House Democrats are mounting an aggressive defense of Eric Holder, as they try to head off a push by their Republican counterparts to hold the attorney general in contempt of Congress over alleged "stonewalling" in their investigation of the botched "Operation Fast and Furious."
In a memo circulated Thursday to Democrats on the House Oversight and Government Reform Committee, aides to the committee's ranking member, Rep. Elijah Cummings, D-Md., say the Republicans' argument for contempt, laid out in a contempt citation last month, is "irresponsible, unprecedented, and contrary to the rule of law."
"It would hold the Attorney General in contempt not only for complying with statutes passed by Congress that require him to protect documents from disclosure, but also for withholding documents relating to ongoing criminal investigations that have been protected consistently by Democratic and Republican administrations to safeguard the lives of informants and ensure the integrity of active criminal investigations," the Democrats' memo says.
For more than a year, Republicans have been leading an investigation into "Fast and Furious," which was launched in Arizona in late 2009 by Alcohol, Tobacco, Firearms and Explosives officials, with help from the U.S. attorney's office there. The operation's targets bought nearly 2,000 weapons over several months. But for reasons that are still in dispute, most of the weapons sold were never followed, and high-powered weapons tied to the investigation ended up at crime scenes in Mexico and the United States, including the December 2010 murder of Border Patrol Agent Brian Terry.
Republicans scheduled the contempt vote for June 20 after accusing Holder of failing to comply with a subpoena and turn over tens of thousands of still-undisclosed documents -- though Holder and Republicans have opened the door to negotiating and potentially avoiding next week's confrontation. The measure, if it remains on the agenda, would be voted on at the committee level and would still have to be approved by the full House.
"Despite what the investigation has uncovered through whistleblowers and documents the Justice Department had tried to hide, the Committee's work is not yet complete," House Oversight and Government Reform Committee chairman Darrell Issa, R-Calif., said in a statement Monday. "The Justice Department has refused to turn over critical documents."
A spokeswoman for Issa said Thursday that Democrats' latest criticisms are based on a "fundamental misunderstanding" about the facts of the case and the Justice Department's "failure to comply" with the subpoena.
Specifically, Issa wants to see correspondence between Justice Department officials after they sent a now-retracted letter to Congress on Feb. 4, 2011. In that letter, the Justice Department inaccurately insisted, "ATF makes every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico."
Issa says the documents he wants are "critically important" because, among other things, they could show whether top officials were "surprised or were already aware" about "gunwalking" in "fast and Furious" when confronted with evidence contradicting the Feb. 4 letter, and they could further detail how the Justice Department handled officials who were negligent.
Of more than 80,000 documents that are responsive to Issa's subpoena, the Justice Department has turned over about 7,600 of them. According to the Justice Department, the documents they haven't turned over include traditionally protected deliberative material, legally protected grand jury material, and other investigative material relating to ongoing cases.
In the memo circulated Thursday, Democrats say, "Holding the Attorney General in contempt of Congress for protecting these documents is an extreme and blatant abuse of the congressional contempt power and undermines the credibility of the Committee."
The Democrats also took aim more broadly at the Republican's investigation of "Operation Fast and Furious," saying it "has been characterized by a series of unsubstantiated allegations against the Obama Administration that later turned out to be inaccurate."
"Rather than conducting this investigation in an even-handed manner, the Committee has politicized this inquiry by systematically refusing to investigate gunwalking operations during the Bush Administration and by disregarding clear evidence that contradicts (their) political narrative," the Democrats' memo says.
One of the "most significant flaws of the investigation," according to the memo, is Issa's refusal to hold a public hearing with former ATF head Ken Melson, who told congressional investigators in July 2011 that he never informed senior Justice Department officials about the tactics of "Fast and Furious" because he didn't know them himself.
In addition, the memo says, Issa has refused multiple requests for the committee to hear from former Attorney General Michael Mukasey, who could discuss "the origination and evolution of gunwalking operations" dating back to 2006.
In late 2007, Mukasey was sent a memo noting that the "first-ever attempt" to have a "controlled delivery" of weapons smuggled into Mexico was "unsuccessful" in tracking the weapons, but ATF would still like to "expand the possibility" of such cases with Mexico. It's unclear if Mukasey ever saw the memo.
As for the contempt vote scheduled for Wednesday, Issa's staff and the Justice Department are currently in negotiations to see if a compromise can be reached before then. Issa could always revise the contempt citation.
Nevertheless, negotiations could last into next week, and "it is important for Committee Members to be fully prepared in the event that negotiations are unsuccessful," the Democrats' memo says.
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