Some lawyers for officials faulted in the Justice Department’s Office of Inspector General report on Fast and Furious are asking why the IG declined to publish rebuttals they made to a draft of the report.
Two lawyers told Main Justice they requested that their written comments be appended in a final version of the report into the botched gun-walking investigation. The comments, however, were not included. The lawyers said that decision raises questions of transparency.
“I think in the interest of full transparency it’s a good idea to publish comments and if possible indicate how the IG’s office has resolved those comments,” said Michael Bromwich, lawyer for Jason Weinstein, who has since resigned his post as a Criminal Division deputy. “This was clearly going to be a report of great public interest. The criticisms of various participants contained in the report, including my client, I thought deserved to have the other side represented.”
But a spokesman for the Office of Inspector General says it’s not the practice of the office to include such comments, adding that the process has been transparent from the start.
The Inspector General report laid much of the investigation’s failures with the Arizona U.S. Attorney’s office and the Bureau of Alcohol, Tobacco, Firearms and Explosives. It cited 14 officials for failures in the operation and the Attorney General has said he will seek disciplinary actions against those officials within ATF and the U.S. Attorney’s office. Among those mentioned in the final report were Weinstein, who has since said many of the conclusions of fault against him are wrong. Others, too, have said they’ve been given little ability to tell their side of the story now that the report’s been released.
The Office of Inspector General said it is routine to give the institutions and individuals mentioned in any report a draft to respond to with comments and questions. This way, said a spokesman who said he preferred not to be named, the parties have an opportunity to offer their own suggested changes before a report is publicly disseminated. The spokesman said all of the comments were taken into account. Changes were made to the final report when they served to make it more accurate, he said.
He noted that no one is barred from speaking out about the final report. The IG, however, did append the Justice Department’s institutional comments to the report.
Bromwich told Main Justice, however, that he believes a fuller picture could have been given to readers if the comments had been appended. The Goodwin Procter LLP partner is a former Justice Department Inspector General himself, leading the watchdog’s office from 1994 to 1999.
He said when he was in the office, he would on occasion append draft comments to his office’s final reports, if the case was of high public interest. In so doing, his office would then detail what comments the final report did or did not incorporate and give explanations why, he said. Bromwich pointed to the headline-grabbing case involving faulty FBI laboratory forensic work. As IG, Bromwich said his final report included an appendix with the draft comments and responses from the OIG.
Bromwich conceded the practice has been followed “inconsistently” over the years, but given the “high level in interest in this report I thought it would be the best practice to follow.”
In the end, Bromwich published his draft comments himself, without asking the IG’s permission. He also published a post-mortem rebuttal of the final IG report, which was released last week. But he said it’s not ideal to have to “count on the diligence of readers to hunt them down.”
The Inspector General’s Office also asked one lawyer not to release his draft comments. David Laufman, who is counsel for then-ATF Assistant Director for Field Operations Mark Chait, said he asked the Inspector General’s office if it had any objections to him releasing his draft comments after the final report was released. Laufman said the office did raise objections. As a result, he has not released the document.
The OIG spokesman confirmed it did raise objections after one lawyer asked about releasing draft comments. He said that in addition to its rationale behind putting the final report together with the comments in mind, there were secrecy concerns. Wiretaps and grand jury information were at play. The final report contains redacted sections.
Laufman said he requested the draft comments concerning Chait be appended. He was disappointed they were not included, because many seem to regard the IG report as “stone tablets brought down from Mt. Sinai,” he said.
“Investigations of the Office of the Inspector General are as subject to error and frailty as investigations carried out by any other public institution,” he added, calling it a matter of fairness to include the comments for people whose professional reputations are being destroyed.
But the office’s spokesman said it would make no sense to append out-of-date comments to a draft that was amended to include them, he said.
Paul Pelletier, attorney for ATF Phoenix Field Division Special Agent in Charge William Newell, said he was surprised that his draft comments were ultimately not attached to the final report. He told Main Justice he has not asked the Inspector General’s Office about releasing them on his own. He said he would not provide further comment.