Officials At Fault in Fast and Furious Report Offer Rebuttals
By Elizabeth Murphy | September 28, 2012 7:06 pm

The Justice Department Inspector General report on Fast and Furious is riddled with inaccuracies and faulty assumptions that have left little recourse for those faulted for mistakes, say lawyers for three officials cited in the report.

Twelve federal officials could face discipline in the wake of the 471-page report, which detailed the IG’s 19-month investigation into the botched weapons trafficking investigation. The report lays much of the blame with the Arizona U.S. Attorney’s office and the Bureau of Alcohol, Tobacco, Firearms and Explosives. Since the report’s release last week, two officials have left the department.

Editorial boards, lawmakers and the family of slain Border Patrol Agent Brian Terry have all called for Attorney General Eric Holder to punish those the report found at fault. Mistakes were made from the top to bottom, the report found. A number of officials did not account for the risk to public safety in allowing hundreds of guns to flow over the Mexican border without a plan to track them – the so-called “gun-walking.” Two guns found at the scene of a shootout in Arizona in 2010 that left Terry dead were later linked to Operation Fast and Furious.

While lawyers for a number of other individuals cited in the report either did not respond or declined to comment, three attorneys offered rebuttals on behalf of their clients:

(See related story, Fast and Furious Lawyers Question Why Their Comments Were Not Appended to Final Report.)

Former Criminal Division Deputy Assistant Attorney General Jason Weinstein

Jason Weinstein resigned immediately following the report’s release last week, saying he’d been scapegoated. ”I recognize that.. it is virtually inevitable that someone must be singled out for blame,” Weinstein wrote in his resignation letter.

In a four-page memo titled “Fact vs. Fiction,” Weinstein’s attorney, Michael Bromwich, made the following points:

  • Contrary to the IG’s conclusion that Weinstein, a senior Criminal Division leader, failed to communicate to ATF and DOJ that gun-walking was unacceptable, in fact Weinstein “sounded the alarm” against the tactic when he learned of it in connection with an earlier operation known as Wide Receiver.
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  • It is “completely false” that Weinstein received detailed information about Fast and Furious in a critical period in the spring of 2010. Rather, he received “blanket assurances” from ATF that guns were being aggressively interdicted. In April 2010, ATF Deputy Assistant Director William McMahon described Fast and Furious as “completely different” from the earlier Wide Receiver, the memo says, citing the IG report.
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  • The idea that Weinstein should have figured out that gun-walking was occurring from wiretap applications he approved fails to take into account that senior officials “for decades” have reviewed only summaries of the wiretap affidavits, the memo says. It also notes that two other Deputy Assistant Attorneys General — Kenneth Blanco and the late John Keeney — also signed off on the wiretaps. “The report applies a different standard” to Weinstein than to the other DAAGs, the memo says.
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  • Weinstein did not intentionally provide misleading information to Congress when he helped to write an inaccurate Feb. 4, 2011 letter stating that ATF didn’t let guns walk. Rather, he was relying on the assurances of ATF officials and then-U.S. Attorney for Arizona Dennis Burke, the memo says.
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  • The IG concluded that Weinstein was the most senior official at Main Justice to have been in a position to spot the gun-walking. But Bromwich’s memo notes that Weinstein — who worked to keep guns off the street as a Baltimore Assistant U.S. Attorney assigned to gang prosecutions — was alarmed when he learned of gun-walking in Wide Receiver. It doesn’t make sense that he would have accepted gun walking in Fast and Furious — unless he had no reason to suspect it, the memo says. Again, Weinstein had been relying on the assurances of ATF and Arizona U.S. Attorney officials that guns were being interdicted, the memo says.

In response to Bromwich’s criticism of a draft Fast and Furious report, the Inspector General office added to the final version of the report Weinstein’s missing testimony that he wasn’t the source of the inaccurate statement in the Feb. 4, 2011, letter to Congress asserting that ATF never let guns “walk.”

But the IG report ultimately said: ”We concluded that during the [letter] drafting process Weinstein advocated for ATF and the U.S. Attorney’s Office rather than responsibly gathering information about their conduct of the Fast and Furious investigation … We believe that Weinstein’s staunch support of ATF led him to lose perspective.”

ATF Assistant Director Mark Chait

Inspector General Michael Horowitz found that then-Assistant Director of Field Operations for ATF Mark Chait failed in his oversight duties and did not review wiretap applications according to ATF policy. But those conclusions are incorrect, said Chait’s lawyer, David Laufman.

“The report recklessly and gratuitously condemned him for failing to do things when in fact he went above and beyond the call of duty,” Laufman told Main Justice. He said the report makes presumptive leaps and many of the findings are “grossly inaccurate, grossly misleading and grossly unfair.”

“He has 25 years of dedicated service to ATF. He rose from a street agent to being in charge of all field operations,” Lafuman said. He was then cast out “just because ATF headquarters was taking political heat. It was disgraceful.”

In one such instance, the report details Chait’s failure to review wiretap applications for the operation from the Phoenix-based ATF field office. The report faulted Chait for not personally reviewing the applications, as is required by ATF policy. ATF Order No. 3520.2, crafted in 1989, states that:

“The application for authorization to seek an interception order shall be prepared by the supervising attorney and addressed to the Assistant Attorney General, Criminal Division, Department of Justice, and shall be forwarded through channels from the Associate Director (Law Enforcement) (ADLE). A copy of the application and affidavit will be stored in the designated Systems and Records Branch file, after ADLE review.”

ADLE was the precursor to the position known as Assistant Director for Field Operations – Chait’s position – the report notes.

However, Deputy Assistant Director William McMahon, Chait’s subordinate, signed four of the nine wiretap applications he received for the operation. According to the report, Chait argued that delegation of this duty has been common practice at ATF.  The IG was not persuaded, “given that the terms of the ATF order impose a duty on the Assistant Director… and does not contemplate redelegation of such authority.”

But this “wrongly depicts Mr. Chait as failing to discharge his responsibilities,” Laufman told Main Justice, calling the 1989 statute that the IG cites as “unduly robotic and sterile.”

Laufman said the IG has taken a naive approach to the ATF’s inner-workings, calling the 1989 ATF order “antiquated.”

“As anyone who has served in government would understand, there are circumstances when operational practice, especially longstanding practice, becomes policy — even if it is not formalized in writing,” Laufman said. “That is exactly what happened at ATF.”

Horowitz was a top Criminal Division official from 1999 to 2002, serving as a deputy assistant attorney general and chief of staff.

Laufman said Deputy Assistant Director review of wiretap applications was understood as policy at ATF. The Assistant Director would face a significant burden if he or she could not delegate the task of reviewing the large number of applications that headquarters receives every week, he said.

“The IG is simply oblivious to the practical consequences of requiring someone at the executive level to personally have to review multiple lengthy, voluminous packages for [wiretap] applications,” Laufman said.

The report said Chait shared “substantial responsibility for the significant lapses in ATF headquarters’ oversight.” As the assistant director, Chait should have “asked more questions, better recognized problems and introduced a sense of urgency to resolve them,” the report said.

The report also said Chait should have asked more questions about Fast and Furious during two intelligence briefings in January 2010. The report asserts that “given the intensity of the firearms trafficking that was described to Chait,” he should have better assessed the risk to public safety.

At the Jan. 5 weekly briefing, members of the Office of Strategic Intelligence and Information (OSII) discussed updates to the operation, including the number of firearms acquired by straw purchasers.  After that briefing, OSII Assistant Director James McDermond asked Chait, “What’s going on?… Something’s not right here,” the report said. According to McDermond, Chait responded that he was not experienced in such cases and did not understand the ins and outs. Chait told the IG that he did not recall anyone expressing concern about the number of firearms being trafficked in the case.

“In the IG’s narrative, these officials are glorified as latter-day Paul Reveres,” Laufman told Main Justice. “Whatever comments were made in Mr. Chait’s presence, if any, were fragmentary and vague and did not remotely rise to the kind of notice that the OIG now asserts.”

ATF Phoenix Field Division Special Agent in Charge William Newell

The Inspector General’s office found that William Newell “fully supported” the strategy behind Fast and Furious, and did not adequately assess the risk it could have to public safety. The report also said Newell relayed “incomplete information” to ATF headquarters on matters related to the investigation, which gave a “misleading impression.”

Newell’s lawyer, Paul Pelletier, told Main Justice  he is “deeply troubled” the report seems to lack long-term guidance on stopping an operation such as Fast and Furious from happening again.

The IG report noted that ATF agents had been under pressure to build cases against wider drug trafficking networks, not just the low-level people.

In 2010, ATF issued an agency-wide memo urging greater emphasis on “multi-defendant conspiratorial cases that focus on persons who organize, direct, and finance cartel-related firearms and explosives in trafficking operations. The document, “Project Gunrunner — A Cartel Focused Strategy,” encouraged officials to prioritize the take-down of higher-level cartel members.  Later that year, the Inspector General’s office itself issued a report that recommended ATF continue to develop “complex conspiracy cases,” without making any suggestions for how to do so.

“The failure of the [Fast and Furious] report to provide any practical guidance as to the ‘proper’ conduct of these firearm investigations, which would ultimately serve to empower dutiful ATF agents attempting to staunch the flow of guns still pouring into Mexico, is equally stunning, given the dramatic reduction in gun seizures along the border since the congressional inquiry began,” Pelletier said.

Some of the ATF agents told IG investigators that the U.S. Attorney’s office in Arizona blocked their ability to interdict guns setting a high probable cause threshold.

“It is certainly clear that the historical failure of the Arizona U.S. Attorney’s office to authorize gun seizures or prosecutions in straw purchaser cases directly and negatively impacted the breadth of investigative options available to the Fast and Furious case agents and supervisors,” Pelletier said. “As such, the need to directly confront and resolve those U.S. Attorney based roadblocks would seem paramount.”

The report, however, found that ATF officials had misunderstood the probable cause standard, though it also faulted the Assistant U.S. Attorney who oversaw the operation, Emory Hurley, for not being aggressive enough in conveying when and how weapons could be seized.

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