Under fire for losing track of weapons that turned up at crime scenes along the Southwest border, the Justice Department has taken the extraordinary step of formally withdrawing an inaccurate letter about the episode that it sent to Congress earlier this year.
Deputy Attorney General Jim Cole sent nearly 1,400 pages of emails and other documents to Capitol Hill late Friday afternoon that lay bare the raw and sometimes cringe-worthy process by which the letter was drafted. The materials contain clues into how misleading information about the botched gun trafficking operation made it into a Feb. 4, 2011 letter to Congress that department leaders have since acknowledged was false.
Misleading Congress can be a prosecutable offense if a person who makes the statements knows they are false. But Attorney General Eric Holder has told lawmakers that so far he has no evidence anyone intended to deceive them. The matter remains under investigation not only by Republicans in Congress but also the Justice Department's inspector general.
The February 2011 letter said that the Bureau of Alcohol, Tobacco, Firearms and Explosives makes "every effort" to interdict weapons that have been purchased illegally before they cross into Mexico. It added that the allegation that the ATF had "sanctioned or otherwise knowingly allowed the sale of assault weapons" to suspicious people was false.
Both those statements turned out not to be true in the Fast and Furious operation, which targeted people who moved weapons to the violent Sinaloa, Mexico drug cartel during the Obama administration's tenure. Republican lawmakers want to know who wrote that letter and have demanded "accountability" for government lawyers who allegedly misled them.
"After a first glance at today's document dump from the Justice Department, there appears to be even more questions for Assistant Attorney General Breuer, Deputy Assistant Attorney General Weinstein and former U.S. Attorney Dennis Burke," said Beth Levine, spokesperson for Sen. Chuck Grassley (R-IW), who has been leading a congressional investigation of the gunrunning program. "The congressional investigators will continue to scour the documents over the upcoming days and will have further questions for department officials."
Here are a few of the new disclosures contained in the documents:
— The basis for the inaccurate statements in the letter appears to have originated among people in the U.S. Attorney's office in Arizona and among ATF officials earlier this year, according to the new letter to Congress. Notes taken by a Justice Department legislative affairs person who helped prepare a response to Congress include statements that found their way into the faulty Feb. 4 letter, including: "ATF doesn't let guns walk" and "we always try to interdict weapons purchased illegally." Also at the meeting were the ATF's top congressional liaison and a high level deputy named Billy Hoover. At other times, the U.S. Attorney's office in Arizona passed along inaccurate information about the length of the gun trafficking operation and the timing of when guns were purchased.
— Jason Weinstein, a senior aide in the Justice Department's criminal division, played a key role in drafting the February 2011 letter. Weinstein, who had served as a highly regarded prosecutor in Baltimore and New York for a decade before taking a political appointment at the Justice Department, already had come under scrutiny from Republican lawmakers. They say he had approved the use of wiretaps in the Obama administration's Fast and Furious operation and he should have dug deeper. The department has acknowledged that the operation sent as many as 2,000 weapons into Mexico but failed to follow them. Many of those guns later ended up at crime scenes on both sides of the border, including near the body of slain Border Patrol Agent Brian Terry in December 2010.
Justice officials say Weinstein relied on the ATF and the U.S. Attorney's Office in drafting the letter.
— Justice Department Criminal Division chief Lanny Breuer received draft copies of the Feb. 4, 2011 letter from Weinstein and forwarded those messages to his personal email account, which he didn't share in recent congressional testimony about questionable ATF tactics in gun cases. However, Breuer writes in new correspondence to Congress Friday that "I cannot say for sure whether I saw a draft of the letter...I have no recollection of having done so and given that I was on official travel that week and given the scope of my duties as Assistant Attorney General, I think it is exceedingly unlikely that I did so." Breuer apologized last month for failing to make a "connection" between out-of-bounds strategies he discovered in a Bush-era case and Fast and Furious.
— Former Arizona U.S. Attorney Dennis Burke, who resigned in August as the gun trafficking scandal intensified, repeatedly urged Justice officials in Washington to "push back" against "categorical falsehoods" coming from whistleblowers inside the ATF and from members of Congress. Burke also had some choice words for Sen. Grassley's staff, which he said were "acting as willing stooges for the Gun Lobby" and "lobbing this reckless despicable accusation" about ATF. In another message, he tells a colleague that the congressional accusations are "among the lowest acts I have ever seen in politics." Burke may have been relying on aides in his office, who more closely supervised the day to day activities of the ATF in the gun trafficking operation.
"Dennis Burke is a standup guy. He provided what he believed to be accurate information to the Department of Justice, as he always does," said Chuck Rosenberg, an attorney for Burke.
— Drafts of the Feb. 4th letter reached the highest levels of the Justice Department, as aides to the Deputy Attorney General suggested fixes to the language and prodded subordinates to check the facts. In one email chain, a deputy named Lisa Monaco advised against using adjectives such as "categorically" and asked, "why poke the tiger" when it comes to communications with Capitol Hill.
Grassley, who has been leading an investigation into what went wrong in the Fast and Furious operation for most of this year, says, "the Justice Department can't have it both ways." He took to the Senate floor Thursday night to raise a series of new questions about the operation. Many of them could emerge anew next week, when Attorney General Holder testifies in a House oversight hearing December 8th.