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D A R R E L L E. C A L I F O R N I A

C H A I R M A NONE HUNDRED TWELFTH CONGRESS EL I JAH E. C U M M I N G S , M A R Y L A N D

R A N K I N G M I N O R I T Y M E M B E R

DA N B U R T O N , I N D I A N A

J O H N L. M I C A, F LOR I D A

T O D D R U S S E L L P L A T T S , P E N N S Y L V A N I A

M I C H A E L R. T U R N ER , OH I O

PA T R I C K N O R T H C A R O L I N A

J I M O H I O

J A S O N C H A FF E T Z , U T A H

C ON N I E M AC K, F LOR I D A

T I M W A L B E R G , M I C H I G A N

J A M E S L A N K F O R D . O K L A H O M A

J U S T I N A M A S H , M I C H I G A N

A N N MA RI E BU ER KL E, N E W Y O R K

P A U L A. G O S A R , A R I Z O N A

R A U L R. L A B R A D O R , I D A H O

P A T R I C K M E E H A N , P E N N S Y L V A N I AS CO TT D ES JA RL AI S, T EN NE SS EE

J OE W ALSH , I LL I N OI S

T R EY GOW D Y, SOU T H C AR OLI N A

D E N N I S A. R OSS, F LOR I D A

F R A N K C. G U I N T A , N E W H A M P S H I R E

BLAKE F A R E N T H O L D , T E X A S

M IKE K E L L Y , P E N N S Y L V A N I A

ofE D O L P H U S T O W N S , N E W Y O R K

C A R O L Y N FJ. M A L O N E Y , N E W Y O R K

E L E A N O R H O L M E S N O R T O N ,

C O M M I T T E E O N O V E R S I G H T A N D G O V E R N M E N T R E F O R M

RAYBURN HOUSE OFFICE BUILDING

of

WASHINGTON, D CMAJORITY (202)225-5074

FACSIMILE (202) 225 - 3974

MINORITY (202) 225 - 5051

D I S T R I C T OF C O L U M B I A

D E N N I S J. O H I O

J O H N F. T I E R N E Y , M A S S A C H U S E T T S

W M . L A C Y C L A Y , M I S S O U R I

S T E P H E N F. L Y N C H , M A S S A C H U S E T T S

J I M C O O P E R , T E N N E S S E E

G E R A L D E. C O N N O L L Y , V I R G I N I A

MIKE Q U I G L E Y , I L L I N O I S

D A N N Y K. D A V I S , I L L I N O I S

B R U C E L. B R A L E Y ,

P E T E R W E L C H , V E R M O N T

J O H N A. Y A R M U T H , K E N T U C K Y

C H R I S T O P H E R S. M U R P H Y , C O N N E C T I C U T

J A C K I E SPEI ER , C AL I F OR N I A

L A W R E N C E J. B R A D Y

ST AF F D I R EC T OR April 27, 2012

The Honorable Darrell E. Issa

Chairman

Committee on Oversight and Government Reform

U.S. House ofRepresentatives

Washington, D.C. 20515

DearMr . Chairman:

According to a Los Angeles Times story published yesterday, you have drafted a 48-page

contempt citation for the Attorney General relating to the Committee's investigation into

Operation Fast and Furious, and a copy of this document has already been provided to the press

and to House SpeakerJohn Boehner's office even before being distributed to Members of our

own Committee.1

Holding someone in contempt ofCongress is one of the most serious and formal actions

ourCommittee can take, and it should not be used as a political tool to generate press as part of

an election-year witch hunt against the Obama Administration. Leaking a draft contempt citationthat Members of our Committee have never seen suggests that you are more interested in

perpetuating your partisan political feud in the press than in obtaining any specific substantive

information relating to the Committee's investigation. These actions undermine the credibility of

the Committee, as well as the integrity and validity of any contempt actions the Committee

ultimately may choose to adopt in the future.

Unfortunately, your latest actions appearto be part of a larger and more troubling pattern.

Last July, you boasted with respect to a different investigation that youraggressive actions

against the President and the White House would be "good theater."2 Similarly, one of your

Republicans Seek to Hold Attorney General in Contempt Over Fast andFurious, LosAngeles Times (Apr. 26, 2012) (online at www.latimes.com/news/nationworld/nation/la-na-

holder-contempt-20120427,0,3641424.story).

House Panel to Probe DNC's Obama Ad, Washington Times (July 25, (online at

l/jul/25/issa-panel-will-probe-dnc-obama-campaign-

video/).

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The Honorable Darrell E. Issa

Page 2

subcommittee chairmen asserted that investigating Solyndra was designed to influence the

upcoming Presidential election, stating, "Ultimately, we'll stop i t on Election Day.3

I strongly believe in fairand even-handed oversight i f there are credible allegations of

of whetherthose implicated are Democrats or the

official resources provided to this Committee by U.S. taxpayers must not be used forpartisan

political purposes.

As you know, in January, I issued a 90-page staffreport documenting in detail how

Operation Fast and Furious was the latest in a series of misguided gunwalking operations that

originated in 2006 in the Phoenix Field Division of the Bureau ofAlcohol, Tobacco, Firearms,

and Explosives. As the report explained, these operations continued forfive years until our

Committee exposed and ended them, an accomplishment forwhich I have commended you.

4

Contrary to your repeated claims, the report explained that the Committee has obtained

no evidence that the Attorney General authorized, approved of, or was aware ofgunwalking.

None of the two dozen witnesses interviewed by the Committee contradict that finding.

Forall ofthese reasons, I request that you immediately provide to me and all other

Members of the Committee a copy of the same draft contempt citation that was provided to

SpeakerBoehner's office and the Los Angeles Times, and that you strive to ensure the fairness

and legitimacy of our proceedings and actions.

I continue to hope that we can worktogether to obtain any additional information

necessary to our investigation in a cooperative and bipartisan manner that does not compromiseongoing criminal investigations and prosecutions. Thank you foryour consideration ofthis

request.

Sincerely,

3

Jim Jordan Suggests Elections Drive Solyndra Investigation, Post (Apr. 27,

(online at

elections_n_1372205.html).

Report of the Minority Staff, House Committee on Oversight and Government Reform,

Fatally Flawed: Five Years of Gunwalking in Arizona (January (online at

gov/index.php?option=com_content&task=view&id=5575&Ite

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Assistant Secretary of Legislative AffairsU.S. Department of Homeland SecurityWashington, DC 20528

May 4, 2012

The Honorable Darrell Issa The Honorable Charles E. Grassley

Chairman Ranking Member

Committee on Oversight and Government Reform Committee on the Judiciary

U.S. House of Representatives United States Senate

Washington, DC 20515 Washington, DC 20510

Dear Chairman Issa and Senator Grassley:

I am writing in response to your April 23, 2012 letter to Secretary Napolitano regarding

the Operation Fast and Furious investigation.

Since your first inquiry into this matter, the U.S. Department of Homeland Security

(DHS) has endeavored to respond expeditiously to your requests. On seven different occasions,

U.S. Immigration and Customs Enforcement (ICE) employees have briefed Congressional

offices and, on three separate occasions, have briefed members of your staff about the Bureau of

Alcohol, Tobacco, Firearms and Explosives (ATF)-led investigation. ICE has also responded to

written questions posed by your staff. DHS has been gathering the information you requested

and will continue to keep your staff apprised of our progress.

With regard to the case file you reference, ICE and your staff continue to be in regular

contact. As you know, producing a law enforcement case file of this type can be particularly

challenging for the following reasons:

The investigation was run by an interagency task force, rather than by one agency;

The task force was led by an agency other than ICE;

As this investigation is currently under an ongoing prosecution in Federal Court,

divulging any information prior to a thorough and substantive vetting could jeopardize

the success of the prosecution;

The file contains a substantial amount of law enforcement and investigation sensitive

information that must be protected; and

The file contains information received from confidential sources whose security would be

compromised if their involvement is revealed.

ICE is working expeditiously to make the case file available for review, and ICE and U.S.Customs and Border Protection (CBP) are gathering the other information requested in your

letter. While they gather this information, ICE and CBP employees remain prepared to brief

your staff on the contents of the documents, where possible, to assist you in your investigation.

As to requests 3-5 in your letter, we will continue to work diligently and expeditiously to get this

material to you.

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With regard to your requests for emails between the Secretary and the Attorney General

or other DOJ employees about the death of Border Patrol Agent Brian Terry, we have

determined that no such emails exist. In the meantime, if I can be of assistance in any other way,

please do not hesitate to contact me at 202-447-5890.

Respectfully,

Nelson Peacock

Assistant Secretary for Legislative Affairs

cc: The Honorable Elijah E. Cummings, Ranking Member

Committee on Oversight and Government Reform

U.S. House of Representatives

The Honorable Patrick Leahy, Chairman

Committee on the Judiciary

United States Senate

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June 2012

June 2012

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June 14, 2012

VIA ELECTRONIC TRANSMISSION

The Honorable Eric H. Holder, Jr.Attorney General

U.S. Department of Justice950 Pennsylvania Avenue, NWWashington, D.C. 20530

Dear Attorney General Holder:

Tuesday, in response to Senator Cornyns call for your resignation, youresponded, in part, with the following statement:

If you want to talk about Fast and Furious, Im the Attorney General thatput an end to the misguided tactics that were used in Fast and Furious. AnAttorney General who I suppose you would hold in higher regard was

briefed on these kinds of tactics in an operation called Wide Receiver anddid nothing to stop them nothing. Three hundred guns, at least, walkedin that instance.

This is a serious charge. However, as far as Im aware, the Justice Department hasproduced nothing to date that indicates any former Attorney General was briefed onOperation Wide Receiver.

I am aware that the Justice Department produced a memorandum to AttorneyGeneral Mukasey in preparation for a November 16, 2007, meeting with MexicanAttorney General Medina Mora.1 At no point does this memo mention Operation WideReceiver, in which over 300 guns were allowed to walk to Mexico. Instead, the memo

appears to refer to a case called Hernandez, which involved a planned controlleddelivery not intentional gunwalking.

1 Memo to the Attorney General, Meeting of the Attorney General with Mexican Attorney General MedinaMora (Nov. 16, 2007) [HOGR HRNDZ 003240].

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The Honorable Eric H. Holder, Jr.June 14, 2012

Page 2 of 2

Documents the Justice Department has produced have indicated that thegunwalking in Operation Wide Receiver was brought to the attention of AssistantAttorney General Lanny Breuer in April 2010 by his deputy, Jason Weinstein. Breuers

response, according to a contemporaneous e-mail from Criminal Division Gang UnitChief James Trusty, was simply that he want[ed] us to meet with [ATF] at some pointso they knowthe bad stuff that could come out.2 Weinstein subsequently indicated toATF Deputy Director William Hoover: The reason we wanted to meet with you beforecharging is that the case has [two] aspects that could create media challenges and wewanted to talk through them first.3 I have called for Breuers resignation in partbecause, the evidence so far shows that he is the highest-ranking government officialwho was personally informed about gunwalking in any case, and he did nothing to put astop to it.

If the Justice Department has documentation about Operation Wide Receiverwhich it has not yet produced and which indicate a higher level of awareness of

gunwalking than has previously been indicated, such evidence should be producedimmediately. Given the gravity of these allegations, I would appreciate a response byMonday, June 18, 2012. If you have any questions concerning this matter, pleasecontact Tristan Leavitt of my staff at (202) 224-5225.

Sincerely,

Charles E. Grassley

Ranking Member

2 E-mail from James Trusty, Acting Chief, Gang Unit, Criminal Division, DOJ, to Kevin Carwile, Chief,Capital Case Unit, Criminal Division, DOJ (Apr. 19, 2010) [HOGR 003451] (emphasis added).3 E-mail from Jason Weinstein, Deputy Assistant Attorney General, Criminal Division, DOJ, to WilliamHoover, Deputy Director, ATF (Apr. 20, 2010) [HOGR 003452].

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June 20, 2012

VIA ELECTRONIC TRANSMISSION

President Barack ObamaThe White House1600 Pennsylvania Avenue, NWWashington, DC 20500

Dear Mr. President:

This morning, the House Committee on Oversight and Government Reformbegan considering a contempt citation against Attorney General Holder for his refusal todeliver documents related to Operation Fast and Furious. As you know, two guns thatfederal law enforcement allowed to be illegally purchased and trafficked to Mexico aspart of that operation were found at the murder scene of Border Patrol Agent BrianTerry on December 14, 2010. I have been seeking documents related to this matter fromthe Justice Department since January 2011.

At the last minute before the House Committee proceedings began this morning,I received notice that you were claiming executive privilege. After 18 months ofinvestigation and interaction with Justice Department officials on this matter, this was

the first indication that anyone at the Department or the White House believed thedocuments being sought were subject to executive privilege claims. Last week, Iquestioned the Attorney General about a specific example of a document that I and theHouse Committee have been seeking and whether there could be a legitimate claim ofexecutive privilege over that document and others like it. The document I referenced isan internal email from the then-Acting Director of ATF to people at ATF and DOJheadquarters.

The Attorney General was not clear in response to my question whether hebelieved that executive privilege could be asserted with regard to that document orothers like it. Rather than executive privilege, the Attorney General talked aboutdeliberative process. He indicated a willingness to provide that document and others

like it, if the possibility of contempt were to be taken off the table. Yet this morning, itappears that you may be claiming executive privilege over the very same type ofdocumentinternal Justice Department communications not involving the WhiteHousethat the Attorney General said he was willing to provide.

Can you please provide a more precise description of the scope of your executiveprivilege claim? Are you asserting it only with regard to documents called for by the

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President Barack ObamaJune 20, 2012

Page 2 of 2

subpoena that may have involved communications with you? Or are you extending yourclaim to records of purely internal Justice Department communications, not involvingthe White House? Please provide a more detailed description of the documents that you

are or are not asserting executive privilege to protect.

Sincerely,

Charles E. Grassley

Ranking Member

cc: Darrell Issa

ChairmanCommittee on Oversight and Government ReformU.S. House of Representatives

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June 25, 2012

VIA ELECTRONIC TRANSMISSION

The Honorable Eric H. Holder, Jr.Attorney GeneralU.S. Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530

Dear Attorney General Holder:

I have received information that the Department of Justice headquarters may beproviding boxes of Operation Fast and Furious documents to individuals at theheadquarters of the Department of Homeland Security (DHS). Given the fact that theJustice Department has refused to produce large categories of documents to Congress,this is disturbing information. Since the DHS Inspector General (IG) is conducting itsown investigation into Operation Fast and Furious, it also raises questions as to whethersuch records may have also been made available to the DHS IG.

Accordingly, please respond to the following questions:

1. Have documents regarding Operation Fast and Furious been provided to anyonein Secretary Napolitanos office? If so, which documents and for what purpose?

Have such documents also been provided to the DHS IG?

2. Have documents regarding Operation Fast and Furious been provided to anyoneat DHS? If so, which documents and for what purpose? Have such documentsalso been provided to the DHS IG?

3. Are any of the documents among those that are responsive to the October 12,2011 subpoena, but have not been produced to the Committees? If so, whichdocuments?

Thank you in advance for ensuring your response arrives no later than July 2,2012. If you have any questions concerning this matter, please contact Tristan Leavitt ofmy staff at (202) 224-5225.

Sincerely,

Charles E. GrassleyRanking Member

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The Honorable Ronald C. Machen, Jr.June 29, 2012

Page 2 of 4

that decision is for the citizens empaneled in the grand jury, not for you or for theDeputy Attorney General or for the Department generally to make.

The Deputy Attorney Generals letter cites the Presidents assertion of executiveprivilege as relieving you of your duty to present the contempt citation to a grand jury.4Arguably, that may be true. But, it can only be true to the extent that the assertion ofexecutive privilege is valid as to every single document sought by the House subpoenathat has been withheld. The Deputy Attorney General relies on a 1984 Office of LegalCounsel (OLC) opinion, which argues that the duty of a U.S. Attorney to present acontempt citation to a grand jury could not be constitutionally applied where there is avalid assertion of privilege.5 However, the OLC opinion clearly sets forth the caveatthat our conclusions are limited to the unique circumstances that gave rise to thesequestions in late 1982 and early 1983.6 According to the OLC opinion, a United StatesAttorney is not requiredto refer a contempt citation in these circumstances to a grandjury or otherwise to prosecute an Executive Branch official who is carrying out the

President's instruction in a factual context such as that presented by the December 16,1982, contempt citation.7 Whether or not you are ultimately required by law to referthe contempt citation, nothing in the OLC opinion prohibits you from determiningwhether the facts here are like those in 1984. Since it is your clear duty under thestatute, it is you who must undertake an independent assessment of the facts andcircumstances of this case to determine whether there may be important differencesbetween that case and this one, and therefore, the extent to which you may or may notbe relieved of your duty by the assertion of executive privilege.

It does not appear possible that you could have undertaken any such independentassessment. The Deputy Attorney Generals letter has put the cart before the horse. Asyou may or may not know, the Justice Department and the White House have refused to

provide a particularized description of the documents being withheld or a description ofthe documents over which executive privilege has been asserted. No one can reasonablymake an intelligent judgment as to the validity of a privilege claim without a specificdescription of the documents in question, at the very least. As the District Court for theDistrict of Columbia recognized when it considered the contempt citations of WhiteHouse officials Josh Bolton and Harriet Miers:

[B]oth the Court and the parties will need some way to evaluate privilegeassertions going forward in the context of this litigation. More specifically,if the Court is called upon to decide the merits of any specific claim ofprivilege, it will need a better description of the documents withheld thanthe one found in Mr. Clement's letter of June 27, 2007.8

4Id. at 1.5 8 Op. O.L.C. 101 (1984) (Prosecution for Contempt of Congress).6Id. at 102.7Id. (emphasis added).8 Committee on Judiciary, U.S. House of Representatives v. Miers, 558 F.Supp.2d 53, 107 (D.D.C., 2008).

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The Honorable Ronald C. Machen, Jr.June 29, 2012

Page 3 of 4

The same principle applies to you in order to evaluate the privilege assertion and thusassess your duty under the statute. Ideally, you would undertake an actual examinationof the documents in order to make an independent assessment of the validity of any

privilege claim.

The Attorney General has assigned to you the duty of investigating a series ofnational security leaks. The Attorney General and several members of the SenateJudiciary Committee expressed supreme confidence in your ability to act independentlyand take the facts wherever they lead, regardless of the political consequences or anypressure to pull punches that might come from the political leadership of theDepartment or from the White House. Your independence and integrity were cited asthe reason that there was supposedly no necessity to appoint a special prosecutor. Thismatter gives you an opportunity to live up to that high praise and prove yourindependence.

However, the way this has been handled so far suggests no such independence atall. Before you have even received the citation, before you have even had a chance tounderstand the scope of the documents and the privilege claim at issue, the DeputyAttorney General has already announced the decision of the Department not toproceed as required by the contempt statute. Therefore, so that Congress can have abetter understanding of the procedural standing of this matter, please provide answersto the following questions:

1) Have you had any communications with the Deputy Attorney General, theAttorney General, or other senior Department political appointees aboutthe contempt citation or about Operation Fast and Furious? If so, providea detailed description of those communications and when they occurred.

2) Have you been instructed not to present the contempt citation to a grandjury? If so, when, by whom, and on what grounds?

3) Have you independently decided not to present the contempt citation to agrand jury? If so, when and on what basis?

4) Have you conducted an independent review of the documents beingwithheld from Congress by the Attorney General in order to assess thevalidity of any privilege claims? If so, when did that review occur? If not,please explain why not.

5) Have you been provided with copies of the documents the AttorneyGeneral is withholding from Congress or a specific list of the documentsbeing withheld? If so, have you conducted an independent analysis of theexecutive privilege claim? If not, how can you conduct an independentassessment of the validity of any executive privilege claim or make anyindependent judgment about your duty under the contempt statute topresent the contempt citation to a grand jury?

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The Honorable Ronald C. Machen, Jr.June 29, 2012

Page 4 of 4

Please provide written responses to each of these questions as soon as possible,but no later than July 3, 2012. Thank you for your prompt attention to this importantmatter. If you have any questions concerning this matter, please contact Jason Foster of

my staff at (202) 224-5225.

Sincerely,

Charles E. GrassleyRanking Member

cc: The Honorable John A. Boehner

The Honorable Patrick J. LeahyThe Honorable Darrell E. IssaThe Honorable Elijah E. Cummings

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July 2012

July 2012

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July 3, 2012

Via Electronic Transmission

The Honorable Eric H. Holder, Jr.Attorney GeneralU.S. Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530

Dear Attorney General Holder:

The investigation into Operation Fast and Furious has focused on two specific areas:(1) When did individuals within the Department of Justice (DOJ/Department) becomeaware of the tactics and (2) How did DOJ provide false information to Congress regardingthe allegations of gunwalking.

I believe the Department should have been abundantly aware of allegations ofgunwalking as there was more than one ATF agent providing information to Departmentcomponents before the February 4, 2011, letter was sent to Congress.

Specifically, on February 2, 2011, my investigators contacted an ATF Special Agentwho worked out of the Phoenix Field Division, Group VII office, and was familiar with

Operation Fast and Furious. The conversation centered on the ATF Agents recollection ofhow Fast and Furious was executed and his recollection confirmed the allegations my officehad heard from other ATF whistleblowers. What was unknown until late 2011 was that thisATF Agent produced a memorandum on February 3, 2011, which documented hisdiscussion about Fast and Furious. The subject of the memorandum is, Contact withCongressional Investigators, and I have enclosed it within this letter.

This Fast and Furious memorandum traveled rapidly through ATFs chain ofcommand. The memorandum was emailed on February 3, 2011, from the Dallas FieldDivision to Phoenix SAC William Newell and Deputy Assistant Director for Field OperationsWilliam McMahon. Records that the Justice Department has withheld from Congress,which were only made available for reviewin camera,show an email chain attaching thismemorandum was sent to Assistant Director of Field Operations Mark Chait at ATFheadquarters by the afternoon of February 3, 2011.

According to ATF personnel, the memorandum was discussed by high level ATFpersonnel and possibly forwarded to DOJ headquarters on February 3, 2011. Specifically, ithas been alleged that individuals within the Deputy Attorney Generals (DAGs) office andthe Office of Legislative Affairs (OLA) at the Department were aware of or actually read thememorandum before the Departments February 4, 2011, letter was sent. Some individuals

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who spoke with my office claim they were alarmed by the substance of the memorandumand it caused such a stir that ATF planned to put a panel together to address the allegationsbut someone within DOJ suppressed the idea.

The possibility that DOJ was aware of this memorandum on February 3, 2011, andstill sent the erroneous letter to Congress on February 4, 2011, raises more questions aboutDOJs claim that faulty information from Department components inadvertently led to thefalse letter. This was direct, documented information from street level agents in a far betterposition to know the facts than the senior supervisory personnel whom DOJ claims to haverelied upon for information about the allegations.

Discovering how high up the chain of command inside the Justice Department thememorandum was reviewed has not been easy. The Department has not made availablecertain individuals who could corroborate what my office has been told. Moreover, it isunclear whether the set of deliberative materials about the drafting of the February 4,2011, letter that the Department produced to Congress constitutes a complete set of all

relevant documents or whether other relevant documents from the pre-February 4thtimeframe may have been withheld. Consequently, please answer the following questions:

1) Have all records relating to the February 3, 2011, memorandum been gathered andpreserved by the Justice Department? If not, why not? If so, please describe thenature and volume of those records.

2) Will you produce those records to Congress? If not, please explain why not.3) Which DOJ personnel received a copy of the February 3, 2011, memorandum prior to

February 4, 2011?

4) Which DOJ personnel were aware of the memorandum before the February 4, 2011reply was sent to me? Please provide all records related to these questions, or certifythat all relevant documents have already been provided.

I would appreciate a written response by no later than July 17, 2012. If you have anyquestions concerning this matter, please contact Brian Downey of my staff at (202) 224-5225.

Sincerely,

Charles E. GrassleyRanking Member

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The Honorable Eric H. Holder, Jr.July 3, 2012

Page 3 of 3

Enclosure

cc: The Honorable Patrick J. Leahy, ChairmanCommittee on the Judiciary, U.S. Senate

The Honorable Darrell E. Issa, ChairmanCommittee on Oversight and Government Reform, U.S. House of Representatives

The Honorable Elijah E. Cummings, Ranking MemberCommittee on Oversight and Government Reform, U.S. House of Representatives

The Honorable Michael E. Horowitz, Inspector GeneralU.S. Department of Justice

B. Todd Jones, Acting DirectorBureau of Alcohol, Tobacco, Firearms, and Explosives

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