Fox News legal analyst Andrew Napolitano made the evidence-free claim that Attorney General Eric Holder personally approved low-level Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) undercover stings that have recently come under criticism because of their use of faulty investigative techniques.
ATF storefront sting operations -- where undercover law enforcement agents set up sketchy storefronts to attract drugs and firearms which are then taken off the street -- came under scrutiny in January 2013 with the Milwaukee Journal Sentinel's investigative reporting on a Milwaukee sting known as Operation Fearless. According to the Journal Sentinel, Operation Fearless "resulted in a string of mistakes and failures, including an ATF military-style machine gun landing on the streets of Milwaukee and the agency having $35,000 in merchandise stolen from its store." A follow-up report identified six other problematic storefront stings conducted by ATF.
The ATF has acknowledged flaws in the storefront sting process and has issued new guidelines that aim to prevent future debacles. At the same time ATF has also pointed to more than 250 convictions obtained and over 1,300 firearms recovered as a result of the stings. The Department of Justice Office of the Inspector General is also conducting a review of four of the 37 undercover storefront operations conducted by ATF. The ATF is cooperating with the investigation and currently has no active storefront sting operations.
Fox News is trying to pin the blame for the failed stings on Holder. On the March 4 edition of Fox & Friends, co-host Steve Doocy introduced the idea of Holder's supposed involvement in the stings by stating, "So it's a dumb idea, it's a bad idea, it's an illegal proposition. Okay, who's at the head of the Department of Justice? Eric Holder. Would this have been approved by him?"
Napolitano replied, "I don't know personally if it was approved by him, but it's almost inconceivable after Fast and Furious that something of this magnitude could happen without him knowing. In fact, I'm going to go out on a limb and say he had to approve it because it involved too much expenditure of money and too much manpower. They set it up in 40 different cities."
This baseless accusation is the latest attempt by Fox News to use failed ATF law enforcement operations as a way to bludgeon Holder.
There is not a scintilla of evidence that Holder was involved in approving any of the storefront operations. In fact, as ATF deputy director Thomas Brandon recently testified before Congress, the ATF designs the stings in conjunction with local law enforcement. Involvement in the approval process by the Department of Justice, the ATF's parent agency, is limited to the participation of a DOJ criminal division attorney on an "undercover review committee" that votes on whether the operation should be conducted.
In fact, Holder's name was never mentioned during a February 27 hearing put on by Republican members of a House Judiciary Committee subcommittee to investigate the stings. No one at the hearing even asked whether ATF director B. Todd Jones approved the storefront stings. Instead, Rep. Bob Goodlatte (R-VA) asked ATF deputy director Thomas Brandon when Jones became aware of problems with the stings.
Furthermore, Napolitano lacks a basic understanding of how the operations are designed. While Napolitano posited that Holder must have approved the operations because they were conducted in "40" cities, Brandon's prepared testimony for the Congressional hearing notes that the storefront stings were 37 distinct operations undertaken over a four year period.
During his February 27 testimony, Brandon also described the process of approving the stings, which now includes low-level DOJ participation as a result of changes made following the botched stings:
REP. BOBBY SCOTT (D-VA): Mr. Brandon, you indicated that the present process for setting up one of these storefront operations involves concurrence with the local -- with a request from the local law enforcement agency?
BRANDON: That's correct, sir.
SCOTT: What else is in the process? That can't be the only thing.
BRANDON: No, for any undercover operations -- a storefront in this case -- to go forward, it has to go before an undercover review committee, which -- it's my direction as far as it now includes someone from the Department of Justice, an attorney from the criminal division that has a voting member of -- on the undercover review committee, puts us in line with FBI and DEA on their policies and then also the rigorous look of compliance with our standard operation procedures from the storefront manual that I said that was published by Assistant Director Ron Turk.
Napolitano also introduced an element of conspiracy into his attack on Holder, stating, "Interesting this came out the day after the invasion of Crimea by Putin. Bury it. Bury the lede. That's what the government succeeded in doing, but we're talking about it." Doocy added, "How many other news outlets are talking about it? Probably not many."
In fact, Operation Fearless was first reported on well over a year ago in January 2013. Republicans in Congress also opened an investigation into the sting on January 31, 2013, just two days after the Journal Sentinel's investigative report was published.