http://grassley.senate.gov/judiciar...sa-letter-to-Holder-Melson-interview.pdf-----------------------------------------------------------
Dear Attorney General Holder:
Yesterday, Acting ATF Director Kenneth Melson participated in a transcribed interview regarding Operation Fast and Furious and related matters with both Republican and Democratic staff. He appeared with his personal counsel, Richard Cullen of McGuire Woods LLP. His interview had originally been scheduled through the Justice Department to occur on July 13 in the presence of DOJ and ATF counsel. As you know, however, under our agreement Department witnesses who choose to attend a voluntary interview with their own lawyer are free to exercise that right rather than participate with counsel representing the Department's interests.
After being made aware of that provision of our agreement, Acting Director Melson chose to exercise that right and appeared with his own lawyer. We are disappointed that no one had previously informed him of that provision of the agreement. Instead, Justice Department officials sought to limit and control his communications with Congress. This is yet another example of why direct communications with Congress are so important and are protected by law.
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 Investigation (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.
According to Mr. Melson, he and ATF's senior leadership team moved to reassign every manager involved in Fast and Furious, from the Deputy Assistant Director for Field Operations down to the Group Supervisor, after learning the facts in those documents. Mr. Melson also said he was not allowed to communicate to Congress the reasons for the reassignments. He claimed that ATF's senior leadership would have preferred to be more cooperative with our inquiry much earlier in the process. However, he said that Justice Department officials directed them not to respond and took full control of replying to briefing and document requests from Congress. The result is that Congress only got the parts of the story that the Department wanted us to hear. If his account is accurate, then ATF leadership appears to have been effectively muzzled while the DOJ sent over false denials and buried its head in the sand. That approach distorted the truth and obstructed our investigation. The Department's inability or unwillingness to be more forthcoming served to conceal critical information that we are now learning about the involvement of other agencies, including the DEA and the FBI.
The Role of DEA, FBI, and Other Agencies
When confronted with information about serious issues involving lack of information sharing by other agencies, which Committee staff had originally learned from other witnesses, Mr. Melson's responses tended to corroborate what others had said. Specifically, we have very real indications from several sources that some of the gun trafficking "higher-ups" that the ATF sought to identify were already known to other agencies and may even have been paid as informants. The Acting Director said that ATF was kept in the dark about certain activities of other agencies, including DEA and FBI. Mr. Melson said that he learned from ATF agents in the field that information obtained by these agencies could have had a material impact on the Fast and Furious Government Accountability Office, "Department of Health and Human Services-Chief Actuary's Communications with Congress," B-302911 (Sep. 7, 2004) (discussing the history and background in support of the government-wide prohibition on attempts to prevent direct communications with Congress). As you know, obstructing or impeding a Congressional inquiry is also a criminal violation under 18 U.S.C. � 1505.
Mr. Melson served as the First Assistant to the U.S. Attorney in the Eastern District of Virginia for 21 years, from 1986 to 2007. That is a career position. After the controversy over the firing of the U.S. Attorneys, he took over the Executive Office for U.S. Attorneys (EOUSA). He indicated that he was asked to convert to a non-career Senior Executive Service (SES), a politically appointed position, in order to speed the hiring process, and he agreed. However, his former position at EOUSA is currently filled by a career SES employee, Marshall Jarrett. As you know, for civil servants, the distinction between career and non-career status is significant.
In 2009, he said he was asked to take over as Acting Director of the ATF. Acting Director of the ATF is by its nature a temporary job. According to Mr. Melson, he was willing to serve the Department with the understanding that after a short tenure as Acting Director, he would return to a position as a career senior executive elsewhere within the Department.
However, two days after he told Acting Deputy Attorney General Cole about serious issues involving lack of information sharing, the Wall Street Journal reported that unnamed sources said that Melson was about to be ousted.
The revelations about Operation Fast and Furious have focused intense scrutiny on the ATF. It has no doubt taken a toll on the agency and the good people who work there. Much of that damage has occurred because the Department prevented ATF from being more forthcoming and responsive to questions from Congress. This is the context in which Mr. Melson decided to submit to an on-the-record interview with private counsel, pursuant to our agreement with the Department.
Technically, Mr. Melson no longer enjoys the due process protections afforded to career officials. Given his testimony, unless a permanent director is confirmed, it would be inappropriate for the Justice Department to take action against him that could have the effect of intimidating others who might want to provide additional information to the Committees.
We hope that the Department will take a much more candid and forthcoming approach in addressing these very serious matters with the Committees. If other important fact witnesses like Mr. Melson have a desire to communicate directly with the Committees they should be informed that they are free to do so. They should also be notified that if they are represented by personal counsel, they may appear with personal counsel rather than with Department lawyers.
Any decision about Mr. Melson's future with the Department would need to be justified solely on the basis of the facts and the needs of the agency, rather than on his decision to speak to us. We encourage you to communicate to us any additional significant information about any such decision so that we can work together to ensure that it would not impede our investigation. For now, the Office of Inspector General is still conducting its review, and we are still conducting ours. Knowing what we know so far, we believe it would be inappropriate to make Mr. Melson the fall guy in an attempt to prevent further congressional oversight.
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