DOJ Sought Scapegoat for Fast and Furious, Former Arizona U.S. Attorney Says
By Mary Jacoby | March 30, 2014 10:44 pm

Former Arizona U.S. Attorney Dennis Burke says he leaked documents to the media about the Fast and Furious gun probe because he believed his superiors in Washington intended to make his office the scapegoat for the controversy.

Burke, who resigned on Aug. 30, 2011, as a high-profile congressional investigation was in full swing, told an Arizona State Bar disciplinary proceeding that he believed political expediency was leading Justice Department headquarters in Washington to blame Arizona prosecutors for Fast and Furious.

Dennis Burke

Burke “believed that his office and employees were not being fairly protected by DOJ, and that accurate and complete information about F&F was not being provided to the national media,” according to the March 27 disciplinary agreement. He attributed the alleged scapegoating to the Justice Department’s “own political interests” in finding someone to blame.

In the state bar proceeding made public last week, Burke accepted responsibility for his conduct, agreed to pay $1200 to reimburse the state bar for costs, and was issued a reprimand.

He also gave his first interview about the matter after more than two and a half years of silence.

“There was a dysfunctionality in the overall process,” Burke told the Arizona Republic newspaper. He added: ”Standing up for our office was not a main priority for” Justice Department headquarters in Washington.

The failed operation by the Bureau of Alcohol, Tobacco, Firearms and Explosives attempted to trace guns purchased in the U.S. by straw buyers for Mexican drug cartels, in the hope of making larger cases. The Arizona U.S. Attorney’s office worked with ATF on the investigation.

But in 2010, one of the guns purchased by a straw buyer was found at the scene of a shootout in which Border Patrol Agent Brian Terry was killed. An ATF whistleblower named John Dodson went to Sen. Charles Grassley (R-Iowa) to complain about the operation.

Grassley and House Oversight Committee Chairman Darrell Issa (R-Calif.) mounted a major investigation of Fast and Furious. They blamed ATF and the Justice Department for Terry’s death.

Attorney General Eric Holder in a December 2011 House Judiciary Committee hearing called the gun-tracing operation “misguided” but decried what he called “gotcha games” being played by Republicans. The investigation quickly devolved into a partisan fight.

Republicans called on everyone from Holder to then-Criminal Division chief Lanny Breuer to resign, and the House voted to hold Holder in contempt of Congress for refusing to hand over subpoenaed documents detailing the DOJ’s response to the congressional inquiry

Acting ATF Director Ken Melson was reassigned because of the scandal and eventually retired.

Deputy Assistant Attorney General Jason Weinstein resigned in September 2012 after a DOJ Inspector General report criticized his supervision of Fast and Furious.

In his resignation letter, the career prosecutor called the IG’s conclusion that he knowingly allowed guns to fall into the hands of cartels “completely false” and also blamed the Arizona U.S. Attorney’s office for what he said was its failure to inform him that weapons were being allowed to “walk.” He added that “it is virtually inevitable that someone must be singled out for blame” when a matter becomes “enmeshed in politicized Congressional hearings.”

Following resolution of the state bar investigation, local media in Arizona reached a similar conclusion about Burke’s treatment, casting him as principled.

“He sought to correct the record when others were blinding the American people to the truth. Whatever that behavior was, it wasn’t something to be sanctioned. It was something to be celebrated,” said the editorial board of the Arizona Republic newspaper.

The leaked documents

Burke’s downfall came from two leaked documents.

The first was a Jan. 28, 2011 memo to Burke from Assistant U.S. Attorney Emory Hurley about a suspected straw buyer of weapons named Jamie Avila Jr. The memo described how ATF had tracked Avila’s purchases but lacked a legal basis to arrest him. The Border Patrol later made a routine traffic stop of another man whose car contained weapons purchased by Avila, but that driver was released, again because there was no legal grounds for arrest.

Burke authorized his office’s media liaison to slip the memo to the New York Times.

The Times then reported the memo in a June 14, 2011 article about a report released by Grassley and Issa that concluded Fast and Furious was a “reckless” investigation that directly led to Border Patrol Agent Terry’s death.

But the Times initially failed to redact a time stamp showing the memo had been faxed from the Arizona U.S. Attorney’s office.

Two days later, Deputy Attorney General Jim Cole phoned Burke to ask how the memo had gotten out. In the state bar disciplinary proceeding, Burke admitted to dissembling, and agreed he left Cole with the impression that Burke didn’t know how the memo was released.

On June 24, 2011, the the DOJ’s internal ethics office, the Office of Professional Responsibility in Washington, called Burke about the memo, and he admitted then that it couldn’t have been released without his consent.

Explaining his actions to the state bar, Burke said he felt that “because of its own political interests, DOJ would not adequately defend the USAO against what the USAO perceived to be the congressional report’s unfair conclusion that the Terry murder was preventable and a direct result” of Fast and Furious, according to the disciplinary proceeding report.

OPR investigated Burke and prepared a June 27, 2012 report on the matter that is not public.

While the Arizona state bar was investigating Burke on the Avila memo leak, the Justice Department Inspector General released a report in May 2013 blaming Burke for another leak: of a memo that discredited the ATF agent who was the chief source for the congressional Republicans on Fast and Furious.

The memo showed that John Dodson, the ATF whistleblower, had proposed going undercover as a straw purchaser of weapons. Dodson later gave an interview to CBS News and to congressional investigators criticizing the investigation.

The Inspector General report called Burke’s leak of the memo “wholly unbefitting a U.S. Attorney.”

The state bar report said Burke had provided the information to a reporter whom he knew well, believing the reporter had already reviewed a copy of the Dodson memo. Burke used his personal email account to send the memo.

Sympathy for Burke

The Arizona state bar proceedings took a generally sympathetic view of Burke. While finding that he “negligently” revealed information and “knowingly” misled Cole in violation of professional conduct rules, there was “no actual harm” that resulted.

The proceedings also said Burke did not have a “self-serving, selfish or pecuniary motive” in leaking the information, and it noted the intense personal stress that Burke and his office had undergone after the shooting of Rep. Gabrielle Giffords (D-Ariz.) in January 2011.

Burke was a friend of both Gifford and one of the people killed in the tragedy, U.S. District Judge John Roll, who had presided over Burke’s investiture as U.S. Attorney. Burke spent “hour and hours” visiting the victims and families following the shooting and arranged for grief counseling for his employees in the Tuscon office, the disciplinary report said.

In its interview, the Arizona Republic asked Burke whether he had been treated fairly by his Justice Department superiors.

“No,” Burke told the newspaper.

The newspaper concluded: ”To followers of politics, the settlement is still further evidence of what is by now obvious – that Burke and others in the Phoenix office were sacrificed by their superiors in Washington, D.C., as scapegoats in a politically charged murder case, the first great Obama Administration scandal.”

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