[House Report 112-546]
[From the U.S. Government Publishing Office]


112th Congress  }                                             {  Report
  2d Session    }       HOUSE OF REPRESENTATIVES              { 112-546
=======================================================================

                                                 House Calendar No. 140
 
RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND ERIC H. 
HOLDER, JR., ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, IN CONTEMPT 
 OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA DULY ISSUED BY THE 
              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM 

                               __________

                                 REPORT

                                 of the

              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                        HOUSE OF REPRESENTATIVES

                             together with

                     ADDITIONAL AND MINORITY VIEWS



                                     
               [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                                     

   June 22, 2012.--Referred to the House Calendar and ordered to be 
                                printed

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

19-006 PDF                       WASHINGTON : 2012 





                            C O N T E N T S

                              ----------                              
                                                                   Page
  I. EXECUTIVE SUMMARY................................................2
 II. AUTHORITY AND PURPOSE............................................2
III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION......................3
 IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF THE 
     DEPARTMENT OF JUSTICE............................................4
        A. The ATF Phoenix Field Division........................     5
        B. The United States Attorney's Office for the District 
            of Arizona...........................................     6
        C. ATF Headquarters......................................     7
        D. THE Criminal Division.................................     8
            1. Coordination with ATF.............................     8
            2. Wiretaps..........................................    10
        E. The Office of the Deputy Attorney General.............    11
  V. THE COMMITTEE'S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY GENERAL 
     HOLDER..........................................................12
        A. Events Leading Up to the Subpoena.....................    12
        B. Subpoena Schedule Requests............................    14
        C. Attempts of Accommodation by the Committee, Lack of 
            Compliance by the Justice Department.................    21
            1. In Camera Reviews.................................    22
            2. Redacted Documents................................    22
            3. Privilege Log.....................................    24
            4. Assertions of Non-Compliance......................    25
            5. Failure to Turn Over Documents....................    37
 VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE......................38
VII. HISTORICAL PERSPECTIVES ON CONTEMPT.............................40
        A. Past Instances of Contempt............................    40
        B. Document Productions..................................    42
VIII.RULES REQUIREMENTS..............................................45













                                                 House Calendar No. 140

112th Congress                                                   Report
  2d Session             HOUSE OF REPRESENTATIVES               112-546

=======================================================================


RESOLUTION RECOMMENDING THAT THE HOUSE OF REPRESENTATIVES FIND ERIC H. 
HOLDER, JR., ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE, IN CONTEMPT 
 OF CONGRESS FOR REFUSAL TO COMPLY WITH A SUBPOENA DULY ISSUED BY THE 
              COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

                                _______
                                

   June 22, 2012.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

   Mr. Issa, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

      The Committee on Oversight and Government Reform, having 
considered this Report, report favorably thereon and recommend 
that the Report be approved.
      The form of the resolution that the Committee on 
Oversight and Government Reform would recommend to the House of 
Representatives for citing Eric H. Holder, Jr., Attorney 
General, U.S. Department of Justice, for contempt of Congress 
pursuant to this report is as follows:
      Resolved, That Eric H. Holder, Jr., Attorney General of 
the United States, shall be found to be in contempt of Congress 
for failure to comply with a congressional subpoena.
      Resolved, That pursuant to 2 U.S.C. 192 and 194, the 
Speaker of the House of Representatives shall certify the 
report of the Committee on Oversight and Government Reform, 
detailing the refusal of Eric H. Holder, Jr., Attorney General, 
U.S. Department of Justice, to produce documents to the 
Committee on Oversight and Government Reform as directed by 
subpoena, to the United States Attorney for the District of 
Columbia, to the end that Mr. Holder be proceeded against in 
the manner and form provided by law.
      Resolved, That the Speaker of the House shall otherwise 
take all appropriate action to enforce the subpoena.

                          I. EXECUTIVE SUMMARY

    The Department of Justice has refused to comply with 
congressional subpoenas related to Operation Fast and Furious, 
an Administration initiative that allowed around two thousand 
firearms to fall into the hands of drug cartels and may have 
led to the death of a U.S. Border Patrol Agent. The 
consequences of the lack of judgment that permitted such an 
operation to occur are tragic.
    The Department's refusal to work with Congress to ensure 
that it has fully complied with the Committee's efforts to 
compel the production of documents and information related to 
this controversy is inexcusable and cannot stand. Those 
responsible for allowing Fast and Furious to proceed and those 
who are preventing the truth about the operation from coming 
out must be held accountable for their actions.
    Having exhausted all available options in obtaining 
compliance, the Chairman of the Oversight and Government Reform 
Committee recommends that Congress find the Attorney General in 
contempt for his failure to comply with the subpoena issued to 
him.

                       II. AUTHORITY AND PURPOSE

    An important corollary to the powers expressly granted to 
Congress by the Constitution is the implicit responsibility to 
perform rigorous oversight of the Executive Branch. The U.S. 
Supreme Court has recognized this Congressional power on 
numerous occasions. For example, in McGrain v. Daugherty, the 
Court held that ``the power of inquiry--with process to enforce 
it--is an essential and appropriate auxiliary to the 
legislative function. . . . A legislative body cannot legislate 
wisely or effectively in the absence of information respecting 
the conditions which the legislation is intended to affect or 
change, and where the legislative body does not itself possess 
the requisite information--which not infrequently is true--
recourse must be had to others who do possess it.''\1\ Further, 
in Watkins v. United States, Chief Justice Warren wrote for the 
majority: ``The power of Congress to conduct investigations is 
inherent in the legislative process. That power is broad.''\2\
---------------------------------------------------------------------------
    \1\McGrain v. Daugherty, 273 U.S. 135, 174 (1927).
    \2\Watkins v. United States, 354 U.S. 178, 187 (1957).
---------------------------------------------------------------------------
    Both the Legislative Reorganization Act of 1946 (P.L. 79-
601), which directed House and Senate Committees to ``exercise 
continuous watchfulness'' over Executive Branch programs under 
their jurisdiction, and the Legislative Reorganization Act of 
1970 (P.L. 91-510), which authorized committees to ``review and 
study, on a continuing basis, the application, administration 
and execution'' of laws, codify the oversight powers of 
Congress.
    The Committee on Oversight and Government Reform is a 
standing committee of the House of Representatives, duly 
established pursuant to the Rules of the House of 
Representatives, which are adopted pursuant to the Rulemaking 
Clause of the Constitution.\3\ House rule X grants to the 
Committee broad oversight jurisdiction, including authority to 
``conduct investigations of any matter without regard to clause 
1, 2, 3, or this clause [of House rule X] conferring 
jurisdiction over the matter to another standing 
committee.''\4\ The rules direct the Committee to make 
available ``the findings and recommendations of the committee . 
. . to any other standing committee having jurisdiction over 
the matter involved.''\5\
---------------------------------------------------------------------------
    \3\U.S. CONST., art. I, 5, clause 2.
    \4\House rule X, clause (4)(c)(2).
    \5\Id.
---------------------------------------------------------------------------
    House rule XI specifically authorizes the Committee to 
``require, by subpoena or otherwise, the attendance and 
testimony of such witnesses and the production of such books, 
records, correspondence, memoranda, papers, and documents as it 
considers necessary.''\6\ The rule further provides that the 
``power to authorize and issue subpoenas'' may be delegated to 
the Committee chairman.\7\ The subpoenas discussed in this 
report were issued pursuant to this authority.
---------------------------------------------------------------------------
    \6\House rule XI, clause (2)(m)(1)(B).
    \7\House rule XI, clause (2)(m)(3)(A)(i).
---------------------------------------------------------------------------
    The Committee's investigation into actions by senior 
officials in the U.S. Department of Justice and the Bureau of 
Alcohol, Tobacco, Firearms, and Explosives (ATF) in designing, 
implementing, and supervising the execution of Operation Fast 
and Furious, and subsequently providing false denials to 
Congress, is being undertaken pursuant to the authority 
delegated to the Committee under House Rule X as described 
above.
    The oversight and legislative purposes of the 
investigations are (1) to examine and expose any possible 
malfeasance, abuse of authority, or violation of existing law 
on the part of the executive branch with regard to the 
conception and implementation of Operation Fast and Furious, 
and (2) based on the results of the investigation, to assess 
whether the conduct uncovered may warrant additions or 
modifications to federal law and to make appropriate 
legislative recommendations.
    In particular, the Committee's investigation has 
highlighted the need to obtain information that will aid 
Congress in considering whether a revision of the statutory 
provisions governing the approval of federal wiretap 
applications may be necessary. The major breakdown in the 
process that occurred with respect to the Fast and Furious 
wiretap applications necessitates careful examination of the 
facts before proposing a legislative remedy. Procedural 
improvements may need to be codified in statute to mandate 
immediate action in the face of highly objectionable 
information relating to operational tactics and details 
contained in future applications.
    The Committee's investigation has called into question the 
ability of ATF to carry out its statutory mission and the 
ability of the Department of Justice to adequately supervise 
it. The information sought is needed to consider legislative 
remedies to restructure ATF as needed.

            III. BACKGROUND ON THE COMMITTEE'S INVESTIGATION

    In February 2011, the Oversight and Government Reform 
Committee joined Senator Charles E. Grassley, Ranking Member of 
the Senate Committee on the Judiciary, in investigating 
Operation Fast and Furious, a program conducted by ATF. On 
March 16, 2011, Chairman Darrell Issa wrote to then-Acting ATF 
Director Kenneth E. Melson requesting documents and information 
regarding Fast and Furious. Responding for Melson and ATF, the 
Department of Justice did not provide any documents or 
information to the Committee by the March 30, 2011, deadline. 
The Committee issued a subpoena to Melson the next day. The 
Department produced zero pages of non-public documents pursuant 
to that subpoena until June 10, 2011, on the eve of the 
Committee's first Fast and Furious hearing.
    On June 13, 2011, the Committee held a hearing entitled 
``Obstruction of Justice: Does the Justice Department Have to 
Respond to a Lawfully Issued and Valid Congressional 
Subpoena?'' The Committee held a second hearing on June 15, 
2011, entitled ``Operation Fast and Furious: Reckless 
Decisions, Tragic Outcomes.'' The Committee held a third 
hearing on July 26, 2011, entitled ``Operation Fast and 
Furious: The Other Side of the Border.''
    On October 11, 2011, the Justice Department informed the 
Committee its document production pursuant to the March 31, 
2011, subpoena was complete. The next day, the Committee issued 
a detailed subpoena to Attorney General Eric Holder for 
additional documents related to Fast and Furious.
    On February 2, 2012, the Committee held a hearing entitled 
``Fast and Furious: Management Failures at the Department of 
Justice.'' The Attorney General testified at that hearing.
    The Committee has issued two staff reports documenting its 
initial investigative findings. The first, The Department of 
Justice's Operation Fast and Furious: Accounts of ATF Agents, 
was released on June 14, 2011. The second, The Department of 
Justice's Operation Fast and Furious: Fueling Cartel Violence, 
was released on July 26, 2011.
    Throughout the investigation, the Committee has made 
numerous attempts to accommodate the interests of the 
Department of Justice. Committee staff has conducted numerous 
meetings and phone conversations with Department lawyers to 
clarify and highlight priorities with respect to the subpoenas. 
Committee staff has been flexible in scheduling dates for 
transcribed interviews; agreed to review certain documents in 
camera; allowed extensions of production deadlines; agreed to 
postpone interviewing the Department's key Fast and Furious 
trial witness; and narrowed the scope of documents the 
Department must produce to be in compliance with the subpoena 
and to avoid contempt proceedings.
    Despite the Committee's flexibility, the Department has 
refused to produce certain documents to the Committee. The 
Department has represented on numerous occasions that it will 
not produce broad categories of documents. The Department has 
not provided a privilege log delineating with particularity why 
certain documents are being withheld.
    The Department's efforts at accommodation and ability to 
work with the Committee regarding its investigation into Fast 
and Furious have been wholly inadequate. The Committee requires 
the subpoenaed documents to meet its constitutionally mandated 
oversight and legislative duties.

    IV. OPERATION FAST AND FURIOUS: BREAKDOWNS AT ALL LEVELS OF THE 
                         DEPARTMENT OF JUSTICE

    The story of Operation Fast and Furious is one of 
widespread dysfunction across numerous components of the 
Department of Justice. This dysfunction allowed Fast and 
Furious to originate and grow at a local level before senior 
officials at Department of Justice headquarters ultimately 
approved and authorized it. The dysfunction within and among 
Department components continues to this day.

                   A. The ATF Phoenix Field Division

    In October 2009, the Office of the Deputy Attorney General 
(ODAG) in Washington, D.C. promulgated a new strategy to combat 
gun trafficking along the Southwest Border. This new strategy 
directed federal law enforcement to shift its focus away from 
seizing firearms from criminals as soon as possible, and to 
focus instead on identifying members of trafficking networks. 
The Office of the Deputy Attorney General shared this strategy 
with the heads of many Department components, including ATF.\8\
---------------------------------------------------------------------------
    \8\E-mail from [Dep't of Justice] on behalf of Deputy Att'y Gen. 
David Ogden to Kathryn Ruemmler, et al. (Oct. 26, 2009).
---------------------------------------------------------------------------
    Members of the ATF Phoenix Field Division, led by Special 
Agent in Charge Bill Newell, became familiar with this new 
strategy and used it in creating Fast and Furious. In mid-
November 2009, just weeks after the strategy was issued, Fast 
and Furious began. Its objective was to establish a nexus 
between straw purchasers of firearms in the United States and 
Mexican drug-trafficking organizations (DTOs) operating on both 
sides of the United States-Mexico border. Straw purchasers are 
individuals who are legally entitled to purchase firearms for 
themselves, but who unlawfully purchase weapons with the intent 
to transfer them to someone else, in this case DTOs or other 
criminals.
    During Fast and Furious, ATF agents used an investigative 
technique known as ``gunwalking''--that is, allowing illegally-
purchased weapons to be transferred to third parties without 
attempting to disrupt or deter the illegal activity. ATF agents 
abandoned surveillance on known straw purchasers after they 
illegally purchased weapons that ATF agents knew were destined 
for Mexican drug cartels. Many of these transactions 
established probable cause for agents to interdict the weapons 
or arrest the possessors, something every agent was trained to 
do. Yet, Fast and Furious aimed instead to allow the transfer 
of these guns to third parties. In this manner, the guns fell 
into the hands of DTOs, and many would turn up at crime scenes. 
ATF then traced these guns to their original straw purchaser, 
in an attempt to establish a connection between that individual 
and the DTO.
    Federal Firearms Licensees (FFLs), who cooperated with ATF, 
were an integral component of Fast and Furious. Although some 
FFLs were reluctant to continue selling weapons to suspicious 
straw purchasers, ATF encouraged them to do so, reassuring the 
FFLs that ATF was monitoring the buyers and that the weapons 
would not fall into the wrong hands.\9\ ATF worked with FFLs on 
or about the date of sale to obtain the unique serial number of 
each firearm sold. Agents entered these serial numbers into 
ATF's Suspect Gun Database within days after the purchase. Once 
these firearms were recovered at crime scenes, the Suspect Gun 
Database allowed for expedited tracing of the firearms to their 
original purchasers.
---------------------------------------------------------------------------
    \9\Transcribed Interview of Special Agent Peter Forcelli, at 53-54 
(Apr. 28, 2011).
---------------------------------------------------------------------------
    By December 18, 2009, ATF agents assigned to Fast and 
Furious had already identified fifteen interconnected straw 
purchasers in the targeted gun trafficking ring. These straw 
purchasers had already purchased 500 firearms.\10\ In a 
biweekly update to Bill Newell, ATF Group Supervisor David Voth 
explained that 50 of the 500 firearms purchased by straw buyers 
had already been recovered in Mexico or near the Mexican 
border.\11\ These guns had time-to-crimes of as little as one 
day, strongly indicating straw purchasing.\12\
---------------------------------------------------------------------------
    \10\E-mail from Kevin Simpson, Intelligence Officer, Phoenix FIG, 
ATF, to David Voth (Dec. 18, 2009).
    \11\Id.
    \12\Id.
---------------------------------------------------------------------------
    Starting in late 2009, many line agents objected 
vociferously to some of the techniques used during Fast and 
Furious, including gunwalking. The investigation continued for 
another year, however, until shortly after December 15, 2010, 
when two weapons from Fast and Furious were recovered at the 
murder scene of U.S. Border Patrol Agent Brian Terry.
    Pursuant to the Deputy Attorney General's strategy, in late 
January 2010 the ATF Phoenix Field Division applied for Fast 
and Furious to become an Organized Crime Drug Enforcement Task 
Force (OCDETF) case. In preparation for the OCDETF application 
process, the ATF Phoenix Field Division prepared a briefing 
paper detailing the investigative strategy employed in Fast and 
Furious. This document was not initially produced by the 
Department pursuant to its subpoena, but rather was obtained by 
a confidential source. The briefing paper stated:

          Currently our strategy is to allow the transfer of 
        firearms to continue to take place, albeit at a much 
        slower pace, in order to further the investigation and 
        allow for the identification of additional co-
        conspirators who would continue to operate and 
        illegally traffic firearms to Mexican DTOs which are 
        perpetrating armed violence along the Southwest 
        Border.\13\
---------------------------------------------------------------------------
    \13\Phoenix Group VII, Phoenix Field Division, ATF, Briefing Paper 
(Jan. 8, 2010).

    Fast and Furious was approved as an OCDETF case, and this 
designation resulted in new operational funding. Additionally, 
Fast and Furious became a prosecutor-led OCDETF Strike Force 
case, meaning that ATF would join with the Federal Bureau of 
Investigation, Drug Enforcement Administration, Internal 
Revenue Service, and Immigrations and Customs Enforcement under 
the leadership of the U.S. Attorney's Office for the District 
of Arizona.

   B. The United States Attorney's Office for the District of Arizona

    The U.S. Attorney's Office for the District of Arizona led 
the Fast and Furious OCDETF Strike Force. Although ATF was the 
lead law enforcement agency for Fast and Furious, its agents 
took direction from prosecutors in the U.S. Attorney's Office. 
The lead federal prosecutor for Fast and Furious was Assistant 
U.S. Attorney Emory Hurley, who played an integral role in the 
day-to-day, tactical management of the case.\14\
---------------------------------------------------------------------------
    \14\Transcribed Interview of Special Agent in Charge William 
Newell, at 32-33 (June 8, 2011).
---------------------------------------------------------------------------
    Many ATF agents working on Operation Fast and Furious came 
to believe that some of the most basic law enforcement 
techniques used to interdict weapons required the explicit 
approval of the U.S. Attorney's Office, and specifically from 
Hurley. On numerous occasions, Hurley and other federal 
prosecutors withheld this approval, to the mounting frustration 
of ATF agents.\15\ The U.S. Attorney's Office chose not to use 
other available investigative tools common in gun trafficking 
cases, such as civil forfeitures and seizure warrants, during 
the seminal periods of Fast and Furious.
---------------------------------------------------------------------------
    \15\Transcribed Interview of Special Agent Larry Alt, at 94 (Apr. 
27, 2011).
---------------------------------------------------------------------------
    The U.S. Attorney's Office advised ATF that agents needed 
to meet unnecessarily strict evidentiary standards in order to 
speak with suspects, temporarily detain them, or interdict 
weapons. ATF's reliance on this advice from the U.S. Attorney's 
Office during Fast and Furious resulted in many lost 
opportunities to interdict weapons.
    In addition to leading the Fast and Furious OCDETF task 
force, the U.S. Attorney's Office was instrumental in preparing 
the wiretap applications that were submitted to the Justice 
Department's Criminal Division. Federal prosecutors in Arizona 
filed at least six of these applications, each containing 
immense detail about operational tactics and specific 
information about straw purchasers, in federal court after 
Department headquarters authorized them.

                          C. ATF Headquarters

    Fast and Furious first came to the attention of ATF 
Headquarters on December 8, 2009, just weeks after the case was 
officially opened in Phoenix. ATF's Office of Strategic 
Information and Intelligence (OSII) briefed senior ATF 
personnel about the case on December 8, 2009, discussing in 
detail a large recovery of Fast and Furious weapons in Naco, 
Sonora, Mexico.\16\
---------------------------------------------------------------------------
    \16\Interview with Lorren Leadmon, Intelligence Operations Analyst, 
Washington, D.C., July 5, 2011 [hereinafter Leadmon Interview].
---------------------------------------------------------------------------
    The next day, December 9, 2009, the Acting ATF Director 
first learned about Fast and Furious and the large recovery of 
weapons that had already occurred.\17\ The following week, OSII 
briefed senior ATF officials about another large cache of Fast 
and Furious weapons that had been recovered in Mexico.\18\
---------------------------------------------------------------------------
    \17\Oversight of the U.S. Department of Justice: Hearing Before the 
S. Comm. on the Judiciary, 112th Cong. (May 4, 2011) (Questions for the 
Record of Hon. Eric H. Holder, Jr., Att'y Gen. of the U.S.).
    \18\Leadmon Interview, supra note 16.
---------------------------------------------------------------------------
    On January 5, 2010, OSII presented senior ATF officials 
with a summary of all of the weapons that could be linked to 
known straw purchasers in Fast and Furious. In just two months, 
these straw purchasers bought a total of 685 guns. This number 
raised the ire of several individuals in the room, who 
expressed concerns about the growing operation.\19\
---------------------------------------------------------------------------
    \19\Transcribed Interview of Deputy Ass't Dir. Steve Martin, ATF, 
at 36 (July 6, 2011) [hereinafter Martin Tr.].
---------------------------------------------------------------------------
    On March 5, 2010, ATF headquarters hosted a larger, more 
detailed briefing on Operation Fast and Furious. David Voth, 
the Group Supervisor overseeing Fast and Furious, traveled from 
Phoenix to give the presentation. He gave an extremely detailed 
synopsis of the status of the investigation, including the 
number of guns purchased, weapons seizures to date, money spent 
by straw purchasers, and organizational charts of the 
relationships among straw purchasers and to members of the 
Sinaloa drug cartel. At that point, the straw purchasers had 
bought 1,026 weapons, costing nearly $650,000.\20\
---------------------------------------------------------------------------
    \20\See generally ``Operation the Fast and the Furious'' 
Presentation, Mar. 5, 2010.
---------------------------------------------------------------------------
    NATF's Phoenix Field Division informed ATF headquarters of 
large weapons recoveries tracing back to Fast and Furious. The 
Phoenix Field Division had frequently forwarded these updates 
directly to Deputy ATF Director Billy Hoover and Acting ATF 
Director Ken Melson.\21\ When Hoover learned about how large 
Fast and Furious had grown in March 2010, he finally ordered 
the development of an exit strategy.\22\ This exit strategy, 
something Hoover had never before requested in any other case, 
was a timeline for ATF to wind down the case.\23\
---------------------------------------------------------------------------
    \21\E-mail from Mark Chait to Kenneth Melson and William Hoover 
(Feb. 24, 2010) [HOGR 001426].
    \22\Transcribed Interview of William Hoover, ATF Deputy Director, 
at 9 (July 21, 2011).
    \23\Id. at 72.
---------------------------------------------------------------------------
    Though Hoover commissioned the exit strategy in March, he 
did not receive it until early May. The three-page document 
outlined a 30-, 60-, and 90-day strategy for winding down Fast 
and Furious and handing it over to the U.S. Attorney's Office 
for prosecution.\24\
---------------------------------------------------------------------------
    \24\E-mail from Douglas Palmer, Supervisor Group V, ATF, to William 
Newell, ATF (Apr. 27, 2010).
---------------------------------------------------------------------------
    In July 2010, Acting Director Melson expressed concern 
about the number of weapons flowing to Mexico,\25\ and in 
October 2010 the Assistant Director for Field Operations, the 
number three official in ATF, expressed concern that ATF had 
not yet halted the straw purchasing activity in Fast and 
Furious.\26\ Despite these concerns, however, the U.S. 
Attorney's Office continued to delay the indictments, and no 
one at ATF headquarters ordered the Phoenix Field Division to 
simply arrest the straw purchasers in order to take them off 
the street. The members of the firearms trafficking ring were 
not arrested until two weapons from Fast and Furious were found 
at the murder scene of Border Patrol Agent Brian Terry.
---------------------------------------------------------------------------
    \25\E-mail from Kenneth Melson to Mark Chait, et al., (July 14, 
2010) [HOGR 002084].
    \26\E-mail from Mark Chait to William Newell (Oct. 29, 2010) [HOGR 
001890].
---------------------------------------------------------------------------

                        D. The Criminal Division


                        1. COORDINATION WITH ATF

    In early September 2009, according to Department e-mails, 
ATF and the Department of Justice's Criminal Division began 
discussions ``to talk about ways CRM [Criminal Division] and 
ATF can coordinate on gun trafficking and gang-related 
initiatives.''\27\ Early on in these discussions, Lanny Breuer, 
Assistant Attorney General for the Criminal Division, sent an 
attorney to help the U.S. Attorney's Office in Arizona 
prosecute ATF cases. The first case chosen for prosecution was 
Operation Wide Receiver, a year-long ATF Phoenix Field Division 
investigation initiated in 2006, which involved several hundred 
guns being walked. The U.S. Attorney's Office in Arizona, 
objecting to the tactics used in Wide Receiver, had previously 
refused to prosecute the case.
---------------------------------------------------------------------------
    \27\E-mail from Jason Weinstein to Lanny Breuer (Sept. 10, 2009) 
[HOGR 003378].
---------------------------------------------------------------------------
    According to James Trusty, a senior official in the 
Criminal Division's Gang Unit, in September 2009 Assistant 
Attorney General Breuer was ``VERY interested in the Arizona 
gun trafficking case [Wide Receiver], and he is traveling out 
[to Arizona] around 9/21. Consequently, he asked us for a 
`briefing' on that case before the 21st rolls around.''\28\ The 
next day, according to Trusty, Breuer's chief of staff 
``mentioned the case again, so there is clearly great 
attention/interest from the front office.''\29\
---------------------------------------------------------------------------
    \28\E-mail from James Trusty to Laura Gwinn (Sept. 2, 2009) [HOGR 
003375].
    \29\E-mail from James Trusty to Laura Gwinn (Sept. 3, 2009) [HOGR 
003376].
---------------------------------------------------------------------------
    When the Criminal Division prosecutor arrived in Arizona, 
she gave Trusty her impressions of the case. Her e-mail stated:

          Case involves 300 to 500 guns. . . . It is my 
        understanding that a lot of these guns ``walked''. 
        Whether some or all of that was intentional is not 
        known.\30\
---------------------------------------------------------------------------
    \30\E-mail from Laura Gwinn to James Trusty (Sept. 3, 2009) [HOGR 
003377].

    Discussions between ATF and the Criminal Division regarding 
inter-departmental coordination continued over the next few 
months. On December 3, 2009, the Acting ATF Director e-mailed 
---------------------------------------------------------------------------
Breuer about this cooperation. He stated:

          Lanny: We have decided to take a little different 
        approach with regard to seizures of multiple weapons in 
        Mexico. Assuming the guns are traced, instead of 
        working each trace almost independently of the other 
        traces from the seizure, I want to coordinate and 
        monitor the work on all of them collectively as if the 
        seizure was one case.\31\
---------------------------------------------------------------------------
    \31\E-mail from Kenneth Melson to Lanny Breuer (Dec. 3, 2009) [HOGR 
003403].

---------------------------------------------------------------------------
    Breuer responded:

          We think this is a terrific idea and a great way to 
        approach the investigations of these seizures. Our Gang 
        Unit will be assigning an attorney to help you 
        coordinate this effort.\32\
---------------------------------------------------------------------------
    \32\E-mail from Lanny Breuer to Kenneth Melson (Dec. 4, 2009) [HOGR 
003403].

    Kevin Carwile, Chief of the Gang Unit, assigned an 
attorney, Joe Cooley, to assist ATF, and Operation Fast and 
Furious was selected as a recipient of this assistance. Shortly 
after his assignment, Cooley had to rearrange his holiday plans 
to attend a significant briefing on Fast and Furious.\33\
---------------------------------------------------------------------------
    \33\E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010) 
[HOGR 002832].
---------------------------------------------------------------------------
    Cooley was assigned to Fast and Furious for the next three 
months. He advised the lead federal prosecutor, Emory Hurley, 
and received detailed briefings on operational details. Cooley, 
though, was not the only Criminal Division attorney involved 
with Fast and Furious during this time period. The head of the 
division, Lanny Breuer, met with ATF officials about the case, 
including Deputy Director Billy Hoover and Assistant Director 
for Field Operations Mark Chait.\34\
---------------------------------------------------------------------------
    \34\Meeting on ``Weapons Seizures in Mexico w/ Lanny Breuer'' at 
Robert F. Kennedy Building, Room 2107, Jan. 5, 2010, 10:00 AM [HOGR 
001987].
---------------------------------------------------------------------------
    Given the initial involvement of the Criminal Division with 
Fast and Furious in the early stages of the investigation, 
senior officials in Criminal Division should have been greatly 
alarmed about what they learned about the case. These officials 
should have halted the program, especially given their prior 
knowledge of gunwalking in Wide Receiver, which was run by the 
same leadership in the same ATF field division.
    On March 5, 2010, Cooley attended a briefing about Fast and 
Furious. The detailed briefing highlighted the large number of 
weapons the gun trafficking ring had purchased and discussed 
recoveries of those weapons in Mexico. According to Steve 
Martin, Deputy Assistant Director in ATF's Office of Strategic 
Intelligence and Information, everyone in the room knew the 
weapons from Fast and Furious were being linked to a Mexican 
cartel.\35\ Two weeks later, in mid-March 2010, Carwile pulled 
Cooley off Fast and Furious, when the U.S. Attorney's Office 
informed him that it had the case under control.\36\
---------------------------------------------------------------------------
    \35\Martin Tr. at 100.
    \36\E-mail from Kevin Carwile to Jason Weinstein (Mar. 16, 2010, 
9:00 a.m.) [HOGR DOJ 2382].
---------------------------------------------------------------------------

                              2. WIRETAPS

    At about the same time, senior lawyers in the Criminal 
Division authorized wiretap applications for Fast and Furious 
to be submitted to a federal judge. Fast and Furious involved 
the use of seven wiretaps between March and July of 2010.
    In a letter to Chairman Issa, the Deputy Attorney General 
acknowledged that the Office of Enforcement Operations (OEO), 
part of the Justice Department's Criminal Division, is 
``primarily responsible for the Department's statutory wiretap 
authorizations.''\37\ According to the letter, lawyers in OEO 
review these wiretap packages to ensure that they ``meet 
statutory requirements and DOJ policies.''\38\ When OEO 
completes its review of a wiretap package, federal law provides 
that the Attorney General or his designee--in practice, a 
Deputy Assistant Attorney General in the Criminal Division--
reviews and authorizes it.\39\ Each wiretap package includes an 
affidavit which details the factual basis upon which the 
authorization is sought. Each application for Fast and Furious 
included a memorandum from Assistant Attorney General Breuer to 
Paul O'Brien, Director of OEO, authorizing the interception 
application.\40\
---------------------------------------------------------------------------
    \37\Letter from Dep Att'y Gen. James M. Cole Chairman Darrell Issa 
et al., at 6 (Jan. 27, 2012) [hereinafter Cole Letter].
    \38\ Id.
    \39\See 18 U.S.C. Sec. 2516(1).
    \40\See, e.g., Memorandum from Lanny A. Breuer, Ass't Att'y Gen., 
Criminal Division to Paul M. O'Brien, Director, Office of Enforcement 
Operations, Criminal Division, Authorization for Interception Order 
Application, Mar. 10, 2010.
---------------------------------------------------------------------------
    The Criminal Division's approval of the wiretap 
applications in Fast and Furious violated Department of Justice 
policy. The core mission of the Bureau of Alcohol, Tobacco, 
Firearms, and Explosives is to ``protect[ ] our communities 
from . . . the illegal use and trafficking of firearms.''\41\
---------------------------------------------------------------------------
    \41\Bureau of Alcohol, Tobacco, Firearms, and Explosives, ``ATF's 
Mission,'' http://www.atf.gov/about/mission (last visited May 1, 2012).
---------------------------------------------------------------------------
    The wiretap applications document the extensive involvement 
of the Criminal Division in Fast and Furious. These 
applications were constructed from raw data contained in 
hundreds of Reports of Investigation (ROI); the Department of 
Justice failed to produce any of these ROI in response to the 
Committee's subpoena. The Criminal Division authorized Fast and 
Furious wiretap applications on March 10, 2010; April 15, 2010; 
May 6, 2010; May 14, 2010; June 1, 2010; and July 1, 2010. 
Deputy Assistant Attorney General Jason Weinstein, Deputy 
Assistant Attorney General Kenneth Blanco, and Deputy Assistant 
Attorney General John Keeney signed these applications on 
behalf of Assistant Attorney General Lanny Breuer.

              E. The Office of the Deputy Attorney General

    The Office of the Deputy Attorney General (ODAG) maintained 
close involvement in Operation Fast and Furious. In the Justice 
Department, ATF reports to the Deputy Attorney General 
(DAG).\42\ In practice, an official in the Office of the Deputy 
Attorney General is responsible for managing the ATF portfolio. 
This official monitors the operations of ATF, and raises 
potential ATF issues to the attention of the DAG.\43\ During 
the pendency of Fast and Furious, this official was Associate 
Deputy Attorney General Edward Siskel.
---------------------------------------------------------------------------
    \42\USDOJ: About Department of Justice Agencies, available at 
http://www.justice.gov/agencies/index-org.html (last visited May. 1, 
2012).
    \43\Transcribed Interview of Acting Dir. Kenneth Melson, at 25 
(July 4, 2011).
---------------------------------------------------------------------------
    Officials in ODAG became familiar with Fast and Furious as 
early as March 2010. On March 12, 2010, Siskel and then-Acting 
DAG Gary Grindler received an extensive briefing on Fast and 
Furious during a monthly meeting with the ATF's Acting Director 
and Deputy Director. This briefing presented Grindler with 
overwhelming evidence of illegal straw purchasing during Fast 
and Furious. The presentation included a chart of the names of 
the straw purchasers, 31 in all, and the number of weapons they 
had acquired to date, 1,026.\44\ Three of these straw 
purchasers had already purchased over 100 weapons each, with 
one straw purchaser having already acquired over 300 weapons. 
During this briefing, Grindler learned that buyers had paid 
cash for every single gun.\45\
---------------------------------------------------------------------------
    \44\``Operation the Fast and the Furious,'' March 12, 2010 [HOGR 
002820--HOGR 002823].
    \45\Id.
---------------------------------------------------------------------------
    A map of Mexico detailed locations of recoveries of weapons 
purchased through Fast and Furious, including some at crime 
scenes.\46\ The briefing also covered the use of stash houses 
where weapons bought during Fast and Furious were stored before 
being transported to Mexico. Grindler learned of some of the 
unique investigative techniques ATF was using during Fast and 
Furious.\47\ Despite receiving all of this information, then-
Deputy Attorney General Gary Grindler did not order Fast and 
Furious to be shut down, nor did he follow-up with ATF or his 
staff about the investigation.
---------------------------------------------------------------------------
    \46\Id.
    \47\Id.
---------------------------------------------------------------------------
    Throughout the summer of 2010, ATF officials remained in 
close contact with their ODAG supervisors regarding Fast and 
Furious. Fast and Furious was a topic in each of the monthly 
meetings between ATF and the DAG. ATF apprised Ed Siskel of 
significant recoveries of Fast and Furious weapons, as well as 
of notable progress in the investigation, and Siskel indicated 
to ATF that he was monitoring it.\48\ In mid-December 2010, 
after Fast and Furious had been ongoing for over a year, 
Grindler received more details about the program. On December 
15, 2010, Border Patrol Agent Brian Terry was killed. Two Fast 
and Furious weapons were recovered at the scene of his murder. 
Two days later, Associate Deputy Attorney General Brad Smith 
sent Grindler and four ODAG officials an e-mail detailing the 
circumstances of Terry's murder and its connection to Fast and 
Furious.\49\ Smith attached a four-page summary of the Fast and 
Furious investigation.
---------------------------------------------------------------------------
    \48\E-mail from Edward N. Siskel to Mark R. Chait (July 14, 2010) 
[HOGR 002847].
    \49\E-mail from Assoc. Deputy Att'y Gen. Brad Smith to Deputy Att'y 
Gen. Gary Grindler, et al. (Dec. 17, 2010) [HOGR 002875-002881].
---------------------------------------------------------------------------

   V. THE COMMITTEE'S OCTOBER 12, 2011, SUBPOENA TO ATTORNEY GENERAL 
                                 HOLDER

    On October 12, 2011, the Committee issued a subpoena to 
Attorney General Eric Holder, demanding documents related to 
the Department of Justice's involvement with Operation Fast and 
Furious. The subpoena was issued following six months of 
constant refusals by the Justice Department to cooperate with 
the Committee's investigation into Operation Fast and Furious.

                  A. Events Leading Up to the Subpoena

    On March 16, 2011, Chairman Issa sent a letter to then-ATF 
Acting Director Ken Melson asking for information and documents 
pertaining to Operation Fast and Furious.\50\ Late in the 
afternoon of March 30, 2011, the Department, on behalf of ATF 
and Melson, informed the Committee that it would not provide 
any documents pursuant to the letter. The Committee informed 
the Department it planned to issue a subpoena. On March 31, 
2011, the Committee issued a subpoena to Ken Melson for the 
documents.
---------------------------------------------------------------------------
    \50\Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth 
Melson (Mar. 16, 2011) [hereinafter Mar. 16 Letter].
---------------------------------------------------------------------------
    On May 2, 2011, Committee staff reviewed documents the 
Department made available for in camera review at Department 
headquarters. Many of these documents contained partial or full 
redactions. Following this review, Chairman Issa wrote to the 
Department on May 5, 2011, asking the Department to produce all 
documents responsive to the Committee's subpoena forthwith.\51\ 
That same day, senior Department officials met with Committee 
staff and acknowledged ``there's a there, there'' regarding the 
legitimacy of the congressional inquiry into Fast and Furious.
---------------------------------------------------------------------------
    \51\Letter from Chairman Darrell Issa to Att'y Gen. Eric Holder 
(May 5, 2011).
---------------------------------------------------------------------------
    In spite of Chairman Issa's May 5, 2011, letter, during the 
two months following the issuance of the subpoena, the 
Department produced zero pages of non-public documents. On June 
8, 2011, the Committee again wrote to the Department requesting 
complete production of all documents by June 10, 2011.\52\ The 
Department responded on June 10, 2011, stating ``complete 
production of all documents by June 10, 2011, . . . is not 
possible.''\53\ At 7:49 p.m. that evening, just three days 
before a scheduled Committee hearing on the obligation of the 
Department of Justice to cooperate with congressional 
oversight, the Department finally produced its first non-public 
documents to the Committee, totaling 69 pages.\54\
---------------------------------------------------------------------------
    \52\Letter from Chairman Darrell Issa to ATF Acting Dir. Kenneth 
Melson (June 8, 2011).
    \53\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (June 10, 2011).
    \54\Id.
---------------------------------------------------------------------------
    Over the next six weeks, through July 21, 2011, the 
Department produced an additional 1,286 pages of documents. The 
Department produced no additional documents until September 1, 
2011, when it produced 193 pages of documents.\55\ On September 
30, 2011, the Department produced 97 pages of documents.\56\ On 
October 11, 2011, the Department produced 56 pages of 
documents.\57\
---------------------------------------------------------------------------
    \55\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Sep. 1, 2011).
    \56\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa and Senator Charles Grassley (Sep. 30, 2011).
    \57\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Oct. 11, 2011) [hereinafter Oct. 11 Letter].
---------------------------------------------------------------------------
    Early in the investigation, the Committee received hundreds 
of pertinent documents from whistleblowers. Many of the 
documents the whistleblowers provided were not among the 2,050 
pages that the Department had produced by October 11, 2011, 
demonstrating that the Department was withholding materials 
responsive to the subpoena.
    The Committee requested additional documents from the 
Department as the investigation proceeded during the summer of 
2011. On July 11, 2011, Chairman Issa and Senator Grassley 
wrote to the Attorney General requesting documents from twelve 
people in Justice Department headquarters pertaining to Fast 
and Furious.\58\ The Justice Department first responded to this 
letter on October 31, 2011, nearly four months later.\59\
---------------------------------------------------------------------------
    \58\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to Att'y Gen. Eric Holder (July 11, 2011).
    \59\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Oct. 31, 2011) [hereinafter Oct. 31 Letter].
---------------------------------------------------------------------------
    On July 11, 2011, Chairman Issa and Senator Grassley sent a 
letter to the FBI requesting documents relating to the FBI's 
role in the Fast and Furious OCDETF investigation.\60\ The 
letter requested information and documents pertaining to paid 
FBI informants who were the target of the Fast and Furious 
investigation. The FBI never produced any of the documents 
requested in this letter.
---------------------------------------------------------------------------
    \60\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to FBI Dir. Robert Mueller (July 11, 2011) [hereinafter Mueller 
Letter].
---------------------------------------------------------------------------
    On July 15, 2011, Chairman Issa and Senator Grassley sent a 
letter to the DEA requesting documents pertaining to another 
target of the Fast and Furious investigation.\61\ The DEA was 
aware of this target before Fast and Furious became an OCDETF 
case, a fact that raises serious questions about the lack of 
information-sharing among Department components. Though DEA 
responded to the letter on July 22, 2011, it, too, did not 
provide any of the requested documents.\62\
---------------------------------------------------------------------------
    \61\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to DEA Adm'r Michele Leonhart (July 15, 2011).
    \62\Letter from DEA Adm'r Michele Leonhart to Chairman Darrell Issa 
and Senator Charles Grassley (July 22, 2011).
---------------------------------------------------------------------------
    On September 1, 2011, Chairman Issa and Senator Grassley 
wrote to the Acting U.S. Attorney in Arizona requesting 
documents and communications pertaining to Fast and 
Furious.\63\ As the office responsible for leading Fast and 
Furious, the Arizona U.S. Attorney's Office possesses a large 
volume of documents relevant to the Committee's investigation. 
The Department of Justice, on behalf of the U.S. Attorney's 
Office for the District of Arizona, did not respond to this 
letter until December 6, 2011, the eve of the Attorney 
General's testimony before the House Judiciary Committee.\64\
---------------------------------------------------------------------------
    \63\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to Acting U.S. Att'y Ann Scheel (Sep. 1, 2011).
    \64\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa and Senator Charles Grassley (Dec. 6, 2011) [hereinafter Dec. 6 
Letter].
---------------------------------------------------------------------------
    On September 27, 2011, Chairman Issa and Senator Grassley 
sent a letter to the Attorney General raising questions about 
information-sharing among Department components, the 
Department's cooperation with Congress, and FBI documents 
requested in the July 11, 2011, letter to FBI Director 
Mueller.\65\ To date, the Department has not responded to this 
letter.
---------------------------------------------------------------------------
    \65\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to Att'y Gen. Eric Holder (Sep. 27, 2011).
---------------------------------------------------------------------------
    The Department wrote to Chairman Issa on October 11, 2011, 
stating it had ``substantially concluded [its] efforts to 
respond to the Committee requests set forth in the subpoena and 
the letter of June 8th.''\66\ The letter further stated:
---------------------------------------------------------------------------
    \66\Oct. 11 Letter, supra note 57.

          [O]ther documents have not been produced or made 
        available for these same reasons because neither 
        redacting them nor making them available for review (as 
        opposed to production) was sufficient to address our 
        concerns. Our disclosure of the vast majority of the 
        withheld material is prohibited by statute. These 
        records pertain to matters occurring before a grand 
        jury, as well as investigative activities under seal or 
        the disclosure of which is prohibited by law . . . we 
        also have not disclosed certain confidential 
        investigative and prosecutorial documents, the 
        disclosure of which would, in our judgment, compromise 
        the pending criminal investigations and prosecution. 
        These include core investigative and prosecutorial 
        material, such as Reports of Investigation and drafts 
        of court filings.
          Finally . . . we have also withheld internal 
        communications that were generated in the course of the 
        Department's effort to respond to congressional and 
        media inquiries about Operation Fast and Furious. These 
        records were created in 2011, well after the completion 
        of the investigative portion of Operation Fast and 
        Furious that the Committee has been reviewing and after 
        the charging decisions reflected in the January 25, 
        2011, indictments. Thus, they were not part of the 
        communications regarding the development and 
        implementation of the strategy decisions that have not 
        been the focus of the Committee's inquiry . . . 
        Disclosure would have a chilling effect on agency 
        officials' deliberations about how to respond to 
        inquiries from Congress or the media. Such a chill on 
        internal communications would interfere with our 
        ability to respond as effectively and efficiently as 
        possible to congressional oversight requests.\67\
---------------------------------------------------------------------------
    \67\Id.

    The following day, on October 12, 2011, after the 
Department announced its intention to cease producing documents 
responsive to the Committee's March 31, 2011, subpoena to 
Melson, the Committee issued a subpoena to Attorney General 
Eric Holder demanding documents relating to Fast and Furious.

                     B. Subpoena Schedule Requests

    In the weeks following the issuance of the subpoena, 
Committee staff worked closely with Department lawyers to 
provide clarifications about subpoena categories, and to assist 
the Department in prioritizing documents for production. 
Committee and Department staff engaged in discussions spanning 
several weeks to enable the Department to better understand 
what the Committee was specifically seeking. During these 
conversations, the Committee clearly articulated its 
investigative priorities as reflected in the subpoena schedule. 
The Department memorialized these priorities with specificity 
in an October 31, 2011, e-mail from the Office of Legislative 
Affairs.\68\
---------------------------------------------------------------------------
    \68\E-mail from Office of Leg. Affairs Staff, U.S. Dep't of 
Justice, to Investigations Staff, H. Comm. on Oversight and Gov't 
Reform (Oct. 31, 2011) [hereinafter OLA e-mail].
---------------------------------------------------------------------------
    Despite the Department's acknowledgement that it 
understands what the Committee was seeking, it has yet to 
provide a single document for 11 out of the 22 categories 
contained in the subpoena schedule. The Department has not 
adequately complied with the Committee's subpoena, and it has 
unequivocally stated its refusal to comply with entire 
categories of the subpoena altogether. In a letter to Chairman 
Issa on May 15, 2012, the Department stated that it had 
delivered or made available for review documents responsive to 
13 of the 22 categories of the subpoena.\69\
---------------------------------------------------------------------------
    \69\Letter from Deputy Att'y Gen. James Cole to Chairman Darrell 
Issa (May 15, 2012), at 4 [hereinafter May 15 Cole Letter].
---------------------------------------------------------------------------
    A review of each of the 22 schedule categories in the 
subpoena reflects the Department's clear understanding of the 
documents sought by the Committee for each category. Below is a 
listing of each category of the subpoena schedule, followed by 
what the Department has explained is its understanding of what 
the Committee is seeking for each category.
    1. All communications referring or relating to Operation 
Fast and Furious, the Jacob Chambers case, or any Organized 
Crime Drug Enforcement Task Force (OCDETF) firearms trafficking 
case based in Phoenix, Arizona, to or from the following 
individuals:
          a. Eric Holder, Jr., Attorney General;
          b. David Ogden, Former Deputy Attorney General;
          c. Gary Grindler, Office of the Attorney General and 
        former Acting Deputy Attorney General;
          d. James Cole, Deputy Attorney General;
          e. Lanny Breuer, Assistant Attorney General;
          f. Ronald Weich, Assistant Attorney General;
          g. Kenneth Blanco, Deputy Assistant Attorney General;
          h. Jason Weinstein, Deputy Assistant Attorney 
        General;
          i. John Keeney, Deputy Assistant Attorney General;
          j. Bruce Swartz, Deputy Assistant Attorney General;
          k. Matt Axelrod, Associate Deputy Attorney General;
          l. Ed Siskel, former Associate Deputy Attorney 
        General;
          m. Brad Smith, Office of the Deputy Attorney General;
          n. Kevin Carwile, Section Chief, Capital Case Unit, 
        Criminal Division;
          o. Joseph Cooley, Criminal Fraud Section, Criminal 
        Division; and,
          p. James Trusty, Acting Chief, Organized Crime and 
        Gang Section.
    Department Response: In late October 2011, the Department 
acknowledged that it had ``already begun searches of some of 
the custodians listed here relating to Fast and Furious, such 
as in response to the Chairman's letter of 7/11/11.''\70\ 
Still, it has produced no documents since the issuance of the 
subpoena pursuant to subpoena categories 1(a), 1(b), 1(g), 
1(i), and 1(k), only two documents pursuant to subpoena 
category 1(d), and very few documents pursuant to subpoena 
category 1(j) and 1(l).
---------------------------------------------------------------------------
    \70\OLA e-mail.
---------------------------------------------------------------------------
    2. All communications between and among Department of 
Justice (DOJ) employees and Executive Office of the President 
employees, including but not limited to Associate 
Communications Director Eric Schultz, referring or relating to 
Operation Fast and Furious or any other firearms trafficking 
cases.
    Department Response: The Department acknowledged that the 
Committee identified several people likely to be custodians of 
these documents.\71\ Though the Department has stated it has 
produced documents pursuant to this subpoena category, the 
Committee has not found any documents produced by the 
Department responsive to this subpoena category.\72\
---------------------------------------------------------------------------
    \71\Id.
    \72\May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
    3. All communications between DOJ employees and Executive 
Office of the President employees referring or relating to the 
President's March 22, 2011, interview with Jorge Ramos of 
Univision.
    Department Response: The Department represented that it 
would ``check on communications with WH Press Office in the 
time period preceding the President's 3/22/11 interview,'' and 
that it had identified the most likely custodians of those 
documents.\73\ Nonetheless, it has produced no documents 
responsive to this subpoena category. The Department has not 
informed the Committee that no documents exist responsive to 
this schedule number.
---------------------------------------------------------------------------
    \73\Id.
---------------------------------------------------------------------------
    4. All documents and communications referring or relating 
to any instances prior to February 4, 2011, where the Bureau of 
Alcohol, Tobacco, Firearms and Explosives (ATF) failed to 
interdict weapons that had been illegally purchased or 
transferred.
    Department Response: The Department has produced some 
documents responsive to this subpoena category.
    5. All documents and communications referring or relating 
to any instances prior to February 4, 2011, where ATF broke off 
surveillance of weapons and subsequently became aware that 
those weapons entered Mexico.
    Department Response: The Department has produced documents 
responsive to this subpoena category.
    Most of the responsive documents the Department has 
produced pursuant to the subpoena pertain to categories 4 and 5 
and relate to earlier cases the Department has described as 
involving gunwalking. The Department produced these documents 
strategically, advancing its own narrative about why Fast and 
Furious was neither an isolated nor a unique program. It has 
attempted to accomplish this objective by simultaneously 
producing documents to the media and the Committee.
    6. All documents and communications referring or relating 
to the murder of Immigrations and Customs Enforcement Agent 
Jaime Zapata, including, but not limited to, documents and 
communications regarding Zapata's mission when he was murdered, 
Form for Reporting Information That May Become Testimony (FD-
302), photographs of the crime scene, and investigative reports 
prepared by the FBI.
    Department Response: The Department ``understand[s] that 
the Zapata family has complained that they've been `kept in the 
dark' about this matter'' which necessitated this subpoena 
category.\74\ The Department ``conferred with the U.S. 
Attorney's Office . . . which we hope will be helpful to them 
and perhaps address the concerns that are the basis of this 
item.''\75\ Though the Department has stated it has produced 
documents pursuant to this subpoena category, the Committee has 
not found any documents produced by the Department responsive 
to this subpoena category.\76\
---------------------------------------------------------------------------
    \74\Id.
    \75\Id.
    \76\May 15 Cole Letter, at 4.
---------------------------------------------------------------------------
    In late February 2012, press accounts revealed that 
prosecutors had recently sentenced a second individual in 
relation to the murder of Immigration and Customs Enforcement 
(ICE) Agent Jaime Zapata. One news article stated that 
``[n]obody was more astonished to learn of the case than 
Zapata's parents, who didn't know that [the defendant] had been 
arrested or linked to their son's murder.''\77\ Press accounts 
alleged that the defendant had been ``under ATF surveillance 
for at least six months before a rifle he trafficked was used 
in Zapata's murder''--a situation similar to what took place 
during Fast and Furious.\78\ Despite this revelation, the 
Department failed to produce any documents responsive to this 
subpoena category.
---------------------------------------------------------------------------
    \77\Sharyl Attkisson, Second gun used in ICE agent murder linked to 
ATF undercover operation, (Feb. 22, 2012, 5:29 P.M.), http://
www.cbsnews.com/8301-31727_162-57383089-10391695/second-gun-used-in-
ice-agent-murder-linked-to-atf-undercover-operation/.
    \78\Id.
---------------------------------------------------------------------------
    7. All communications to or from William Newell, former 
Special Agent-in-Charge for ATF's Phoenix Field Division, 
between:
          a. December 14, 2010 to January 25, 2011; and,
          b. March 16, 2009 to March 19, 2009.
    Department Response: The Department has not produced any 
documents responsive to subpoena category 7(b), despite its 
understanding that the Committee sought documents pertaining 
``to communications with [Executive Office of the President] 
staff regarding gun control policy'' within a specific and 
narrow timeframe.\79\ The Department has not informed the 
Committee that no documents exist responsive to this schedule 
number.
---------------------------------------------------------------------------
    \79\OLA e-mail, supra note 68.
---------------------------------------------------------------------------
    8. All Reports of Investigation (ROIs) related to Operation 
Fast and Furious or ATF Case Number 785115-10-0004.
    Department Response: Department representatives contended 
that this subpoena category ``presents some significant issues 
for'' the Department due to current and potential future 
indictments.\80\ The Department has not produced any documents 
responsive to this subpoena category. The Department has not 
informed the Committee that no documents exist responsive to 
this schedule number.
---------------------------------------------------------------------------
    \80\Id.
---------------------------------------------------------------------------
    9. All communications between and among Matt Axelrod, 
Kenneth Melson, and William Hoover referring or relating to 
ROIs identified pursuant to Paragraph 8.
    Department Response: The Department acknowledged its 
understanding that this request specifically pertained to 
``emails Ken sent to Matt and Billy, expressing concerns, 
perhaps in March 2011, [that] are core to [the Committee's] 
work, and we'll look at those.''\81\ Still, it has produced no 
documents pursuant to this subpoena category. The Department 
has not informed the Committee that no documents exist 
responsive to this schedule number.
---------------------------------------------------------------------------
    \81\Id.
---------------------------------------------------------------------------
    10. All documents and communications between and among 
former U.S. Attorney Dennis Burke, Attorney General Eric 
Holder, Jr., former Acting Deputy Attorney General Gary 
Grindler, Deputy Attorney General James Cole, Assistant 
Attorney General Lanny Breuer, and Deputy Assistant Attorney 
General Jason Weinstein referring or relating to Operation Fast 
and Furious or any OCDETF case originating in Arizona.
    Department Response: The Department has produced some 
documents responsive to this subpoena category.
    A complete production of these documents is crucial to 
allow Congress to understand how senior Department officials 
came to know that the February 4, 2011, letter to Senator 
Grassley was false, why it took so long for the Department to 
withdraw the letter despite months of congressional pressure to 
do so, and why the Department obstructed the congressional 
investigation for nearly a year. These documents will show the 
reactions of top officials when confronted with evidence about 
gunwalking in Fast and Furious. The documents will also show 
whether these officials knew about, or were surprised to learn 
of, the gunwalking. Additionally, these documents will reveal 
the identities of Department officials who orchestrated various 
forms of retaliation against the whistleblowers.
    11. All communications sent or received between:
          a. December 16, 2009 and December 18, 2009; and,
          b. March 9, 2011, and March 14, 2011, to or from the 
        following individuals:
                  i. Emory Hurley, Assistant U.S. Attorney, 
                Office of the U.S. Attorney for the District of 
                Arizona;
                  ii. Michael Morrissey, Assistant U.S. 
                Attorney, Office of the U.S. Attorney for the 
                District of Arizona;
                  iii. Patrick Cunningham, Chief, Criminal 
                Division, Office of the U.S. Attorney for the 
                District of Arizona;
                  iv. David Voth, Group Supervisor, ATF; and,
                  v. Hope MacAllister, Special Agent, ATF.
    Department Response: The Department acknowledged that it 
``will first search these custodians for records re a) the 
Howard meeting in 12/09; and b) the ROI or memo that was 
written during this time period relating to the Howard mtng in 
12/09.''\82\ Although the Department has produced documents 
that are purportedly responsive to this category, these 
documents do not pertain to the subject matter that the 
Department understands that the Committee is seeking.
---------------------------------------------------------------------------
    \82\Id.
---------------------------------------------------------------------------
    12. All communications sent or received between December 
15, 2010, and December 17, 2010, to or from the following 
individuals in the U.S. Attorney's Office for the District of 
Arizona:
          a. Dennis Burke, former United States Attorney;
          b. Emory Hurley, Assistant United States Attorney;
          c. Michael Morrissey, Assistant United States 
        Attorney; and,
          d. Patrick Cunningham, Chief of the Criminal 
        Division.
    Department Response: The Department understood that the 
Committee's ``primary interest here is in the communications 
during this time period that relate to the Terry death and, per 
our conversation, we will start with those.''\83\ Although the 
Department has produced some documents responsive to this 
subpoena category, it has not represented that it has produced 
all responsive documents in this category.
---------------------------------------------------------------------------
    \83\Id.
---------------------------------------------------------------------------
    13. All communications sent or received between August 7, 
2009, and March 19, 2011, between and among former Ambassador 
to Mexico Carlos Pascual; Assistant Attorney General Lanny 
Breuer; and Deputy Assistant Attorney General Bruce Swartz.
    Department Response: The Department acknowledged that it 
``understand[s] the Committee's focus here is Firearms 
Trafficking issues along the SW Border, not limited to Fast & 
Furious.''\84\ The Department has produced some documents 
responsive to this subpoena category.
---------------------------------------------------------------------------
    \84\Id.
---------------------------------------------------------------------------
    14. All communications sent or received between August 7, 
2009, and March 19, 2011, between and among former Ambassador 
to Mexico Carlos Pascual and any Department of Justice employee 
based in Mexico City referring or relating to firearms 
trafficking initiatives, Operation Fast and Furious or any 
firearms trafficking case based in Arizona, or any visits by 
Assistant Attorney General Lanny Breuer to Mexico.
    Department Response: The Department has produced only a 
handful of pages responsive to this subpoena category, even 
though it ``understand[s] that [the Committee] wants [the 
Department] to approach this effort with efficiency.''\85\ 
Despite the Committee's request for an efficient effort, the 
Department produced a key document regarding Attorney General 
Lanny Breuer three and a half months after the subpoena was 
issued, after several previous document productions, and long 
after Breuer testified before Congress and could be questioned 
about the document. Given the importance of the contents of the 
document and the request for an efficient effort on the part of 
the Department in this subpoena category, it is inconceivable 
that the Department did not discover this document months prior 
to its production. The Department's actions suggest that it 
kept this document hidden for strategic and public relations 
reasons.
---------------------------------------------------------------------------
    \85\Id.
---------------------------------------------------------------------------
    15. Any FD-302 relating to targets, suspects, defendants, 
or their associates, bosses, or financiers in the Fast and 
Furious investigation, including but not limited to any FD-302s 
ATF Special Agent Hope MacAllister provided to ATF leadership 
during the calendar year 2011.
    Department Response: The Department ``understand[s] that 
[the Committee's] primary focus here is the 5 FBI 302s that 
were provided to SA MacAllister, which she later gave to 
Messrs. Hoover and Melson.''\86\ Despite the specificity of 
this document request, the Department has not produced any 
documents responsive to this schedule number. The Department 
has not informed the Committee that no documents exist 
responsive to this schedule number.
---------------------------------------------------------------------------
    \86\Id.
---------------------------------------------------------------------------
    16. Any investigative reports prepared by the FBI or Drug 
Enforcement Administration (DEA) referring or relating to 
targets, suspects, or defendants in the Fast and Furious case.
    Department Response: The Department was ``uncertain about 
the volume here,'' regarding the amount of documents, and 
pledged to ``work[ ] on this [with] DEA and FBI.''\87\ Despite 
this pledge, it has produced no documents responsive to this 
subpoena category. The Department has not informed the 
Committee that no documents exist responsive to this schedule 
number.
---------------------------------------------------------------------------
    \87\Id.
---------------------------------------------------------------------------
    17. Any investigative reports prepared by the FBI or DEA 
relating to the individuals described to Committee staff at the 
October 5, 2011, briefing at Justice Department headquarters as 
Target Number 1 and Target Number 2.
    Department Response: The Department acknowledged that it 
``think[s] we understand this item.''\88\ Despite this 
understanding, it has produced no documents responsive to this 
subpoena category. The Department has not informed the 
Committee that no documents exist responsive to this schedule 
number.
---------------------------------------------------------------------------
    \88\Id.
---------------------------------------------------------------------------
    18. All documents and communications in the possession, 
custody or control of the DEA referring or relating to Manuel 
Fabian Celis-Acosta.
    Department Response: The Department agreed to ``start with 
records regarding information that DEA shared with ATF about 
Acosta, which we understand to be the focus of your interest in 
this item.''\89\ Despite this understanding, the Department has 
produced no documents responsive to this subpoena category. The 
Department has not informed the Committee that no documents 
exist responsive to this schedule number.
---------------------------------------------------------------------------
    \89\Id.
---------------------------------------------------------------------------
    19. All documents and communications between and among FBI 
employees in Arizona and the FBI Laboratory, including but not 
limited to employees in the Firearms/Toolmark Unit, referring 
or relating to the firearms recovered during the course of the 
investigation of Brian Terry's death.
    Department Response: The Department's understanding was 
that ``[the Committee's] focus here is how evidence was tagged 
at the scene of Agent Terry's murder, how evidence was 
processed, how the FBI ballistics report was prepared and what 
it means.''\90\ Despite this clear understanding, the 
Department has produced no documents responsive to this 
subpoena category. The Department has not informed the 
Committee that no documents exist responsive to this schedule 
number.
---------------------------------------------------------------------------
    \90\Id.
---------------------------------------------------------------------------
    20. All agendas, meeting notes, meeting minutes, and 
follow-up reports for the Attorney General's Advisory Committee 
of U.S. Attorneys between March 1, 2009, and July 31, 2011, 
referring or relating to Operation Fast and Furious.
    Department Response: This category asks for documents from 
the Attorney General's Advisory Committee within a clearly 
specified date range. Despite the fact that the Department has 
acknowledged this category ``is clear,'' the Department has 
produced no documents responsive to this subpoena category.\91\ 
The Department has not informed the Committee that no documents 
exist responsive to this schedule number.
---------------------------------------------------------------------------
    \91\Id.
---------------------------------------------------------------------------
    21. All weekly reports and memoranda for the Attorney 
General, either directly or through the Deputy Attorney 
General, from any employee in the Criminal Division, ATF, DEA, 
FBI, or the National Drug Intelligence Center created between 
November 1, 2009 and September 30, 2011.
    Department Response: This category asks for weekly reports 
and memoranda to the Attorney General from five different 
Department components ``regarding ATF cases re firearms 
trafficking.''\92\ The Department has produced some documents 
responsive to this subpoena category.
---------------------------------------------------------------------------
    \92\Id.
---------------------------------------------------------------------------
    22. All surveillance tapes recorded by pole cameras inside 
the Lone Wolf Trading Co. store between 12:00 a.m. on October 
3, 2010, and 12:00 a.m. on October 7, 2010.
    Department Response: This category asks for all ATF 
surveillance tapes from Lone Wolf Trading Company between two 
specified dates in October 2010. Both the Committee and the 
Department ``understand a break-in occurred'' at that time.\93\ 
The Department has produced no documents responsive to this 
subpoena category. The Department has not informed the 
Committee that no documents exist responsive to this schedule 
number.
---------------------------------------------------------------------------
    \93\Id.
---------------------------------------------------------------------------

 C. Attempts of Accommodation by the Committee, Lack of Compliance by 
                         the Justice Department

    In public statements, the Department has maintained that it 
remains committed to ``work[ing] to accommodate the Committee's 
legitimate oversight needs.''\94\ The Department, however, 
believes it is the sole arbiter of what is ``legitimate.'' In 
turn, the Committee has gone to great lengths to accommodate 
the Department's interests as an Executive Branch agency. 
Unfortunately, the Department's actions have not matched its 
rhetoric. Instead, it has chosen to prolong the investigation 
and impugn the motives of the Committee. A statement the 
Attorney General made at the February 2, 2012, hearing was 
emblematic of the Department's posture with respect to the 
investigation:
---------------------------------------------------------------------------
    \94\Fast and Furious: Management Failures at the Department of 
Justice: Hearing Before the H. Comm. on Oversight and Gov't Reform, 
112th Cong. (Feb. 2, 2012) (Statement of Hon. Eric H. Holder, Jr., 
Att'y Gen. of the U.S.).

          But I also think that if we are going to really get 
        ahead here, if we are really going to make some 
        progress, we need to put aside the political gotcha 
        games in an election year and focus on matters that are 
        extremely serious.\95\
---------------------------------------------------------------------------
    \95\Id.

    This attitude with respect to a legitimate congressional 
inquiry has permeated the Department's ranks. Had the 
Department demonstrated a willingness to cooperate with this 
investigation from the outset--instead of attempting to cover 
up its own internal mismanagement--this investigation likely 
would have concluded well before the election year even began. 
The Department has intentionally withheld documents for months, 
only to release a selected few on the eve of the testimony of 
Department officials.\96\ The Department has impeded the 
ability of a co-equal branch of government to perform its 
constitutional duty to conduct Executive Branch oversight. By 
any measure, it has obstructed and slowed the Committee's work.
---------------------------------------------------------------------------
    \96\On Friday January 27, 2012, just days before the Attorney 
General testified before Congress, documents were delivered to the 
Senate Judiciary Committee so late in the evening that a disc of files 
had to be slipped under the door. This is not only an extreme 
inconvenience for congressional staff but also deprives staff of the 
ability to review the materials in a timely manner.
---------------------------------------------------------------------------
    The Committee has been unfailingly patient in working with 
Department representatives to obtain information the Committee 
requires to complete its investigation. The Department's 
progress has been unacceptably slow in responding to the 
October 12, 2011, subpoena issued to the Attorney General. 
Complying with the Committee's subpoena is not optional. 
Indeed, the failure to produce documents pursuant to a 
congressional subpoena is a violation of federal law.\97\ 
Because the Department has not cited any legal authority as the 
basis for withholding documents pursuant to the subpoena its 
efforts to accommodate the Committee's constitutional 
obligation to conduct oversight of the Executive Branch are 
incomplete.
---------------------------------------------------------------------------
    \97\2 U.S.C. 192 states, in pertinent part:
    Every person who having been summoned as a witness by the authority 
of either House of Congress to give testimony or to produce papers upon 
any matter under inquiry before . . . any committee of either House of 
Congress, willfully makes default . . . shall be deemed guilty of a 
misdemeanor, punishable by a fine of not more than $1,000 nor less than 
$100 and imprisonment in a common jail for not less than one month nor 
more than twelve months.
---------------------------------------------------------------------------

                          1. IN CAMERA REVIEWS

    In an attempt to accommodate the Justice Department's 
interests, Committee staff has viewed documents responsive to 
the subpoena that the Department has identified as sensitive in 
camera at Department headquarters. Committee staff has visited 
the Department on April 12, May 4, June 17, October 12, and 
November 3, 2011, as well as on January 30 and February 27, 
2012 to view these documents. Many of the documents made 
available for in camera review, however, have been repetitive 
in nature. Many other documents seemingly do not contain any 
sensitive parts that require them to be viewed in camera. Other 
documents are altogether non-responsive to the subpoena.
    Committee staff has spent dozens of hours at Department 
headquarters reviewing these documents. In addition, the 
Department has identified hundreds of other sensitive documents 
responsive to the subpoena, which it refuses to make available 
even for in camera review, instead withholding them from the 
Committee altogether. The Committee has made these 
accommodations to the Department at the expense of not being 
able to make these documents available for review by Committee 
Members.

                         2. REDACTED DOCUMENTS

    The Department has redacted varying portions of many of the 
documents it has produced. These redactions purportedly protect 
ongoing criminal investigations and prosecutions, as well as 
other sensitive data. The Department has so heavily redacted 
some documents produced to Congress that they are 
unintelligible. There appears to be no objective, consistent 
criteria delineating why some documents were redacted, only 
provided in camera, or withheld entirely.
    On the evening of May 2, 2011, Department of Justice 
representatives notified the Committee that the Department was 
planning to make approximately 400 pages of documents available 
for an in camera review at its headquarters.\98\ Committee 
staff went to review those documents on May 4, 2011, only to 
discover they were partially, or in some cases almost 
completely, redacted. Since these documents were only made 
available pursuant to Committee's first subpoena and only on an 
in camera basis, redactions were inappropriate and unnecessary.
---------------------------------------------------------------------------
    \98\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (May 2, 2011).
---------------------------------------------------------------------------
    On June 14, 2011, the Department produced 65 pages of 
documents to the Committee in a production labeled ``Batch 
4.''\99\ Of these 65 pages, every single one was at least 
partially redacted, 44 were completely redacted, and 61 had 
redactions covering more than half of the page.
---------------------------------------------------------------------------
    \99\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (June 14, 2011).
---------------------------------------------------------------------------
    On July 18, 2011, after more than a month of discussions 
between Committee and Department staff, the Department finally 
included a redaction code that identifies the reason for each 
redaction within a document.\100\ While the Department has used 
this redaction code in subsequent document productions to the 
Committee, documents produced and redacted prior to July 18, 
2011, do not have the benefit of associated redaction codes for 
each redaction.
---------------------------------------------------------------------------
    \100\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (July 18, 2011).
---------------------------------------------------------------------------
    The Department has over-redacted certain documents. The 
Committee has obtained many of these documents through 
whistleblowers and has compared some of them with those 
produced by the Department. In some instances, the Department 
redacted more text than necessary, making it unnecessarily 
difficult and sometimes impossible for the Committee, absent 
the documents provided by whistleblowers, to investigate 
decisions made by Department officials.
    Further, any documents made available pursuant to the 
Committee's subpoenas must not have any redactions. To fully 
and properly investigate the decisions made by Department 
officials during Fast and Furious, the Committee requires 
access to documents in their entirety. The Department has not 
complied with this requirement.
    The Committee does recognize the importance of privacy 
interests and other legitimate reasons the Department has for 
redacting portions of documents produced to the Committee. The 
Committee has attempted to accommodate the Department's stated 
concerns related to documents it believes are sensitive. The 
Committee intended to release 230 pages of documents in support 
of its July 26, 2011, report entitled The Department of 
Justice's Operation Fast and Furious: Fueling Cartel Violence, 
and gave the Department an opportunity to suggest its own 
redactions before the documents became public.\101\ These 
actions are consistent with the Committee's willingness to 
accommodate the Department's interests.
---------------------------------------------------------------------------
    \101\E-mail from Office of Leg. Affairs Staff, U.S. Dep't of 
Justice, to Staff, H. Comm. on Oversight and Gov't Reform (July 28, 
2011).
---------------------------------------------------------------------------

                            3. PRIVILEGE LOG

    Mindful of the Justice Department's prerogatives as an 
Executive Branch agency, the Committee has offered the 
opportunity for the Department to prepare a privilege log of 
documents responsive to the subpoena but withheld from 
production. A privilege log would outline the documents 
withheld and the specific grounds for withholding. Such a log 
would serve as the basis for negotiation between the Committee 
and the Department about prioritizing the documents for 
potential production.
    On January 31, 2012, Chairman Issa wrote to the Attorney 
General. He said:

          Should you choose to continue to withhold documents 
        pursuant to the subpoena, you must create a detailed 
        privilege log explaining why the Department is refusing 
        to produce each document. If the Department continues 
        to obstruct the congressional inquiry by not providing 
        documents and information, this Committee will have no 
        alternative but to move forward with proceedings to 
        hold you in contempt of Congress.\102\
---------------------------------------------------------------------------
    \102\Letter from Chairman Darrell Issa to Att'y Gen. Eric Holder 
(Jan. 31, 2012) [hereinafter Jan. 31 Letter].

    On February 14, 2012, Chairman Issa again wrote to the 
---------------------------------------------------------------------------
Attorney General. He said:

          We cannot wait any longer for the Department's 
        cooperation. As such please specify a date by which you 
        expected the Department to produce all documents 
        responsive to the subpoena. In addition, please specify 
        a Department representative who will interface with the 
        Committee for production purposes . . . This person's 
        primary responsibility should be to identify for the 
        Committee all documents the Department has determined 
        to be responsive to the subpoena but is refusing to 
        produce, and should provide a privilege log of the 
        documents delineating why each one is being withheld 
        from Congress. Please direct this individual to produce 
        this log to the Committee without further delay.\103\
---------------------------------------------------------------------------
    \103\Letter from Chairman Darrell Issa to Att'y Gen. Eric Holder 
(Feb. 14, 2012) (emphasis in original) [hereinafter Feb. 14 Letter].

    On several occasions, Committee staff has asked the 
Department to provide such a privilege log, including a 
listing, category-by-category, of documents the Department has 
located pursuant to the subpoena and the reason the Department 
will not produce those documents. Despite these requests, 
however, the Department has neither produced a privilege log 
nor responded to this aspect of Chairman Issa's letters of 
January 31, 2012, and February 14, 2012.
    The Department has not informed the Committee that it has 
been unable to locate certain documents. This suggests that the 
Department is not producing responsive documents in its 
possession. Since the Department will not produce a privilege 
log, it has failed to make a good faith effort to accommodate 
the Committee's legitimate oversight interests.

                    4. ASSERTIONS OF NON-COMPLIANCE

    The Committee's investigation into Operation Fast and 
Furious is replete with instances in which the Justice 
Department has openly acknowledged it would not comply with the 
Committee's requests. These pronouncements began with the March 
31, 2011, subpoena to the former Acting ATF Director, continued 
through the Committee's October 12, 2011, subpoena to the 
Attorney General, and persist to this day.

(a) March 31, 2011, Subpoena

    On March 16, 2011, Chairman Issa sent a letter to the then-
Acting ATF Director requesting documents about Fast and 
Furious.\104\ As part of this request, Chairman Issa asked for 
a ``list of individuals responsible for authorizing the 
decision to `walk' guns to Mexico in order to follow them and 
capture a `bigger fish.'''\105\ On the afternoon of March 30, 
2011, the deadline given in Chairman Issa's letter, Department 
staff participated in a conference call with Committee staff. 
During that call, Department staff expressed a lack of 
understanding over the meaning of the word ``list.''\106\ 
Department officials further informed Committee staff that the 
Department would not produce documents by the deadline and were 
uncertain when they would produce documents in the future. 
Committee staff understood this response to mean the Department 
did not intend to cooperate with the Committee's investigation.
---------------------------------------------------------------------------
    \104\Mar. 16 Letter, supra note 50.
    \105\Id.
    \106\Teleconference between Committee Staff and U.S. Dep't of 
Justice Office of Leg. Affairs Staff (Mar. 30, 2011).
---------------------------------------------------------------------------
    The next day Chairman Issa authorized a subpoena for the 
Acting ATF Director. The following day, the Department wrote to 
Chairman Issa. Assistant Attorney General Ronald Weich wrote:

          As you know, the Department has been working with the 
        Committee to provide documents responsive to its March 
        16 request to the Bureau of Alcohol, Tobacco, Firearms 
        and Explosives. Yesterday, we informed Committee staff 
        that we intended to produce a number of responsive 
        documents within the next week. As we explained, there 
        are some documents that we would be unable to provide 
        without compromising the Department's ongoing criminal 
        investigation into the death of Agent Brian Terry as 
        well as other investigations and prosecutions, but we 
        would seek to work productively with the Committee to 
        find other ways to be responsive to its needs.\107\
---------------------------------------------------------------------------
    \107\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Apr. 1, 2011).

    Despite the Department's stated intention to produce 
documents within the next week, it produced no documents for 
over two months, until June 10, 2011. In the interim, the 
Department made little effort to work with the Committee to 
define the scope of the documents required by the subpoena.
    On April 8, 2011, the Department wrote to Chairman Issa to 
inform the Committee that it had located documents responsive 
to the subpoena. Assistant Attorney General Weich wrote that 
the Department did not plan to share many of these materials 
with the Committee. His letter stated:

          To date, our search has located several law 
        enforcement sensitive documents responsive to the 
        requests in your letter and the subpoena. We have 
        substantial confidentiality interests in these 
        documents because they contain information about ATF 
        strategies and procedures that could be used by 
        individuals seeking to evade our law enforcement 
        efforts. We are prepared to make these documents, with 
        some redactions, available for review by Committee 
        staff at the Department. They will bear redactions to 
        protect information about ongoing criminal 
        investigations, investigative targets, internal 
        deliberations about law enforcement options, and 
        communications with foreign government representatives. 
        In addition, we notified Committee staff that we have 
        identified certain publicly available documents that 
        are responsive. While our efforts to identify 
        responsive documents are continuing, many of your 
        requests seek records relating to ongoing criminal 
        investigations. Based upon the Department's 
        longstanding policy regarding the confidentiality of 
        ongoing criminal investigations, we are not in a 
        position to disclose such documents, nor can we confirm 
        or deny the existence of records in our ongoing 
        investigative files. This policy is based on our strong 
        need to protect the independence and effectiveness of 
        our law enforcement efforts.\108\
---------------------------------------------------------------------------
    \108\Letter from Ass't Atty'y Gen. Ronald Weich to Chairman Darrell 
Issa (Apr. 8, 2011).

    The letter cited prior Department policy in support of its 
---------------------------------------------------------------------------
position of non-compliance:

          We are dedicated to holding Agent Terry's killer or 
        killers responsible through the criminal justice 
        process that is currently underway, but we are not in a 
        position to provide additional information at this time 
        regarding this active criminal investigation for the 
        reasons set forth above. . . .\109\
---------------------------------------------------------------------------
    \109\Id.

    On June 14, 2011, after the Department had produced 194 
pages of non-public documents pursuant to the subpoena, the 
Department informed the Committee that it was deliberately 
---------------------------------------------------------------------------
withholding certain documents:

          As with previous oversight matters, we have not 
        provided access to documents that contain detailed 
        information about our investigative activities where 
        their disclosure would harm our pending investigations 
        and prosecutions. This includes information that would 
        identify investigative subjects, sensitive techniques, 
        anticipated actions, and other details that would 
        assist individuals in evading our law enforcement 
        efforts. Our judgments begin with the premise that we 
        will disclose as much as possible that is responsive to 
        the Committee's interests, consistent with our 
        responsibilities to bring to justice those who are 
        responsible for the death of Agent Terry and those who 
        violate federal firearms laws.\110\
---------------------------------------------------------------------------
    \110\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Apr. 8, 2011).

    The June 14, 2011, letter arrived one day after the 
Committee held a hearing featuring constitutional experts 
discussing the legal obligations of the Department to comply 
with a congressional subpoena. The Department's letter did not 
address the views expressed at the hearing, instead reiterating 
its internal policy. The letter noted that the Department would 
not provide access to documents discussing its use of 
``sensitive techniques''--even though these techniques were 
central to the Committee's investigation.
    On July 5, 2011, Chairman Issa and Senator Grassley wrote 
to the Department about serious issues involving the lack of 
information sharing among Department components, in particular, 
between the FBI and DEA.\111\ These issues raised the 
possibility that the Department had been deliberately 
concealing information about Fast and Furious from the 
Committee, including the roles of its component agencies. The 
next day, the Department responded. It wrote:
---------------------------------------------------------------------------
    \111\Letter from Chairman Darrell Issa and Senator Charles Grassley 
to Att'y Gen. Eric Holder (July 5, 2011).

          Your letter raises concerns about the alleged role of 
        other agencies in matters that you say touch on 
        Operation Fast and Furious. Chairman Issa's staff 
        previously raised this issue with representatives of 
        the Department and it is my understanding that 
        discussions about whether and how to provide any such 
        sensitive law enforcement information have been 
        ongoing. . . .\112\
---------------------------------------------------------------------------
    \112\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa and Senator Charles Grassley (July 6, 2011).

    On July 11, 2011, Chairman Issa and Senator Grassley wrote 
to the FBI requesting information on the issue of information 
sharing within the Department. The letter included a request 
for information relating to the murder of Immigrations and 
Customs Enforcement Agent Jaime Zapata.\113\ On August 12, 
2011, the FBI responded. It wrote:
---------------------------------------------------------------------------
    \113\Mueller Letter, supra note 60.

          Your letter also asks for specific information 
        related to the crime scene and events leading to the 
        murder of ICE Agent Jaime Zapata in Mexico on February 
        15, 2011. As you know, crime scene evidence and the 
        circumstances of a crime are generally not made public 
        in an ongoing investigation. Furthermore, the 
        investigative reports of an ongoing investigation are 
        kept confidential during the investigation to preserve 
        the integrity of the investigation and to ensure its 
        successful conclusion. We regret that we cannot provide 
        more details about the investigation at this time, but 
        we need to ensure all appropriate steps are taken to 
        protect the integrity of the investigation.\114\
---------------------------------------------------------------------------
    \114\Letter from Stephen Kelley, Ass't Dir., FBI Office of 
Congressional Affairs, to Chairman Darrell Issa and Senator Charles 
Grassley (Aug. 12, 2011).

    The FBI did not provide any documents to the Committee 
regarding the information sharing issues raised, though it did 
offer to provide a briefing to staff. It delivered that 
briefing nearly two months later, on October 5, 2011.
    On October 11, 2011, the Department wrote to Chairman Issa. 
The Department stated:

          We believe that we have now substantially concluded 
        our efforts to respond to the Committee requests set 
        forth in the subpoena and the letter of June 8th.\115\
---------------------------------------------------------------------------
    \115\Oct. 11 Letter, supra note 57.

    The Department was well aware that the Committee was 
struggling to understand how the Department created its 
February 4, 2011, letter to Senator Grassley, which the 
Committee believed to contain false information. To that end, 
---------------------------------------------------------------------------
the Department stated:

          As we have previously explained to Committee staff, 
        we have also withheld internal communications that were 
        generated in the course of the Department's effort to 
        respond to congressional and media inquiries about 
        Operation Fast and Furious. These records were created 
        in 2011, well after the completion of the investigative 
        portion of Operation Fast and Furious that the 
        Committee has been reviewing and after the charging 
        decisions reflected in the January 25, 2011, 
        indictments. Thus, they were not part of the 
        communications regarding the development and 
        implementation of the strategy decisions that have been 
        the focus of the Committee's inquiry. It is 
        longstanding Executive Branch practice not to disclose 
        documents falling into this category because disclosure 
        would implicate substantial Executive Branch 
        confidentiality interests and separation of powers 
        principles. Disclosure would have a chilling effect on 
        agency officials' deliberations about how to respond to 
        inquiries from Congress or the media. Such a chill on 
        internal communications would interfere with our 
        ability to respond as effectively and efficiently as 
        possible to congressional oversight requests.\116\
---------------------------------------------------------------------------
    \116\Id.

    The next day, the Committee issued a subpoena to Attorney 
General Holder.

(b) October 12, 2011, Subpoena

    On October 31, 2011, the Department produced its first 
batch of documents pursuant to the Committee's October 12, 
2011, subpoena.\117\ This production consisted of 652 pages. Of 
these 652 pages, 116 were about the Kingery case, a case that 
the Department wanted to highlight in an attempt to discredit 
some of the original Fast and Furious whistleblowers. Twenty-
eight additional pages were about an operation from the prior 
administration, the Hernandez case, and 245 pages were about 
another operation from the prior administration, Operation Wide 
Receiver.
---------------------------------------------------------------------------
    \117\Oct. 31 Letter, supra note 59.
---------------------------------------------------------------------------
    Although the subpoena covered documents from the Hernandez 
and Wide Receiver cases, their inclusion into the first 
production batch under the subpoena was indicative of the 
Department's strategy in responding to the subpoena. The 
Department briefed the press on these documents at the same 
time as it produced them to the Committee. The Department 
seemed more interested in spin control than in complying with 
the congressional subpoena. Sixty percent of the documents in 
this first production were related to either Kingery, 
Hernandez, or Wide Receiver, and therefore, unrelated to the 
gravamen of the Committee's investigation into Fast and 
Furious.
    On December 2, 2011, shortly before the Attorney General's 
testimony before the House Judiciary Committee, the Department 
produced 1,364 pages of documents pertaining to the creation of 
its February 4, 2011, letter.\118\ Despite its statements in 
the October 11, 2011, letter, the Department, through a letter 
from Deputy Attorney General James Cole, publicly admitted 
under pressure its obvious misstatements, formally 
acknowledging that the February 4, 2011, letter ``contains 
inaccuracies.''\119\
---------------------------------------------------------------------------
    \118\Letter from Deputy Att'y Gen. James Cole to Chairman Darrell 
Issa and Senator Charles Grassley (Dec. 2, 2011).
    \119\Id.
---------------------------------------------------------------------------
    On December 13, 2011, on the eve of the Committee's 
interview with Gary Grindler, Chief of Staff to the Attorney 
General, the Department produced 19 pages of responsive 
documents.\120\
---------------------------------------------------------------------------
    \120\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa and Senator Charles Grassley (Dec. 13, 2011).
---------------------------------------------------------------------------
    On January 5, 2012, the Department produced 482 pages of 
documents responsive to the subpoena.\121\ Of these 482 pages, 
304 of them, or 63 percent, were related to the Wide Receiver 
case. This production brought the total number of pages 
produced pursuant to Wide Receiver to 549, nearly 100 more than 
the Department had produced at that time regarding Fast and 
Furious in three document productions.
---------------------------------------------------------------------------
    \121\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Jan. 5, 2012).
---------------------------------------------------------------------------
    On January 27, 2012, the Department produced 486 pages of 
documents pursuant to the October 12, 2011, subpoena.\122\ In 
its cover letter, the Department stated, ``[t]he majority of 
materials produced today are responsive to items 7, 11 and 12 
of your October 11 subpoena.'' There are no documents in the 
production, however, responsive to items 7(b) or 11(b)(i-v). 
The Department wrote in its January 27 cover letter:
---------------------------------------------------------------------------
    \122\Cole Letter, supra note 37.

          We are producing or making available for review 
        materials that are responsive to these items, most of 
        which pertain to the specific investigations that we 
        have already identified to the Committee. We are not, 
        however, providing materials pertaining to other 
        matters, such as documents regarding ATF cases that do 
        not appear to involve the inappropriate tactics under 
        review by the Committee; non-ATF cases, except for 
        certain information relating to the death of Customs 
        and Border Protection Agent Brian Terry; administrative 
        matters; and personal records.\123\
---------------------------------------------------------------------------
    \123\Id.

    The Department refused to produce documents pursuant to the 
subpoena regarding investigations that it had not previously 
specified to the Committee, or investigations that ``do not 
appear'' to involve inappropriate tactics. In doing so, the 
Department made itself the sole arbiter of the Committee's 
investigative interests, as well as of the use of 
``inappropriate'' tactics. The Department has prevented 
Congress from executing its constitutionally mandated oversight 
function, preferring instead to self-regulate.
    The October 12, 2011, subpoena, however, covers all 
investigations in which ATF failed to interdict weapons that 
had been illegally purchased or transferred--not just those 
cases previously identified by the Department. The subpoena 
does not give the Department the authority to define which 
tactics are inappropriate. Rather, the language in sections 4 
and 5 of the subpoena schedule is clear. The Department's 
refusal to cooperate on this front and only produce documents 
about investigations that it had previously identified--
documents that support the Department's press strategy--is in 
violation of its obligation to cooperate with congressional 
oversight.
    On January 31, 2012, Chairman Issa again wrote to the 
Attorney General, this time asking that the Department produce 
all documents pursuant to the subpoena by February 9, 
2012.\124\ The following day, the Department responded. It 
stated:
---------------------------------------------------------------------------
    \124\Jan. 31 Letter, supra note 102.

          Your most recent letter asks that we complete the 
        production process under the October 11, 2011, subpoena 
        by February 9, 2012. The broad scope of the Committee's 
        requests and the volume or material to be collected, 
        processed and reviewed in response make it impossible 
        to meet that deadline, despite our good faith efforts. 
        We will continue in good faith to produce materials, 
        but it simply will not be possible to finish the 
        collection, processing and review of materials by the 
        date sought in your most recent letter.\125\
---------------------------------------------------------------------------
    \125\Letter from Deputy Att'y Gen. James Cole to Chairman Darrell 
Issa (Feb. 1, 2012) [hereinafter Feb. 1 Letter].

    Yet, as discussed in Section V.B above, the Department was 
acutely aware in October 2011, approximately three months 
earlier, exactly what categories of documents the Committee was 
seeking. In response to the subpoena, the Department had, up to 
February 1, 2012, produced more documents relating to a single 
operation years before Fast and Furious even began than it had 
relating to Operation Fast and Furious itself.
    On February 16, 2012, the Department produced 304 pages of 
documents pursuant to the subpoena.\126\ The production 
included nearly 60 pages of publicly available and previously 
produced information, as well as other documents previously 
produced to the Committee.
---------------------------------------------------------------------------
    \126\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Feb. 16, 2012) [hereinafter Feb. 16 Letter].
---------------------------------------------------------------------------
    On February 27, 2012, the Department produced eight pages 
pursuant to the subpoena.\127\ These eight pages, given to the 
Committee by a whistleblower ten months earlier, were produced 
only because a transcribed interview with a former Associate 
Deputy Attorney General was to take place the next day.
---------------------------------------------------------------------------
    \127\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Feb. 27, 2012).
---------------------------------------------------------------------------
    On March 2, 2012, the Department produced 26 pages of 
documents pursuant to the October 12, 2011, subpoena.\128\ Five 
of these documents were about the Kingery case. Fourteen 
documents--over half of the production--related to Wide 
Receiver. Seven pages were duplicate copies of a press release 
already produced to the Committee.
---------------------------------------------------------------------------
    \128\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (Mar. 2, 2012).
---------------------------------------------------------------------------
    On March 16, 2012, the Department produced 357 pages of 
documents pursuant to the subpoena. Three hundred seven of 
these pages, or 86 percent, related to the Hernandez and 
Medrano cases from the prior Administration. Twenty other pages 
had been previously produced by the Department, and seven pages 
were publicly available on the Justice Department's website.
    On April 3, 2012, the Department produced 116 pages of 
documents pursuant to the subpoena. Forty four of these pages, 
or 38 percent, related to cases other than Fast and Furious. On 
April 19, 2012, the Department produced 188 pages of documents 
pursuant to the subpoena.
    On May 15, 2012, the Department produced 29 pages of 
documents pursuant to the subpoena. Ten of these pages, or 36 
percent, related to cases other than Fast and Furious.
    The Department has produced a total of 6,988 pages to the 
Committee to date.\129\ Though the Department recently stated 
that it has ``provided documents to the Committee at least 
twice every month since late last year,'' the Department has 
not produced any documents to the Committee in over 30 
days.\130\
---------------------------------------------------------------------------
    \129\The most recent production by the Department, on May 15, 2012, 
ended with Bates number HOGR 006988.
    \130\May 15 Cole Letter, supra note 69.
---------------------------------------------------------------------------

(c) Post-February 4, 2011, Documents

    Many of the documents the October 12, 2011, subpoena 
requires were created or produced after February 4, 2011. The 
Department first responded to Congress about Fast and Furious 
on this date. The Department has steadfastly refused to make 
any documents created after February 4, 2011, available to the 
Committee.
    The Department's actions following the February 4, 2011, 
letter to Senator Grassley are crucial in determining how it 
responded to the serious allegations raised by the 
whistleblowers. The October 12, 2011, subpoena covers documents 
that would help Congress understand what the Department knew 
about Fast and Furious, including when and how it discovered 
its February 4 letter was false, and the Department's efforts 
to conceal that information from Congress and the public. Such 
documents would include those relating to actions the 
Department took to silence or retaliate against Fast and 
Furious whistleblowers and to find out what had happened, and 
how the Department assessed the culpability of those involved 
in the program.
    The Attorney General first expressed the Department's 
position regarding documents created after February 4, 2011, in 
his testimony before the House Judiciary Committee on December 
8, 2011. In no uncertain terms, he stated:

          [W]ith regard to the Justice Department as a whole--
        and I'm certainly a member of the Justice Department--
        we will not provide memos after February the 4th . . . 
        e-mails, memos--consistent with the way in which the 
        Department of Justice has always conducted itself in 
        its interactions.\131\
---------------------------------------------------------------------------
    \131\Oversight Hearing on the United States Department of Justice: 
Hearing Before the H. Comm. on the Judiciary, 112th Cong. (Dec. 8, 
2011) (Test. of Hon. Eric H. Holder, Jr., Att'y Gen. of the U.S.).

    He again impressed this point upon Committee Members later 
---------------------------------------------------------------------------
in the hearing:

          Well, with the regard to provision of e-mails, I 
        thought I've made it clear that after February the 4th 
        it is not our intention to provide e-mail information 
        consistent with the way in which the Justice Department 
        has always conducted itself.\132\
---------------------------------------------------------------------------
    \132\Id.

    The Department reiterated this position less than a week 
later in a December 14, 2011, transcribed interview of Gary 
Grindler, the Attorney General's Chief of Staff. Department 
counsel broadened the Department's position with respect to 
sharing documents created after February 4, 2011, in refusing 
to allow Grindler to answer any questions relating to 
conversations that he had with anyone in the Department 
regarding Fast and Furious after February 4, 2011. Grindler 
---------------------------------------------------------------------------
stated:

          What I am saying is that the Attorney General made it 
        clear at his testimony last week that we are not 
        providing information to the committee subsequent to 
        the February 4th letter.\133\
---------------------------------------------------------------------------
    \133\Transcribed Interview of Gary Grindler, Chief of Staff to the 
Att'y Gen., at 22 (Dec. 14, 2011) [hereinafter Grindler Tr.].

Department counsel expanded the position the Attorney General 
articulated regarding documentary evidence at the House 
Judiciary Committee hearing to include testimonial evidence as 
well.\134\ Given the initial response by the Department to the 
congressional inquiry into Fast and Furious, the comments by 
Department counsel created a barrier preventing Congress from 
obtaining vital information about Fast and Furious.
---------------------------------------------------------------------------
    \134\Id.
---------------------------------------------------------------------------
    The Department has maintained this position during 
additional transcribed interviews. In an interview with Deputy 
Assistant Attorney General Jason Weinstein on January 10, 2012, 
Department counsel prohibited him from responding to an entire 
line of questioning about his interactions with the Arizona 
U.S. Attorney's Office because it ``implicates the post-
February 4th period.''\135\
---------------------------------------------------------------------------
    \135\Transcribed Interview of Jason Weinstein, Deputy Ass't Att'y 
Gen. at 177 (Jan. 10, 2012).
---------------------------------------------------------------------------
    Understanding the post-February 4th period is critical to 
the Committee's investigation. Furthermore, documents from this 
period are responsive to the October 12, 2011, subpoena. For 
example, following the February 4, 2011, letter, Jason 
Weinstein, at the behest of Assistant Attorney General Breuer, 
prepared an analytical review of Fast and Furious.\136\ 
Weinstein interviewed Emory Hurley and Patrick Cunningham of 
the Arizona U.S. Attorney's office as part of this review.\137\ 
The document that resulted from Weinstein's analysis 
specifically discussed issues relevant to the Committee's 
inquiry. To date, the Department has not produced documents 
related to Weinstein's review to the Committee.
---------------------------------------------------------------------------
    \136\Transcribed Interview of Dennis K. Burke at 158-60 (Dec. 13, 
2011).
    \137\Id. at 158-59.
---------------------------------------------------------------------------
    Chairman Issa has sent several letters urging the 
Department to produce documents pertaining to the Fast and 
Furious from the post-indictment period, and raising the 
possibility of contempt if the Attorney General chose not to 
comply. Initially, the Department refused to produce any 
documents created after January 25, 2011, the date that the 
case was unsealed. On November 9, 2011, Chairman Issa wrote to 
the Department:

          Over the past six months, Senator Grassley and I have 
        asked for this information on many occasions, and each 
        time we have been told it would not be produced. This 
        information is covered by the subpoena served on the 
        Attorney General on October 12, 2011, and I expect it 
        to be produced no later than Wednesday, November 16, at 
        5:00 p.m. Failure to comply with this request will 
        leave me with no other alternative than the use of 
        compulsory process to obtain your testimony under oath.

           *       *       *       *       *       *       *

          Understanding the Department's actions after Congress 
        started asking questions about Fast and Furious is 
        crucial. As you know, substantial effort was expended 
        to hide the actions of the Department from Congress . . 
        . I expect nothing less than full compliance with all 
        aspects of the subpoena, including complete production 
        of documents created after the indictments were 
        unsealed on January 25, 2011.\138\
---------------------------------------------------------------------------
    \138\Letter from Chairman Darrell Issa to Ass't Att'y Gen. Ronald 
Weich (Nov. 9, 2011).

    On December 2, 2011, the Department produced documents 
pertaining to its February 4, 2011, response to Senator 
Grassley. When the Attorney General testified before Congress 
on December 8, 2011, he created a new cutoff date of February 
4, 2011, after which no documents would be produced to 
Congress, despite the fact that such documents were covered by 
the October 12, 2011, subpoena. In support of this position 
regarding post-February 4, 2011, documents, in transcribed 
interviews, Department representatives have asserted a 
``separation of powers'' privilege without further explanation 
or citation to legal authority.\139\ The Department has not 
cited any legal authority to support this new, extremely broad 
assertion of privilege.
---------------------------------------------------------------------------
    \139\See, e.g., Grindler Tr. at 22.
---------------------------------------------------------------------------
    On January 31, 2012, Chairman Issa wrote to the Attorney 
General about this new, arbitrary date created by the 
Department, and raised the possibility of contempt:

          In short, the Committee requires full compliance with 
        all aspects of the subpoena, including complete 
        production of documents created after the Department's 
        February 4, 2011, letter. . . . If the Department 
        continues to obstruct the congressional inquiry by not 
        providing documents and information, this Committee 
        will have no alternative but to move forward with 
        proceedings to hold you in contempt of Congress.\140\
---------------------------------------------------------------------------
    \140\Jan. 31 Letter, supra note 102.

---------------------------------------------------------------------------
    The Department responded the following day. It said:

          To the extent responsive materials exist that post-
        date congressional review of this matter and were not 
        generated in that context or to respond to media 
        inquiries, and likewise do not implicate other 
        recognized Department interests in confidentiality (for 
        example, matters occurring before a grand jury, 
        investigative activities under seal or the disclosure 
        of which is prohibited by law, core investigative 
        information, or matters reflecting internal Department 
        deliberations), we intend to provide them.\141\
---------------------------------------------------------------------------
    \141\Feb. 1 Letter, supra note 125.

    The Department quoted from its October 11, 2011, letter, 
---------------------------------------------------------------------------
stating:

          [A]s we have previously explained to Committee staff, 
        we have also withheld internal communications that were 
        generated in the course of the Department's effort to 
        respond to congressional and media inquiries about 
        Operation Fast and Furious. These records were created 
        in 2011, well after the completion of the investigative 
        portion of Operation Fast and Furious that the 
        Committee has been reviewing and after the charging 
        decisions reflected in the January 25, 2011, 
        indictments. Thus, they were not part of the 
        communications regarding the development and 
        implementation of the strategy decisions that have been 
        the focus of the Committee's inquiry. It is 
        longstanding Executive Branch practice not to disclose 
        documents falling into this category because disclosure 
        would implicate substantial Executive Branch 
        confidentiality interests and separation of powers 
        principles. Disclosure would have a chilling effect on 
        agency officials' deliberations about how to respond to 
        inquiries from Congress or the media. Such a chill on 
        internal communications would interfere with our 
        ability to respond as effectively and efficiently as 
        possible to congressional oversight requests.\142\
---------------------------------------------------------------------------
    \142\Id.

    On February 14, 2012, Chairman Issa again wrote to the 
Department regarding post-February 4, 2011, documents, and 
---------------------------------------------------------------------------
again raised the possibility of contempt:

          Complying with the Committee's subpoena is not 
        optional. Indeed, the failure to produce documents 
        pursuant to a congressional subpoena is a violation of 
        federal law. The Department's letter suggests that its 
        failure to produce, among other things, ``deliberative 
        documents and other internal communications generated 
        in response to congressional oversight requests'' is 
        based on the premise that ``disclosure would compromise 
        substantial separation of powers principles and 
        Executive Branch confidentiality interests.'' Your 
        February 4, 2011, cut-off date of providing documents 
        to the Committee is entirely arbitrary, and comes from 
        a ``separation of powers'' privilege that does not 
        actually exist.
          You cite no legal authority to support your new, 
        extremely broad assertion. To the contrary, as you 
        know, Congress possesses the ``power of inquiry.'' 
        Furthermore, ``the issuance of a subpoena pursuant to 
        an authorized investigation is . . . an indispensable 
        ingredient of lawmaking.'' Because the Department has 
        not cited any legal authority as the basis for 
        withholding documents, or provided the Committee with a 
        privilege log with respect to documents withheld, its 
        efforts to accommodate the Committee's constitutional 
        obligation to conduct oversight of the Executive Branch 
        are incomplete.\143\
---------------------------------------------------------------------------
    \143\Feb. 14 Letter, supra note 103.

           *       *       *       *       *       *       *

---------------------------------------------------------------------------
          Please specify a date by which you expect the 
        Department to produce all documents responsive to the 
        subpoena. In addition, please specify a Department 
        representative who will interface with the Committee 
        for production purposes. This individual should also 
        serve as the conduit for dealing with possible contempt 
        proceedings, should the Department continue to ignore 
        the Committee's subpoena.\144\
---------------------------------------------------------------------------
    \144\Id (emphasis in original).

    On February 16, 2012, the Department responded. The 
response did not address the post-February 4, 2011, documents, 
nor did it address the possibility of contempt. The 
---------------------------------------------------------------------------
Department's letter stated:

          We have produced documents to the Committee on a 
        rolling basis; since late last year these productions 
        have occurred approximately twice a month. It is our 
        intent to adhere to this rolling production schedule 
        until we have completed the process of producing all 
        responsive documents to which the Committee is 
        entitled, consistent with the longstanding policies of 
        the Executive Branch across administrations of both 
        parties. Moreover, we intend to send a letter soon 
        memorializing our discussions with your staff about the 
        status of our production of documents within the 
        various categories of the subpoena.
          Our efforts to cooperate with the Committee have been 
        a significant undertaking, involving a great deal of 
        hard work by a large number of Department employees. 
        The Department has been committed to providing the 
        documents and information necessary to allow the 
        Committee to satisfy its core oversight interests 
        regarding the use of inappropriate tactics in Fast and 
        Furious.

    The Department, however, has yet to produce any documents 
pursuant to the subpoena created after February 4, 2011. 
Despite warnings by Chairman Issa that the Committee would 
initiate contempt if the Department failed to comply with the 
subpoena, the Department has refused to produce documents.

(d) Interview Requests

    In addition to the October 12, 2011, subpoena, the 
Committee has requested to interview key individuals in 
Operation Fast and Furious and related programs. The Committee 
accommodated the Department's request to delay an interview 
with Hope MacAllister, the lead case agent for Operation Fast 
and Furious, despite her vast knowledge of the program. The 
Committee agreed to this accommodation due to the Department's 
expressed concern about interviewing a key witness prior to 
trial.
    Throughout the investigation, the Department has had an 
evolving policy with regard to witnesses that excluded ever-
broader categories of witnesses from participating in volunteer 
interviews. The Department first refused to allow line 
attorneys to testify in transcribed interviews, and then it 
prevented first-line supervisors from testifying. Next, the 
Department refused to make Senate-confirmed Department 
officials available for transcribed interviews. One such 
Senate-confirmed official, Assistant Attorney General Lanny 
Breuer, is a central focus in the Committee's investigation. On 
February 16, 2012, the Department retreated somewhat from its 
position, noting in a letter to the Committee that it was 
``prepared to work with [the Committee] to find a mutually 
agreeable date for [Breuer] to appear and answer the 
Committee's questions, whether or not that appearance is 
public.''\145\ The Department has urged the Committee to 
reconsider this interview request.
---------------------------------------------------------------------------
    \145\Feb. 16 Letter, supra note 126.
---------------------------------------------------------------------------
    While the Department has facilitated a dozen interviews to 
avoid compulsory depositions, there have been several instances 
in which the Department has refused to cooperate with the 
Committee in scheduling interviews. The Department has stated 
that it would not make available certain individuals that the 
Committee has requested to interview. On December 6, 2011, the 
Department wrote:

          We would like to defer any final decisions about the 
        Committee's request for Mr. Swartz's interview until we 
        have identified any responsive documents, some of which 
        may implicate equities of another agency. The remaining 
        employees you have asked to interview are all career 
        employees who are either line prosecutors or first- or 
        second-level supervisors. James Trusty and Michael 
        Morrissey were first-level supervisors during the time 
        period covered by the Fast and Furious investigation, 
        and Kevin Carwile was a second-level supervisor. The 
        remaining three employees you have asked to interview--
        Emory Hurley, Serra Tsethlikai, and Joseph Cooley--are 
        line prosecutors. We are not prepared to make any of 
        these attorneys available for interviews.\146\
---------------------------------------------------------------------------
    \146\Dec. 6 Letter, supra note 64.

    The Department did, however, make Patrick Cunningham, Chief 
of the Criminal Division for the U.S. Attorney's Office in 
Arizona, available for an interview. The Committee had been 
requesting to interview Cunningham since summer 2011. The 
Department finally allowed access to Cunningham for an 
interview in December 2011. Cunningham chose to retain private 
counsel instead of Department counsel. On January 17, 2012, 
Cunningham canceled his interview scheduled for the Committee 
on January 19, 2012.
    Chairman Issa issued a subpoena to Cunningham to appear for 
a deposition on January 24, 2012. In a letter dated January 19, 
2012, Cunningham's counsel informed the Committee that 
Cunningham would ``assert his constitutional privilege not to 
be compelled to be a witness against himself.''\147\ On January 
24, 2012, Chairman Issa wrote to the Attorney General to 
express that the absence of Cunningham's testimony would make 
it ``difficult to gauge the veracity of some of the 
Department's claims'' regarding Fast and Furious.\148\
---------------------------------------------------------------------------
    \147\Letter from Tobin Romero, Williams & Connolly LLP, to Chairman 
Darrell Issa (Jan. 19, 2012).
    \148\Letter from Chairman Darrell Issa to Att'y Gen. Eric Holder 
(Jan. 24, 2012).
---------------------------------------------------------------------------
    On January 27, 2012, Cunningham left the Department of 
Justice. After months of Committee requests, the Department 
finally made him available for an interview just before he left 
the Department. The actions of the Department in delaying the 
interview and Cunningham's own assertion of the Fifth Amendment 
privilege delayed and denied the Committee the benefit of his 
testimony.

                   5. FAILURE TO TURN OVER DOCUMENTS

    The Department has failed to turn over any documents 
pertaining to three main categories contained in the October 
12, 2011, subpoena.

(a) Who at Justice Department Headquarters Should Have Known of the 
        Reckless Tactics

    The Committee is seeking documents relating to who had 
access to information about the objectionable tactics used in 
Operation Fast and Furious, who approved the use of these 
tactics, and what information was available to those 
individuals when they approved the tactics. Documents that 
whistleblowers have provided to the Committee indicate that 
those officials were the senior officials in the Criminal 
Division, including Lanny Breuer and one of his top deputies, 
Jason Weinstein.
    Documents in this category include those relating to the 
preparation of the wiretap applications, as well as certain 
ATF, DEA, and FBI Reports of Investigation. Key decision makers 
at Justice Department headquarters relied on these and other 
documents to approve the investigation.

(b) How the Department Concluded that Fast and Furious was 
        ``Fundamentally Flawed''

    The Committee requires documents from the Department 
relating to how officials learned about whistleblower 
allegations and what actions they took as a result. The 
Committee is investigating not just management of Operation 
Fast and Furious, but also the Department's efforts to slow and 
otherwise interfere with the Committee's investigation.
    For months after the congressional inquiry began, the 
Department refused to acknowledge that anything improper 
occurred during Fast and Furious. At a May 5, 2011, meeting 
with Committee staff, a Department representative first 
acknowledged that ``there's a there, there.'' The Attorney 
General acknowledged publicly that Fast and Furious was 
``fundamentally flawed'' on October 7, 2011. On December 2, 
2011, the Department finally admitted that its February 4, 
2011, letter to Senator Grassley contained false information--
something Congress had been telling the Department for over 
seven months.
    Documents in this category include those that explain how 
the Department responded to the crisis in the wake of the death 
of U.S. Border Patrol Agent Brian Terry. These documents will 
reveal when the Department realized it had a problem, and what 
actions it took to resolve that problem. These documents will 
also show whether senior Department officials were surprised to 
learn that gunwalking occurred during Fast and Furious, or if 
they already knew that to be the case. These documents will 
also identify who at the Department was responsible for 
authorizing retaliation against the whistleblowers. The 
documents may also show the Department's assignment of 
responsibility to officials who knew about the reckless conduct 
or were negligent during Fast and Furious.

(c) How the Inter-Agency Task Force Failed

    The Organized Crime Drug Enforcement Task Force (OCDETF) 
program was created to coordinate inter-agency information 
sharing. As early as December 2009, the DEA shared information 
with ATF that should have led to arrests and the identification 
of the gun trafficking network that Fast and Furious sought to 
uncover. The Committee has received information suggesting 
that, after arrests were made one year later, ATF discovered 
that two Mexican drug cartel associates at the top of the Fast 
and Furious network had been designated as national security 
assets by the FBI, and at times have been paid FBI informants. 
Because of this cooperation, these associates are considered by 
some to be unindictable.
    Documents in this category will reveal the extent of the 
lack of information-sharing among DEA, FBI, and ATF. Although 
the Deputy Attorney General is aware of this problem, he has 
expressed little interest in resolving it.

             VI. ADDITIONAL ACCOMMODATIONS BY THE COMMITTEE

    As discussed above in Section V.C.5, the Department has 
failed to turn over any documents responsive to three main 
categories covered by the October 12, 2011, subpoena:
          (a) Who at Justice Department Headquarters Should 
        Have Known of the Reckless Tactics;
          (b) How the Department Concluded that Fast and 
        Furious was ``Fundamentally Flawed''; and,
          (c) How the Inter-Agency Task Force Failed.
    The Committee notified the Justice Department on multiple 
occasions that its failure to produce any documents responsive 
to these three categories would force the Committee to begin 
contempt proceedings against the Attorney General.
    On May 18, 2012, Chairman Issa, along with Speaker John 
Boehner, Majority Leader Eric Cantor, and Majority Whip Kevin 
McCarthy, wrote a letter to the Attorney General. As an 
accommodation to the Department, the letter offered to narrow 
the scope of documents the Department needed to provide in 
order to avoid contempt proceedings.\149\ Documents in category 
(c) are outside the scope of the narrowed request, and so the 
Department no longer needed to produce them to avoid contempt 
proceedings, even though such documents are covered by the 
October 12, 2011, subpoena.
---------------------------------------------------------------------------
    \149\Letter from Speaker John Boehner et al. to Att'y Gen. Eric 
Holder (May 18, 2012).
---------------------------------------------------------------------------
    The Committee also obtained copies of wiretap applications 
authorized by senior Department officials during Operation Fast 
and Furious. These documents, given to the Committee by 
whistleblowers, shined light on category (a). Still, many 
subpoenaed documents under this category have been deliberately 
withheld by the Department. These documents are critical to 
understanding who is responsible for failing to promptly stop 
Fast and Furious. The Department has cited such documents as 
``core investigative'' materials that pertain to ``pending law 
enforcement matters.''\150\ To accommodate the Department's 
interest in successfully prosecuting criminal defendants in 
this case, the Committee is willing to accept production of 
these documents after the current prosecutions of the 20 straw 
purchasers indicted in January 2011, have concluded at the 
trial level. This deferment should in no way be interpreted as 
the Committee ceding its legitimate right to receive these 
documents, but instead solely as an accommodation meant to 
alleviate the Department's concerns about preserving the 
integrity of the ongoing prosecutions.
---------------------------------------------------------------------------
    \150\May 15 Cole Letter, supra note 69.
---------------------------------------------------------------------------
    In addition to deferring production of category (a) 
documents, the Committee is also willing to view these 
documents in camera with limited redactions. These 
accommodations represent a significant commitment on the part 
of the Committee to negotiating in good faith to avoid 
contempt.
    Unlike documents in category (a), the Department has no 
legitimate interest in limiting the Committee's access to 
documents in category (b). On February 4, 2011, the Department 
wrote a letter to Congress categorically denying that 
gunwalking had occurred. This letter was false. Still, it was 
not withdrawn until December 2011. The Committee has a right to 
know how the Department learned that gunwalking did in fact 
occur, and how it handled the fallout internally. The 
deliberative process privilege is not recognized by Congress as 
a matter of law and precedent. By sending a letter that 
contained false and misleading statements, the Department 
forfeited any reasonable expectation that the Committee would 
accommodate its interest in withholding deliberative process 
documents.
    On June 20, 2012, minutes before the start of the 
Committee's meeting to consider a resolution holding the 
Attorney General in contempt, the Committee received a letter 
from Deputy Attorney General James Cole claiming that the 
President asserted executive privilege over certain documents 
covered by the subpoena. The Committee has a number of concerns 
about the validity of this assertion:
          1. The assertion was transparently not a valid claim 
        of privilege given its last minute nature;
          2. The assertion was obstructive given that it could 
        have and should have been asserted months ago, but was 
        not until literally the day of the contempt mark-up;
          3. The assertion is eight months late. It should have 
        been made by October 25, 2011, the subpoena return 
        date;
          4. To this moment, the President himself has not 
        indicated that he is asserting executive privilege;
          5. The assertion is transparently invalid in that it 
        is not credible that every document withheld involves a 
        ``communication[ ] authored or solicited and received 
        by those members of an immediate White House adviser's 
        staff who have broad and significant responsibility for 
        investigating and formulating the advice to be given 
        the President on the particular matter to which the 
        communications relate,'';\151\
---------------------------------------------------------------------------
    \151\In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir 1997).
---------------------------------------------------------------------------
          6. The assertion is transparently invalid where the 
        Justice Department has provided no details by which the 
        Committee might evaluate the applicability of the 
        privilege, such as the senders and recipients of the 
        documents;
          7. Even if the privilege were valid as an initial 
        matter, which it is not, it certainly has been overcome 
        here, as: (i) the Committee has demonstrated a 
        sufficient need for the documents as they are likely to 
        contain evidence important to the Committee's inquiry 
        and (ii) the documents sought cannot be obtained any 
        other way. The Committee has spent 16 months 
        investigating, talking to dozens of individuals, and 
        collecting documents from many sources. The remaining 
        documents are ones uniquely in the possession of the 
        Justice Department; and,
          8. Without these documents, the Committee's important 
        legislative work will continue to be stymied. The 
        documents are necessary to evaluate what government 
        reform is necessary within the Justice Department to 
        avoid the problems uncovered by the investigation in 
        the future.

    The President has now asserted executive privilege. This 
assertion, however, does not change the fact that Attorney 
General Eric Holder Jr. is in contempt of Congress today for 
failing to turn over lawfully subpoenaed documents explaining 
the Department's role in withdrawing the false letter it sent 
to Congress.

                VII. HISTORICAL PERSPECTIVES ON CONTEMPT

    Contempt proceedings in Congress date back over 215 years. 
These proceedings provide Congress a valuable mechanism for 
adjudicating its interests. Congressional history is replete 
with examples of the pursuit of contempt proceedings by House 
committees when faced with strident resistance to their 
constitutional authority to exercise investigative power.

                     A. Past Instances of Contempt

    Congress first exercised its contempt authority in 1795 
when three Members of the House charged two businessmen, Robert 
Randall and Charles Whitney, with offering bribes in exchange 
for the passage of legislation granting Randall and his 
business partners several million acres bordering Lake 
Erie.\152\ This first contempt proceeding began with a 
resolution by the House deeming the allegations were adequate 
``evidence of an attempt to corrupt,'' and the House reported a 
corresponding resolution that was referred to a special 
committee.\153\ The special committee reported a resolution 
recommending formal proceedings against Randall and Whitney 
``at the bar of the House.''\154\
---------------------------------------------------------------------------
    \152\Todd Garvey & Alissa M. Dolan, Congressional Research Service, 
Congress's Contempt Power: Law, History, Practice, & Procedure, no. 
RL34097, Apr. 15, 2008 [hereinafter CRS Contempt Report].
    \153\Id.
    \154\Id.
---------------------------------------------------------------------------
    The House adopted the committee resolution which laid out 
the procedure for the contempt proceeding. Interrogatories were 
exchanged, testimony was received, Randall and Whitney were 
provided counsel, and at the conclusion, on January 4, 1796, 
the House voted 78-17 to adopt a resolution finding Randall 
guilty of contempt.\155\ As punishment Randall was ``ordered [ 
] to be brought to the bar, reprimanded by the Speaker, and 
held in custody until further resolution of the House.''\156\ 
Randall was detained until January 13, 1796, when the House 
passed a resolution discharging him.\157\ In contrast, Whitney 
``was absolved of any wrongdoing,'' since his actions were 
against a ``member-elect'' and occurred ``away from the seat of 
government.''\158\
---------------------------------------------------------------------------
    \155\Id.
    \156\Id.
    \157\Id.
    \158\Id.: quoting Asher C. Hinds, Precedents of the House of 
Representatives, Sec. 1603 (1907).
---------------------------------------------------------------------------
    Congressional records do not demonstrate any question or 
hesitation regarding whether Congress possesses the power to 
hold individuals in contempt.\159\ Moreover, there was no 
question that Congress could punish a non-Member for 
contempt.\160\ Since the first contempt proceeding, numerous 
congressional committees have pursued contempt against 
obstinate administration officials as well as private citizens 
who failed to cooperate with congressional investigations.\161\ 
Since the first proceeding against Randall and Whitney, House 
committees, whether standing or select, have served as the 
vehicle used to lay the foundation for contempt proceedings in 
the House.\162\
---------------------------------------------------------------------------
    \159\Id.
    \160\Id. at 5.
    \161\Id. at 6.
    \162\Id. at 14.
---------------------------------------------------------------------------
    On August 3, 1983, the House passed a privileged resolution 
citing Environmental Protection Agency Administrator Anne 
Gorsuch Burford with contempt of Congress for failing to 
produce documents to a House subcommittee pursuant to a 
subpoena.\163\ This was the first occasion the House cited a 
cabinet-level executive branch member for contempt of 
Congress.\164\ A subsequent agreement between the House and the 
Administrator, as well as prosecutorial discretion, was the 
base for not enforcing the contempt citation against 
Burford.\165\
---------------------------------------------------------------------------
    \163\Id.
    \164\Wm. Holmes Brown et al., House Practice: A Guide to the Rules, 
Precedents, and Procedures of the House, 450 (2011).
    \165\Id. at 20, 22.
---------------------------------------------------------------------------
    Within the past fifteen years the Committee on Oversight 
and Government Reform has undertaken or prepared for contempt 
proceedings on multiple occasions. In 1998, Chairman Dan Burton 
held a vote recommending contempt for Attorney General Janet 
Reno based on her failure to comply with a subpoena issued in 
connection with the Committee's investigation into campaign 
finance law violations.\166\ On August 7, 1998, the Committee 
held Attorney General Reno in contempt by a vote of 24 to 
18.\167\
---------------------------------------------------------------------------
    \166\David E. Rosenbaum, Panel Votes to Charge Reno With Contempt 
of Congress, N.Y. TIMES (Aug. 7, 1998).
    \167\Id.
---------------------------------------------------------------------------
    During the 110th Congress, Chairman Henry Waxman threatened 
and scheduled contempt proceedings against several 
Administration officials.\168\ Contempt reports were drafted 
against Attorney General Michael B. Mukasey, Stephen L. 
Johnson, Administrator of the U.S. Environmental Protection 
Agency, and Susan E. Dudley, Administrator of the Office of 
Information and Regulatory Affairs (OIRA) in the White House 
Office of Management and Budget. Business meetings to consider 
these drafts were scheduled.\169\ Former Attorney General 
Mukasey's draft contempt report charged him with failing to 
produce documents in connection to the Committee's 
investigation of the release of classified information. 
According to their draft contempt reports, Administrators 
Johnson and Dudley failed to cooperate with the Committee's 
lengthy investigation into California's petition for a waiver 
to regulate greenhouse gas emissions from motor vehicles and 
the revision of the national ambient air quality standards for 
ozone.
---------------------------------------------------------------------------
    \168\Laurie Kellman, Waxman Threatens Mukasey With Contempt Over 
Leak, U.S.A. TODAY (July 8, 2008); Richard Simon, White House Says No 
to Congress' EPA Subpoena, L.A. TIMES (June 21, 2008).
    \169\Press Release, Rep. Henry Waxman, Chairman Waxman Warns 
Attorney General of Scheduled Contempt Vote (July 8, 2008) http://
oversight-archive.waxman.house.gov/story.asp?ID=2067 (last visited Feb. 
22, 2012); Press Release, Rep. Henry Waxman, Chairman Waxman Schedules 
Contempt Vote (June 13, 2008) http://oversight-
archive.waxman.house.gov/story.asp?ID=2012 (last visited Feb. 22, 
2012).
---------------------------------------------------------------------------
    Most recently, the House Judiciary Committee pursued 
contempt against former White House Counsel Harriet Miers and 
White House Chief of Staff Joshua Bolten.\170\ On June 13, 
2007, the Committee served subpoenas on Miers and Bolten.\171\ 
After attempts at accommodations from both sides, the Committee 
determined that Miers and Bolten did not satisfactorily comply 
with the subpoenas. On July 25, 2007, the Committee voted, 22-
17, to hold Miers and Bolten in contempt of Congress.
---------------------------------------------------------------------------
    \170\CRS Contempt Report at 54-55.
    \171\Id.
---------------------------------------------------------------------------
    On February 14, 2008, the full House, with most Republicans 
abstaining, voted to hold Miers and Bolten in criminal contempt 
of Congress by a margin of 223-42.\172\ One hundred seventy-
three Members of Congress did not cast a vote either in favor 
or against the resolution.\173\ All but nine Members who 
abstained were Republican.\174\ Only three Republicans 
supported the contempt resolution for Miers and Bolten.\175\ 
This marked the first contempt vote by Congress with respect to 
the Executive Branch since the Reagan Administration.\176\ The 
resolutions passed by the House allowed Congress to exercise 
all available remedies in the pursuit of contempt.\177\ The 
House Judiciary Committee's action against Miers marked the 
first time that a former administration official had ever been 
held in contempt.\178\
---------------------------------------------------------------------------
    \172\See H. Res. 982.
    \173\Id.
    \174\Id.
    \175\Id.
    \176\Philip Shenon, House Votes to Issue Contempt Citations, N.Y. 
TIMES (Feb. 15, 2008).
    \177\CRS Contempt Report at 54-55.
    \178\Id.
---------------------------------------------------------------------------

                        B. Document Productions

    The Department has refused to produce thousands of 
documents pursuant to the October 12, 2011, subpoena because it 
claims certain documents are Law Enforcement Sensitive, others 
pertain to ongoing criminal investigations, and others relate 
to internal deliberative process.
    During the past ten years, the Committee on Oversight and 
Government Reform has undertaken a number of investigations 
that resulted in strong opposition from the Executive Branch 
regarding document productions. These investigations include 
regulatory decisions of the Environmental Protection Agency 
(EPA), the leak of CIA operative Valerie Plame's identity, and 
the fratricide of Army Corporal Patrick Tillman. In all cases 
during the 110th Congress, the Administration produced an 
overwhelming amount of documents, sheltering a narrow few by 
asserting executive privilege.
    In 2008, the Committee received or reviewed in camera all 
agency-level documents related to the EPA's decision regarding 
California's request for a rule waiver, numbering approximately 
27,000 pages in total.\179\ According to a Committee Report, 
the EPA withheld only 32 documents related to the California 
waiver decision based on executive privilege. These included 
notes of telephone calls or meetings in the White House 
``involving at least one high-ranking EPA official and at least 
one high-ranking White House official.''\180\ The White House 
Counsel informed the Committee that these documents represented 
``deliberations at the very highest level of government.''\181\
---------------------------------------------------------------------------
    \179\H. Comm. on Oversight and Gov't Ref. Minority Additional 
Views, EPA, OIRA Investigations & Exec. Privilege Claims; Missed 
Opportunities by Majority to Complete Investigations, Oct. 22, 2008.
    \180\Id.
    \181\Id.
---------------------------------------------------------------------------
    During the Committee's 2008 investigation into the 
Administration's promulgation of ozone standards, the EPA 
produced or allowed in camera review of over 35,000 pages of 
documents. The President asserted executive privilege over a 
narrow set of documents, encompassing approximately 35 pages. 
One such document included ``talking points for the EPA 
Administrator to use in a meeting with [the President].''\182\
---------------------------------------------------------------------------
    \182\Id.
---------------------------------------------------------------------------
    In furtherance of the Committee's ozone regulation 
investigation, OIRA produced or allowed in camera review of 
7,500 documents.\183\ Documents produced by EPA and OIRA 
represented pre-decisional opinions of career scientists and 
agency counsel.\184\ These documents were sensitive because 
some, if not all, related to ongoing litigation.\185\ The OIRA 
Administrator withheld a certain number of documents that were 
communications between OIRA and certain White House officials, 
and the President ultimately ``claimed executive privilege over 
these documents.''\186\
---------------------------------------------------------------------------
    \183\Id.
    \184\Id.
    \185\Id.
    \186\Id.
---------------------------------------------------------------------------
    Also during the 110th Congress, the Committee investigated 
the revelation of CIA operative Valerie Plame's identity in the 
news media. The Committee's investigation was contemporaneous 
with the Department of Justice's criminal investigation into 
the leak of this classified information--a situation nearly 
identical to the Committee's current investigation into 
Operation Fast and Furious.
    Pursuant to the Committee's investigation, the Justice 
Department produced FBI reports of witness interviews, commonly 
referred to as ``302s.'' Specifically, documents reviewed by 
the Committee staff during the Valerie Plame investigation 
included the following:

          FBI interviews of federal officials who did not work 
        in the White House, as well as interviews of relevant 
        private individuals . . . total of 224 pages of records 
        of FBI interview reports with 31 individuals, including 
        materials related to a former Secretary, Deputy 
        Secretary, Undersecretary [sic], and two Assistant 
        Secretaries of State, and other former or current CIA 
        and State Department officials, including the Vice 
        President's CIA briefer.\187\
---------------------------------------------------------------------------
    \187\H. Comm. on Oversight and Gov't Ref. Draft Report, U.S. House 
of Reps. Regarding President Bush's Assertion of Exec. Privilege in 
Response to the Comm. Subpoena to Att'y Gen. Michael B. Mukasey, http:/
/oversight-archive.waxman.house.gov/documents/20081205114333.pdf (last 
visited Mar. 5, 2012).

    To accommodate the Committee, the Department permitted in 
---------------------------------------------------------------------------
camera review of the following:

          [D]ocuments include[ing] redacted reports of the FBI 
        interview with Mr. Libby, Andrew Card, Karl Rove, 
        Condoleezza Rice, Stephen Hadley, Dan Bartlett, and 
        Scott McClellan and another 104 pages of additional 
        interview reports of the Director of Central 
        Intelligence, and eight other White House or Office of 
        the Vice President officials.\188\
---------------------------------------------------------------------------
    \188\Id.

    The only documents the Justice Department declined to 
produce were the FBI 302s with respect to the interviews of the 
President and the Vice President.\189\ Ultimately, the 
Committee relented in its pursuit of the President's 302.\190\ 
The Committee, however, persisted in its request for the Vice 
President's 302. As a result, the President asserted executive 
privilege over that particular document.\191\
---------------------------------------------------------------------------
    \189\ Id.
    \190\ Id.
    \191\ Id.
---------------------------------------------------------------------------
    The Committee specifically included 302s in its October 12, 
2011, subpoena to the Attorney General regarding Fast and 
Furious. These subpoenaed 302s do not include FBI interviews 
with White House personnel, or even any other Executive Branch 
employee. Still, in spite of past precedent, the Department has 
refused to produce those documents to the Committee or to allow 
staff an in camera review.
    In the 110th Congress, the Committee investigated the 
fratricide of Army Corporal Patrick Tillman and the veracity of 
the account of the capture and rescue of Army Private Jessica 
Lynch.\192\ The Committee employed a multitude of investigative 
tools, including hearings, transcribed interviews, and non-
transcribed interviews. The Administration produced thousands 
of documents.\193\ The Committee requested the following:
---------------------------------------------------------------------------
    \192\H. Comm. on Oversight and Gov't Ref. Comm. Report, Misleading 
Information From the Battlefield: the Tillman & Lynch Episodes, H. Rep. 
110-858, Sept. 16, 2008.
    \193\Id.

          [T]he White House produce all documents received or 
        generated by any official in the Executive Office of 
        the President from April 22 until July 1, 2004, that 
        related to Corporal Tillman. The Committee reviewed 
        approximately 1,500 pages produced in response to this 
        request. The documents produced to the Committee 
        included e-mail communications between senior White 
        House officials holding the title of ``Assistant to the 
        President.'' According to the White House, the White 
        House withheld from the Committee only preliminary 
        drafts of the speech President Bush delivered at the 
        White House Correspondents' Dinner on May 1, 2004.\194\
---------------------------------------------------------------------------
    \194\Id.

    The Department of Defense produced over 31,000 responsive 
documents, and the Committee received an unprecedented level of 
access to documents and personnel.\195\
---------------------------------------------------------------------------
    \195\Id.; The minority views by Hon. Tom Davis states that the 
Comm. received 50,000 pages of documents and reviewed additional 
documents in camera.
---------------------------------------------------------------------------
    The Oversight and Government Reform Committee's 
investigations over the past five years demonstrate ample 
precedent for the production of a wide array of documents from 
the Executive Branch. In these investigations, the Committee 
received pre-decisional deliberative regulatory documents, 
documents pertaining to ongoing investigations, and 
communications between and among senior advisors to the 
President. The Committee's October 12, 2011, subpoena calls for 
many of these same materials, including 302s and deliberative 
documents. Still, the Justice Department refuses to comply.
    Further, the number of documents the Department has 
produced during the Committee's Fast and Furious investigation 
pales in comparison to those produced in conjunction with the 
Committee's prior investigations. In separate EPA 
investigations, the Committee received 27,000 documents and 
35,000 documents respectively. In the Patrick Tillman 
investigation, the Committee received 31,000 documents. 
Moreover, in the Valerie Plame investigation, the Committee 
received access to highly sensitive materials despite the fact 
that the Justice Department was conducting a parallel criminal 
investigation.
    As of May 15, 2012, in the Fast and Furious investigation, 
in the light most favorable to the Department of Justice, it 
has ``provided the Committee over 7,600 pages of documents''--a 
small fraction of what has been produced to the Committee in 
prior investigations and of what the Department has produced to 
the Inspector General in this matter.\196\ This small number 
reflects the Department's lack of cooperation since the 
Committee sent its first letter to the Department about Fast 
and Furious on March 16, 2011.
---------------------------------------------------------------------------
    \196\Letter from Ass't Att'y Gen. Ronald Weich to Chairman Darrell 
Issa (May 15, 2012).
---------------------------------------------------------------------------

                        VIII. RULES REQUIREMENTS


                       Explanation of Amendments

    Mr. Gowdy offered an amendment that updated the Committee's 
Report to reflect that the President asserted the executive 
privilege over certain documents subpoenaed by the Committee. 
The amendment also updated the Report to include the 
Committee's concerns about the validity of the President's 
assertion of the executive privilege. The amendment was agreed 
to by a recorded vote.

                        Committee Consideration

    On June 20, 2012, the Committee on Oversight and Government 
Reform met in open session with a quorum present to consider a 
report of contempt against Eric H. Holder, Jr., the Attorney 
General of the United States, for failure to comply with a 
Congressional subpoena. The Committee approved the Report by a 
roll call vote of 23-17 and ordered the Report reported 
favorably to the House.

                            Roll Call Votes

    The following recorded votes were taken during 
consideration of the contempt Report:
    1. Mr. Welch offered an amendment to add language to the 
Executive Summary stating that contempt proceedings at this 
time are unwarranted because the Committee has not met with 
former Attorney General Michael Mukasey.
    The amendment was defeated by a recorded vote of 14 Yeas to 
23 Nays.
    Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Lynch, Connolly, Quigley, Davis, Braley, Welch, Murphy 
and Speier.
    Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
Guinta, Farenthold and Kelly.
    2. Mr. Lynch offered an amendment asking for an itemized 
accounting of the costs associated with the Fast and Furious 
investigation.
    The amendment was defeated by a vote of 15 Yeas to 23 Nays.
    Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Clay, Lynch, Connolly, Quigley, Davis, Braley, Welch, 
Murphy and Speier.
    Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
Guinta, Farenthold and Kelly.
    3. Ms. Maloney offered an amendment to add language to the 
Executive Summary stating that contempt proceedings at this 
time are unwarranted because the Committee has not held a 
public hearing with the former head of the Bureau of Alcohol, 
Tobacco, Firearms and Explosives, Kenneth Melson.
    The amendment was defeated by a vote of 16 Yeas to 23 Nays.
    Voting Yea: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, 
Welch, Murphy and Speier.
    Voting Nay: Issa, Burton, Mica, Platts, Turner, McHenry, 
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
Guinta, Farenthold and Kelly.
    4. Mr. Gowdy offered an amendment that updated the 
Committee's Report to reflect that the President asserted the 
executive privilege over certain documents subpoenaed by the 
Committee. The amendment also updated the Report to include the 
Committee's concerns about the validity of the President's 
assertion of the executive privilege. The amendment was agreed 
to by a recorded vote.
    The amendment was agreed to by a vote of 23 Yeas to 17 
Nays.
    Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, 
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
Guinta, Farenthold and Kelly.
    Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, 
Welch, Yarmuth, Murphy and Speier.
    5. The Resolution was favorably reported, as amended, to 
the House, a quorum being present, by a vote of 23 Yeas to 17 
Nays.
    Voting Yea: Issa, Burton, Mica, Platts, Turner, McHenry, 
Jordan, Chaffetz, Mack, Walberg, Lankford, Amash, Buerkle, 
Gosar, Labrador, Meehan, DesJarlais, Walsh, Gowdy, Ross, 
Guinta, Farenthold and Kelly.
    Voting Nay: Cummings, Towns, Maloney, Norton, Kucinich, 
Tierney, Clay, Lynch, Cooper, Connolly, Quigley, Davis, Braley, 
Welch, Yarmuth, Murphy and Speier.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to the terms and conditions of 
employment or access to public services and accommodations. The 
Report does not relate to employment or access to public 
services and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this Report.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee states that 
pursuant to clause 3(c)(4) of rule XIII of the Rules of the 
House of Representatives, the Report will assist the House of 
Representatives in considering whether to cite Attorney General 
Eric H. Holder, Jr. for contempt for failing to comply with a 
valid congressional subpoena.

                   Constitutional Authority Statement

    The Committee finds the authority for this Report in 
article 1, section 1 of the Constitution.

                     Federal Advisory Committee Act

    The Committee finds that the Report does not establish or 
authorize the establishment of an advisory committee within the 
definition of 5 U.S.C. App., Section 5(b).

                         Earmark Identification

    The Report does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI.

 Unfunded Mandate Statement, Committee Estimate, Budget Authority and 
               Congressional Budget Office Cost Estimate

    The Committee finds that clauses 3(c)(2), 3(c)(3), and 
3(d)(1) of rule XIII of the Rules of the House of 
Representatives, sections 308(a) and 402 of the Congressional 
Budget Act of 1974, and section 423 of the Congressional Budget 
and Impoundment Control Act (as amended by Section 101(a)(2) of 
the Unfunded Mandates Reform Act, P.L. 104-4) are inapplicable 
to this Report. Therefore, the Committee did not request or 
receive a cost estimate from the Congressional Budget Office 
and makes no findings as to the budgetary impacts of this 
Report or costs incurred to carry out the report.

          CHANGES IN EXISTING LAW MADE BY THE BILL AS REPORTED

    This Report makes no changes in any existing federal 
statute.

                            ADDITIONAL VIEWS

       Report of the Committee on Oversight and Government Reform

Resolution Recommending that the House of Representatives Find Eric H. 
Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt 
 of Congress for Refusal to Comply with a Subpoena Duly Issued by the 
              Committee on Oversight and Government Reform

    ``The Department of Justice's Operation Fast and Furious: 
Accounts of ATF Agents'' Joint Staff Report, prepared for 
Representative Darrell Issa, Chairman, House Committee on 
Oversight and Government Reform, and Senator Charles Grassley, 
Ranking Member, Senate Committee on the Judiciary.
    ``The Department of Justice's Operation Fast and Furious: 
Fueling Cartel Violence'' Joint Staff Report, prepared for 
Representative Darrell Issa, Chairman, House Committee on 
Oversight and Government Reform, and Senator Charles Grassley, 
Ranking Member, Senate Committee on the Judiciary.

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                             MINORITY VIEWS

       Report of the Committee on Oversight and Government Reform

Resolution Recommending that the House of Representatives Find Eric H. 
Holder, Jr., Attorney General, U.S. Department of Justice, in Contempt 
 of Congress for Refusal to Comply with a Subpoena Duly Issued by the 
              Committee on Oversight and Government Reform

    On June 20, 2012, the Committee adopted on a strictly 
party-line vote a report and resolution (hereinafter ``Contempt 
Citation'') concluding that Attorney General Eric H. Holder, 
Jr., the chief law enforcement officer of the United States, 
should be held in contempt of Congress for declining to produce 
certain documents pursuant to the Committee's investigation of 
``gunwalking'' during Operation Fast and Furious and previous 
operations.
    Committee Democrats were unanimous in their opposition to 
the Contempt Citation. These dissenting views conclude that 
Congress has a Constitutional responsibility to conduct 
vigorous oversight of the executive branch, but that holding 
the Attorney General in contempt would be an extreme, 
unprecedented action based on partisan election-year politics 
rather than the facts uncovered during the investigation.
    These views find that the Committee failed to honor its 
Constitutional responsibility to avoid unnecessary conflict 
with the executive branch by seeking reasonable accommodations 
when possible. The Committee flatly rejected a fair and 
reasonable offer made by the Attorney General to provide 
additional internal deliberative documents sought by the 
Committee in exchange for a good faith commitment toward 
resolving the contempt dispute. Instead, the Committee has 
repeatedly shifted the goalposts in this investigation after 
failing to find evidence to support its unsubstantiated 
allegations.
    The Contempt Citation adopted by the Committee contains 
serious and significant errors, omissions, and 
misrepresentations. To address these inaccuracies, these views 
hereby incorporate and attach the 95-page staff report issued 
by Ranking Member Elijah Cummings in January 2012, which 
provides a comprehensive analysis of the evidence obtained 
during the Committee's investigation.

          I. The Committee's Actions Have Been Highly Partisan

    The Committee's contempt vote on June 20, 2012, was the 
culmination of one of the most highly politicized congressional 
investigations in decades. It was based on numerous 
unsubstantiated allegations that targeted the Obama 
Administration for political purposes, and it ignored 
documented evidence of gunwalking operations during the 
previous administration.
    During the Committee's 16-month investigation, the 
Committee refused all Democratic requests for witnesses and 
hearings. In one of the most significant flaws of the 
investigation, the Chairman refused multiple requests to hold a 
public hearing with Kenneth Melson, the former head of ATF, the 
agency responsible for conducting these operations.\1\ The 
Chairman's refusal came after Mr. Melson told Committee 
investigators privately in July 2011 that he never informed 
senior officials at the Justice Department about gunwalking 
during Operation Fast and Furious because he was unaware of it 
himself.\2\ Mr. Melson's statements directly contradict the 
claim in the Contempt Citation that senior Justice Department 
officials were aware of gunwalking because Mr. Melson briefed 
Gary Grindler, then-Acting Deputy Attorney General, in March 
2010.\3\
    Despite promising that he would be ``investigating a 
president of my own party because many of the issues we're 
working on began on [sic] President Bush,'' the Chairman also 
refused multiple requests for former Attorney General Michael 
Mukasey to testify before the Committee or to meet with 
Committee Members informally to discuss the origination and 
evolution of gunwalking operations since 2006.\4\ Documents 
obtained during the investigation indicate that Mr. Mukasey was 
briefed personally on botched efforts to coordinate firearm 
interdictions with Mexican law enforcement officials in 2007 
and was informed directly that such efforts would be expanded 
during his tenure.\5\
    The Committee also failed to conduct interviews of other 
key figures. For example, the Committee did not respond to a 
request to interview Alice Fisher, who served as Assistant 
Attorney General in charge of the Criminal Division from 2005 
to 2008, about her role in authorizing wiretaps in Operation 
Wide Receiver, or to a request to interview Deputy Assistant 
Attorney General Kenneth Blanco, who also authorized wiretaps 
in Operation Fast and Furious and still works at the 
Department, but who was placed in his position under the Bush 
Administration in April 2008.\6\ No explanation for these 
refusals has been given.
    During the Committee business meeting on June 20, 2012, 
every Democratic amendment to correct the Contempt Citation by 
noting these facts was defeated on strictly party-line votes.

  II. Holding the Attorney General in Contempt Would Be Unprecedented

    The House of Representatives has never in its history held 
an Attorney General in contempt of Congress. The only precedent 
referenced in the Contempt Citation for holding a sitting 
Attorney General in contempt for refusing to provide documents 
is this Committee's vote in 1998 to hold then-Attorney General 
Janet Reno in contempt during the campaign finance 
investigation conducted by then-Chairman Dan Burton.\7\
    Chairman Burton's investigation was widely discredited, and 
the decision to hold the Attorney General in contempt was 
criticized by editorial boards across the country as ``a gross 
abuse of his powers as chairman of the committee,''\8\ a 
``fishing expedition,''\9\ ``laced with palpable political 
motives,''\10\ and ``showboating.''\11\ That action was so 
partisan and so widely discredited that Newt Gingrich, who was 
then Speaker, did not bring it to the House Floor for a 
vote.\12\
    Similarly, numerous commentators and editorial boards have 
criticized Chairman Issa's recent actions as ``a monstrous 
witch hunt,''\13\ ``a pointless partisan fight,''\14\ and 
``dysfunctional Washington as usual.''\15\

   III. The Committee Has Held the Attorney General to an Impossible 
                                Standard

    For more than a year, the Committee has held the Attorney 
General to an impossible standard by demanding documents he is 
prohibited by law from producing.
    One of the key sets of documents demanded during this 
investigation has been federal wiretap applications submitted 
by law enforcement agents in order to obtain a federal court's 
approval to secretly monitor the telephone calls of individuals 
suspected of gun trafficking.
    The federal wiretapping statute, which was passed by 
Congress and signed by President Lyndon B. Johnson on June 19, 
1968, provides for a penalty of up to five years in prison for 
the unauthorized disclosure of wiretap communications and 
prohibits the unauthorized disclosure of wiretap applications 
approved by federal judges, who must seal them to protect 
against their disclosure.\16\ The statute states:

          Each application for an order authorizing or 
        approving the interception of a wire, oral, or 
        electronic communication under this chapter shall be 
        made in writing upon oath or affirmation to a judge of 
        competent jurisdiction. Applications made and orders 
        granted under this chapter shall be sealed by the 
        judge.\17\

    Similarly, in 1940, Congress passed a statute giving the 
Supreme Court the power to prescribe rules of pleading, 
practice, and procedure in criminal cases.\18\ In 1946, the 
modern grand jury secrecy rule was codified as Rule 6(e) of the 
Federal Rules of Criminal Procedure, which provides for 
criminal penalties for disclosing grand jury information.\19\
    The Department has explained this to the Committee 
repeatedly, including in a letter on May 15, 2012:

          Our disclosure to this oversight Committee of some 
        material sought by the October 11 subpoena, such as 
        records covered by grand jury secrecy rules and federal 
        wiretap applications and related information, is 
        prohibited by law or court orders.\20\

    Despite these legal prohibitions, the Chairman continued to 
threaten to hold the Attorney General in contempt for 
protecting these documents. He also publicly accused the 
Attorney General of a ``cover-up,''\21\ claimed he was 
``obstructing'' the Committee's investigation,\22\ asserted 
that he is willing to ``deceive the public,''\23\ and stated on 
national television that he ``lied.''\24\

   IV. The Documents at Issue in the Contempt Citation Are Not About 
                               Gunwalking

    The documents at issue in the Contempt Citation are not 
related to the Committee's investigation into how gunwalking 
was initiated and utilized in Operation Fast and Furious.
    Over the past year, the Department of Justice has produced 
thousands of pages of documents, the Committee has interviewed 
two dozen officials, and the Attorney General has testified 
before Congress nine times.
    In January, Ranking Member Cummings issued a comprehensive 
95-page staff report documenting that Operation Fast and 
Furious was in fact the fourth in a series of gunwalking 
operations run by ATF's Phoenix field division over a span of 
five years beginning in 2006. Three prior operations--Operation 
Wide Receiver (2006-2007), the Hernandez case (2007), and the 
Medrano case (2008)--occurred during the Bush Administration. 
All four operations were overseen by the same ATF Special Agent 
in Charge in Phoenix.\25\
    The Committee has obtained no evidence that the Attorney 
General was aware that gunwalking was being used. To the 
contrary, as soon as he learned of its use, the Attorney 
General halted it, ordered an Inspector General investigation, 
and implemented significant internal reform measures.\26\
    After finding no evidence of wrongdoing by the Attorney 
General, the Committee's investigation shifted to focusing on a 
single letter sent by the Department's Office of Legislative 
Affairs to Senator Charles Grassley on February 4, 2011. This 
letter initially denied allegations that ATF ``knowingly 
allowed the sale of assault weapons to a straw purchaser who 
then transported them into Mexico'' and stated that ``ATF makes 
every effort to interdict weapons that have been purchased 
illegally and prevent their transportation to Mexico.''\27\
    The Department has acknowledged that its letter was 
inaccurate and has formally withdrawn it. On December 2, 2011, 
the Department wrote that ``facts have come to light during the 
course of this investigation that indicate that the February 4 
letter contains inaccuracies.''\28\
    Acknowledging these inaccuracies, the Department also 
provided the Committee with 1,300 pages of internal 
deliberative documents relating to how the letter to Senator 
Grassley was drafted. These documents demonstrate that 
officials in the Office of Legislative Affairs who were 
responsible for drafting the letter did not intentionally 
mislead Congress, but instead relied on inaccurate assertions 
and strong denials from officials ``in the best position to 
know the relevant facts: ATF and the U.S. Attorney's Office in 
Arizona, both of which had responsibility for Operation Fast 
and Furious.''\29\
    Despite receiving these documents explaining how the letter 
to Senator Grassley was drafted, the Committee moved the 
goalposts and demanded additional internal documents created 
after February 4, 2011, the date the letter to Senator Grassley 
was sent. It is unclear why the Committee needs these 
documents. This narrow subset of additional documents--which 
have nothing to do with how gunwalking was initiated in 
Operation Fast and Furious--is now the sole basis cited in the 
Contempt Citation for holding the Attorney General in 
contempt.\30\

V. The Committee Refused a Good Faith Offer by the Attorney General for 
                          Additional Documents

    The Committee failed to honor its Constitutional 
responsibility to avoid unnecessary conflict with the Executive 
Branch by seeking reasonable accommodations when possible. On 
the evening before the Committee's contempt vote, the Attorney 
General met with Chairman Issa, Ranking Member Cummings, 
Senator Grassley, and Senator Patrick Leahy. The Attorney 
General offered to take the following steps in response to the 
Committee's demands for additional documents. Specifically, the 
Attorney General:

          (1) offered to provide additional internal 
        deliberative Department documents, created even after 
        February 4, 2011;
          (2) offered a substantive briefing on the 
        Department's actions relating to how they determined 
        the letter contained inaccuracies;
          (3) agreed to Senator Grassley's request during the 
        meeting to provide a description of the categories of 
        documents that would be produced and withheld; and
          (4) agreed to answer additional substantive requests 
        for information from the Committee.

    The Attorney General noted that his offer included 
documents and information that went even beyond those demanded 
in the Committee's subpoena. In exchange, the Attorney General 
asked the Chairman for a good faith commitment to work towards 
a final resolution of the contempt issue.\31\
    Chairman Issa did not make any substantive changes to his 
position. Instead, he declined to commit to a good faith effort 
to work towards resolving the contempt issue and flatly refused 
the Attorney General's offer.
    There is no question that the Constitution authorizes 
Congress to conduct rigorous investigations in support of its 
legislative functions.\32\ The Constitution also requires 
Congress and the executive branch to seek to accommodate each 
other's interests and to avoid unnecessary conflict. As the 
D.C. Circuit has held:

          [E]ach branch should take cognizance of an implicit 
        constitutional mandate to seek optimal accommodation 
        through a realistic evaluation of the needs of the 
        conflicting branches in the particular fact 
        situation.\33\

    Similarly, then-Attorney General William French Smith, who 
served under President Ronald Reagan, observed:

          The accommodation required is not simply an exchange 
        of concessions or a test of political strength. It is 
        an obligation of each branch to make a principled 
        effort to acknowledge, and if possible to meet, the 
        legitimate needs of the other branch.\34\

VI. The Committee's Decision To Press Forward With Contempt Led to the 
           Administration's Assertion of Executive Privilege

    After the Chairman refused the Attorney General's good 
faith offer--and it became clear that a Committee contempt vote 
was inevitable--the President asserted executive privilege over 
the narrow category of documents still at issue. The 
Administration made clear that it was still willing to 
negotiate on Congress' access to the documents if contempt 
could be resolved.
    On June 20, 2012, Deputy Attorney General James Cole wrote 
to the Chairman to inform the Committee that ``the President, 
in light of the Committee's decision to hold the contempt vote, 
has asserted executive privilege over the relevant post-
February 4 documents.''\35\ An accompanying letter from 
Attorney General Holder described the documents covered by the 
privilege as limited to ``internal Department `documents from 
after February 4, 2011, related to the Department's response to 
Congress.'''\36\
    Claims by House Speaker John Boehner and others that the 
Administration's assertion of executive privilege raises 
questions about the President's personal knowledge of 
gunwalking reflect a misunderstanding of the scope of the 
privilege asserted.\37\ Regarding the narrow subset of 
documents covered by the assertion, the letter from Attorney 
General explained:

          They were not generated in the course of the conduct 
        of Fast and Furious. Instead, they were created after 
        the investigative tactics at issue in that operation 
        had terminated and in the course of the Department's 
        deliberative process concerning how to respond to 
        congressional and related media inquiries into that 
        operation.\38\

    The Attorney General's letter also explained the 
Administration's legal rationale for invoking executive 
privilege over internal deliberative Justice Department 
documents, citing opinions from former Attorneys General 
Michael B. Mukasey, John Ashcroft, William French Smith, and 
Janet Reno, as well as former Solicitor General and Acting 
Attorney General Paul D. Clement.\39\ The letter also quoted 
the Supreme Court in United States v. Nixon, writing:

          The threat of compelled disclosure of confidential 
        Executive Branch deliberative material can discourage 
        robust and candid deliberations, for ``[h]uman 
        experience teaches that those who expect public 
        dissemination of their remarks may well temper candor 
        with a concern for appearances and for their own 
        interests to the detriment of the decisionmaking 
        process.'' . . . Thus, Presidents have repeatedly 
        asserted executive privilege to protect confidential 
        Executive Branch deliberative materials from 
        congressional subpoena.\40\

    VII. The Committee Failed To Responsibly Consider the Executive 
                          Privilege Assertion

    Despite requests from several Committee Members, the 
Committee did not delay or postpone the business meeting in 
order to responsibly examine the Administration's assertion of 
executive privilege and determine whether it would be 
appropriate to continue contempt proceedings against the 
Attorney General.
    Instead of following the example of previous Committee 
Chairmen who put off contempt proceedings in order to conduct a 
serious and careful review of presidential assertions of 
executive privilege, Chairman Issa stated that ``I claim not to 
be a constitutional scholar'' and proceeded with the contempt 
vote.\41\
    In contrast, former Committee Chairman Henry Waxman put off 
a contempt vote after President George W. Bush asserted 
executive privilege in the investigation into the leak of the 
covert status of CIA operative Valerie Plame.\42\ He took the 
same course of action after President Bush asserted executive 
privilege over documents relating to the Environmental 
Protection Agency's ozone regulation on the same day as a 
scheduled contempt vote. At the time, he stated:

          I want to talk with my colleagues on both sides of 
        the aisle about this new development. I want to learn 
        more about the assertion and the basis for this 
        assertion of the executive privilege.\43\

    Although the Committee ultimately disagreed with the 
validity of President Bush's assertions of executive privilege, 
in neither case did the Committee go forward with contempt 
proceedings against the officials named in the contempt 
citations.
    Similarly, Rep. John Dingell, as Chairman of the Energy and 
Commerce Committee during that Committee's 1981 investigation 
into the Department of Interior, received an assertion of 
executive privilege from the Reagan Administration regarding 
documents pertaining to the administration of the Mineral Lands 
Leasing Act.\44\ Before proceeding to contempt, the Committee 
held two separate hearings on the executive privilege 
assertion, and the Committee invited the Attorney General to 
testify regarding his legal opinion supporting the claim of 
executive privilege.\45\

   VIII. The Investigation Has Been Characterized by Unsubstantiated 
                                 Claims

    The Committee's investigation of ATF gunwalking operations 
has been characterized by a series of unfortunate and 
unsubstantiated allegations against the Obama Administration 
that turned out to be inaccurate.
    For example, during an interview on national television on 
October 16, 2011, the Chairman accused the Federal Bureau of 
Investigation (FBI) of concealing evidence of the murder of 
Agent Brian Terry by hiding a ``third gun'' found at the murder 
scene.\46\ The FBI demonstrated quickly that this claim was 
unsubstantiated.\47\ Although the Chairman admitted during a 
subsequent hearing that ``we do go down blind alleys 
regularly,'' no apology was issued to the law enforcement 
agents that were accused of a cover-up.\48\
    At the same time, the Chairman has defended the previous 
Administration's operations as ``coordinated.''\49\ In response 
to a question about gunwalking during the Bush Administration, 
the Chairman stated:

          We know that under the Bush Administration there were 
        similar operations, but they were coordinated with 
        Mexico. They made every effort to keep their eyes on 
        the weapons the whole time.\50\

    To the contrary, the staff report issued by Ranking Member 
Cummings on January 31, 2012, documents at least three 
operations during the previous Administration in which 
coordination efforts were either non-existent or severely 
deficient.\51\
    In addition, the Chairman has stated repeatedly that senior 
Justice Department officials were ``fully aware'' of gunwalking 
in Operation Fast and Furious.\52\ After conducting two dozen 
transcribed interviews, none of the officials and agents 
involved said they informed the Attorney General or other 
senior Department officials about gunwalking in Operation Fast 
and Furious. Instead, the heads of the agencies responsible for 
the operation--ATF and the U.S. Attorney's Office--told 
Committee investigators just the opposite, that they never 
informed senior Department officials about gunwalking in 
Operation Fast and Furious because they were unaware of it.\53\
    Finally, the Chairman has promoted an extreme conspiracy 
theory that the Obama Administration intentionally designed 
Operation Fast and Furious to promote gunwalking. He stated in 
December 2011 that the Administration ``made a crisis and they 
are using this crisis to somehow take away or limit people's 
second amendment rights.''\54\ This offensive claim has also 
been made by Rush Limbaugh and other conservative media 
personalities during the course of the investigation. For 
example, on June 20, 2011, Mr. Limbaugh stated:

          The real reason for Operation Gunrunner or Fast and 
        Furious, whatever they want to call it now, the purpose 
        of this was so that Obama and the rest of the Democrats 
        can scream bloody murder about the lack of gun control 
        in the U.S., which is causing all the murders in 
        Mexico. This was a setup from the get-go.\55\

    Another conservative commentator stated that ``their 
political agenda behind this entire thing was to blame American 
gun shops for cartel violence in America in order to push an 
anti-Second Amendment, more regulations on these gun 
shops.''\56\ Yet another one stated:

          This was purely a political operation. You send the 
        guns down to Mexico, therefore you support the 
        political narrative that the Obama administration 
        wanted supported. That all these American guns are 
        flooding Mexico, they're the cause of the violence in 
        Mexico, and therefore we need draconian gun control 
        laws here in America.\57\

    As recently as this month, Committee Member John Mica 
repeated this claim on Fox News. On June 15, 2012, he stated:

          People forget how all this started. This 
        administration is a gun control administration. They 
        tried to put the violence in Mexico on the blame of the 
        United States. So they concocted this scheme and 
        actually sending our federal agents, sending guns down 
        there, and trying to cook some little deal to say that 
        we have got to get more guns under control.\58\

    There is no evidence to support this conspiracy theory. To 
the contrary, the documents obtained and interviews conducted 
by the Committee demonstrate that gunwalking began in 2006, was 
used in three operations during the Bush Administration, and 
was a misguided tactic utilized by the ATF field division in 
Phoenix.\59\

                                 NOTES

    \1\Letter from Rep. Elijah E. Cummings, Ranking Member, House 
Committee on Oversight and Government Reform, to Rep. Darrell E. Issa, 
Chairman, House Committee on Oversight and Government Reform (Oct. 28, 
2011).
    \2\House Committee on Oversight and Government Reform, Transcribed 
Interview of Kenneth E. Melson (July 4, 2011).
    \3\House Committee on Oversight and Government Reform, Report of 
the Committee on Oversight and Government Reform on Resolution 
Recommending that the House of Representatives Find Eric H. Holder, 
Jr., Attorney General, U.S. Department of Justice, in Contempt of 
Congress for Refusal to Comply with a Subpoena Duly Issued by the 
Committee on Oversight and Government Reform, at 11 (June 14, 2012) 
(``Contempt Citation'').
    \4\The Daily Rundown, MSNBC (Nov. 3, 2010) (online at http://
videocafe.crooksandliars.com/david/darrell-issa-obama-must-answer-
several-hundr); Letter from Rep. Elijah E. Cummings, Ranking Member, 
House Committee on Oversight and Government Reform, to Rep. Darrell E. 
Issa, Chairman, House Committee on Oversight and Government Reform 
(June 5, 2012); Letter from Rep. Elijah E. Cummings, Ranking Member, 
House Committee on Oversight and Government Reform, to Rep. Darrell E. 
Issa, Chairman, House Committee on Oversight and Government Reform 
(Feb. 2, 2012); Letter from Rep. Elijah E. Cummings, Ranking Member, 
House Committee on Oversight and Government Reform, to Rep. Darrell E. 
Issa, Chairman, House Committee on Oversight and Government Reform 
(Nov. 4, 2011).
    \5\Department of Justice, Meeting of the Attorney General with 
Mexican Attorney General Medina Mora (Nov. 16, 2007).
    \6\Letter from Rep. Elijah E. Cummings, Ranking Member, House 
Committee on Oversight and Government Reform, to Rep. Darrell E. Issa, 
Chairman, House Committee on Oversight and Government Reform (June 5, 
2012).
    \7\House Committee on Government Reform and Oversight, Contempt of 
Congress: Refusal of Attorney General Janet Reno to Produce Documents 
Subpoenaed By the Government Reform and Oversight Committee, 105th 
Cong. (1998) (H. Rept. 105-728).
    \8\The Contempt Citation, Washington Post (Sept. 22, 1998).
    \9\Buck Stops With Reno; Appointing an Independent Counsel in 
Campaign Contribution Case: That Decision is Reno's Alone to Make on 
the Basis of Her Information and Her Interpretation of the Law, Los 
Angeles Times (Aug. 6, 1998).
    \10\Tell Him No, Ms. Reno!, Miami Herald (Aug. 6, 1998).
    \11\Give Reno Some Room, St. Petersburg Times (Aug. 6, 1998).
    \12\Congressional Research Service, Congressional Contempt Power 
and the Enforcement of Congressional Subpoenas: Law, History, Practice, 
and Procedure (May 8, 2012).
    \13\Juan Williams, Issa's Monstrous Witch Hunt, The Hill (May 14, 
2012).
    \14\A Pointless Partisan Fight, New York Times (June 20, 2012).
    \15\Holder Contempt Vote is Dysfunctional Washington as Usual, 
Baltimore Sun (June 21, 2012). See also Eugene Robinson, GOP Witch Hunt 
for Eric Holder Reflects Bigger Problem, Washington Post (June 21, 
2012); Paul Barrett, In Contempt of Government Reform, Businessweek 
(June 20, 2012); Dana Milbank, Republicans' Attempt to Hold Holder in 
Contempt is Uphill Battle, Washington Post (June 20, 2012) (describing 
the ``contemptible antics'' of the Committee's contempt proceedings); 
Sandra Hernandez, Partisan Politics Plague Probe of `Fast and Furious,' 
Los Angeles Times (``Issa's demand loses some of its credibility and 
lapses into political theater when he threatens Atty. Gen. Eric H. 
Holder Jr. with criminal contempt for failing to cooperate'') (Mar. 29, 
2012).
    \16\The White House, Statement by the President Upon Signing the 
Omnibus Crime Control and Safe Streets Act of 1968 (June 19, 1968); 18 
U.S.C. 2511(4)(a) (providing that violators ``shall be fined under this 
title or imprisoned not more than five years, or both''); 18 U.S.C. 
2511(1)(e) (covering any person who ``intentionally discloses, or 
endeavors to disclose, to any other person the contents of any wire, 
oral, or electronic communication, intercepted by means authorized'' 
under this chapter).
    \17\18 U.S.C. 2518(1), 2518(8).
    \18\Sumner Courts Act, Pub. L. No. 76-675, 54 Stat. 688 (1940).
    \19\Fed. R. Crim. Pro. 6(e)(7) (providing that a knowing violation 
of Rule 6 ``may be punished as a contempt of court''); 18 U.S.C. 401(3) 
(providing that a ``court of the United States shall have power to 
punish by fine or imprisonment, or both, at its discretion, such 
contempt of its authority'').
    \20\Letter from James M. Cole, Deputy Attorney General, Department 
of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform (May 15, 2012).
    \21\Letter from Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, to Eric H. Holder, Jr., Attorney 
General, Department of Justice (Jan. 31, 2012).
    \22\Letter from Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, to Eric H. Holder, Jr., Attorney 
General, Department of Justice (Oct. 9, 2011).
    \23\Letter from Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, to Eric H. Holder, Jr., Attorney 
General, Department of Justice (Jan. 31, 2012).
    \24\On the Record with Greta Van Susteren, Fox News (June 7, 2012) 
(online at www.foxnews.com/on-air/on-the-record/2012/06/08/issas-fast-
and-furious-frustration-bubbles-over-holders-truth-not-consistent-
facts?page=2).
    \25\Minority Staff, House Committee on Oversight and Government 
Reform, Fatally Flawed: Five Years of Gunwalking in Arizona (Jan. 2012) 
(online at http://democrats.oversight.house.gov/
index.php?option=com_content&task=view&id=5575&Itemid=104).
    \26\Id.; House Committee on the Judiciary, Testimony of Eric H. 
Holder, Jr., Attorney General, Department of Justice, Oversight of the 
United States Department of Justice (June 7, 2012).
    \27\Letter from Ronald Weich, Assistant Attorney General, Office of 
Legislative Affairs, Department of Justice, to Sen. Charles E. 
Grassley, Ranking Member, Senate Committee on the Judiciary (Feb. 4, 
2011).
    \28\Letter from James M. Cole, Deputy Attorney General, Department 
of Justice, to Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, et al. (Dec. 2, 2011).
    \29\Id.
    \30\Contempt Citation, at 41-42.
    \31\Id.
    \32\Congressional Research Service, Congressional Oversight Manual 
(June 10, 2011).
    \33\United States v. AT&T, 567 F.2d 121, 127 (D.C. Cir. 1977).
    \34\5 Op. Off. Legal Counsel. 27, 31 (1981).
    \35\Letter from James M. Cole, Deputy Attorney General, Department 
of Justice, to Rep. Darrell E. Issa, Chairman, House Oversight and 
Government Reform (June 20, 2012).
    \36\Letter from Eric H. Holder, Jr., Attorney General, Department 
of Justice, to Barack H. Obama, President (June 19, 2012) (quoting 
Letter from Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, to Eric H. Holder, Jr., Attorney 
General, Department of Justice (June 13, 2012)).
    \37\Fast and Furious: How President Obama and John Boehner Got to 
the Brink, Politico (June 22, 2012) (quoting Speaker John A. Boehner as 
stating that the ``decision to invoke executive privilege is an 
admission that White House officials were involved in decisions that 
misled the Congress and have covered up the truth''); House Committee 
on Oversight and Government Reform, Business Meeting (June 20, 2012) 
(quoting Rep. James Lankford as stating ``we weren't even aware that 
the President was engaged in the deliberations'' and Rep. Jason E. 
Chaffetz stating that the assertion means that the President ``somehow 
was personally involved'').
    \38\Letter from Eric H. Holder, Jr., Attorney General, Department 
of Justice, to Barack H. Obama, President (June 19, 2012) (quoting 
Letter from Rep. Darrell E. Issa, Chairman, House Committee on 
Oversight and Government Reform, to Eric H. Holder, Jr., Attorney 
General, Department of Justice (June 13, 2012)).
    \39\Letter from Eric H. Holder, Jr., Attorney General, Department 
of Justice, to Barack H. Obama, President (June 19, 2012) (quoting 
Letter from Michael B. Mukasey, Attorney General, Department of 
Justice, to George W. Bush, President (June 19, 2008); Letter from Paul 
D. Clement, Solicitor General and Acting Attorney General, Department 
of Justice, to George W. Bush, President (June 27, 2007); Letter from 
John D. Ashcroft, Attorney General, Department of Justice, to George W. 
Bush, President (Dec. 10, 2001); 23 Op. Off. Legal Counsel 1, 1-2 
(1999) (opinion of Attorney General Janet W. Reno); 5 Op. Off. Legal 
Counsel 27,29-31 (1981) (opinion of Attorney General William French 
Smith)).
    \40\Letter from Eric H. Holder, Jr., Attorney General, Department 
of Justice, to Barack H. Obama, President (June 19, 2012) (citing 
United States v. Nixon, 418 U.S. 683, 705 (1974)).
    \41\House Committee on Oversight and Government Reform, Statement 
of Chairman Darrell E. Issa, Business Meeting (June 20, 2012).
    \42\House Committee on Oversight and Government Reform, Report 
Regarding President Bush's Assertion of Executive Privilege in Response 
to the Committee Subpoena to Attorney General Michael B. Mukasey, 110th 
Cong. (2008).
    \43\House Committee on Oversight and Government Reform, Statement 
of Chairman Henry A. Waxman, Hearing on the Johnson and Dudley Contempt 
of Congress Resolutions, 110th Cong. (June 20, 2008).
    \44\House Committee on Energy and Commerce, Congressional 
Proceedings Against Interior Secretary James G. Watt for Withholding 
Subpoenaed Documents And For Failure to Answer Questions Relating to 
Reciprocity Under the Mineral Lands Leasing Act, 97th Cong. (Sept. 30, 
1982) (H. Rept. 97-898).
    \45\Id.
    \46\Face the Nation, CBS News (Oct. 16, 2011) (online at 
www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
    \47\Justice Department Accuses Issa of ``Mischaracterizing'' 
Evidence in Probe of Operation Fast and Furious, Fox News (Oct. 17, 
2011) (online at www.foxnews.com/politics/2011/10/17/justice-
department-accuses-issa-mischaracterizing-evidence-in-probe-operation/
#ixzz1xiMQtvoh).
    \48\House Committee on Oversight and Government Reform, Hearing on 
Operation Fast and Furious: Management Failures at the Department of 
Justice (Feb. 2, 2012).
    \49\Face the Nation, CBS News (Oct. 16, 2011) (online at 
www.cbsnews.com/stories/2011/10/16/ftn/main20121072.shtml).
    \50\Id.
    \51\Minority Staff, House Committee on Oversight and Government 
Reform, Fatally Flawed: Five Years of Gunwalking in Arizona (Jan. 2012) 
(online at http://democrats.oversight.house.gov/
index.php?option=com_content&task=view&id=5575&Itemid=104).
    \52\The Roger Hedgecock Show (Nov. 21, 2011) (online at 
www.youtube.com/watch?v=pGYUxuBNxk0).
    \53\House Committee on Oversight and Government Reform, Transcribed 
Interview of Kenneth E. Melson (July 4, 2011); House Committee on 
Oversight and Government Reform, Transcribed Interview of Dennis K. 
Burke (Aug. 18, 2011).
    \54\Hannity, Fox News (Dec. 8. 2011) (online at http://
video.foxnews.com/v/1317212270001/holder-on-the-hot-seat-over-fast--
furious).
    \55\The Rush Limbaugh Show (June 20, 2011) (online at 
www.rushlimbaugh.com/daily/2011/06/20/
on_the_cutting_edge_we_covered_the_fast_and_furious_story_in_march).
    \56\O'Reilly Factor, Fox News (Apr. 16, 2012) (online at 
www.foxnews.com/on-air/oreilly/2012/04/17/will-fast-and-furious-hurt-
obamas-re-election-chances).
    \57\American Newsroom, Fox News (Mar. 12, 2012) (online at http://
video.foxnews.com/v/1502683781001/tea-party-turning-up-the-heat-on-
fast--furious).
    \58\Hannity, Fox News (June 15, 2012) (online at http://
video.foxnews.com/v/1691933147001).
    \59\Minority Staff, House Committee on Oversight and Government 
Reform, Fatally Flawed: Five Years of Gunwalking in Arizona (Jan. 2011) 
(online at http://democrats.oversight.house.gov/images/stories/
minority_report_13112.pdf)

                                   Elijah E. Cummings.
                                   Carolyn B. Maloney.
                                   Wm. Lacy Clay.
                                   Eleanor Holmes-Norton.
                                   Danny K. Davis.
                                   John F. Tierney.
                                   Stephen F. Lynch.
                                   Christopher Murphy.
                                   Mike Quigley.
                                   Dennis J. Kucinich.
                                   Edolphus Towns.
                                   Gerald E. Connolly.
                                   Peter Welch.
                                   John Yarmuth.
                                   Jackie Speier.

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