Arizona strikes back: State investigates feds over gun-running

 By Stephen Dinan

Arizona's state legislature will open its own investigation into the Obama administration's disgraced gun-running program, known as "Fast and Furious," the speaker of the state House said Friday.

Speaker Andy Tobin created the committee, and charged it with looking at whether the program broke any state laws — raising the possibility of state penalties against those responsible for the operation.

It's a turnaround from the rest of the immigration issue, where the federal government has sued to block the state's own set of laws.

A law requiring businesses to check new workers' legal status was upheld by the Supreme Court last year, and the court has agreed to hear the case of Arizona's crackdown law that makes being an illegal immigrant a state crime and gives state and local police the power to enforce that law.

Fast and Furious was a straw-purchase program run by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The goal was to try to trace guns sold in Arizona shops and then trafficked across the Mexican border, where they landed in the hands of drug cartels.

As part of the operation, however, agents let the guns "walk" — meaning they lost track of them. At least two of the guns ended up at the scene where Border Patrol Agent Brian Terry was killed in a shootout with Mexican bandits along a smuggling corridor in Arizona.

Mr. Tobin will announce the committee's jurisdiction at a press conference in Phoenix on Monday. The committee is charged with looking into the facts about the program, what impact it had on Arizona and whether any of the state's laws were broken.

A report is due back by March 30.

Arizona's investigation into Fast and Furious comes on top of an investigation by Republicans in Congress.
On Friday the chief of the criminal division of the U.S. Attorney's Office in Arizona told a House committee he will decline to answer their questions next week, citing his Fifth Amendment rights against self-incrimination.

The official's lawyer, in a letter to the committee, said his client is innocent but is "ensnared by the unfortunate circumstances in which he now stands between two branches of government."

 Washington Times

AP on DOJ Prosecutor Taking the Fifth in Fast and Furious: The Problem is With the 'Investigation'

By Tom Blumer

Pete Yost's Friday evening story at the Associated Press, also known to yours truly as the Administration's Press, on the latest development in the Operation Fast and Furious scandal (that's my word, certainly not Yost's) has a "this is a boring story, don't read it" headline ("Prosecutor intends to take 5th if called in probe"), followed by an opening sentence which acts as if it has nothing to do with at least 300 Mexican citizens, a slain Border patrol agent, and thousands of disappearing guns.

Yost's opening sentence: "A federal prosecutor in Arizona intends to remain silent if called for questioning in a congressional probe of a problem-plagued gun smuggling investigation." Yep, Yost wants readers who don't get past the first paragraph to believe that it's only the "investigation" that's messed up beyond all recognition, not what happened in the Fast and Furious operation. Here's more from Pete's pathetic piece (bolds are mine throughout this post):

Patrick Cunningham's decision to invoke his Fifth Amendment right against self-incrimination in the investigation of Operation Fast and Furious was disclosed Friday after the House Oversight and Government Reform Committee subpoenaed him.

Republican committee Chairman Darrell Issa, R-Calif., said congressional investigators have information that Cunningham played a role in approving a controversial law enforcement tactic, resulting in federal agents losing track of weapons that later turned up at crime scenes in Mexico and the U.S.

In a letter to the committee Thursday, Cunningham's lawyer said his client wasn't even working at the U.S. Attorney's Office in Phoenix until 2010, months after Operation Fast and Furious began there.

According to Issa, senior Justice Department officials have told the committee that Cunningham relayed inaccurate and misleading information to department superiors insisting that no unacceptable tactics were used.

... The evidence shows that "my client is, in fact, innocent," (Cunningham attorney Tobin) Romero wrote.

... Cunningham, chief of the criminal division in the U.S. Attorney's Office in Phoenix, is resigning his government post effective next Friday to take a job in the private sector.

Note the following:

• Yost really wants to make sure we know that Darrell Issa is a Republican, tagging him as one twice in one phrase.
• The use of the term "law enforcement tactic." What laws are being "enforced" when you give out guns which you know you won't be able to track?
• "Weapons" just sort of "turned up" at "crime scenes." Yost doesn't mention what was also "turned up" -- as noted above, hundreds of dead Mexican citizens and slain Border Patrol agent Brian Terry.
• There's also no mention of who used the "weapons" at the crime scenes, i.e., Mexican drug cartel members, gangsters, and other criminals.
• Regarding Cunningham's resignation, does this mean that he will conveniently end up being out of the reach of congressional investigators, and that he is invoking the Fifth to play stall-ball until he is? Yost doesn't say.

At PJ Media, Bob Owens provides a number of chronological facts Yost could have and should have used if his intention were to inform readers instead of to create an uninteresting story from which no one would learn anything. Owens also recounts how the administration's story has changed over time, something in which Yost and the AP also have demonstrated little if any interest:

Cunningham’s defense seeks to portray him as an innocent man caught in a conflict between the legislative and executive branches of government. He also seems to be the designated “fall guy” in the Obama administration’s recent tactical shift.

Previously, administration officials claimed they were unaware of the gunwalking plot and had no involvement in it. That excuse fell apart when evidence was presented that Deputy Attorney General Gary Grindler, Deputy Attorney General David W. Ogden, Assistant Attorney General Lanny Breuer, Assistant Attorney General Ronald Weich, ATF Director Kenneth E. Melson, Drug Enforcement Administration (DEA) Administrator Michele Leonhart, Federal Bureau of Investigation (FBI) Director Robert Mueller, U.S. Attorney for the District of Minnesota/Chair of the Attorney General’s Advisory Committee/Acting ATF Director B. Todd Jones, and the top federal prosecutors in the Southwestern border states were all privy to information about Operation Fast and Furious.

The administration has since shifted to what can only be described as an “incompetence defense,” where they are asserting that rogue Phoenix operatives initiated the massive gunwalking plot without their supervisors in Washington, D.C., knowing anything about it — even as the “rogue” agents worked across directorships with DOJ, DHS, the IRS, and the required authorization of the State Department.

Attorney General Eric Holder’s defense seems to hinge upon the theory that he’s a detached boss more interested in pursuing heavily politicized racial justice schemes than enforcing the law or knowing what his direct reports are engaged in. One has to wonder about how serious the criminal crimes are that the attorney general is attempting to avoid by claiming gross incompetence.

It will be interesting to see if an immunity arrangement can be worked out for Mr. Cunningham so that he can share what he knows about Operation Fast and Furious.

With Cunningham's departure from the Department of Justice, that would seem less likely.

Cross-posted at BizzyBlog.com.

News Busters

DOJ Official Asserts Fifth Amendment Right in Refusing to Testify in Probe of Operation Fast and Furious

WASHINGTON, D.C. – Patrick Cunningham, the chief of the criminal division in the Arizona U.S. Attorney's office, has informed the House Oversight and Government Reform Committee that he intends to exercise his fifth amendment right not to incriminate himself next Tuesday at his deposition. Cunningham's response, made through his lawyer, to a subpoena issued by the committee is extremely rare. More alarming is how broad Cunningham intends to rely on the Fifth Amendment. His lawyer has informed the committee that the only information Cunningham would provide is his name and title at the Department of Justice.

House Oversight and Government Reform Committee Chairman Darrell Issa issued the following statement:

"The assertion of the fifth amendment by a senior Justice official is a significant indictment of the Department's integrity in Operation Fast and Furious. The former head of the ATF has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees. This is the first time anyone has asserted their fifth amendment right in this investigation and heightens concerns that the Justice Department's motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.

"Coming a year after revelations about reckless conduct in Operation Fast and Furious were first brought to light, the assertion of the fifth amendment also raises questions about whether President Obama and Attorney General Holder have made a serious and adequate response to allegations raised by whistleblowers. Did Attorney General Holder really not know a senior Justice Department official fears criminal prosecution or is this just another example of him hiding important facts? The committee will continue to demand answers."

The only legally valid reason for asserting the fifth amendment is fear that testimony could aid one's own criminal prosecution. In his response to the Committee, Cunningham's lawyer rejected assertions made by other senior Justice Department officials in Washington that his client held key responsibility for reckless tactics in Operation Fast and Furious and false information provided to Congress.

GOP Oversight Subpoenas AZ Justice Dept. Official Over Operation Fast & Furious

Federal official in Arizona to plead the fifth and not answer questions on 'furious'

By William La Jeunesse


 

• 
  Reuters
  December 8, 2011: Rep. Darrell Issa (R-CA) asks a question to U.S. Attorney General Eric Holder during the House Judiciary Committee hearing on Capitol Hill in Washington.

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.

• 
  January 25, 2011: A cache of seized weapons used in the ATF gun-running operation 'Fast and Furious' is displayed at a news conference in Phoenix.

The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena. 

Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

"To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." 

Romero told Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.

Fox News

Judge: Border Patrol Agent's Family Not Victims In Case

By Michel Marizco

TUCSON — A federal judge ruled Wednesday against the family of murdered Border Patrol agent Brian Terry.

U.S. District Court Judge James Teilborg said the family needs better evidence to convince him they should be listed as victims in the court case related to a federal gun walking program.

The family of the agent had asked to be made part of the case against Jaime Avila, the accused gun buyer in Phoenix whose weapons allegedly turned up at the agent’s crime scene. The guns were part of a scandalous federal gun walking program called Operation Fast and Furious.

The family has tried to be designated victims in the case because of that connection. The judge ruled no and said that they have two weeks to convince him otherwise.
In his opinion, the judge said:

"In attempting to establish a nexus between the crimes charged and the death of Brian Terry, the Terrys offer evidence that the gun used to kill Brian Terry was one of the many guns a Defendant in this case purchased by making a false statement. This connection is insufficient for the Court to conclude that but for Defendant’s charged false statement, Brian Terry would not be deceased."

Document

Judge's Ruling Against Terry Family

Download .PDF

Teilborg also said the government will have one final opportunity to argue against the family's response before he makes his decision.

Both the family's lawyer and the U.S. Attorney's Office in San Diego declined to comment on the judge's decision.

Brian Terry was killed last December near Nogales. So far, only one person has been identified and charged with his murder.

Fronteras

Issa Subpoenas Criminal Division Chief from Arizona U.S. Attorney’s Office

WASHINGTON, DC – House Committee on Oversight and Government Reform Chairman Darrell Issa (R-CA) today announced the issuance of a subpoena to Patrick J. Cunningham, Chief of the Criminal Division in the U.S. Attorney's Office for the District of Arizona. Mr. Cunningham's repeated refusals to testify voluntarily have forced the Committee to use compulsory process.

"During the course of our investigation, the Committee has learned of the outsized role played by the Arizona U.S. Attorney's Office – and you specifically – in approving the unacceptable tactics used in Fast and Furious," Chairman Issa wrote to Cunningham in a letter informing him of the subpoena. "Senior Justice Department officials have recently told the Committee that you relayed inaccurate and misleading information to the Department in preparation for its initial response to Congress.

"These officials told us that even after Congress began investigating Fast and Furious, you continued to insist that no unacceptable tactics were used. In fact, documents obtained confidentially just last week appear to confirm that you remained steadfast in your belief that no unacceptable tactics were used, even after the Department's initial response to the congressional inquiry. Given that the Attorney General has labeled these tactics as unacceptable and Fast and Furious as 'fundamentally flawed,' this position is startling."

The subpoena requires Cunningham to appear on Tuesday, January 24, 2012 for a deposition.

Read Issa's letter to Cunningham here.

Fast and Furious: Refuse to Testify? Here's a Subpoena

• 
• Katie Pavlich
  News Editor, Townhall
•  
•  
•  
•   Chairman of the House Oversight Committee Darrell Issa is back on the Fast and Furious trail and announced the issuance of a new subpoena today to Chief of the Criminal Division in the U.S Attorney's Office for Arizona Patrick Cunningham. Cunningham was asked politely to voluntarily testify before the committee about Operation Fast and Furious, but refused. In a letter sent to Cunningham announcing the subpoena, Issa doesn't mince words, saying Cunningham approved tactics used in the lethal program. Cunningham was scheduled for an interview with Issa today but canceled after implying he was willing to cooperate with the investigation, further delaying the Oversight Committee's ability to get to the bottom of Fast and Furious. Considering Justice Department officials have done nothing but stonewall Issa up to this point, the move wasn't surprising and this tactic is nothing new.
  
  “During the course of our investigation, the Committee has learned of the outsized role played by the Arizona U.S. Attorney’s Office – and you specifically – in approving the unacceptable tactics used in Fast and Furious,” Chairman Issa wrote to Cunningham in a letter informing him of the subpoena.
  
  “Senior Justice Department officials have recently told the Committee that you relayed inaccurate and misleading information to the Department in preparation for its initial response to Congress."
  
  Cunningham is under fire for participating in the cover up of the program even after Congress launched an investigation.
  
   “These officials told us that even after Congress began investigating Fast and Furious, you continued to insist that no unacceptable tactics were used.  In fact, documents obtained confidentially just last week appear to confirm that you remained steadfast in your belief that no unacceptable tactics were used, even after the Department’s initial response to the congressional inquiry.  Given that the Attorney General has labeled these tactics as unacceptable and Fast and Furious as ‘fundamentally flawed,’ this position is startling,” Issa wrote.
  
  Remember, Arizona U.S. Attorney Dennis Burke, Cunningham's boss, resigned in August just two weeks after giving closed door testimony to the House Oversight Committee. He did not mention Fast and Furious in his resignation letter addressed to President Obama. Attorney General Eric Holder will face his day before the committee on February 2, just over a week away.