It’s every citizen’s right to take the Fifth Amendment in court and Congressional hearings when testifying.  When the sitting chief of a criminal investigation division for a US Attorney’s office does it, though, it certainly calls into question what in blazes the Department of Justice has been doing, especially with Operation Fast and Furious:

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.

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.

Rep. Darrell Issa, chair of the House Oversight and Government Reform committee, issued a statement few minutes ago calling this move “extremely rare” and “an indictment” in itself of the DoJ’s integrity.  Issa also points out that the scope of the strategy that Cunningham will employ will leave him answering no questions except his name and title:

“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.”

While Cunningham has the right to take the Fifth under questioning, Congress also has a duty to oversee operations within the Department of Justice, and the DoJ has a duty to answer to Congress.  A refusal to do so should mean the end of Cunningham’s employment at the DoJ; if he cannot testify before Congress about his official actions, then he should not be employed in that position any longer.

The tactic leaves Issa with another option, too.  He could offer Cunningham immunity from prosecution, which would then force him to testify before Congress about what he knew of OF&F — and perhaps more importantly, what his superiors knew about it, too.  A refusal to testify at that point would amount to contempt of Congress, for which Cunningham could find himself facing significant jail time.  That depends on how critical Issa views Cunningham to the OF&F scandal, and whether Cunningham himself was a big fish in the operation or just one of the middle men.

One point is pretty clear, though.  Officials at the DoJ involved in this operation are fearing criminal prosecution, which means that this scandal just went prime time.