibility for the failures in Operation Fast and Furious, 

particularly in light of his close involvement with the office’s highest-profile and most resource-intensive case. . . . 

Newell furnished incomplete information and at times made statements that conveyed a misleading impression to 

ATF Headquarters on matters related to Operation Fast and Furious. . . . Overall, we found that SAC Newell’s 

conduct with respect to Operations Wide Receiver and Fast and Furious was irresponsible . . . .” Id. at 437–40.

“ATF/USAO 

will have 

three 

people 

available 

tomorrow 

morning . . . 

– Mike 

Morrisey, 

Bill Newell”
Page | 176

On Saturday, June 11, 2011, Monaco suggested creating talking points that staff for 

House Oversight and Government Reform Committee Ranking Member Elijah Cummings could 

use at the upcoming hearing.522 Burton responded:523

On Monday, June 13, 2011, the House Oversight and Government Reform Committee 

held a hearing titled “Obstruction of Justice: Does the Justice Department Have to Respond to a 

Lawfully Issued and Valid Congressional Subpoena.”

524

 

On Tuesday, June 14, 2011, DOJ reviewed the proposed statement for DOJ official Ron 

Weich, representing DOJ on a second panel at the June 15 Oversight Committee hearing:525

[INTENTIONALLY BLANK]

 

522 Email from Lisa Monaco to Faith Burton (June 11, 2011) [DOJ-FF-38499].

523 Email from Faith Burton to Ron Weich and Lisa Monaco (June 11, 2011) [DOJ-FF-38503–04].

524 Obstruction of Justice: Does the Justice Department Have to Respond to a Lawfully Issued and Valid 

Congressional Subpoena: Hearing before the H. Comm. on Oversight & Gov’t Reform, 112th Cong. (June 13, 2011) 

(No. 112-61), available at https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg70820/pdf/CHRG-112hhrg70820.pdf.

525 Email from Gary Grindler to Margaret Richardson (June 14, 2011) [DOJ-FF-42250–51].

“This sounds like a bit of an exaggeration . . . . We should be careful about using 

words like ‘undermined’ if the entire investigation was not ‘undermined.’”
Page | 177

Later that day, the House Oversight and Government Reform Committee and the Senate 

Judiciary Committees published a joint staff report.526 The New York Times published an article 

on the report, its first article regarding Operation Fast and Furious.527 The article stated:

Some . . . agents blew the whistle to Congress this year after two . . . guns 

were found at the scene of the murder of the Border Patrol agent, Brian A. 

Terry. An official with knowledge of the investigation said that neither 

the bullet that killed Mr. Terry in December nor the casings found at the 

scene had been linked to the weapons that were recovered there. The 

official emphasized that “the murder weapon has not been discovered.”

528

The online article also linked to a January 28, 2011 memorandum from the U.S. Attorney’s 

Office for the District of Arizona which confirmed that the purchaser of the firearms recovered at 

the scene of Agent Terry’s murder had become a suspect in the Fast and Furious investigation 

over seven weeks prior to the purchase.529 The memorandum had not previously been produced 

to Congress.

That night, Weich received an email from Senator Grassley’s staff outlining the status of 

document production that had been agreed with Grassley in order for Cole to be confirmed as 

Deputy Attorney General.530 The email noted:531

* * *

Weich forwarded the email to David O’Neill, an official in the Office of the Deputy Attorney 

General, noting: “I don’t know what he’s talking about re: press.”

532

 

 

526 H. Comm. on Oversight & Gov’t Reform and S. Comm. on the Judiciary, The Department of Justice’s Operation 

Fast and Furious: Accounts of ATF Agents, Joint Staff Report, 112th Cong. (June 14, 2011), available at

http://oversight.house.gov/wp-content/uploads/2012/02/ATF_Report.pdf.

527 Ginger Thompson, Justice Department Accused of ‘Reckless Technique,’ N.Y. TIMES, June 14, 2011, available at

http://www.nytimes.com/2011/06/15/us/politics/15guns.html. 

528 Id.

529 Memorandum from [redacted] to [redacted], U.S. Attorney’s Office, District of Arizona, “Jaime Avila, Jr.”, Jan. 

28, 2011, http://www.documentcloud.org/documents/204491-operation-fast-and-furious-draftreport.html#document/p52.

530 Email from Kolan Davis to Ron Weich (June 14, 2011) [DOJ-FF-42862–64].

531 Email from Jason Foster to Kolan Davis (June 14, 2011) [DOJ-FF-42862–64].

532 Email from Ron Weich to David O’Neil (June 14, 2011) [DOJ-FF-42862–64].
Page | 178

O’Neill in turn circulated the email to a broader group of senior DOJ officials on the 

morning of Wednesday, June 15, 2011, and wrote:533

Meanwhile, Schmaler emailed regarding the Arizona U.S. Attorney’s Office 

memorandum released by The New York Times:

534

Schmaler notified the officials on the chain regarding productions to Senator Grassley:535

 

533 Email from David O’Neil to Stuart Goldberg, et al. (June 15, 2011) [DOJ-FF-42862–64].

534 Email from Tracy Schmaler to Matthew Axelrod, et al. (June 15, 2011) [DOJ-FF-42940].

535 Email from Tracy Schmaler to Stuart Goldberg, et al. (June 15, 2011) [DOJ-FF-42862–64].

“[O]ne of docs Grassley asked for 

and we could not provide b/c 

USAO objected.”

“[N]ot clear if it was faxed to NYT or Congress.”
Page | 179

Subsequently, Goldberg emailed:536

DOJ officials continued to discuss Weich’s statement. Burton wrote to Weich regarding 

the statement in his draft that “the Department has provided the Committee with 92 pages of 

documents responsive to the subpoena”:

537

 

536 Email from Stuart Goldberg to James Cole, et al. (June 15, 2011) [DOJ-FF-43041]. 

537 Email from Faith Burton to Ron Weich (June 15, 2011) [DOJ-FF-42315–17]; see also email from Ron Weich to 

Ron Weich (June 14, 2011) [DOJ-FF-42315–17].

“I think the double digit numbers re our 

production will be ridiculed and I’d stick with the 

triple digit totals”

“[B]ecause it is almost entirely 

factual it is not deliberative.”
Page | 180

Given the reference in the New York Times article to the ballistics report from the 

firearms recovered at the Terry murder scene, officials also discussed whether to release the 

report to Congress. The report was covered by the House Oversight Committee’s March 31 

subpoena. In the Arizona U.S. Attorney’s Office, Cunningham emailed Burke and Scheel:538

Burke responded, “Support.”

539

 However, that afternoon Stephen Dedalus Kelly, the FBI 

Assistant Director for Legislative Affairs, emailed top DOJ officials:540

The FBI’s General Counsel, Valerie Caproni, emailed in response to Kelly’s assessment: “I 

agree.”

541

 Lisa Monaco responded to the group:542

Weich later forwarded the chain to Steven Reich.543 Reich, who had recently been hired as an 

Associate Deputy Attorney General to take over from Matt Axelrod DOJ’s management of the 

 

538 Email from Patrick Cunningham to Dennis Burke and Ann Scheel (June 15, 2011) [DOJ-FF-42970–71].

539 Email from Dennis Burke to Patrick Cunningham and Ann Scheel (June 15, 2011) [DOJ-FF-42970–71].

540 Email from Stephen Kelly to Lisa Monaco and Ron Weich (June 15, 2011) [DOJ-FF-43037].

541 Email from Valerie Caproni to Stephen Kelly, et al. (June 15, 2011) [DOJ-FF-43037].

542 Email from Lisa Monaco to Valerie Caproni, et al. (June 15, 2011) [DOJ-FF-43037].

543 Email from Ron Weich to Steven Reich (June 17, 2011) [DOJ-FF-43038–39].

“[T]his is a very bad idea. This will become precedent 

for Sen. Grassley’s office . . . , and there’s a better than 

50/50 chance that Sen. Grassley will become Chairman 

of the Judiciary Committee in the next cycle.”

“Matt is initially inclined to release the 

ballistics report to Congress.”
Page | 181

congressional investigation into Operation Fast and Furious, was a former senior associate White 

House counsel for President Bill Clinton.544

At noon that same day, the House Oversight and Government Reform Committee heard 

testimony from Senator Grassley laying out the results of his investigation thus far; family 

members of Border Patrol Agent Brian Terry, alongside whistleblowers John Dodson, Lee Casa, 

and Pete Forcelli; and Assistant Attorney General Weich.545 

Late Border Agent Brian Terry’s cousin Robert Heyer, sister Michelle Terry Balogh, and mother 

Josephine Terry join ATF whistleblowers John Dodson, Olindo “Lee” Casa, and Peter Forcelli 

on June 15, 2011 hearing panel (House Oversight and Government Reform Committee photo)

In discussing DOJ’s failure to acknowledge the connection between Operation Fast and Furious 

and the firearms recovered at the scene of Agent Terry’s death, Heyer testified:

[T]here is a level of frustration for the family. I want to make it clear that 

our number-one goal is to pursue the prosecution of all the killers of Brian. 

That is our number-one goal. And, you know, the U.S. attorney’s office in 

Tucson and the FBI is working very hard to do that. But I also think that I 

can speak for the family—we have talked about this this morning—that 

there seems to be a separation, a distinct separation, between Brian’s 

murder investigation and the ATF Operation Gunrunner, Fast and Furious 

 

544 See Andrew Ramonas, Clinton Counsel Steven Reich to Join DOJ, MAINJUSTICE.COM, June 9, 2011, available at 

https://web.archive.org/web/20150926062930/http://www.mainjustice.com/2011/06/09/clinton-counsel-stevenreich-to-join-doj.

545 Operation Fast and Furious: Reckless Decisions, Tragic Outcomes: Hearing before the H. Comm. on Oversight 

& Gov’t Reform, 112th Cong. (June 15, 2011) (No. 112-64), available at https://www.gpo.gov/fdsys/pkg/CHRG112hhrg71077/pdf/CHRG-112hhrg71077.pdf. 
Page | 182

Operation. There seems to be a hesitancy to connect the two. So that part 

is very frustrating.546

When Weich appeared on the second panel, Chairman Issa asked him: “[W]ho here in 

Washington authorized it? . . . Who authorized this at Justice?”

547

 Weich responded: “Mr. 

Chairman, I do not know the answer to that question. And the Inspector General is reviewing the 

matter.”

548

Assistant Attorney General Ron Weich at June 15, 2011 House Oversight and Government 

Reform Committee hearing (House Oversight and Government Reform Committee photo)

That afternoon, commenting on a hearing of the Senate Drug Caucus, Jill Wade wrote:

549

 

546 Id. at 123-24.

547 Id. at 166.

548 Id.

549 Email from Jill Wade to Ron Weich, et al. (June 15, 2011) [DOJ-FF-43271].
Page | 183

On Thursday, June 16, 2011, DOJ officials continued to email about the issue:550

That same day, Acting Director Melson raised in a monthly meeting with Deputy Attorney 

General Cole issues with information sharing between the FBI, the Drug Enforcement 

Administration (DEA), and ATF that had impacted Operation Fast and Furious. According to 

Melson’s subsequent testimony:

 

550 Email from Mark Agrast to Ron Weich (June 16, 2011) [DOJ-FF-43271].

“Feinstein just said she’s going 

to hold a FF hrg w Grassley”

“Of course . . . Grassley . . . will try to steer them to F&F.”

“If the Drug Caucus is going to hold a hearing . . . it really should be . . . not 

F+F, and we should steer them in that direction.”
Page | 184
Page | 185

Let us just say it came to our attention that there may have been 

involvement of other agencies in this. And I was concerned about it. . . . 

[W]e mentioned it to ODAG on a number of occasions, and somewhat on 

certain terms of my concern that this whole thing would unravel and make 

the USG, the government, look a lot worse than it does with what’s 

coming out now. And was kind of brushed off with that until frustration 

reached the level that, in a monthly meeting with the [Deputy Attorney 

General], the day after the hearings, I mentioned to him exactly what we 

knew, so that he would know as to what could be or was happening, for 

whatever purposes he wanted to use it for.551

Two days later, on Friday, June 17, 2011, an ATF official circulated among ATF and 

DOJ officials a Wall Street Journal article titled “Head of ATF Likely To Go.”

552

 DOJ official 

Jill Wade forwarded the article to Mark Michalic and wrote:553

That day, in response to a press inquiry regarding reports that firearms used in a highprofile kidnapping and murder were linked to Fast and Furious, Axelrod emailed:554

 

 

551 Melson Transcript at 111-12.

552 Email from [ATF employee] to James McDermond (June 17, 2011) [DOJ-FF-44261–62]; see also Evan Perez 

and Devlin Barrett, Head of ATF Is Likely to Go, WALL ST. J. (June 17, 2011, print version June 18, 2011).

553 Email from Jill Wade to Mark Michalic (June 17, 2011) [DOJ-FF-44261–62].

554 Email from Matthew Axelrod to [ATF employee] (June 17, 2011) [DOJ-FF-44015–18].

“I called this one.”
Page | 186

ATF dismissed the connection by responding that day:555 

Axelrod only asked more probing questions of ATF after Chairman Issa and Ranking 

Member Grassley wrote to the Ambassador of Mexico on Tuesday, June 21, 2011, requesting

further details.556 Subsequently, on Wednesday, June 22, 2011, Axelrod emailed senior 

officials, including Cole:557

 

555 Email from [ATF employee] to Matthew Axelrod (June 17, 2011) [DOJ-FF-44015–18].

556 Email from Matthew Axelrod to [ATF employee] (June 22, 2011) [DOJ-FF-44015–18]; Email from Matthew 

Axelrod to James Cole, et al. (June 22, 2011) [DOJ-FF-44015–18]. 

557 Email from Matthew Axelrod to James Cole, et al. (June 22, 2011) [DOJ-FF-44015–18].

“For [F]ox to suggest the guns are linked is like saying there was a murder in southeast three weeks ago.”
Page | 187

Goldberg responded: “I am shocked.”

558

 Axelrod subsequently emailed Cole with a summary:559

Meanwhile, on Monday, June 20, 2011, Schmaler had circulated further follow-up on 

the issue of Melson’s possible ouster:560

 

558 Email from Stuart Goldberg to Matthew Axelrod (June 23, 2011) [DOJ-FF-44015–18].

559 Email from Matthew Axelrod to James Cole (June 23, 2011) [DOJ-FF-44871].

560 Email from Tracy Schmaler to Matthew Axelrod, et al. (June 20, 2011) [DOJ-FF-44315].

“I’ll double check Issa’s letter in the morning, but it appears 

that the allegations . . . are accurate.”

“[T]he kidnappers/murderers were in possession of two guns that tie back to Fast and Furious.”
Page | 188

On Tuesday, June 21, 2011, Grindler emailed Axelrod and Goldberg: “The AG wanted 

me to get a report on the pace at which documents are being reviewed and to get the most recent 

production letter that included a compilation of the docs produced to date, etc. . . . .”

561

 

Axelrod’s response revealed the immense lengths DOJ went to identify materials not to produce 

to Congress:562

Grindler forwarded the response to Holder.563

That day DOJ officials discussed possible locations for an upcoming announcement 

regarding the Southwest Border Counternarcotics Strategy:564

 

561 Email from Gary Grindler to Stuart Goldberg and Matthew Axelrod (June 21, 2011) [DOJ-FF-44355–56].

562 Email from Matthew Axelrod to Gary Grindler and Stuart Goldberg (June 21, 2011) [DOJ-FF-44355–56].

563 Email from Gary Grindler to Eric Holder (June 21, 2011) [DOJ-FF-44355–56].

564 Email from Matthew Miller to Gary Grindler and Molly Moran (June 21, 2011) [DOJ-FF-44557–59].

“Nearly forty lawyers and a dozen ATF agents have been 

involved in this review process.”

“[W]e are 

reviewing 

emails and 

attachments 

in three 

stages.”

“Five teams of 

lawyers . . . 

worked...to 

conduct the 

second-level 

review.”

“Four teams of lawyers . . . will be conducting the final-level review.”
Page | 189

Ultimately, the announcement was made in Nogales, Arizona.565

That same day, Steve Reich emailed Gary Grindler:566

 

565 U.S. Dep’t of Homeland Security, Press Release: Senior Administration Officials Release Southwest Border 

Counternarcotics Strategy (July 7, 2011), available at https://www.dhs.gov/news/2011/07/07/senior-administrationofficials-release-southwest-border-counternarcotics-strategy. 

566 Email from Steven Reich to Gary Grindler (June 21, 2011) [DOJ-FF-44868–70].

“This is a dumb location. Issa 

represents the [San Diego] area.”

“[T]here is a 

limit to how 

often you 

can send a 

letter like 

this as the 

points 

typically lose 

effectiveness 

when 

repeated.”

“Faith Burton consulted Minority staff this afternoon and 

their recommendation was also that we not send the letter.”
Page | 190

Grindler forwarded the email to Attorney General Holder and wrote, “Steven recommends that 

we not send the letter discussed earlier today.”

567

 He outlined the agenda for the Oversight and 

Government Reform Committee meeting, then added:568

The next morning, on Wednesday, June 22, 2011, Grindler again emailed Holder to seek 

a decision on withholding a response.569 When Holder asked for the basic reason, Grindler 

summarized:570

Holder replied, “Ok.”

571

 Grindler emailed Reich:572

 

567 Email from Gary Grindler to Eric Holder and James Cole (June 21, 2011) [DOJ-FF-44868–70].

568 Id. 

569 Email from Gary Grindler to Eric Holder (June 22, 2011) [DOJ-FF-44868–70].

570 Email from Gary Grindler to Eric Holder (June 22, 2011) [DOJ-FF-44868–70].

571 Email from Eric Holder to Gary Grindler (June 22, 2011) [DOJ-FF-44868–70].

572 Email from Gary Grindler to Steven Reich (June 22, 2011) [DOJ-FF-44821–22].

“[W]e need to hold our powder until a time when 

we may be in greater trouble with the Committee.”
Page | 191

Late that night, Weich emailed regarding the pending agreement with Senator Grassley 

and Senator Chambliss surrounding Cole’s confirmation:

573

On Thursday, June 23, 2011, Miller emailed Holder and others:574

On Thursday, June 23, 2011, senior officials emailed regarding Attorney General 

Holder’s testimony before the House Judiciary Committee on May 3, in which he stated to

Chairman Chaffetz that he “probably heard about Fast and Furious for the first time over the last 

few weeks”:

575

 

573 Email from Ron Weich to Gary Grindler, et al. (June 22, 2011) [DOJ-FF-44829].

574 Email from Matthew Miller to Eric Holder, et al. (June 23, 2011) [DOJ-FF-44856].

575 Email from Gary Grindler to Matthew Miller, et al. (June 23, 2011) [DOJ-FF-44886]; email from Stuart Delery 

to Gary Grindler (June 23, 2011) [DOJ-FF-44886]; see also United States Department of Justice: Hearing before the

“[I]t would easily sidetrack into Fast and Furious (which we don’t 

have a lot of good answers to until we have made some change).”

“

“I see no way we can get screwed . . . 

if Grassley tried to play games”
Page | 192

Meanwhile, as the Justice Department committed to cooperate with Senator Grassley’s 

oversight of Operation Fast and Furious, he lifted his hold on Cole’s nomination. On Tuesday, 

June 28, 2011, the Senate confirmed Cole as Deputy Attorney General. 

[INTENTIONALLY BLANK]

 

H. Comm. on Judiciary, 112th Cong. 45 (May 3, 2011) (No. 112-127), available at

https://www.gpo.gov/fdsys/pkg/CHRG-112hhrg66154/pdf/CHRG-112hhrg66154.pdf.

“We need to focus in on how to clarify the testimony of the AG”
Page | 193

VIII. Road to Subpoena for Justice Department

1. Melson Comes Forward

FINDING: After ATF Acting Director Kenneth Melson began cooperating with the 

congressional investigation, Justice Department officials worked 

furiously to undermine key elements of Melson’s testimony while 

obtaining a full transcript of his interview. 

On Thursday, June 30, 2011, Attorney General Eric Holder forwarded Chief of Staff 

Gary Grindler an article that had appeared on June 27 regarding ATF Acting Director Ken 

Melson testifying before Congress:576

That afternoon, ATF emailed Axelrod requesting approval to disseminate two documents.577 

One of the documents was an employee-wide message Acting Director Melson proposed to send 

to all employees:578

[INTENTIONALLY BLANK]

 

576 Email from Eric Holder to Gary Grindler (June 29, 2011) [DOJ-FF-46147]; see also John Solomon, Obama GunSting Breakthrough, DAILY BEAST (June 27, 2011), http://www.thedailybeast.com/articles/2011/06/27/atf-headkenneth-melson-to-testify-before-congress-on-operation-fast-and-furious.html.

577 Email from Jeffrey Sarnacki to Matthew Axelrod (Jun. 30, 2011) [DOJ-FF-46382].

578 Attachment to email from Jeffrey Sarnacki to Matthew Axelrod (Jun. 30, 2011) [DOJ-FF-46384–85].
Page | 194

* * *

On Friday, July 1, 2011, Stuart Goldberg forwarded the message to Cole.579

On Sunday, July 3, 2011, representatives from Chairman Issa’s and Senator Grassley’s 

staffs met confidentially with Acting Director Melson for three hours. A transcribed interview 

with Melson was originally scheduled for July 13 and set to include DOJ and ATF counsel.580 

However, once Melson became aware of his right to participate in a transcribed interview with 

his own personal counsel rather than attorneys representing DOJ, he arranged such an interview 

for the next morning on Capitol Hill.

581

 

579 Email from Stuart Goldberg to James Cole and Matthew Axelrod (July 1, 2011) [DOJ-FF-46284–85].

580 See letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform, and Charles Grassley, Ranking 

Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of Justice (July 5, 2011), at 1.

581 Id.

“I have a firm desire and resolve to meet with Congressional committee members

. . . . I expect to be afforded that opportunity in the near future.”
Page | 195

On the morning of Monday, July 4, 2011, the Committees conducted a transcribed 

interview of Melson. In the interview, he stated:

I am frustrated and disappointed in the way the whole thing has been 

handled, unfortunately. Of course, this is unfortunately my first experience 

with something like this with a congressional investigation. But I think 

the way it was handled went sideways and it could have been avoided with 

perhaps a more thoughtful approach to what was going on instead of such 

a strident approach to it. I think there could have been accommodations 

made between the Hill and ATF and DOJ as to how information was 

shared. It was very frustrating to all of us, and it appears thoroughly to us 

that the Department is really trying to figure out a way to push the 

information away from their political appointees at the Department.582

* * *

[M]any of us in the Director’s suite were unhappy with the way OLA was 

handling it. They are a very experienced group of people up there, Faith 

Burton has been up there for years, and I know she knows the Hill like the 

back of her hand and we have relied on her and others at OLA, I have for 

several years, both at ATF and EOUSA when we had Hill interactions. 

But the feedback I was getting from the Department and other places is 

that she and Senator Grassley did not necessarily see eye-to-eye on a 

number of things, so she was very strident in her approach to this and with 

Senator Grassley. 

I sat in Matt [Axelrod]’s office one day when they were writing the letter 

to Senator Grassley about him being only a ranking member and not the 

chair of the committee. I sat there across the desk from Matt, as I recall, 

and said, “This is really just poking him in the eye. What’s the sense of 

doing this? Even if you say you can’t give it to him, he’s going to get it 

through the back door anyhow, so why are we aggravating this 

situation”.

583

* * *

At one point, I had a conversation with Billy about this. And we had 

decided that we should approach Matt to consider with the other people in 

the Department whether somebody else other than Faith should head this 

up . . . .

584

 

582 Melson Transcript at 124. 

583 Id. at 126-27.

584 Id. at 128.
Page | 196

On the evening of Tuesday, July 5, 2011, Chairman Issa and Senator Grassley sent a 

letter to DOJ regarding Melson’s transcribed interview.585 The letter stated:

Acting Director Melson’s cooperation was extremely helpful to our 

investigation. He was candid in admitting mistakes that his agency made 

and described various ways he says that he tried to remedy the problems. 

According to Mr. Melson, it was not until after the public controversy that 

he personally reviewed hundreds of documents relating to the case, 

including wiretap applications and Reports of Investigations (ROIs). By 

his account, he was sick to his stomach when he obtained those documents 

and learned the full story. Mr. Melson said that he told the Office of the 

Deputy Attorney General (ODAG) at the end of March that the 

Department needed to reexamine how it was responding to the requests for 

information from Congress.586

Cole forwarded the letter to senior DOJ officials, copying Attorney General Holder:587

Holder responded:588

On Wednesday, July 6, 2011, as DOJ discussed the draft response, Faith Burton 

wrote:589

 

585 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform, and Charles Grassley, Ranking 

Mem., S. Comm. on the Judiciary to Eric Holder, Att’y Gen., Dep’t of Justice (July 5, 2011). 

586 Id.

587 Email from James Cole to Gary Grindler, et al. (July 5, 2011) [DOJ-FF-47327].

588 Email from Eric Holder to James Cole, et al. (July 5, 2011) [DOJ-FF-47327].

“A strong response is necessary.”
Page | 197

As new information continued to flow in to DOJ, officials discussed delaying a letter response, 

but Schmaler disagreed:590

Around the same time, Matt Miller emailed:591

As officials in DOJ reviewed exactly what to write to Congress, Schmaler emailed:592

 

589 Email from Faith Burton to Tracy Schmaler (July 6, 2011) [DOJ-FF-48038].

590 Email from Tracy Schmaler to Faith Burton, et al. (July 6, 2011) [DOJ-FF-48285].

591 Email from Matthew Miller to Paul Colborn, et al. (July 6, 2011) [DOJ-FF-48100].

592 Email from Tracy Schmaler to Steven Reich, et al. (July 6, 2011) [DOJ-FF-48033–37]. 

“I’d stay away 

from a 

representation 

that we’ll fully 

cooperate in the 

future”

“[E]very minute that goes by means 

we will have less impact on 

tomorrow’s stories.”
Page | 198

* * *

The final letter was sent to the Committees that day.593

Later that night, Schmaler emailed senior DOJ officials:594

Miller forwarded the email to Holder, who in turn forwarded it to Breuer:595

 

593 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Darrell Issa, Chairman, H. Comm. on Oversight 

& Gov’t Reform and Charles Grassley, Ranking Mem., S. Comm. on the Judiciary (July 6, 2011). 

594 Email from Tracy Schmaler to Steven Reich, et al. (July 6, 2011) [DOJ-FF-48082].

595 Email from Eric Holder to Lanny Breuer (July 6, 2011) [DOJ-FF-48082].

“This does not strike me as a compelling amount for two 

weeks worth of time – I’d delete.”

“

“Melson . . . feels Dept’s handling of the whole thing has been ‘problematic’”
Page | 199

On Thursday, July 7, 2011, FBI’s Stephen Kelly emailed Weich regarding DOJ’s July 6 

letter:596

Later that night, Weich forwarded an email from Senator Grassley’s staff to others at 

DOJ:597

 

596 Email from Stephen Kelly to Ron Weich (July 7, 2011) [DOJ-FF-48371].

597 Email from Ron Weich to Faith Burton, et al. (July 7, 2011) [DOJ-FF-46954–96].
Page | 200

On Friday, July 8, 2011, Holder’s Chief of Staff Gary Grindler emailed Cole’s Chief of Staff 

Stuart Goldberg:598

Grindler forwarded Goldberg’s response to Holder, who responded:599

[INTENTIONALLY BLANK]

 

598 Email from Gary Grindler to Stuart Goldberg (July 8, 2011) [DOJ-FF-48617].

599 Email from Eric Holder to Gary Grindler (July 8, 2011) [DOJ-FF-48617].

“I would like to craft a reply that 

gets me out of a dialogue with 

[Senator Grassley’s staff].”

“[D]etermine with 

confidence what 

took place . . . so 

we can then 

decide how to 

communicate this 

information to 

Congress”
Page | 201

Meanwhile, Weinstein emailed Reich about the October 17, 2010 email (located in this 

report’s Prologue) in which he had discussed Operation Wide Receiver and Operation Fast and 

Furious and written, “It’s a tricky case, given the number of guns that have walked”:

600

It is unclear from Weinstein’s email to Reich what caused Weinstein to search for the October 

17, 2010 email at this particular time. However, Weinstein also forwarded the email to Amy 

Pope.601

 

600 Email from Jason Weinstein to Steven Reich (July 8, 2011) [DOJ-FF-48634]. The email subsequently became a 

subject of dispute. On October 3, 2011, Weinstein was contacted by The Wall Street Journal to comment on his 

earlier email. Email from Evan Perez to Jason Weinstein (Oct. 3, 2011) [DOJ-FF-61098–99]. 

601 Email from Jason Weinstein to Amy Pope (July 8, 2011) [DOJ-FF-48634]. 
Page | 202

On Tuesday, July 12, 2011, Weich emailed Reich regarding Melson’s testimony

regarding DOJ:602

Late on the night of Tuesday, July 19, 2011, Holder emailed DOJ officials to find out 

whether Senator Leahy would provide DOJ with copies of the transcript from Acting Director 

Melson’s interview with staff from the Senate Judiciary Committee and House Oversight and 

Government Reform Committee.

603

 

Emails indicate that congressional Democrats had refused DOJ’s requests for behind-the-scenes 

assistance. When Reich responded, Holder followed up:604

[INTENTIONALLY BLANK]

 

602 Email from Ron Weich to Steven Reich (July 12, 2011) [DOJ-FF-49267].

603 Email from Eric Holder to Ron Weich, et al. (July 20, 2011) [DOJ-FF-04351].

604 Email from Eric Holder to Ron Weich, et al. (July 20, 2011) [DOJ-FF-04351].
Page | 203

2. Full Spin Mode

FINDING: In late July 2011, the Attorney General began receiving daily briefings 

about Fast and Furious, and Justice Department officials worked 

actively behind the scenes to influence Congress’s investigation. For 

example, Assistant Attorney General for Legislative Affairs Ron Weich 

attempted to “script” the House Oversight Committee’s Democrat staff 

and urged FBI legislative affairs official Stephen Kelly to provide less

information to Senator Grassley’s staff but to continue to talk to them 

“to gather intelligence.”

On Wednesday, July 20, 2011, Grindler emailed Steve Reich and Tracy Schmaler:605

That afternoon, Weich emailed with FBI legislative affairs official Stephen Kelly:606 

 

605 Email from Gary Grindler to Steven Reich and Tracy Schmaler (July 20, 2011) [DOJ-FF-51254]. 

606 Email from Ron Weich to Stephen Kelly (July 21, 2011) [DOJ-FF-51656].

“One paragraph- you want an answer to your letter 

send me the transcript”

“The AG wants both of you to stick around . . . each day to 

discuss the status of the ATF matter.”

“
Page | 204

On Monday, July 25, 2011, the day before a House Oversight and Government Reform 

Committee hearing on Operation Fast and Furious, Chairman Issa and Ranking Member 

Cummings’ staff provided DOJ with transcript excerpts that they intended to use during the 

hearing, in order to ensure that the Committee was not releasing any information detrimental to 

the ongoing criminal investigation. Reich emailed regarding Breuer:607

The next morning, Burton responded:608

In the meantime, Weich emailed:609

 

607 Email from Steven Reich to Faith Burton, et al. (July 25, 2011) [DOJ-FF-53024].

608 Email from Faith Burton to Ron Weich, et al. (July 26, 2011) [DOJ-FF-53025–26].

609 Email from Ron Weich to Jason Weinstein (July 25, 2011) [DOJ-FF-53039].

“FBI will be giving the investigators far more 

engagement than the other DOJ 

components, and that may be awkward”

“Faith has 

the same 

concern 

about it 

that I do”

“Can we ask them to include . . . excerpts . . . about Lanny not being briefed?”

“I don’t mind you talking with Jason [Foster] . . . to gather 

intelligence . . . , but do you need to do a . . . meeting . . . ?”
Page | 205

He further explained:610

Later Weich circulated specific text he intended to send to Democrat staff on the Oversight 

Committee:611

 

610 Email from Ron Weich to Jason Weinstein (July 25, 2011) [DOJ-FF-53039].

611 Email from Ron Weich to Faith Burton (July 25, 2011) [DOJ-FF-53883].

“[W]e’re trying, but not easy to script 

minority in this situation.”

“[T]hey don’t see the whole effort as a ‘witch hunt.’”

“Jason W[einstein] . . . anxious to have 

these additional points conveyed”
Page | 206

FINDING: When a joint congressional staff report on Operation Fast and Furious 

highlighted the involvement of the Justice Department’s Criminal 

Division and the U.S. Attorney’s Office for the District of Arizona, the 

Department immediately launched an aggressive effort to counteract 

the report. 

On the morning of Tuesday, July 26, 2011, the House Oversight and Government 

Reform Committee held a hearing focused on the impact of Operation Fast and Furious on 

Mexico.612 Additionally, the Oversight Committee’s majority staff released a joint staff report 

with Senator Grassley’s staff on the Senate Judiciary Committee.613 The report noted the U.S. 

Attorney’s Office for the District of Arizona was “inextricably involved in supervising Operation 

Fast and Furious . . . .”614 The report also contained a small section of testimony from ATF 

officials indicating that Breuer had been briefed on Fast and Furious in Mexico, and noted: 

“Further, the Department of Justice’s Office of Enforcement Operations (OEO) approved 

numerous of the wiretap applications in this case. These applications were signed on behalf of 

Assistant Attorney General Breuer in the spring of 2010.”

615

(House Oversight and Government Reform Committee photo)

 

612 Operation Fast and Furious: The Other Side of the Border: Hearing before the H. Comm. on Oversight & Gov’t 

Reform, 112th Cong. (July 26, 2011) (No. 112-100), available at https://www.gpo.gov/fdsys/pkg/CHRG112hhrg72802/pdf/CHRG-112hhrg72802.pdf. 

613 H. Comm. on Oversight & Gov’t Reform and S. Comm. on the Judiciary, The Department of Justice’s Operation 

Fast and Furious: Fueling Cartel Violence, Joint Staff Report, 112th Cong. (July 26, 2011), available at

https://oversight.house.gov/wp-content/uploads/2012/02/FINAL_FINAL.pdf. 

614 Id. at 40.

615 Id. at 39-40.
Page | 207

Chairman Issa raised the wiretaps in the hearing, asking: “Did Lanny Breuer – was he 

briefed by January 8, 2010? . . . [H]is office approved the wiretaps under his authority. . . . 

[S]omebody had to be briefed who signed it on his behalf, on his authority.”

616

 The ATF 

Phoenix and headquarters officials testifying professed ignorance as to the matter.

Meanwhile, Schmaler emailed Department officials that morning:

617

In response to a different email including The Washington Post’s coverage of the report,618

Attorney General Holder wrote:619

Grindler subsequently set up a meeting for the next day:620

[INTENTIONALLY BLANK]

 

616 Id. at 188.

617 Email from Tracy Schmaler to Amy Pope, et al. (July 26, 2011) [DOJ-FF-54247–63].

618 Sari Horwitz, Operation Fast and Furious: A gunrunning sting gone wrong, July 26, 2011, available at

https://www.washingtonpost.com/investigations/us-anti-gunrunning-effort-turns-fatallywrong/2011/07/14/gIQAH5d6YI_story.html. 

619 Email from Eric Holder to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-01354–01360].

620 Email from Gary Grindler to Linda Long (July 26, 2011) [DOJ-FF-52671].

“Hit 

back 

HARD”
Page | 208

As DOJ officials worked to draft a press statement, Weinstein responded in part:621

Schmaler circulated to a different group of officials a draft press statement:622 

 

621 Email from Jason Weinstein to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-54247–63].

622 Email from Tracy Schmaler to Steven Reich, et al. (July 26, 2011) [DOJ-FF-53852].
Page | 209

DOJ officials provided feedback. Burton emailed regarding the comment on “providing the 

public with full transcripts of interviews”:

623

Weich added: 624

 

623 Email from Faith Burton to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-53852].

624 Email from Ron Weich to Steven Reich, et al. (July 26, 2011) [DOJ-FF-53862].

“[T]he 

hearing . . .

has largely 

been about 

ATF rather 

than Main 

DOJ.”

“Hard to know if we’d be OK with public 

disclosure of the transcripts”
Page | 210

Even Office of Legal Counsel official Paul Colborn pushed back on Schmaler’s 

statement, emailing:

625

The ultimate final statement was circulated by Schmaler:

Weinstein replied: “I think we should be stronger,”

626 but when informed by Schmaler the 

statement had already gone out, responded:627

 

625 Email from Paul Colborn to Tracy Schmaler, et al. (July 26, 2011) [DOJ-FF-53838–40].

626 Email from Jason Weinstein to Tracy Schmaler, et al. (Jul. 26, 2011) [DOJ-FF-53988–4005].

627 Email from Jason Weinstein to Tracy Schmaler, et al. (Jul. 26, 2011) [DOJ-FF-53988–4005].

“[T]hey are accusing us of being complicit in 

an illegal gun-running operation”
Page | 211

That afternoon, Schmaler reported on the press coverage, linking to a Wall Street Journal

article:628

Holder responded:629

Schmaler emailed back:630

 

628 Email from Tracy Schmaler to Eric Holder, et al. (July 26, 2011) [DOJ-FF-55063–65]; see also Evan Perez, ATF 

Chief Says He Didn’t Approve Tactics, WALL ST. J., July 26, 2011, available at 

http://www.wsj.com/articles/SB10001424053111903999904576470412200383534.

629 Email from Eric Holder to Tracy Schmaler (July 26, 2011) [DOJ-FF-55063–65].

630 Email from Tracy Schmaler to Eric Holder, et al. (July 26, 2011) [DOJ-FF-55063–65].

“We were able to get more traction 

pushing back on the accusations about 

senior level approval/knowledge.”

“[T]hey 

continue the 

shift away from 

details of 

operation to 

the DOJ 

muzzling/

covering up 

narrative” “Wouldn’t surprise me if they also move to USAO and/or Lanny.”
Page | 212

FINDING: Assistant Attorney General Weich continued to obstruct the flow of 

information to the Committees, chiding FBI legislative affairs official 

Stephen Kelly for even meeting with congressional staff before “we 

have our shared facts straight.”

On Friday, July 29, 2011, Weich emailed Stephen Kelly about a meeting Kelly had with 

congressional staff:631

Kelly responded:632

 

631 Email from Ron Weich to Stephen Kelly (July 29, 2011) [DOJ-FF-55437].

632 Email from Stephen Kelly to Ron Weich (July 29, 2011) [DOJ-FF-55437].

“[W]e’ve asked all the components to 

wait until we have our shared facts 

straight before going to the Hill”

“[N]ot to provide any substantive 

information or to provide any substantive 

briefing, which we didn’t do.”
Page | 213

Weich forwarded the exchange to Richardson, O’Neil, and Reich, then added:633

Ultimately, Weich and Kelly concluded the conversation:634

On Tuesday, August 2, 2011, Weich emailed Reich and Burton:635

 

633 Email from Ron Weich to Margaret Richardson, et al. (July 29, 2011) [DOJ-FF-55447–48].

634 Email from Ron Weich to Stephen Kelly (July 29, 2011) [DOJ-FF-55437]; email from Stephen Kelly to Ron 

Weich (July 29, 2011) [DOJ-FF-55437].

635 Email from Ron Weich to Steven Reich and Faith Burton (Aug. 2, 2011) [DOJ-FF-55919–20].

“I’m not trying to burn him within his agency.”

“You know I discouraged a meeting 

when we spoke.”
Page | 214

Burton replied:636

3. Failure to Correct Record

FINDING: Even after Assistant Deputy Attorney General Jason Weinstein notified 

the Attorney General’s staff that his initial assessment of Operation 

Fast and Furious was incorrect, DOJ failed for four more months to 

correct its misrepresentation to Congress. Instead, Associate Deputy 

Attorney General Matt Axelrod urged ATF’s congressional liaison to 

provide only “high level” statements, such as that the congressional 

investigation “has been a distraction.” 

On Thursday, August 4, 2011, nearly six months after Assistant Deputy Attorney 

General Weinstein reported that Fast and Furious was conducted “thoughtfully, carefully, and 

strategically,” Weinstein emailed officials within the Office of the Attorney General to notify 

them that his initial conclusions conflicted with information he had since learned:

637

 

636 Email from Faith Burton to Steven Reich and Ron Weich (Aug. 2, 2011) [DOJ-FF-55919–20].

637 Email from Jason Weinstein to Stuart Goldberg, et al. (Aug. 4, 2011) [DOJ-FF-56090–93].

“Some of what I have seen in those reports . . . is in tension with what I was told . . . 

[M]y assessment would be different based on this additional . . . information.”

“[W]e need to figure out the whole law 

enforcement component picture”
Page | 215

On Friday, August 12, 2011, Ann Scheel sent Faith Burton the Terry family’s motion to 

intervene in the prosecution of the straw purchasers involved in Operation Fast and Furious.638 

Burton replied:639

In response, Scheel emailed:640

Burton followed up:641

On Tuesday, August 16, 2011, Burton emailed Burke about preparing for his transcribed 

interview with the Committees:

642

 

638 Email from Ann Scheel to Faith Burton (Aug. 12, 2011) [DOJ-FF-56690–91].

639 Email from Faith Burton to Ann Scheel (Aug. 12, 2011) [DOJ-FF-56690–91].

640 Email from Ann Scheel to Faith Burton (Aug. 12, 2011) [DOJ-FF-56690–91].

641 Email from Faith Burton to Ann Scheel (Aug. 12, 2011) [DOJ-FF-56690–91].

“[T]he USAO

. . . had

provided 

them with all 

information 

they are 

entitled to”

“[W]e did oppose the motion”

“[T]he Terry family is not a victim as 

defined by the CVRA.”

“[V]ictim families are entitled 

to certain information . . . 

which you all are providing . . .

right?”
Page | 216

On Wednesday, August 17, 2011, Axelrod emailed ATF Assistant Deputy Director of 

the Office of Public and Governmental Affairs Chris Shaefer voicing his concern that agency 

talking points about Fast and Furious should not include details or conclusions because of new 

information that the Department was continuing to uncover:

643

On Tuesday, August 23, 2011, Weich emailed:644

[INTENTIONALLY BLANK]

 

642 Email from Faith Burton to Dennis Burke (Aug. 16, 2011) [DOJ-FF-56995].

643 Email from Matt Axelrod to Chris Shaefer (Aug. 17, 2011) [DOJ-FF-00002].

644 Email from Ron Weich to Faith Burton, et al. (Aug. 23, 2011) [DOJ-FF-57713].

“We’ve . . . prepared an outline of questions/topics that you might want to review”

“This version wades further . . . into details and conclusions 

about Fast and Furious, which strikes us as unwise given the 

evolving nature of what we’re all still learning”

“Our recommendation is that any communication of this 

sort be kept high level -- [e.g.] this has been a distraction”
Page | 217

FINDING: Attorney General Holder was heavily involved in the timing and public 

relations aspects of the removal of ATF Acting Director Melson, going 

so far as to order Melson’s door be closed so as to avoid the 

information leaking that Melson had cleaned out his office over the 

weekend. Holder was especially concerned about avoiding the 

appearance that Melson was a “fall guy.” 

On Thursday, August 25, 2011, Deputy Attorney General Cole sent the following

memorandum to Attorney General Holder about removing Acting Director Melson from his post 

at ATF:

645

 

645 Attachment to email from [Administrative Assistant (ODAG)] to Matthew Axelrod (Aug. 25, 2011) [DOJ-FF57792–95].

“[A] change in leadership is

necessary”

“Cynthia [Schnedar] called this 

AM to chide me (politely)”

“[W]e included that . . . as sort of a ‘gotcha’ point”
Page | 218

On the morning of Sunday, August 28, 2011, Melson emailed DOJ officials about 

logistics related to his departure from ATF:

646

DOJ officials discussed a press strategy and public affairs equities. When Goldberg forwarded 

Melson’s email to Attorney General Holder and others, Holder responded:647

[INTENTIONALLY BLANK]

 

646 Email from Kenneth Melson to James Cole and Stuart Goldberg (Aug. 28, 2011) [DOJ-FF-01274–75].

647 Email from Eric Holder to James Cole, et al. (Aug. 28, 2011) [DOJ-FF-01310–11].

“[P]roblem with going earlier than Tuesday is that we won’t have Dennis in the package.”
Page | 219

He added:648

Later, Goldberg emailed:649

David O’Neill in the Office of the Deputy Attorney General responded:650

 

648 Email from Eric Holder to James Cole, et al. (Aug. 28, 2011) [DOJ-FF-01310–11].

649 Email from Stuart Goldberg to Eric Holder, et al. (Aug. 28, 2011) [DOJ-FF-01274–75].

650 Email from David O’Neil to Stuart Goldberg, et al. (Aug. 28, 2011) [DOJ-FF-01274–75].

“No one is a fall guy here.”

“Ken . . . has cleaned out his office. That will create a buzz at ATF”

“[H]e may think he’s giving us a heads-up . . . as opposed to asking”
Page | 220

Deputy Attorney General Cole added:651

Schmaler and Grindler replied:652

Holder instructed:653

 

651 Email from James Cole to David O’Neil (Aug. 28, 2011) [DOJ-FF-01272–73].

652 Email from Gary Grindler to Tracy Schmaler, et al. (Aug. 28, 2011) [DOJ-FF-01272–73].

653 Email from Eric Holder to Gary Grindler, et al. (Aug. 28, 2011) [DOJ-FF-01272–73]. 

“We’ll need to get to dennis as soon as possible.”

“Tell them to close the door to his office”
Page | 221

On the issue of the statement, he wrote:654

On Monday, August 29, 2011, DOJ officials emailed about draft talking points for calls 

to Congress regarding Melson’s removal from ATF and Burke’s removal from DOJ. Weich 

advocated against Holder’s personal involvement:655

Grindler followed up:656

 

654 Email from Eric Holder to Gary Grindler, et al. (Aug. 28, 2011) [DOJ-FF-01274–75].

655 Email from Ron Weich to Gary Grindler, et al. (Aug. 29, 2011) [DOJ-FF-57852–83].

656 Email from Gary Grindler to Stuart Delery, et al. (Aug. 29, 2011) [DOJ-FF-57899–900].

“I was somewhat surprised when 

the AG said . . . he expects to have 

these conversations personally. . . . 

[T]here may be a value in keeping 

the AG a step removed.”

“This is not a negotiation. Soft landing is 

way more than enough”
Page | 222

Schmaler commented on the line, “Ken Melson and Dennis Burke have both acknowledged 

mistakes in that area, and it will be useful to turn the page from those mistakes”:

657

Goldberg responded with an edit to the sentence:

658

 

657 Email from Tracy Schmaler to Stuart Delery, et al. (Aug. 29, 2011) [DOJ-FF-57966–67].

658 Email from Stuart Goldberg to Stuart Delery, et al. (Aug. 29, 2011) [DOJ-FF-57899–900].

“I would not say that we may take further steps because that 

would suggest that we in effect fired Ken and Dennis.”

“I think we do not want to give the 

impression – or allow the Congress to claim –

that Melson or Burke are being scapegoated.”
Page | 223

Reich noted that the talking points for conversations with congressional staff would be 

the first time Congress learned of an internal management review on Fast and Furious, despite 

DOJ stating it had to wait for the Inspector General’s report before taking any action:659

That night Schmaler also circulated a question and answer document regarding the 

pending personnel changes.660

[INTENTIONALLY BLANK]

 

659 Email from Steven Reich to Ron Weich (Aug. 29, 2011) [DOJ-FF-57855].

660 Attachment to email from Tracy Schmaler to Gary Grindler, et al. (Aug. 30, 2011) [DOJ-FF-58607–10].
Page | 224

On Tuesday, August 30, 2011, Goldberg replied to Schmaler’s email:661

Weich also emailed the larger group regarding the talking point, “Finally, the U.S. 

Attorney’s office in Arizona has decided to re-staff the criminal cases arising out of ATF’s 

Operation Fast and Furious”:

662

 

661 Email from Stuart Goldberg to Tracy Schmaler, et al. (Aug. 30, 2011) [DOJ-FF-58606].

“[T]here was mutual recognition . . . it was in the best interest of ATF.”
Page | 225

The revised version simply said, “[T]he U.S. Attorney’s office in Arizona has decided to re-staff 

several criminal cases. We will provide details about those changes in the near future.”

663

 

Soon the personnel changes were announced.664 Weich updated Attorney General Holder 

on the calls to Congress:665

Schmaler updated Holder and other senior DOJ officials on the press coverage:666

 

662 Email from Ron Weich to James Cole, et al. (Aug. 30) [DOJ-FF-57869]; see also email from Ron Weich to Gary 

Grindler, et al. (Aug. 29, 2011) [DOJ-FF-57852–53].

663 Attachment to email from Ron Weich to James Cole, et al. (Aug. 30, 2011) [DOJ-FF-57869–70].

664 See, e.g., Jerry Markon and Sari Horwitz, ATF head Kenneth Melson reassigned amid gun-trafficking probe, 

WASH. POST, Aug. 30, 2011, available at https://www.washingtonpost.com/politics/atf-head-kenneth-melsonreassigned-amid-gun-trafficking-probe/2011/08/30/gIQAjALppJ_story.html. 

665 Email from Ron Weich to Tracy Schmaler, et al. (Aug. 30, 2011) [DOJ-FF-01285].

666 Email from Tracy Schmaler to Eric Holder, et al. (Aug. 30, 2011) [DOJ-FF-58064–71].

“I’ve revised the USAO ‘re-staffing’ point to remove reference to F+F”

“If we meet with him- we do it here.”
Page | 226

When she sent the same clips to White House spokesperson Eric Schultz, they discussed how to 

further disseminate their message:667

Holder and Cole emailed:668

 

667 Email from Tracy Schmaler to Eric Schultz (Aug. 30, 2011) [DOJ-FF-58191–98].

668 Emails between Eric Holder and James Cole (Aug. 20, 2011) [DOJ-FF-01299–300].

“So far, coverage is good.”

“When the R’s start going on cable to beat us up, we 

don’t have anyone to put out, right?”

“[I]t really is astounding that 

the plan worked – so far.”
Page | 227

The afternoon of that same day, Schmaler and Holder emailed about the press 

coverage:669

On Wednesday, August 31, 2011, DOJ sent a letter to Issa and Grassley that officially 

acknowledged for the first time that firearms recovered from the murder scene of Border Patrol 

Agent Brian Terry were connected with Operation Fast and Furious:670

Some of the information about other firearm recoveries related to the case came as news to 

individuals in the Arizona U.S. Attorney’s Office:671

[INTENTIONALLY BLANK]

 

669 Emails between Eric Holder and Tracy Schmaler (Aug. 30, 2011) [DOJ-FF-58573–605].

670 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Darrell Issa, Chairman, H. Comm. on Oversight 

& Gov’t Reform and Charles Grassley, Ranking Mem., S. Comm. on the Judiciary (Aug. 31, 2011). An earlier 

response had provided similar information, but had not explicitly acknowledged that the firearms recovered at the 

scene of Agent Terry’s death were connected to Operation Fast and Furious.

671 Email from Patrick Cunningham to Molly Gaston, et al. (Aug. 31, 2011) [DOJ-FF-58015–16].

“Just need to make sure we keep this 

up on day 2 and beyond.”
Page | 228

However, as the Arizona officials had failed to respond for nearly a day and a half to the request 

for comment by Main Justice, the response had already been transmitted to Congress.

4. Revelation of Further Justice Department Role

FINDING: Department officials tried to divert attention towards a different ATF 

operation during the Bush administration—known as Operation Wide 

Receiver—to politicize the Fast and Furious investigation. 

Late on the night of Tuesday, August 30, 2011, Holder emailed Schmaler regarding an 

encounter with Chairman Issa:672

Schmaler wrote back:673

 

672 Email from Eric Holder to Tracy Schmaler (Aug. 30, 2011) [DOJ-FF-58613].

673 Email from Tracy Schmaler to Eric Holder (Aug. 30, 2011) [DOJ-FF-58613].

“Seems like he’s lost his footing.”

“This event . . . will cause inquiries here in AZ by law enforcement and the press”
Page | 229

Holder replied:674

On Thursday, September 1, 2011, DOJ made its final production of emails responsive 

to the ATF subpoena. That same day, Chairman Issa and Senator Grassley wrote a letter to Ann 

Scheel, the new Acting U.S. Attorney for the District of Arizona, which stated:

Your office’s recent court filing in opposition to the rights asserted by the 

family of slain Border Patrol Agent Brian Terry under the Crime Victims’

Rights Act (CVRA) is disquieting. . . . We find it difficult to understand 

why anyone would oppose the Terry family’s motion on the grounds that 

there is potentially no connection at all between the case against Mr. Avila 

and the case against Agent Terry’s murderers.675

The letter also requested transcribed interviews with various Department officials in the office.676 

In response, Colborn emailed:677

On Tuesday, September 6, 2011, Ron Weich wrote:678

 

674 Email Eric Holder to Tracy Schmaler (Aug. 30, 2011) [DOJ-FF-58613].

675 Letter from Darrell Issa, Chairman, H. Comm. on Oversight & Gov’t Reform, and Charles Grassley, Ranking 

Mem., S. Comm. on the Judiciary to Ann Birmingham Scheel, Acting U.S. Att’y for the Dist. of Ariz. (Sept. 1, 

2011), at 2-3, available at https://oversight.house.gov/wp-content/uploads/2012/08/September-1-2011-Issa-andGrassley-to-Scheel.pdf. 

676 Id. at 2.

677 Email from Paul Colborn to Ron Weich (Sept. 1, 2011) [DOJ-FF-58815–16].

“We have to dig on this and see what the hell 

they’re talking about.”

“[L]ike to bounce off you some thoughts . . . on executive privilege 

arguments to oppose a deposition subpoena for Hurley.”

“[H]eard rumblings about Lanny from a reliable 

reporter. New stuff we don’t know yet, apparently.”
Page | 230

On Wednesday, September 7, 2011, Holder held a televised news conference in which 

he acknowledged the case “was clearly a flawed enforcement effort,” but stated: “The notion that 

this reaches into the upper levels of the Justice Department is something that at this point I don’t 

think is supported by the facts and I think once we examine it and once the facts are revealed 

we’ll see that’s not the case.”679

On Monday, September 19, 2011, Colborn emailed regarding a letter to Chairman Issa 

on the information DOJ was withholding:680

The next day, on Tuesday, September 20, 2011, Colborn emailed:681

 

678 Email from Ron Weich to Tracy Schmaler, et al. (Sept. 6, 2011) DOJ-FF-59566 –67].

679 Terry Frieden, Holder: ‘Fast and Furious’ operation didn’t reach DOJ ‘upper levels’, CNN, Sept. 7, 2011, 

available at http://www.cnn.com/2011/US/09/07/holder.fast.and.furious.

680 Email from Paul Colborn to Steven Reich and Faith Burton (Sept. 19, 2011) [DOJ-FF-60096].

681 Email from Paul Colborn to Steven Reich (Sept. 20, 2011) [DOJ-FF-60147].

“[D]iscourage the story line that these cases have been 

reassigned in response to congressional pressure.”

“Issa/Grassley may try to take credit”

“I think giving a page count is an inappropriate accommodation at this point.”
Page | 231

On the night of Friday, September 30, 2011, DOJ produced the first documents 

responsive to Chairman Issa and Senator Grassley’s July 11 request for documents from certain 

senior Department officials. While the documents did not include any mention of Breuer, the 

production did include emails from other Criminal Division officials, such as the email in which 

Weinstein wrote, “It’s a tricky case, given the number of guns that have walked.”

On Monday, October 3, 2011, DOJ began fielding inquiries regarding Weinstein’s

email.

682

 DOJ used the opportunity to point reporters to Operation Wide Receiver, an earlier 

operation run by ATF’s Phoenix Field Division. However, an article on the issue in The Wall 

Street Journal also focused on memoranda Holder received about Fast and Furious.

683

 When 

Schmaler forwarded it to Holder, he responded:684

 

682 See, e.g., email from Evan Perez to Jason Weinstein (Oct. 3, 2011) [DOJ-FF-61098–99].

683 Evan Perez, Justice Emails Show Officials Discussing Gun Probe, WALL ST. J., Oct. 3, 2011, available at 

http://www.wsj.com/articles/SB10001424052970204612504576609632148173472.

684 Email from Eric Holder to Tracy Schmaler (Oct. 3, 2011) [DOJ-FF-61082–83].

“Can I see the 2 reports . . . sure I didn’t read them.”
Page | 232

That same night, another public affairs official emailed Gary Grindler:685

The official followed up:686

The story, written by CBS’ Sharyl Attkisson, was titled “ATF Fast and Furious: New documents 

show Attorney General Eric Holder was briefed in July 2010.”

687

 According to Attkisson, DOJ 

spokeswoman Tracy Schmaler yelled at her about the story, while she said White House 

spokesman Eric Schultz “literally screamed at me and cussed at me” about the story.688

On Tuesday, October 4, 2011, Schmaler emailed Schultz regarding Attkisson, as well as 

the fact that no other media outlets were covering DOJ’s spin on Operation Wide Receiver:

689

 

685 Email from Beverly Lumpkin to Gary Grindler (Oct. 3, 2011) [DOJ-FF-60970].

686 Email from Beverly Lumpkin to Gary Grindler (Oct. 3, 2011) [DOJ-FF-60970].

687 Sharyl Attkisson, ATF Fast and Furious: New Documents show Attorney General Eric Holder was briefed in 

July 2010, CBS NEWS, Oct. 3, 2012, available at http://www.cbsnews.com/news/atf-fast-and-furious-newdocuments-show-attorney-general-eric-holder-was-briefed-in-july-2010. 

688 Media, CBS Reporter Claims White House Officials Screamed and Cursed at Her (Audio), HUFFINGTON POST,

Oct. 5, 2011, available at http://www.huffingtonpost.com/2011/10/05/cbs-white-house-screamed_n_995794.html. 

689 Email from Tracy Schmaler to Eric Schultz (Oct. 4, 2011) [DOJ-FF-61330–32].

“Bad story coming on CBS Evening News tonight.”
Page | 233

Schultz responded:690

He also added:691

Schmaler emailed:

692

Schultz replied:693

 

690 Email from Eric Schultz to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61330–32].

691 Email from Eric Schultz to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61330–32].

692 Email from Tracy Schmaler to Eric Schultz (Oct. 4, 2011) [DOJ-FF-61330–32].

693 Email from Eric Schultz to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61330–32].

“Her piece was really bad for AG.”

“I said you could load her up on the leaks, etc.”

“She’s out of control”
Page | 234

Schmaler responded that the stories would come up inevitably anyway when the changes were 

announced, but Schultz emailed:694

That morning, Schultz emailed regarding a passage in Politico’s coverage of the issue:695

 

694 Email from Eric Schultz to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61330–32].

695 Email from Eric Schultz to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61342–43].

“We need to take over the storyline here.”

“[H]e has no connection 

to f and f so he’ll be able 

to bat those away.”

“[T]o give reporters new quotes and fodder to 

write a whole new round of stories, given the 

current pique in interest, seems like a mistake.”
Page | 235

Later that day, House Judiciary Chairman Lamar Smith called for a special counsel to 

investigate the issue.696 Grindler emailed:697

In response, Schmaler circulated a draft press release:

698

Reich responded regarding the final sentence of Schmaler’s draft release:

699

Shortly thereafter, the Associated Press released an article titled, “AP sources: Bush-era 

probe involved guns walking.”700 The article cited as its source “two federal law enforcement 

officials.”

701

 Schmaler emailed the article to Holder, who responded:702

 

696 H. Comm. on the Judiciary, Press Release: Smith Calls for Investigation into AG’s Statements at HJC (Oct. 4, 

2011), available at https://judiciary.house.gov/pressrelease/smithcallsforinvestigationintoagsstatementsathjchearing/. 

697 Email from Gary Grindler to Margaret Richardson, et al. (Oct. 4, 2011) [DOJ-FF-61191–93].

698 Email from Tracy Schmaler to Stuart Delery, et al. (Oct. 4, 2011) [DOJ-FF-61191–93].

699 Email from Steven Reich to Ron Weich, et al. (Oct. 4, 2011) [DOJ-FF-61191–93].

700 Pete Yost, AP sources: Bush-era probe involved guns ‘walking’, ASSOC. PRESS, Oct. 4, 2011, available at

http://www.sandiegouniontribune.com/sdut-ap-sources-bush-era-probe-involved-guns-walking-2011oct04-

story.html.

701 Id.

702 Email from Eric Holder to Tracy Schmaler (Oct. 4, 2011) [DOJ-FF-61363–64].

“I would like to convene a meeting to discuss how we should be dealing with the events”

“[K]eep in mind, these are the same folks who 

called for ‘heads to roll’ over a $16 muffin”

“I think 

‘proactively 

alerted’ is a 

bit strong”
Page | 236

On Wednesday, October 5, 2011, Stuart Delery wrote to Schmaler and Grindler, as well 

as other members of the Office of the Deputy Attorney General and the Office of Legislative 

Affairs:703

FINDING: The public revelation that Attorney General Holder received 

memoranda on Fast and Furious in July 2010 sent senior Justice 

Department leadership into a frenzy, with Holder ordering top 

Department officials to push back hard. In response, DOJ undertook an 

aggressive public relations campaign, recruiting law enforcement 

surrogates to defend Holder.

That day, questions regarding Operation Fast and Furious arose at a White House press 

conference, including a question regarding Sharyl Attkisson: “When government officials start 

yelling at you, sometimes it’s because they’re getting defensive, right? . . . Why would the 

administration be yelling at her about this story?”

704

 

703 Email from Stuart Delery to Tracy Schmaler, et al. (Oct. 5, 2011) [DOJ-FF-61373–74]. 

704 Press conference, Oct. 5, 2011, available at https://www.whitehouse.gov/the-press-office/2011/10/05/pressbriefing-press-secretary-jay-carney.

“[I]t’s useful 

for us to 

push back 

on the idea 

that the AG 

needed to 

be pushed 

by Congress 

on this.”

“WOW!”
Page | 237

Schmaler emailed the transcript to Holder, who responded:705

Minutes later Holder emailed Schmaler, irate that a Sharyl Attkisson story on Operation 

Wide Receiver included a hyperlink to her October 3 story about his being briefed in July 

2010:

706

[INTENTIONALLY BLANK]

 

705 Email from Eric Holder to Tracy Schmaler, et al. (Oct. 5, 2011) [DOJ-FF-61706–08].

706 Email from Tracy Schmaler to Eric Holder (Oct. 5, 2011) [DOJ-FF-61686–89]; see also Sharyl Attkisson, 

Informant: ATF “gun walking” went on for years, CBS NEWS, Oct. 5, 2011, available at 

http://www.cbsnews.com/news/informant-atf-gun-walking-went-on-for-years.

“[D]amn memos. . . . Not the source of my knowledge”
Page | 238

Later that night, Holder wrote:707

[INTENTIONALLY BLANK]

 

707 Email from Eric Holder to Tracy Schmaler, et al. (Oct. 5, 2011) [DOJ-FF-61786].

“Scream at her”
Page | 239

Ohlson emailed:708

In a separate chain, Miller sent his own advice:709

* * *

 

708 Email from Kevin Ohlson to Eric Holder and Matthew Miller (Oct. 5, 2011) [DOJ-FF-61648–49].

709 Email from Matthew Miller to Eric Holder and Kevin Ohlson (Oct. 5, 2011) [DOJ-FF-61647].

“Why 

don’t we 

just 

answer 

this 

asshole”

“[G]o on offense”

“[T]his drumbeat from the Right is bullshit”

“The coverage really did break 

through . . . of course it was in 

the NYT this morning.”
Page | 240

 

Shortly thereafter, Miller emailed again:710

Holder forwarded the chain to Grindler.711

 

710 Email from Matthew Miller to Kevin Ohlson and Eric Holder (Oct. 5, 2011) [DOJ-FF-61648–49].

711 Email from Eric Holder to Eric Holder (Oct. 5, 2011) [DOJ-FF-61648–49].

“[Y]ou could find 

a way to ‘run 

into’ a couple of 

reporters on your 

way to 

something.”

“Most important is that you’re 

in front of a camera in a relaxed 

manner giving a response you 

have rehearsed.”

“[W]e’re not 

going to allow 

[ATF] to be put 

out of business 

by people 

carrying water 

for the gun 

lobby.”

“This part has to be really carefully 

crafted and delivered”

“The last time 

your credibility 

was directly 

questioned was 

whether you had 

disclosed all of 

your amicus 

briefs”
Page | 241

FINDING: Senior Justice Department leadership was irate that the Department’s 

internal investigators had not leaked certain documents in a more 

strategic way to lessen their impact. Thereafter, Holder sought “intel” 

on the individuals criticizing him, from members of Congress to local 

sheriffs, even asking about the political affiliations of a group of 

sheriffs who called on him to resign.

Later that night, DOJ Office of Public Affairs Director Matthew Miller emailed 

Holder:712 

Holder forwarded the email to Grindler with the comment, “I agree.”

713

 

On Thursday, October 6, 2011, Stephen Kelly emailed Weich regarding a briefing the 

FBI and DEA provided Committee staff with the previous day:714

 

712 Email from Matthew Miller to Eric Holder (Oct. 5, 2011) [DOJ-FF-61785].

713 Email from Eric Holder to Gary Grindler (Oct. 6, 2011) [DOJ-FF-61785].

714 Email from Stephen Kelly to Ron Weich (Oct. 6, 2011) [DOJ-FF-61962–63].

“The whole point of the review 

is to find things like this and 

come up with plans for dealing 

with them.”

“It should 

have been 

obvious 

that these 

memos 

were going 

to be a 

huge 

target”

“I believe it went well, but we’ll just have to 

see whether the Committee comes back to us”
Page | 242

Weich replied, referencing FBI Assistant Director Kevin Perkins:715

Meanwhile Holder continued to email Grindler regarding the letter being drafted to 

Congress:716 

Later that afternoon, a draft of the letter was circulated. In response, Weich wrote:717

That night, Schmaler updated her colleagues on the press coverage from the statement 

DOJ issued:718

 

715 Email from Ron Weich to Stephen Kelly (Oct. 6, 2011) [DOJ-FF-61962–63].

716 Email from Gary Grindler to Eric Holder (Oct. 6, 2011) [DOJ-FF-61664–66].

717 Email from Ron Weich to Steven Reich (Oct. 6, 2011) [DOJ-FF-61787].

718 Email from Tracy Schmaler to Eric Holder, et al. (Oct. 6, 2011) [DOJ-FF-61935–44].

“Relationships with Hill are irrelevant now”

“[W]e should not raise the issue of no confirmed ATF head – that will 

upset Leahy, and the blame for that is mixed and complicated.”

“I heard the briefing was very effective, and that 

Perkins was suitably aggressive!”
Page | 243

Two hours later, Schmaler sent out an update:719

When Holder replied, Schmaler emailed:720 

On Friday, October 7, 2011, Attorney General Holder, who was in Chicago for a 

speech, checked in with Schmaler on the status of the letter.721 Schmaler suggested arranging a 

meeting with reporters in order to release the letter:722

 

719 Email from Tracy Schmaler to Eric Holder, et al. (Oct. 6, 2011) [DOJ-FF-61935–44].

720 Email from Tracy Schmaler to Eric Holder (Oct. 6, 2011) [DOJ-FF-61935–44].

721 Email from Eric Holder to Tracy Schmaler (Oct. 7, 2011) [DOJ-FF-62414].

722 Email from Tracy Schmaler to Eric Holder (Oct. 7, 2011) [DOJ-FF-62414].

“We[’]ll see if that holds when [I]ssa packages it.”
Page | 244

Holder asked in reply:723

He also asked her about surrogates for the letter:724

 

723 Email from Eric Holder to Tracy Schmaler (Oct. 7, 2011) [DOJ-FF-62414].

724 Email from Tracy Schmaler to Eric Holder (Oct. 7, 2011) [DOJ-FF-62417].

“We have intell [sic] on McCain?”

“Gave our stuff to some of the regular [D]em

pundits and bloggers on cables”

“[G]oes a long way toward pre-empting [Issa’s] 

appearance. As well as getting out in front of [M]c[C]ain

if he decides to go public w/ special counsel request.”
Page | 245

Later that morning, Schmaler sent senior DOJ officials notice of a press conference 

scheduled by sheriffs in Phoenix, Arizona to discuss Operation Fast and Furious:725

Grindler, who received the email, forwarded it to Holder in Chicago, who responded:726

Grindler immediately sent out the request:727

 

725 Email from Tracy Schmaler to Gary Grindler, et al. (Oct. 7, 2011) [DOJ-FF-62418].

726 Email from Eric Holder to Gary Grindler (Oct. 7, 2011) [DOJ-FF-62527–30].

727 Email from Gary Grindler to Tracy Schmaler and Margaret Richardson (Oct. 7, 2011) [DOJ-FF-62121–22].

“Get background on sheriffs. Republicans?”
Page | 246

Meanwhile, Holder forwarded his response to Schmaler, followed up with a question about 

Sheriff Paul Babeu, and then forwarded the whole chain to Matt Miller:728

Miller responded:729

Meanwhile, Holder continued to push Grindler and Schmaler:730

 

728 Email from Eric Holder to Matthew Miller (Oct. 7, 2011) [DOJ-FF-62527–30].

729 Email from Matthew Miller to Eric Holder (Oct. 7, 2011) [DOJ-FF-62527–30]. Miller sent his email at 11:56 

EDT, but the time stamp on his email reflects Central Daylight Time. 

“Babeau has been real outspoken. What do we know about him?”

“[I]mmediately . . . ask them to round up people for a 

press statement saying how outrageous this is.”
Page | 247

Grindler and Schmaler updated Holder:731

That afternoon, DOJ sent Holder talking points for a phone call with Senate Judiciary 

Committee Chairman Patrick Leahy letting him know Holder’s letter would be sent to Congress 

that afternoon.732 The talking points included:

733

 

730 Email from Tracy Schmaler to Eric Holder and Gary Grindler (Oct. 7, 2011) [DOJ-FF-62119–20].

731 Email from Tracy Schmaler to Gary Grindler and Eric Holder (Oct. 7, 2011) [DOJ-FF-62119–20].

732 Email from Gary Grindler to Eric Holder (Oct. 7, 2011) [DOJ-FF-62012]; email from Gary Grindler to Eric 

Holder (Oct. 7, 2011) [DOJ-FF-62013–14]. 

733 Attachment to email from Gary Grindler to Eric Holder (Oct. 7, 2011) [DOJ-FF-62012]; email from Gary 

Grindler to Eric Holder (Oct. 7, 2011) [DOJ-FF-62013–14].

“We need law enforcement surrogates TODAY!!”
Page | 248

During the call, Weich emailed:734

That evening, Miller wrote:735

[INTENTIONALLY BLANK]

 

734 Email from Ron Weich to Tracy Schmaler, et al. (Oct. 7, 2011) [DOJ-FF-62366].

735 Email from Matthew Miller to Eric Holder (Oct. 7, 2011) [DOJ-FF-62527–30].

“I know . . . 

there are 

better things 

for you and 

your staff to be 

doing.”

“I know the 

gun issue is 

sensitive for 

you in 

Vermont”

“Leahy thinks the letter is very good and effective -

he’s glad we did it.”
Page | 249

Late that night, as Holder emailed Schmaler to let her know he had just finished a speech 

and was back on a plane to D.C., Schmaler replied:736

 

736 Email from Tracy Schmaler to Eric Holder (Oct. 7, 2011) [DOJ-FF-04343–46].

“Your letter’s playing well.”

“[V]olley is to [I]ssa”
Page | 250

The next morning, on Saturday, October 8, 2011, Holder responded:737

He also added:738

On Sunday, October 9, 2011, Chairman Issa indicated on a morning news program that 

a subpoena to DOJ would likely be forthcoming.739 That night, Issa sent a letter to Attorney 

General Holder responding to his October 7 letter.740

The next morning, on Monday, October 10, 2011, Weich flagged the letter for others:741

Later that morning, Weich circulated the letter to Holder and others in DOJ:742

 

737 Email from Eric Holder to Tracy Schmaler, et al. (Oct. 8, 2011) [DOJ-FF-04343–46].

738 Email from Eric Holder to Tracy Schmaler, et al. (Oct. 8, 2011) [DOJ-FF-04313–26].

739 See, e.g., Associated Press, Issa: ‘Fast and furious’ subpoenas issued soon, YAHOO! NEWS, Oct. 10, 2011, 

available at https://www.yahoo.com/news/issa-fast-furious-subpoenas-issued-soon-204241306.html. 

740 H. Comm. on Oversight & Gov’t Reform, Press Release: Issa to Holder: “You Own Fast and Furious”, (Oct. 9, 

2011), available at https://oversight.house.gov/release/issa-to-holder-you-own-fast-and-furious. 

741 Email from Ron Weich to Steven Reich and Tracy Schmaler (Oct. 10, 2011) [DOJ-FF-62641–42].
Page | 251

That afternoon, Schmaler emailed:743

Attorney General Holder responded:744

On Tuesday, October 11, 2011, DOJ held a press conference for Holder. In preparation 

for possible questions about a subpoena for Holder, Schmaler emailed:745

 

742 Email from Ron Weich to Eric Holder, et al. (Oct. 10, 2011) [DOJ-FF-62811].

743 Email from Tracy Schmaler to Eric Holder (Oct. 10, 2011) [DOJ-FF-62811].

744 Email from Eric Holder to Tracy Schmaler (Oct. 10, 2011) [DOJ-FF-62811].

745 Email from Tracy Schmaler to Steven Reich (Oct. 11, 2011) [DOJ-FF-62875–76].

“[S]urprisingly does not directly seek the AG’s testimony”

“Want to . . . make clear this is [I]ssa playing to 

the cameras more than anything else”

“Challenge them”
Page | 252

When Holder was indeed asked about Operation Fast and Furious at the press conference, Eric 

Schultz emailed Schmaler to ask if she had a transcript of an exchange.746 Schmaler summarized 

it for Schultz:747

A short while later, she circulated the transcript to others in DOJ:748

On Tuesday, October 11, 2011, Chairman Issa issued a subpoena to Attorney General 

Holder for documents related to Operation Fast and Furious.749 DOJ has not produced any 

communications which post-date the issuance of the subpoena.

 

746 Email from Eric Schultz to Tracy Schmaler (Oct. 11, 2011) [DOJ-FF-62885].

747 Email from Tracy Schmaler to Eric Schultz (Oct. 11, 2011) [DOJ-FF-62885].

748 Email from Tracy Schmaler to Steven Reich and Ron Weich (Oct. 11, 2011) [DOJ-FF-62879].

749 H. Comm. on Oversight & Gov’t Reform, Press Release: Oversight Committee Subpoenas Attorney General for 

Operation Fast and Furious Communications and Documents (Oct. 12, 2011), available at

“[G]oing to have him say . . . we’ve 

cooperated w/ them”

“Subpoenas, 

I’m sure we 

will 

undoubtedly 

comply with.”
Page | 253

IX. Postscript: Missing Documents

FINDING: The Justice Department has failed to produce documents for the period 

from October 11, 2011, to June 28, 2012. These documents cover such 

key events as the Department’s decision to send Assistant Attorney 

General Lanny Breuer to Congress to testify regarding his involvement, 

contradicting Attorney General Holder’s assertions that knowledge of 

the tactics “reache[d] into the upper levels of the Justice Department.”

Late on the morning of Monday, October 31, 2011, the Senate Judiciary Committee’s 

Subcommittee on Crime and Terrorism released its witness list for a hearing the next morning on 

combating international organized crime.750 The list included Assistant Attorney General 

Breuer. 

Two hours later, the Committee learned that DOJ’s Office of Legislative Affairs would 

make a Fast and Furious document production and provide a briefing on the documents at the 

end of the day. The documents included emails sent in 2010 by Breuer and his deputies, 

including Weinstein, regarding Operation Wide Receiver and its use of the tactic of walking 

firearms. According to the emails, Breuer and Weinstein convened a meeting with ATF 

leadership regarding the tactic, yet failed to alert others at DOJ.

Although not present at the October 31, 2011 briefing by DOJ legislative affairs officials, 

immediately following it, Breuer released a statement which read in part:

Knowing what I now know was a pattern of unacceptable and misguided 

tactics used by the ATF, I regret that I did not alert others within the 

leadership of the Department of Justice to the tactics used in Operation 

Wide Receiver when they first came to my attention.

When the allegations related to Operation Fast and Furious became 

public earlier this year, the leadership of ATF and the U.S. Attorney’s 

Office in Arizona repeatedly assured individuals in the Criminal Division 

and the leadership of the Department of Justice that those allegations 

were not true. As a result, I did not draw a connection between the 

unacceptable tactics used by the ATF years earlier in Operation Wide 

Receiver and the allegations made about Operation Fast and Furious, and 

therefore did not, at that time, alert others within Department leadership 

 

https://oversight.house.gov/release/oversight-committee-subpoenas-attorney-general-for-operation-fast-and-furiouscommunications-and-documents. 

750 Combating International Organized Crime: Hearing before the S. Subcomm. on Crime and Terrorism, 112th 

Cong. (Nov. 1, 2011) (No. J-112-49).
Page | 254

of any similarities between the two. That was a mistake, and I regret not 

having done so.751

As of that date, the Justice Department had produced no emails related to the drafting of the 

February 4, 2011, letter. 

According to the later DOJ OIG report:

Breuer told the OIG that the first draft of his statement to Congress 

acknowledging responsibility for failing to raise Operation Wide Receiver 

to Department leadership was prepared by the Office of the Deputy 

Attorney General, and that he then worked on the statement with his staff 

in the Criminal Division. He stated that he wanted to “take as much 

responsibility as I could,” adding that he believed “there was an 

expectation that I would step up to the plate, and I was willing to do it.”

752

Yet at the Tuesday, November 1, 2011 hearing, after asking why Breuer failed to alert 

any other DOJ officials to the gunwalking in Operation Wide Receiver, Senator Grassley raised 

the drafting of the February 4 letter.753 Breuer gave the impression that because of his trip to 

Mexico, the drafting of the letter was not on his radar:

Q. On February 4th, 2011, the department sent me a letter also 

assuring me that allegations of gun walking were untrue. It reads, 

quote, “ATF makes every effort to interdict weapons that have 

been purchased illegally, and prevent their transportation to 

Mexico,” end of quote. That statement is absolutely false. And 

you admitted as much last night, that you knew by April, 2010, 

that ATF walked guns in Operation Wide Receiver. That is . . . 

correct, yes?

A. Yes, senator. What I . . .

Q. That’s all I need to know, if that’s correct. Did you review that 

letter before it was sent to me?

A. Senator, again, I just want to be clear that, as I told you a moment 

ago, I regret that in April of 2010 that I did not draw the 

connection between Wide Receiver and Fast and Furious. 

 

751 Jonathan Strong, Top Justice Official Expresses Regret at Gun Walking Omission, ROLL CALL, Oct. 31, 2011, 

available at http://www.rollcall.com/news/top_justice_official_expresses_regret_at_gun_walking_omission209925-1.html. 

752 DOJ OIG report at 388.

753 Combating International Organized Crime: Hearing before the S. Subcomm. on Crime and Terrorism, 112th 

Cong. 9 (Nov. 1, 2011) (No. J-112-49), available at https://www.gpo.gov/fdsys/pkg/CHRG112shrg81638/pdf/CHRG-112shrg81638.pdf.
Page | 255

Moreover, I regret that—that even . . . earlier this year that I didn’t 

draw that connection.

In direct answer to your question, senator, I can say—I cannot say 

for sure whether I saw a draft of the letter that was sent to you. 

What I can tell you, senator, is at that time, I was in Mexico 

dealing with [the] very real issues that we are all so committed to.

But I also regret, as I’ve said, that I didn’t draw that connection 

earlier.754

As discussed above, Breuer was in fact sent multiple drafts of the letter before it was sent to 

Senator Grassley. Because DOJ has failed to provide any of the communications from the time 

period surrounding Breuer’s testimony, the Committees are unable to assess how premeditated 

Breuer’s misleading testimony was.

Assistant Attorney General Lanny Breuer testifies before the Senate Judiciary 

Subcommittee on Crime and Terrorism on November 1, 2011

(photo from C-SPAN)

Similarly, on Tuesday, November 8, 2011, Attorney General Holder appeared before the 

Senate Judiciary Committee for an oversight hearing.755 When asked about the wiretap 

applications approved by the Criminal Division, Holder testified:

 

754 Id.

755 Oversight of the U.S. Dep’t of Justice: Hearing before the S. Comm. on the Judiciary, 112th Cong. (Nov. 8, 

2011) (No. J-112-50), available at https://www.gpo.gov/fdsys/pkg/CHRG-112shrg74542/pdf/CHRG112shrg74542.pdf.
Page | 256

I have not seen them. But I do not have any information that indicates that 

those wiretap applications had anything in them that talked about the 

tactics that have made this such a bone of contention and have legitimately 

raised the concern of Members of Congress as well as those of us in the 

Justice Department. I would be surprised if the tactics themselves about 

gun walking were actually contained in those applications.756

Holder’s claim of ignorance about the contents of the wiretap applications seems disingenuous. 

Holder received daily briefings, beginning months earlier on Operation Fast and Furious. He 

participated in many email chains with his senior management regarding how to communicate 

about the wiretap applications. And, he managed DOJ’s effort to remove ATF Acting Director 

Melson after Melson testified to Congress regarding the problematic information in the wiretap 

affidavits. 

Further, Holder’s stated assumptions about the contents of applications stand at odds with

the DOJ OIG’s later finding: “We found that the affidavits described specific incidents that 

would suggest to a prosecutor who was focused on the question of investigative tactics that ATF 

was employing a strategy of not interdicting weapons or arresting known straw purchasers.”

757

 

Fully nine months after DOJ failed to gather sufficient information to send an accurate letter to 

Congress, the Attorney General continued to provide Congress with misleading and unreliable 

information.

FINDING: The Justice Department has gone to great lengths to withhold the 

documents that show when the Department became aware of the 

problems with Fast and Furious and why it ultimately decided when it 

did to correct the falsehood it had provided to Congress. The 

Department refused to produce to Congress emails such as Weinstein’s 

raising concerns about DOJ’s position, eventually allowing Attorney 

General Holder to be held in contempt as a result.

On Friday, December 2, 2011, Deputy Attorney General Cole finally signed a letter to 

Chairman Issa and Senator Grassley withdrawing the February 4, 2011 letter:

As indicated in congressional testimony by senior Department officials on 

several occasions . . . facts have come to light during the course of this 

investigation that indicate that the February 4 letter contains inaccuracies. 

Because of this, the Department now formally withdraws the February 4 

letter.758

 

756 Id. at 32-33.

757 DOJ OIG report at 277.

758 Letter from James Cole, Deputy Att’y Gen., Dep’t of Justice, to Darrell Issa, Chairman, Comm. on Oversight &

Gov’t Reform, and Charles Grassley, Ranking Mem., S. Comm. on the Judiciary (Dec. 2, 2011), at 1, available at 

http://www.grassley.senate.gov/sites/default/files/judiciary/upload/ATF-12-02-11-Cover-letter-from-Cole-onDocument-Drop.pdf. 
Page | 257

Still, DOJ continued to refuse to provide all the documents that Congress subpoenaed. 

Ultimately, this resulted in Attorney General Holder, the custodian of the documents and the 

named recipient of the subpoena, being held in contempt of Congress on Thursday, June 28, 

2012.

While DOJ has produced some responsive documents dated through the spring and 

summer of 2011, it continues to withhold documents that post-date the Oversight and 

Government Reform Committee’s October 12, 2011 subpoena. These documents are key to 

understanding whether DOJ may have intentionally obstructed the congressional investigation 

into Operation Fast and Furious. Only when they are produced will Congress fully understand 

what preparation went into the misleading testimony of both Breuer and Holder, why DOJ 

finally decided to withdraw the inaccurate February 4 letter, and what evidence of intent to 

obstruct the Committee’s subpoenas may exist between October 12, 2011, and June 28, 2012.

Attorney General Eric Holder shows document to Assistant Attorney General Ron Weich at 

February 2, 2012 hearing before the House Oversight and Government Reform Committee; 

Associate Deputy Attorney General Steven Reich visible in background between them 

(House Oversight and Government Reform Committee photo)

[INTENTIONALLY BLANK]
Page | 258

X. Conclusion

DOJ’s actions in 2011 with regard to Operation Fast and Furious raise a host of questions 

about how Executive Branch agencies respond to congressional oversight. Notwithstanding the 

specific nature of whistleblower allegations conveyed by Congress, DOJ failed to take seriously 

its obligation to submit to meaningful congressional oversight. Had DOJ treated the allegations 

with more seriousness, it might have become aware of the problems with Fast and Furious much 

more swiftly. 

As the DOJ OIG concluded, some of the failures in responding to Congress stemmed 

from a fundamentally flawed process for responding to serious allegations of misconduct. The 

Committees must conduct further investigation to determine whether DOJ has implemented 

changes to its process in order to avoid repeating the same mistakes. 

Attorney General Eric Holder testifies at February 2, 2012 House Oversight and Government 

Reform Committee hearing as ATF whistleblower Special Agent John Dodson

looks on (House Oversight and Government Reform Committee photo)

Given the questions raised by these documents, the Committees may also need to pursue 

further steps to better understand the role that individual actors may have played in obstructing 

Congress. Despite DOJ initially accusing Senator Grassley of “inappropriate political influence”

on career prosecutors and law enforcement,759 several emails appear to corroborate Acting 

 

759 Letter from Ronald Weich, Asst. Att’y Gen., Dep’t of Justice to Charles Grassley, Ranking Mem., S. Comm. on 

the Judiciary (Feb. 4, 2011).
Page | 259

Director Melson’s allegation that some within DOJ were “really trying to figure out a way to 

push the information away from their political appointees at the Department.”

760

 

DOJ’s defensive focus on self-preservation is all the more unfortunate given its impact on 

the family of deceased Border Patrol Agent Brian Terry. Whistleblowers put their careers on the 

line to shed light on the circumstances surrounding Agent Terry’s death. Now, Terry’s family 

deserves to better understand why the allegations regarding his death were not taken seriously by 

DOJ. 

ATF whistleblower Special Agent John Dodson joins the Terry family at a memorial 

statue of Agent Terry built at the Brian A. Terry Border Patrol Station 

near Naco, Arizona (photo courtesy of Terry family)

[INTENTIONALLY BLANK]

 

760 Melson Transcript at 124.
Page | 260

XI. Appendix: Table of Names

U.S. Department of Justice

Office of the Attorney General

Eric J. Holder, Jr.

Attorney General

Gary G. Grindler

Chief of Staff

Robert “Monty” Wilkinson

Deputy Chief of Staff

Office of the Deputy Attorney General

James M. “Jim” Cole

Deputy Attorney General (Acting from December 2010-June 2011)

Lisa O. Monaco

Principal Associate Deputy Attorney General (until mid-2011)
Page | 261

Stuart M. Goldberg

Chief of Staff (through July 2011); Principal Associate Deputy Attorney General (after July 

2011)

Matthew S. Axelrod

Senior Counsel to the Assistant Attorney General for the Criminal Division (to March 2011); 

Associate Deputy Attorney General (from March 2011)

Steven Reich

Associate Deputy Attorney General (from June 2011)

Bradley T. Smith

Senior Counsel

Mark Michalic

Special Assistant to the Deputy Attorney General

Office of Legal Counsel

Paul Colborn

Special Counsel

Office of Legislative Affairs

Ronald Weich

Assistant Attorney General

Faith Burton

Special Counsel

Molly Gaston

Attorney Advisor

Office of Public Affairs

Matthew Miller

Director (through July 2011)

Tracy Schmaler

Deputy Director (through July 2011); Director (from July 2011)

Laura Sweeney
Page | 262

Criminal Division

Lanny Breuer

Assistant Attorney General, Criminal Division

Mythili Raman

Principal Deputy Assistant Attorney General and Chief of Staff

Amy Pope

Deputy Chief of Staff and Counselor to the Assistant Attorney General

Jason Weinstein

Deputy Assistant Attorney General

Kenneth Blanco

Deputy Assistant Attorney General

Molly Warlow

Director, Office of International Affairs

James Trusty

Acting Chief, Gang Unit

Laura Gwinn

Assistant U.S. Attorney, Gang Unit

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

Dennis Burke

U.S. Attorney for the District of Arizona

Ann Scheel

First Assistant U.S. Attorney

Patrick Cunningham

Chief, Criminal Division

Michael Morrissey

Chief, National Security Section

Emory Hurley

Assistant U.S. Attorney
Page | 263

Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF)

Kenneth Melson

Acting Director

William Hoover

Deputy Director

Greg Rasnake

Chief, Office of Legislative Affairs

William Newell

Special Agent in Charge, Phoenix Field Division

U.S. Department of State

U.S. Embassy, Mexico City, Mexico

Carlos Pascual

U.S. Ambassador to Mexico

John Feeley

Deputy Chief of Mission