What The Right Wing Media Won't Tell You About The Subpoenaed Fast And Furious Documents

Special Programs Guns & Public Safety

Written by Timothy Johnson

Published

During the May 16 edition of America's Newsroom, Fox News “straight news” anchor Martha MacCallum and Fox News contributor and The Daily Caller editor Tucker Carlson echoed complaints from the Republican chaired House Oversight Committee about the documents the Justice Department has released responding to their subpoena of files related to the failed Fast and Furious operation:

TUCKER CARLSON, FOX NEWS CONTRIBUTOR: Well there were 22 questions in the last subpoena. 13 of them remain unanswered. The Justice Department hasn't forwarded documents that the House Oversight Committee has requested. And by the way some of those questions, that's the majority of questions, remain unanswered, some of them pertain directly to Attorney General Eric Holder. The Justice Department's position appears to be we can investigate this internally and so we don't need to comply with Congress. I think this is a collision course. Remember this subpoena was issued in October. It's been more than six months now and they have refused to comply. And they have not invoked executive privilege by the way. So it's not even clear on what grounds they are refusing to comply. I don't think there is any question, at least at this point, that there is going to be a contempt citation.

MARTHA MACCALLUM, HOST: Well we'll see. And it feels like stalling and feet dragging to a great extent on the part of the Department of Justice.

CARLSON: Right.

MACCALLUM: Because they are saying they can't fire anybody, they are doing their own investigation. That is going to take quite some time, most likely until after the election is over and that until they finish that investigation--snicker snicker--and until that investigation is over they feel it wouldn't be right to come out and talk about who they think knew more than they say they knew or exactly when Eric Holder became aware of this program that saw a law enforcement agent killed.

Carlson's comments echo the reporting of his employee, Daily Caller reporter Matthew Boyle, who has written numerous articles about Fast and Furious over the past few months. His pieces almost invariably include the line, “Holder has failed to comply with Issa's Oct. 12, 2011, subpoena,” or some variation thereof and often include the claim that DOJ has been nonresponsive to 13 of the subpoena's 22 questions.

These reports minimize the fact that DOJ has released extensive and detailed information about what documents the agency has released to Issa. According to DOJ, responsive documents to 16 of the 22 questions contained in Issa's subpoena have been turned over to the House Oversight Committee or been made available for viewing by Oversight Committee staff. DOJ has stated that no responsive information exists to one of the questions. Additionally, DOJ has stated it does possess documents responsive to the five remaining questions in the subpoena and additional documents responsive to the other categories, but that it is unable to release this material because it is either relevant to ongoing criminal investigations or prosecutions or is deliberative and therefore protected by executive privilege.

But Fox News and The Daily Caller would rather regurgitate Republican talking points than admit that there are two sides to this story.

The laziness of reporting on this topic is further evidenced by the numerous Fox network appearances made by Oversight Chairman Darrell Issa (R-CA) and his lieutenants Representatives Trey Gowdy (R-SC) and Jason Chaffetz (R-UT) over the past month. Many of these appearances have featured talking points nearly indistinguishable from those used by MacCallum, Carlson, and Boyle.

GOWDY: I think after a year, that's enough time. You wouldn't get a year to comply with a subpoena. I wouldn't get a year to comply with a jury summons. [Lou Dobbs Tonight, 5/15/2012]

ISSA: Clearly the Attorney General is failing to comply with the subpoena. He has said he is not going to comply with the subpoena. One of the frustrating parts of this is, the part he won't comply with the most is who is responsible for a Fast and Furious which he says is deeply flawed and yet nobody at [the Department of] Justice has been fired. [On the Record With Greta Van Susteren, 5/14/2012]

CHAFFETZ: Only handful of times in the history of the House have we had to go so far as to actually hold somebody in contempt of Congress. But a subpoena that was issued in October of 2011 has been totally ignored. There are 22 categories of documents that we're looking for. Twelve of those categories we've received zero documents. It's a very serious step. [On the Record With Greta Van Susteren, 4/30/2012]

The DOJ has strongly rebutted criticism of its delivery of documents pursuant to Issa's subpoena.

Deputy Attorney General James Cole wrote to Issa on May 15 in order to outline what he called the “extraordinary” effort of DOJ to comply with Issa's subpoena. The letter noted that a team of DOJ attorneys reviewed over 140,000 documents while searching for material responsive to Issa's subpoena. Cole wrote that DOJ complied with Issa's subpoena and has turned over all required documents:

The Committee's concerns about the Department's response to the October 11 subpoena appear predicated on a misunderstanding both of the extraordinary lengths to which the Department has gone to respond to the Committee's requests, and of the threat that disclosures of sensitive law enforcement information would pose to open criminal investigations and prosecutions. Furthermore, we believe that the core questions posed by the Committee about Operation Fast and Furious have been answered.

[...]

Because the Committee's review of this matter is focused on open criminal investigations and prosecutions, the Department is required to balance the Committee's oversight interests against the Department's need to maintain the absolute independence and integrity of its ongoing and sensitive law enforcement activities. Accordingly, the Department has provided the Committee with documents and information showing how the inappropriate tactics in Fast and Furious, Wide Receiver and other operations under review came to be employed while, at the same time, preserving the confidentiality of core law enforcement documents relating to ongoing matters. Although the Committee has expressed concern about the length of time it has taken the Department to respond to the Committee's October 11, 2011 subpoena, its oversight of open criminal investigations and prosecutions has required the Department to undertake painstaking reviews of documents so we could be confident that we were addressing the Committee's legitimate concerns while, at the same time, not compromising our ability to hold accountable those who violate our laws.

The Committee has also raised questions about the lack of documents produced by the Department reflecting the participation of senior Department officials in devising the inappropriate tactics used in Fast and Furious. Far from reflecting a “cover-up,” as some have claimed, the lack of documents makes clear that these tactics had their origin in the field in Arizona and not among Department leaders in Washington. This reality was expressly recognized in the Memorandum (“Memorandum”) recently issued by the Committee as a companion to the Committee's Draft Resolution of Contempt (“Draft Resolution”). Memorandum at 4. It therefore is not surprising that the documents sought by the Committee do not exist. [Pages 1-2]

In the memorandum that accompanied the House Oversight Committee's draft contempt citation, Issa claimed that DOJ “has not produced any responsive documents for 12 of the 22 categories. The Department has not completely fulfilled any of the 10 categories for which documents have been produced.” This assertion is disputed by Cole's letter which provides detailed information about the extent to which DOJ has provided the subpoenaed documents to Issa.

To date, we have provided the Committee over 7,600 pages of documents from both ATF and the Department as part of 47 separate productions. We have provided documents to the Committee at least twice every month since late last year as part of the Department's ongoing efforts to comply with the Committee's subpoenas and other requests for information.

The assertion in the Draft Resolution (p. 14) that the Department has provided documents only for 10 of the 22 subpoena items is incorrect. In fact, the Department has produced or made available for review documents responsive to 16 of the 22 subpoena items. As to 13 of these items, we delivered the documents to the Committee or made them available for staff review (subpoena items 1, 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 20, and 21). We provided access to documents responsive to three additional items (subpoena items 15, 17, and 18) in the course of briefings on sensitive law enforcement matters on October 5, 2011 and on subsequent occasions, as referenced in Section IV(C) below. We have not located any documents responsive to a 17th item (subpoena item 3). The documents responsive to the five remaining items (subpoena items 8, 9, 16, 19, and 22), as well as additional documents responsive to the other 16 items of the October 11 subpoena, pertain to sensitive law enforcement activities, including ongoing criminal investigations and prosecutions that raise significant concerns for the Department, as discussed in Section III(A) below, or are materials generated by Department officials in the course of responding to congressional investigations or media inquiries about this matter that are generally not appropriate for disclosure, as discussed in Section III(B) below. [Page 4]

Section III(A) of Cole's letter stated that material related to ongoing criminal investigations or prosecutions is often barred from being released by law or court order and noted that “the Department's long-standing policy across Administrations is to decline congressional requests for non-public information relating to pending law enforcement matters in order to protect the independence and integrity of those efforts.” Cole also noted, “These opinions set forth the official legal positions of Administrations that span both political parties in their dealings with Congress. It is very significant, in our view, that there is no instance in which Congress has held an Attorney General in contempt based on a failure to provide materials relating to ongoing criminal investigations and prosecutions.”

Section III(B) of Cole's letter contains DOJ's assertion of executive privilege as a valid reason for not turning over documents that are deliberative in nature. He states, “Administrations of both parties consistently have recognized that materials generated by Executive Branch officials in the course of responding to congressional investigations are general not appropriate for disclosure to the congressional committee conducting the oversight. Congressional demands for such information implicate heightened Executive Branch confidentiality interests and 'significant separation of powers concerns' by threatening to compromise the Executive Branch's ability to respond independently and effectively to congressional investigations.”

The ways in which DOJ has attempted to comply with Issa's document requests can be broken down in the following fashion:

Subpoena Category Number Type(s) Of Document Requested DOJ Response To Request
1, 2, 4, 5, 6, 7, 10, 11, 12, 13, 14, 20, 21 Communications between individuals involved in Fast and Furious and individuals employed by DOJ including Holder; Communications between DOJ officials and the White House referring to Fast and Furious; Communications referring to instances where ATF allowed guns to walk and then failed to recover the weapons; Documents related to instances where ATF ended surveillance on weapons that were later recovered in Mexico; Documents relating to the murder of ICE Agent Jaime Zapata, All communications to or from Special Agent-in-Charge of ATF's Phoenix Field Division William Newell over two time periods; Communications between Holder and other high level DOJ officials concerning Fast and Furious; Communications between employees of Arizona's Office of the U.S. Attorney and ATF officials; Communications between Dennis Burke, former U.S. Attorney and other employees of the Arizona Office of the U.S. Attorney; Communications between former Ambassador to Mexico Carlos Pascual and certain DOJ officials; Communications between Pascual and DOJ officials based in Mexico City; Meeting material from the Attorney General's Advisory Committee of U.S. Attorneys between March 1, 2009 and July 31, 2011 that refer to Fast and Furious; Weekly reports for Holder from any Criminal Division, ATF, DEA, FBI or National Drug Intelligence Center employee between November 1, 2009 and September 30, 2011. Documents either delivered to the House Oversight Committee or made available for staff review.
15, 17, 18 Interview summaries relating to targets, suspects, defendants, or their associates, bosses, or financiers in the Fast and Furious investigation; Investigative reports related to individuals described to the Committee by DOJ as Target Number 1 and Target Number 2; DEA documents relating to Manuel Fabian Celis-Acosta. Documents provided to the House Oversight Committee by DOJ during sensitive law enforcement briefings.
3 Communications between DOJ and the Executive Office of the President concerning an interview of the president conducted by Jorge Ramos of Univision. DOJ has not located documents for this category.
8, 9, 16, 19, 22 All Reports of Investigation (ROI) related to Fast and Furious or ATF Case Number 785115-10-0004; Communications between certain officials referring to ROIs identified in subpoena item 8; Investigative reports prepared by FBI or DEA relating to Fast and Furious; Communications between Arizona FBI employees and the FBI Laboratory concerning the death of Border Patrol Agent Brian Terry; Surveillance tapes recorded inside the Lone Wolf Trading Co. store on certain dates. DOJ has not released these documents because they relate to ongoing criminal investigations or are deliberative in nature.

Clearly whether DOJ has complied with Issa's subpoena is an issue of genuine dispute. Because of the partisan realities that surround congressional contempt proceedings which allow the majority party to essentially act as both prosecutor and judge, Fox News and The Daily Caller should have exercised more diligence to avoid treating the political positions of the Republican Party as facts suitable for reporting.