False denials the Justice Department sent to Congress about the Fast and Furious gun-running investigation came from top officials at the U.S. Attorney’s Office in Arizona and at the Bureau of Alcohol, Tobacco, Firearms & Explosives, documents released Friday by the Obama administration show.
The 1,364 pages of documents and emails turned over to Congressional investigators detail the Justice Department’s robust internal deliberations leading to a Feb. 4, 2011 letter in which the department assured the top Republican on the Senate Judiciary Committee, Chuck Grassley of Iowa, that claims a whistleblower was making about the Fast and Furious investigation were false.
“ATF makes every effort to interdict weapons that were purchased illegally and prevent their transportation to Mexico,” the February letter from Justice Department legislative affairs chief Ron Weich to Grassley said. The letter also asserted that an “allegation … that ATF ‘sanctioned’ or otherwise knowingly allowed the sale of assault weapons to a straw purchaser who then transported them into Mexico — is false.”
The second denial related to startling, emerging claims that weapons ATF lost control of in the Fast and Furious operation wound up at the scene of the killing of a U.S. Border Patrol agent, Brian Terry, in Arizona last December.
Terry’s death has fueled much of the public controversy over and congressional interest in Fast and Furious, which investigators say allowed as many as 1,200 weapons to make their way from the U.S. to Mexican drug cartels.
The operation, which Attorney General Eric Holder has called “flawed in concept, as well as in execution,” has prompted investigations by three congressional committees and has led to calls from more than 50 Republican members of Congress for Holder’s resignation. The Friday afternoon document dump came in advance of a House Oversight and Government Reform Committee hearing next Thursday where Holder is expected to face extensive and intense questioning.
Holder has contended that the operation violated Justice Department policy, but that he was unaware until the controversy erupted earlier this year that Fast and Furious had used the controversial technique of “gunwalking.”
“The tactic of allowing guns to ‘walk,’ as was permitted in Operation Fast and Furious, is completely unacceptable,” Holder said in a letter last month, expressing his sorrow to Terry’s family.
Top Justice Department officials, including Holder, have acknowledged in congressional testimony in recent months that the February letter was wrong in some respects. In a letter to Congress on Friday, Deputy Attorney General James Cole formally withdrew the February response and sought to explain the misstatements — to a degree.
“Facts have come to light during the course of this investigation that indicate the Feb. 4 letter contains inaccuracies,” Cole wrote. “Department personnel … relied on information provided by supervisors from the components in the best position to know the relevant facts: ATF and the U.S. attorney’s office in Arizona. … Information provided by those supervisors was inaccurate. We understand that, in transcribed interviews with congressional investigators, the supervisors have said that they did not know at the time the letter was drafted that information they provided was inaccurate.”
A selection of documents the Justice Department released to reporters on Friday demonstrates that U.S. Attorney for Arizona Dennis Burke, ATF acting Director Ken Melson and ATF deputy Director William Hoover vigorously urged the department to issue a forceful and broad denial of the allegations. The newly disclosed records shed little light on precisely where in the federal bureaucracy the erroneous denials originated and whether the misstatements were at the outset deliberate or the product of some confusion.
Senior Justice Department officials who briefed reporters on Friday said that question remains the subject of an ongoing internal inquiry by the department’s inspector general.
We’re not assigning blame,” said one DOJ official, who spoke on condition of anonymity.
As the February letter was being drafted, Burke repeatedly weighed in with Justice Department officials and often in unusually blunt terms. He urged them to tell Grassley that it was “categorically false” that ATF intentionally allowed weapons into Mexico that were later involved in Terry’s killing.
“We are playing defense with this low-tone response,” Burke complained about drafts of the letter sent to Grassley. At one point, Burke — the chief federal prosecutor in Arizona and former chief of staff to Homeland Security Secretary Janet Napolitano — threatened to come to Washington for “an audience” with top Justice officials if the response letter was watered down.
“Please send soon. Every version gets weaker,” Burke complained in one email. “We will be apologizing to [Grassley] by tomorrow afternoon.”
In internal emails, Burke unloaded at Grassley and his aides.
“What is so offensive about this whole project is that Grassley’s staff, acting as willing stooges for the Gun Lobby, have attempted to distract from the incredible success in dismantling [southwest border] gun trafficking operations … by not uttering one word of rightful praise and thanks to ATF — but instead lobbing this reckless despicable accusation that ATF is complicit in the murder of a fellow federal law-enforcement officer,” Burke wrote in a Feb. 4 email to Weich and other top officials. “No commentary by Grassley on the lax laws, nor greedy gun shop owners, nor careless straw purchasers, and not boo about the evil gun traffickers for the Cartels. Just demonize ATF w/a strategically timed repulsive letter emailed to the entire press world before we ever saw it.”
“I am so personally outraged by Senator Grassley’s falsehoods. It is one of the lowest acts I have ever seen in politics,” Burke wrote in a separate email to Melson that also called the Fast and Furious case a “tremendous investigation.”
A spokeswoman for Grassley, Beth Levine, called Burke’s emails “disappointing.”
“Fortunately, it appears that Mr. Burke now realizes that the senator and his staff have the best of intentions and work very hard to understand the facts of any investigation,” Levine said in a statement Friday night. “After learning yesterday from the Justice Department that the emails would be released, Mr. Burke personally apologized to Sen. Grassley’s staff for the tone and the content of the emails.”
The newly disclosed documents also are likely to fuel questions about testimony last month by the chief of the Justice Department’s Criminal Division, Lanny Breuer, who said he couldn’t recall seeing the February letter at the time it was sent. “I cannot say for sure whether I saw a draft of the letter that was sent to you,” Breuer told a Senate Judiciary subcommittee on Nov. 1.
The documents sent to Congress Friday show that Breuer forwarded versions of the letter from his official email to his personal gmail account on three occasions: once before it was sent and twice after. Breuer said in written answers sent to Grassley Friday that he has “no recollection” of seeing the letter before it was sent.
In August, Burke resigned under what officials have told POLITICO was pressure from top Justice Department officials. A low-level prosecutor who worked directly on Fast and Furious was reassigned to civil matters and Melson was shuffled from ATF to a newly-created post studying forensics for the department.
A lawyer for Burke, Chuck Rosenberg, said Burke did not intentionally mislead anyone.
“Dennis Burke is a stand-up guy — he provided what he believed to be accurate information to the Department of Justice, as he always does,” Rosenberg said.
Rosenberg confirmed that Burke apologized to Grassley on Thursday, but the ex-prosecutor declined to discuss who gave him the false information that made it into the February letter.
Melson’s lawyer, Richard Cullen, did not return a call Friday afternoon seeking comment for this story.
One Justice Department official who seemed particularly nervous about the sweeping wording of some drafts of the letter was Lisa Monaco, then Cole’s chief deputy. Reacting to a draft that called “categorically false” claims that Fast and Furious weapons were used to kill Terry, Monaco wrote: “Obviously, we want to be 300% sure we can make such ‘categorical’ statement …. We should choose a form a words that does not open us up otherwise.”
“It may ruffle feathers, but I do not want to say ‘categorically’ — I’ve developed an aversion to adjectives and oversight letters,” Monaco wrote in another email. “Why poke the tiger?”
Justice Department officials who briefed reporters Friday said they did not know if Breuer was aware when he testified last month that he’d received copies of the February letter via email and forwarded it to himself.
However, Breuer, who was traveling in Mexico during much of the time the letter was being drafted, was clearly aware there had been a major tussle within the department over the letter’s wording.
“The Magna Carta was easier to get done than this was,” Breuer aide Jason Weinstein, who was pushing to toughen and broaden the letter, wrote in a Feb. 2 email to Breuer and Burke.
“Great job by you,” Burke wrote back to Breuer and Weinstein. “Never pretty when the crisis involves ATF and [Justice’s Office of Legislative Affairs]. They suffer in a combined political coma.”
Breuer chuckled at the reply. “Burke made me laugh. Thanks, Jason, as usual great work.”
FOR POLITICO by Joh Gerstein
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