ATF gunwalking scandal
2012
#### 2012

Investigations by Congress and the DOJ Inspector General continued into 2012\. In January, Patrick Cunningham, who was the criminal division chief at the Phoenix office of the U.S. Attorney's Office for the District of Arizona and has since resigned, asserted his innocence and his [constitutional right against self\-incrimination](/wiki/Self-Incrimination_Clause "Self-Incrimination Clause") to avoid testifying. Cunningham worked directly under Burke during Fast and Furious. He was [subpoenaed](/wiki/Subpoena "Subpoena") because of the role he might have played in the operation, and in the letter sent from the DOJ to Senator Grassley in February 2011 that claimed the ATF did not allow weapons to be trafficked to Mexico.

On January 31, 2012, Democrats on the House Oversight and Government Reform Committee released a report titled, "Fatally Flawed: Five Years of Gunwalking in Arizona". The report concluded that there was no evidence of involvement by high\-ranking appointees at the Justice Department in gunwalking. Rather, Operation Fast and Furious was just one of four such operations conducted over five years during the Bush and Obama administrations, and was only "the latest in a series of fatally flawed operations run by ATF agents in Phoenix and the Arizona U.S. Attorney's Office".

In May, it was reported that the [Department of Homeland Security](/wiki/United_States_Department_of_Homeland_Security "United States Department of Homeland Security") (DHS) [Office of Inspector General](/wiki/Department_of_Homeland_Security_Office_of_Inspector_General "Department of Homeland Security Office of Inspector General") had begun to investigate Fast and Furious, with a report expected in October. The DHS had [Immigration and Customs Enforcement](/wiki/Immigration_and_Customs_Enforcement "Immigration and Customs Enforcement") agents assigned to the operation after becoming involved in late 2009\.

On May 3, 2012, Congressman Issa released a memorandum to the Committee on Oversight and Government Reform that included a draft of a resolution to hold Attorney General Holder in contempt. In the memo, Issa described the connection between Operation Fast and Furious and the OCDETF program since at least January 2009, which would involve multiple executive agencies including the ATF, DOJ, DEA, FBI, ICE, and DHS. He questioned how, why, or if oversight by high level Justice Department did not occur in such an important case. He further described the tragic death of Brian Terry, the whistleblowers and their mistreatment, and the damage the operation had to US\-Mexico relations.

On June 7, 2012, under the threat of being held in [contempt of Congress](/wiki/Contempt_of_Congress "Contempt of Congress") for not turning over additional requested documents, Attorney General Holder appeared at his seventh Congressional hearing, where he continued to deny knowledge of gunwalking by high\-level officials. By then, the Justice Department had turned over more than 7,000 pages of documents.

During the June 12, 2012, Senate hearing, Eric Holder stated, "If you want to talk about Fast and Furious, I'm the Attorney General that put an end to the misguided tactics that were used in Fast and Furious. An Attorney General who I suppose you would hold in higher regard was briefed on these kinds of tactics in an operation called Wide Receiver and did nothing to stop them—nothing. Three hundred guns, at least, walked in that instance." Holder cited a briefing paper on "Wide Receiver"; the DOJ Office of Legislative Affairs later clarified that the briefing paper was about the Fidel Hernandez case, prepared for Holder's predecessor, U.S. Attorney General [Michael Mukasey](/wiki/Michael_Mukasey "Michael Mukasey") before his meeting with Mexican Attorney General Mora on November 16, 2007\. The Hernandez Case had ended October 6, 2007,["ATF Emails Discuss Bush\-Era 'Gun Walking' Program" Page 2](http://talkingpointsmemo.com/documents/2011/10/atf-emails-discuss-bush-era-gun-walking-program.php?page=2)  email from William Newell to Carson W. Carroll October 6, 2007\. before Mukasey entered office November 9, 2007\.[Laurie Kellman (AP), "Mukasey confirmed as attorney general"](https://www.washingtonpost.com/wp-dyn/content/article/2007/11/08/AR2007110802711.html) , *Washington Post*, November 9, 2007\. The office further explained, "As Attorney General Holder also noted in his testimony, and as we have set forth in prior correspondence and testimony, he took measures and instituted a series of important reforms designed to ensure that the inappropriate tactics used in Fast and Furious, Wide Receiver, Hernandez, and other matters about which the Department has informed Congress are not repeated." The later DOJ OIG investigation concluded "Attorney General Mukasey was not briefed about Operation Wide Receiver or gun 'walking,' but on a different and traditional law enforcement tactic that was employed in a different case."

On June 20, 2012, the House Oversight and Government Reform Committee voted along party lines to recommend that Holder be held in contempt. At issue were 1,300 pages of documents that had not been turned over to Congress by the DOJ. Earlier that day, President Obama had invoked [executive privilege](/wiki/Executive_privilege "Executive privilege") over those documents, marking the first time the privilege had been asserted during his presidency. Issa contends that the Obama executive privilege claim is a cover\-up or an obstruction to the congressional probe.[Issa: Obama executive privilege claim is cover\-up or obstruction](http://www.washingtontimes.com/news/2012/jun/26/issa-obama-executive-privilege-claim-either-cover-/) ; Washington Times; June 26, 2012

On June 28, 2012, Holder became the first sitting member of the [Cabinet of the United States](/wiki/Cabinet_of_the_United_States "Cabinet of the United States") to be held in criminal [contempt of Congress](/wiki/Contempt_of_Congress "Contempt of Congress") by the House of Representatives for refusing to disclose internal Justice Department documents in response to a subpoena. The vote was 255–67 in favor, with 17 Democrats voting yes and a large number of Democrats walking off the floor in protest and refusing to vote. A civil contempt measure was also voted on and passed, 258–95\. The civil contempt vote allows the [House Committee on Oversight and Government Reform](/wiki/House_Committee_on_Oversight_and_Government_Reform "House Committee on Oversight and Government Reform") to go to court with a [civil lawsuit](/wiki/Civil_lawsuit "Civil lawsuit") to look into the US Justice Department's refusal to turn over some of the subpoenaed documents and to test Obama's assertion of executive privilege. Holder dismissed the votes as "the regrettable culmination of what became a misguided—and politically motivated—investigation during an election year," and the White House called it "political theater rather than legitimate congressional oversight". The [National Rifle Association](/wiki/National_Rifle_Association "National Rifle Association") controversially lobbied for Holder to be held in contempt.[NRA sends Democrats a message over Holder contempt vote](http://www.cnn.com/2012/07/02/politics/contempt-vote-political-survival/index.html?hpt=hp_t2) ; CNN; July 2, 2012[NRA Letter to the committee – June 20](http://nraila.org/media/7733622/cc-letter-to-issa.pdf) ; National Rifle Association; June 20, 2012[Hoyer Challenges Issa to Show E\-Mails](http://thecaucus.blogs.nytimes.com/2012/06/26/hoyer-challenges-issa-to-show-e-mails/?smid=tw-share) ; *New York Times*; June 26, 2012[Issa's right: Tougher gun laws Fast and Furious goal](http://www.nraila.org/news-issues/in-the-news/2012/6/issa%27s-right-tougher-gun-laws-fast-and-furious-goal.aspx) ; National Rifle Association; June 27, 2012

In June 2012, a six\-month\-long investigation by [*Fortune* magazine](/wiki/Fortune_%28magazine%29 "Fortune (magazine)") stated that the ATF never intentionally allowed guns to fall into the hands of Mexican drug cartels, in contrast to most other reports. Agents interviewed during the investigation repeatedly asserted that only one isolated incident of gunwalking ever occurred, and was performed independently by ATF Agent John Dodson (who later appeared on CBS News as a whistleblower to denounce the gunwalking scandal) as part of an unauthorized solo action outside the larger Fast and Furious operation.

On July 31, 2012, the first part of a new three\-part report, *Fast and Furious: The Anatomy of a Failed Operation*, was released by Republican lawmakers. The report singled out five ATF supervisors for responsibility in Fast and Furious, all of whom had been previously reassigned. The report also said that Fast and Furious resulted from a change in strategy by the Obama Administration. The Justice Department was dismissive of the report, saying that it contained "distortions" and "debunked conspiracy theories," and that gunwalking tactics dated back to 2006\. DOJ spokeswoman Tracy Schmaler, while critical of the report, did credit it for acknowledging that the idea for "gun walking"—allowing illegal sales of weapons on the border—originated under the Republican administration before Eric Holder took office in 2009\. Schmaler noted that Holder moved swiftly to replace the ATF's management and instill reforms. On the same day, ATF Deputy Director William Hoover, who was one of the five blamed in the Congressional report, officially retired. The report included an appendix disputing claims in the *Fortune* article. Following its publication, Dodson's lawyer wrote the managing editor of *Fortune* stating the article was "demonstrably false" and that a retraction was in order. After *Fortune* did not retract the article, Dodson sued for libel on October 12, 2012\.[Dylan Byers, "Exclusive: Fast and Furious whistleblower sues Time Inc. for libel"](http://www.politico.com/blogs/media/2012/10/fast-and-furious-whistleblower-sues-time-inc-for-libel-147059.html) , Politico, October 24, 2012\.

On September 19, 2012,[Charlie Savage, "Guns Inquiry Urges Action Against 14 in Justice Dept"](https://www.nytimes.com/2012/09/20/us/report-places-blame-in-operation-fast-and-furious.html) . *The New York Times*, September 19, 2012\. the Department of Justice Inspector General Michael Horowitz publicly released a 471\-page report detailing the results of the Justice Department's own internal investigations. The Inspector General's report, which had access to evidence and interviews with witnesses not permitted in previous Congressional reports, recommended 14 federal officials for disciplinary action, ranging from ATF agents to federal prosecutors involved in the Fast and Furious operation. It found "no evidence" that Attorney General Holder knew about Fast and Furious before early 2011\. It found no evidence that previous Attorneys General had been advised about gunwalking in Operation Wide Receiver.

While the OIG report found no evidence that higher officials at the Justice Department in Washington had authorized or approved of the tactics used in the Fast and Furious investigations, it did fault 14 lower officials for related failures, including failures to take note of "red flags" uncovered by the investigation, as well as failures to follow up on information produced through Operation Fast and Furious and its predecessor, Operation Wide Receiver. The report also noted ATF agents' apparent frustrations over legal obstacles from the Phoenix Attorney's Office to prosecuting suspected "straw\-buyers," while also criticizing the agents' failure to quickly intervene and interdict weapons obtained by low\-level suspects in the case. The 14 Justice Department employees were referred for possible internal discipline. The Justice Department's Criminal Division head [Lanny Breuer](/wiki/Lanny_Breuer "Lanny Breuer"), an Obama administration presidential appointee, was cited for not alerting his bosses in 2010 to the flaws of Operation Wide Receiver.["Probe faults US agents over Mexico gunrunning"](http://www.aljazeera.com/news/americas/2012/09/201292052721786157.html) , Al Jazeera, September 20, 2012\. Deputy Assistant Attorney General Jason Weinstein, who was responsible for authorizing a portion of the wiretap applications in Operation Fast and Furious and faulted in the report for not identifying the gunwalking tactics, resigned on the day of the report.[Mary Jacoby, "Criminal Division Deputy Weinstein Resigns In Wake of Fast and Furious Report"](http://www.mainjustice.com/2012/09/19/criminal-division-deputy-weinstein-resigns-in-wake-of-ig-fast-and-furious-report/)  Main Justice, September 19, 2012\.

On December 4, 2012, the ATF Professional Review Board delivered its recommendations to high\-level ATF managers, who would decide whether to accept them. The recommendations included firing William McMahon, ATF Deputy Assistant Director; Mark Chait, ATF Assistant Director for Field Operations; William Newell, Phoenix ATF Special Agent in Charge; and George Gillett, Newell's second in command. Two additional ATF employees, Phoenix supervisor David Voth and lead agent Hope McAllister, received recommendations for demotion and disciplinary transfer to another ATF post, respectively.[Evan Perez, "Firings Set Over 'Fast and Furious'", *The Wall Street Journal*, 4 Dec 2012\.](https://www.wsj.com/articles/SB10001424127887323717004578159732025255610)  Subscription required. It was reported the next day that McMahon had been fired. It was also announced that Gary Grindler, Eric Holder's chief of staff who was faulted in the OIG report, would be leaving the Justice Department. Later that month, the family of Brian Terry sued seven government officials and a gun shop involved in Operation Fast and Furious for negligence and wrongful death.[Sharyl Attkisson, "Brian Terry family sues ATF officials in Fast and Furious"](http://www.cbsnews.com/8301-250_162-57559582/brian-terry-family-sues-atf-officials-in-fast-and-furious/)  CBS, December 17, 2012\.


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