Did DoJ approve “a different approach” to gunwalking in 2010?

posted at 9:15 am on February 2, 2012 by Ed Morrissey

Eric Holder goes back up the Hill today to tell Congress that he doesn’t have to share his e-mails with anyone, but that may be a little too late.  A new report from Rep. Darrell Issa and Senator Charles Grassley allege that Holder deputy Lanny Breuer gave the ATF a green light on a “different approach” to interdicting weapons going across the border in 2010, and then failed to follow up — at best — on Operation Fast and Furious:

The memo, sent to Republican members of the Oversight Committee, was based upon interviews, documents and emails involving key players of the operation run by the Bureau of Alcohol, Tobacco, Firearms and Explosives. The operation allowed some 2,000 weapons cross the border into Mexico and into the hands of cartel members. …

The memo claims there was coordination between the Justice Department in Washington and the ATF in the early stages of the operation.

Emails released show that Kenneth Melson, former Acting Director of the ATF contacted Assistant Attorney General Lanny Breuer and told him that his organization wanted to take a “different approach” to seizing guns going to Mexico.

Breuer responded that it was a “terrific idea” and the Department assigned a prosecutor from its Criminal Division to work with the ATF in early 2010.

Republicans say attorney Joe Cooley attended key briefings on the program and should have alerted the Justice Department to what was going on. The memo also alleges that there was a lack of management by both the ATF and Justice Department with the use of federal wiretaps.

According to the memo, “Both Justice Department and ATF leaders in Washington, D.C. claimed they were unaware of the gunwalking that occurred during Fast and Furious, yet both could have and should have reviewed the Wiretap Affidavits.”

So what exactly was “a terrific idea”?  Until now, Breuer and Holder have both claimed that they didn’t know that the ATF was doing anything differently than their traditional interdiction strategies. This “terrific idea” seems to be closely related to Operation Fast and Furious, and the only innovation in that effort was letting the guns go across the border without coordinating with the Mexican government — the very issue Congress seeks to expose.

You know what would clear this up?  Access to Holder’s e-mails and other work products, but Holder will claim today that those are somehow privileged — an interesting assertion.  Holder won’t quite claim executive privilege but instead will try to parallel it, claiming in his prepared testimony (via Jim Geraghty):

Prior administrations have recognized that robust internal communications would be chilled, and the Executive Branch’s ability to respond to oversight requests thereby impeded, if our internal communications concerning our responses to congressional oversight were disclosed to Congress. … The appropriate functioning of the separation of powers requires that Executive Branch officials have the ability to communicate confidentially as they discuss how to respond to inquiries from Congress. …

Such candid internal deliberations are necessary to preserve the independence, integrity, and effectiveness of the Department’s law enforcement activities and would be chilled by disclosure to Congress of such materials. Just as we have worked to accommodate the Committee’s legitimate oversight needs, I trust that the Committee will equally recognize the Executive Branch’s constitutional interests and will work with us to avoid further conflict on this matter.

Executive privilege does not flow downward from the President to the entire executive branch, however.  The President has (a very limited) recourse to executive privilege not because he has confidential consultations, but because the people elected him separately to run the executive branch.  It does not extend to even others in the White House unless the communications sought involve the President directly.  It certainly doesn’t apply to leadership of agencies within the executive branch, who are explicitly accountable to Congress and whose agencies exist under a blend of both executive and legislative prerogatives.  The only way executive privilege could be claimed would be to assert that the President was involved in these discussions, which I assume would be the last thing Obama wants this year.

Eric Holder has no executive privilege, and the Senate might have to start considering how to remove him if he refuses to cooperate with legitimate oversight into an operation that has killed hundreds of Mexicans and a Border Patrol agent with weapons the ATF deliberately allowed to fall into the hands of the drug cartels.

Geraghty’s conclusion sums it up well:

Thus, the administration that took military action in Libya without any authorization from force from Congress, that appointed czars with policymaking authority without Congressional confirmation, and that made ‘recess’ appointments while Congress was not in recess is invoking executive privilege to cover how the Department of Justice reacted when Congress began asking about a gun-trafficking operation that got U.S. law enforcement officers murdered by Mexican drug cartels.

All from a president who railed against a runaway imperial presidency when George W. Bush sat in the office he currently occupies.


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Comment pages: 1 2 3

One thing I learned today sitting in on this hearing. If there is nothing to hide. What the heII are they hiding.

Bmore on February 2, 2012 at 12:10 PM

Does Vermont have any non-commie representation?

Eren on February 2, 2012 at 12:08 PM

Yes, they have NAMBLA representation as well.

Norky on February 2, 2012 at 12:10 PM

ross is the man.

DHChron on February 2, 2012 at 12:14 PM

call congressional offices 202-224-3121, GOP members need to hear our outrage at the purjury so they don’t limp away on Holder.

People also need to be reminded that it was Holder who specifically orchestrated the outrageous pardon of fugitive Marc Rich – Holder is no good, as corrupt as they come ever in American history

matthew8787 on February 2, 2012 at 12:14 PM

Gowdy is displaying some cross-examination skills that are sorely lacking among the other Republican members of the committee. (

We don’t know about the Democrats, who are desperately trying to conceal the truth and use their time in an effort to support the cover up.)

The “third gun” at the Terry murder scene is coming up. Did anyone else notice that the redaction from the documents dumped last Friday included what appeared to be a one word redaction of the number of guns recovered at the murder scene? Reports have suggested that three guns were recovered, not just the two guns DOJ now claims. The third gun was not an AKS, but an SKS obtained from a different source and carried by an FBI informant who was leading the rip crew that murdered Terry. That gun has “disappeared” amid speculation that the FBI is concealing its informant’s involvement and how much it knew about his activities before Terry’s murder. That gun uses the same ammo as an AKS, and it might even have been the FBI informant who murdered Terry.

Why would they redact the number, if they weren’t hiding the truth?

novaculus on February 2, 2012 at 12:15 PM

hahahahahahahaha…lying scum

DHChron on February 2, 2012 at 12:17 PM

Looks as though Ross would like to keep his job.

Norky on February 2, 2012 at 12:18 PM

Why doesn’t he just tell them that the emails are irrelevant because he doesn’t read them just like he doesn’t read the reports that cross his desk.

SukieTawdry on February 2, 2012 at 12:19 PM

Why would they redact the number, if they weren’t hiding the truth?

novaculus on February 2, 2012 at 12:15 PM

Exactly!

Bmore on February 2, 2012 at 12:21 PM

DHChron
Still that bad? I am soooo glad I’m not watching that piece of dog #*%$ lie through his tooth!

angrymike on February 2, 2012 at 12:21 PM

Why would they redact the number, if they weren’t hiding the truth?

novaculus on February 2, 2012 at 12:15 PM

Neither the FBI or DEA is innocent in this thing. I suspect participation is spread across many agencies, not the least of which is the State department..

a capella on February 2, 2012 at 12:22 PM

I just noticed that Holder’s name plate no longer has “honorable” on it.

Heh.

WisRich on February 2, 2012 at 12:22 PM

Jackie Speer to the defense! We need gun control!

Eren on February 2, 2012 at 12:22 PM

angrymike

I can’t pull myself away. It’s a train wreck of fallacies and blatant hypocrisy. delicious

DHChron on February 2, 2012 at 12:24 PM

WisRich on February 2, 2012 at 12:22 PM

hehehehe

DHChron on February 2, 2012 at 12:25 PM

I have to use the mute button when it’s a Dem’s turn to question (ha) Holder. The tongue baths they give him nauseate me.

Flora Duh on February 2, 2012 at 12:25 PM

you have the document! priceless

DHChron on February 2, 2012 at 12:26 PM

I like this Texas guy.

DHChron on February 2, 2012 at 12:29 PM

I have to use the mute button when it’s a Dem’s turn to question (ha) Holder. The tongue baths they give him nauseate me.

Flora Duh on February 2, 2012 at 12:25 PM

If the democrats really cared about gun violence they too would be anxious to get to the bottom of this. Is a republican ever going to ask Stedman if he knows anymore than he did last March?

arnold ziffel on February 2, 2012 at 12:31 PM

cmon, say it, the committee is RAAAAACIST!

Eren on February 2, 2012 at 12:36 PM

Clay’s skylight leaks a little.

DHChron on February 2, 2012 at 12:37 PM

too much yardage between the goalposts.

DHChron on February 2, 2012 at 12:38 PM

Clay’s toungebath is laughable.

D-fusit on February 2, 2012 at 12:39 PM

Does Vermont have any non-commie representation?

Eren on February 2, 2012 at 12:08 PM

Nope. Vermont is so tiny that they only have one At-Large US House Seat, and that is Welch’s.

All you need to know about Welch is that he got his “Law Degree” at Beserkley.

Del Dolemonte on February 2, 2012 at 12:39 PM

Holders building up to blame it on his underlings. Hope when he does some of them sing…

sandee on February 2, 2012 at 12:43 PM

Alien sighting, Kuncinich is up

D-fusit on February 2, 2012 at 12:48 PM

This is a major snooze fest.

Norky on February 2, 2012 at 12:49 PM

Kucinich is up. Time for a lunch break!

Naturally Curly on February 2, 2012 at 12:50 PM

If this were an AG in a Republican admin, CNN would be broadcasting live, uninterrupted.

Norky on February 2, 2012 at 12:53 PM

Tom Hanks! Haha!

Conservalicious on February 2, 2012 at 12:53 PM

Congressman Labrador: “You’re either incompetent or you’re a liar.”

Or both.

Naturally Curly on February 2, 2012 at 12:56 PM

If this were an AG in a Republican admin, CNN would be broadcasting live, uninterrupted.

Norky on February 2, 2012 at 12:53 PM

don’t you know it calling for his to resign or be impeached ala alberto gonzales….

cmsinaz on February 2, 2012 at 12:57 PM

But even then, there’s simply no chance whatsoever that the Senate will take up impeachment proceedings. The House can shout ’til it’s blue in the face. The Dems in the Senate will ignore them.

nukemhill on February 2, 2012 at 11:51 AM

Doesn’t work that way. The Consistution gives the House of Representatives the sole power of impeachment and the Senate the sole power to try impeachments. The House gets to draft articles of impeachment. If passed in the House the individual is impeached. It then must go to the Senate essentially for a trial. The Senate cannot ignore articles of impeachment passed in the House.

Trafalgar on February 2, 2012 at 1:04 PM

He doesn’t like Congressman Labrador, poor baby.

D-fusit on February 2, 2012 at 1:04 PM

The Constitution too!

Trafalgar on February 2, 2012 at 1:05 PM

Gowdy is a Pit Bull!!

Norky on February 2, 2012 at 1:07 PM

Gowdy 2012!!

Eren on February 2, 2012 at 1:10 PM

THANKS again for all who are watching….much appreciated!!

cmsinaz on February 2, 2012 at 1:10 PM

Lankford should yield his time to Gowdy…what a drip.

Norky on February 2, 2012 at 1:13 PM

The Senate cannot ignore articles of impeachment passed in the House.

Trafalgar on February 2, 2012 at 1:04 PM

Nor can the President ignore a legally-issued subpoena, but we know how that kind of thing works with this bunch…

affenhauer on February 2, 2012 at 1:16 PM

I just watched the last 5 minutes of the hearing (live stream) and it looked as though Issa is throwing in the towel.
He was thanking Holder for his “co-operation” – and doing everything but trying to shove his head into Holder’s pants.
I may have missed something – but the impression that I got from that final scene is that WE’VE BEEN SCREWED AGAIN!!

Unless that was some act to throw Holder off, Issa just conceded the whole ball of wax to Holder.

Did anyone else watching it get that same feeling? Or did I just misunderstand that final exchange?

Solaratov on February 2, 2012 at 1:28 PM

I’m going to start looking for a place to live in SC 4th Congressional District I can have Trey Gowdy as my Representative.

Flora Duh on February 2, 2012 at 1:28 PM

Solaratov on February 2, 2012 at 1:28 PM

I think you came in at the wrong moment, I believe Chairman Issa was being “benevolent in his closing”. That’s my take, I missed the start but caught the majority, Holder got kicked around quite abit by the Repubs, and kissed as well by the Dems. But it’s not political though.

D-fusit on February 2, 2012 at 1:41 PM

The Senate cannot ignore articles of impeachment passed in the House.

Trafalgar on February 2, 2012 at 1:04 PM

this will, I’m sure be first order of bidness right after passing a budget! Oh ah wait

ConcealedKerry on February 2, 2012 at 2:13 PM

Washington Examiner:

If you need confirmation that Republicans on the House Oversight committee got under Attorney General Eric Holder’s skin today at the hearing on Fast and Furious, just look at this response he gave to Rep. Raul Labrador, R-Idaho, who grilled Holder about his own previous statements.

Specifically, note Holder’s comment that “maybe this is the way you do things in Idaho, or wherever you’re from.”

http://campaign2012.washingtonexaminer.com/blogs/beltway-confidential/holder-puerto-rican-rep-wherever-youre/355596

Del Dolemonte on February 2, 2012 at 4:49 PM

The appropriate functioning of the separation of powers requires that Executive Branch officials have the ability to communicate confidentially as they discuss how to respond to inquiries from Congress. …

Only if the Executive Branch is doing appropriate things! Didn’t Nixon try this line? How did that work out?

Such candid internal deliberations are necessary to preserve the independence, integrity, and effectiveness of the Department’s law enforcement activities and would be chilled by disclosure to Congress of such materials.

“Chilled” is a good thing when the Department’s law enforcement activities included illegal activities.

Just as we have worked to accommodate the Committee’s legitimate oversight needs, I trust that the Committee will equally recognize the Executive Branch’s constitutional interests and will work with us to avoid further conflict on this matter.

Sure just come clean on FF, who authorized this? The President? Or is it that “When the President does it, that means it is not illegal.” Richard M. Nixon ?

executive branch.  It does not extend to even others in the White House unless the communications sought involve the President directly.

Apparently that is exactly what Holder is saying!

DSchoen on February 2, 2012 at 5:20 PM

What has El Presidente Downgrade done in the intervening time to find out and hold somebody accountable?
Chip on February 2, 2012 at 10:44 AM

He’s hot on the trail of the REAL criminal here who apparently hiding out as a Caddy on some Golf course somewhere in the world!

DSchoen on February 2, 2012 at 5:41 PM

Last week, our administration launched a major new effort to break the backs of the cartels. My department is committing 100 new ATF personnel to the Southwest border in the next 100 days to supplement our ongoing Project Gunrunner, DEA is adding 16 new positions on the border, as well as mobile enforcement teams, and the FBI is creating a new intelligence group focusing on kidnapping and extortion. DHS is making similar commitments, as Secretary Napolitano will detail.
TX-96 on February 2, 2012 at 11:33 AM

Interesting I clicked on that link and was disconnected twice! Humm? Make that three times?

DSchoen on February 2, 2012 at 6:01 PM

remember the bloody outrage for alberto gonzales? yeah, good times…
cmsinaz on February 2, 2012 at 9:20 AM

Yes the nose, Waxman wanted to find out if politics played any roll, no mater how small, in the hiring/firing decisions as to who fills political appointment jobs!

DSchoen on February 2, 2012 at 6:08 PM

I just watched the last 5 minutes of the hearing (live stream) and it looked as though Issa is throwing in the towel.
He was thanking Holder for his “co-operation” – and doing everything but trying to shove his head into Holder’s pants.
I may have missed something – but the impression that I got from that final scene is that WE’VE BEEN SCREWED AGAIN!!

Unless that was some act to throw Holder off, Issa just conceded the whole ball of wax to Holder.

Did anyone else watching it get that same feeling? Or did I just misunderstand that final exchange?

Solaratov on February 2, 2012 at 1:28 PM

Definition of CONTEMPT
1a : the act of despising : the state of mind of one who despises : disdain
b : lack of respect or reverence for something
2: the state of being despised
3: willful disobedience to or open disrespect of a court, judge, or legislative body

Does that resemble Holder’s behavior today at all? lol

“Walk softly, and carry a big stick” – Issa was cordial to Holder because, after Holder’s impressive performance, he knows what’s coming next, and he realized it was better to be silent about it than it was to explain it to our rat-faced (soon to be ex-) AG.

Bizarro No. 1 on February 2, 2012 at 6:29 PM

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