As citizens, you and I would take a subpoena pretty seriously. Of course, we have to comply. A legal subpoena is not notice of an overdue library book. To most of us, I suspect, it would cause alarm. It certainly would for me. In real life, if you ignore a subpoena, you risk going to jail.
Let’s assume I want an investigation into possible wrongdoing. I would issue a subpoena to the Drug Enforcement Administration (DEA) or the FBI, or the ATF, Bureau of Prisons or even Interpol.
I issue my subpoena. Now guess who I must rely on to enforce that subpoena? You got it. The Department of Justice! All of those agencies are within the DOJ. So I would be dependent on the DOJ enforcing a subpoena against itself.
Now, let’s say that the agencies didn’t want to enforce the subpoena. Let’s say one of the thousands of career employees who were hired under a different administration didn’t like the politics of the current one. Or they didn’t like the idea of siding with Congress over their brethren. The federal agency employees would ignore the subpoena, talk to their career pals over at DOJ, and feel pretty comfortable that the DOJ would never enforce it.
That is the way the DOJ subverted congressional oversight time and again.
How Congress Gave Away the Subpoena Power
It wasn’t always this way. The seeds of Congress’s attitude toward subpoenas were planted in 1857 but sadly didn’t become apparent until 1982.
In 1857, Congress passed a law ruling that anyone found in contempt of Congress was criminally liable. That should have strengthened the check and balance. But then Congress agreed to change the way contempt would be enforced. Instead of holding time-consuming hearings, Congress agreed to certify matters of contempt to the district attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for their action.”
That was the first mistake. The second was failing to rectify the error when the Reagan administration first discovered the utility of it in avoiding prosecution. Prior to that time, congressional threats to certify a complaint to the district attorney generally resulted in cooperation. Between 1975 and 1998, there were ten votes to hold cabinet-level officials in contempt. All resulted in complete or substantial compliance with information gathering. But in 1982, a congressional oversight subcommittee subpoenaed records from the EPA regarding mismanagement of EPA Superfund hazardous waste sites.
President Reagan’s then EPA administrator, the late Anne Gorsuch, refused to comply with the subpoena. Gorsuch, whose son Neil currently serves on the United States Supreme Court, claimed executive privilege. Now we know where Eric Holder learned this trick.
In keeping with the 1857 agreement, the Speaker of the House quickly certified the matter for prosecution by the district attorney. Only this time, the district attorney refused to take the case to a grand jury, exposing a massive weakness in what was once a secure check and balance.
Over the next few years, the executive branch’s own Office of Legal Counsel affirmed the right of the district attorney to exercise discretion to prosecute. That created a carve-out for executive privilege by directing Congress to file civil suits to enforce subpoenas. Congress quietly went along with this erroneous interpretation of inherent contempt. We’ve been paying for it ever since.
The Fast and the Foolish
Perhaps no story better captures the sheer intransigence of the DOJ than the epic battle in Congress over what came to be called the Fast and Furious scandal, where the U.S. government allowed two thousand guns to be put in the hands of drug cartels. The tale is complex and detailed, in part because there are so many layers of politics, cover-ups, and schemes to maintain the status quo. The whole awful story is not just about guns, ineptitude, and bureaucracy. It is about President Obama’s administration setting up a program that inevitably failed to protect America not just from illegal immigration, but specifically from dangerous criminals and drug smuggling. It is about an attorney general and a Justice Department that hid evidence, lied, and defied Congress. And ultimately, it is about a government that cost a brave border patrol agent his life.
First, a little background on the ATF. The Bureau of Alcohol, Tobacco, Firearms and Explosives—known as the ATF—was formed in 1886 to be something of an über–law enforcement agency that could help and coordinate with local police. Seemingly depending on whatever crime was particularly in fashion among lawbreakers—mob crime, money laundering, alcohol, gun-running, drugs—it bounced around in the jurisdiction of the Treasury Department, the IRS, then was briefly part of the FBI during Prohibition. After September 11, 2001, the ATF was permanently returned to the DOJ.
Back in 2008, an idea was hatched at the senior level of the Phoenix office of the ATF. Mexican drug cartels seemed to be importing guns from the United States into Mexico, and those guns were then used again in crimes in the States. In May 2008, William Newell, special agent in charge of the Phoenix ATF office, told ABC News: “When 90 percent–plus of the firearms recovered from these violent drug cartels are from a U.S. source, we have a responsibility to do everything we can to stem the illegal flow of these firearms to these thugs.” Good idea. But like many good ideas, the execution of this one had major flaws. Somebody’s bright idea was to allow U.S. gun dealers to sell guns to the cartels and then “follow” the guns to see where they were involved in crimes. It was called “gun-walking”—follow the guns to their ultimate destinations when they were used in crimes. Now, you might wonder how one does that successfully without round-the-clock surveillance. Simple. You don’t.
There were several iterations of this flawed policy, but the most dramatic failure was the operation nicknamed Fast and Furious.
For context—and remember, this example is in just one border area in one state—let me give you a brief timeline since 2009 of the kinds of incident reports compiled by the Santa Cruz County, Arizona, sheriff’s office, and reported by Leo W. Banks in the Tucson Weekly. These reports concern Peck Canyon and surrounding areas, twenty-five miles from the city of Nogales, Arizona:
November 21, 2009: Men dressed in black fire at eight illegals in Peck Canyon with automatic weapons, wounding David Luna Zapata. He runs through the mountains for an hour before reaching Jim Cuming’s house and calling for help.
November 27, 2009: A hunter in Fresno Canyon, two miles north of Peck Canyon, finds the body of a Hispanic male, shot to death. When Border Patrol backtracked, they spot “four scouts in a cave and attempted to apprehend the subjects.” The agents also “spotted three subjects walking on the same route with seven subjects approximately ten minutes behind.” The men are believed to be drug mules.
December 27, 2009: A sniper shoots a Border Patrol agent in the ankle in Ramanote Canyon, on the Lowells’ ranch, about two miles southwest of their home. Two agents had entered the canyon after spotting a subject “possibly carrying a marijuana bundle.”
June 11, 2010: Two men wearing camouflage and masks fire on seven illegals near Ramanote Wells, on the Lowells’ ranch. As the illegals flee, they meet two more masked men, who also fire “multiple rounds at them.” Manuel Esquer Gomez, wounded in the arm, says that as he and the other illegals flee, they stumble across a decomposing body with the head and hands missing, “possibly due to animal activity.” The body is two hundred yards from the Lowells’ home. Pima County’s Medical Examiner tells the Weekly the dead man is too “heavily skeletonized” to determine a cause of death.
July 2, 2010: Hilltop gunmen fire at ten illegals, likely in Peck Canyon (based on descriptions). Two aliens say they couldn’t see the assailants, but bullets hit the ground around them. One man, running “as fast as he could down the canyon,” is hit in the back. The illegals admit entering the U.S. three days earlier to find work in Tucson.
July 7, 2010: Based on a reliable intelligence source, Immigration and Customs Enforcement warns that a bounty has been placed on Nogales Border Patrol agents. The alert says twenty to twenty-five snipers, possibly from the Beltrán-Leyva Cartel, are headed to
Nogales, Sonora, to shoot agents. The alert says snipers would be paid $5000 for each person shot and cautions agents “to remain vigilant, maintain awareness of their surroundings, and utilize body armor and long arms as appropriate.”
August 28, 2010: Two men in camouflage carrying handguns approach two Hispanic males between Peck Canyon and Negro Canyon. The gunmen ask “in Spanish for the marijuana.” The men say they don’t have marijuana and flee. The incident occurs a mile from the Lowells’ home, on the north side of Peck Canyon.
September 5, 2010: Snipers fire multiple shots, probably with a high-caliber rifle, at Border Patrol agents in Bellota Canyon, north of Peña Blanca Lake. An agent returns fire; no one is hit. Border Patrol agents also took fire inside the Peck Corridor on August 9, 2009, near the town of Ruby, and on June 21, 2010, west of DeConcini port of entry in Nogales.
September 12, 2010: Three men carrying rifles and wearing bandana masks fire at two illegals in the Walker Canyon area, northeast of Peña Blanca Lake. No one is hit. One of the illegals says the assailants were in a “very green” area and “suspects they were growing marijuana.” The victims entered the U.S. west of the border wall and walked through a large hole in the barbed wire fence, “big enough where ATVs have been passing through.” They’d followed the ATV tracks for an hour when attacked.
September 14, 2010: Seven illegals report being assaulted near Atascosa Lookout, six miles west of Agua Fria Canyon. Jesus Enrique Perez-Mercado says the gunmen stole $200 from him and assaulted him when he balked at giving up his rosary beads. Perez-Mercado says the gunmen spoke English to each other but Spanish to their victims.
October 21, 2010: A man in a hooded jacket and carrying a cuerno de chivo, slang for AK-47, attacks nine illegals—five men and four women—in the Pajarito Mountains south of Peña Blanca Lake. He robs them, kicking some of the men in the stomach. He tells the women to strip and penetrates them with his fingers. He separates out one woman and rapes her, never removing his hood or relinquishing his weapon.
November 11, 2010: Three men wearing masks rob an illegal at gunpoint on Wise Mesa, in the national forest between Peck Canyon and Agua Fria Canyon. The assailants tell the man to leave the area and not return.
November 16, 2010: Border Patrolmen on horseback encounter twelve illegals two miles northwest of Peña Blanca Lake. An agent shoots one of the illegals in the stomach after the illegal reportedly threatens him with a rock.
In other words, the area was rightly called a major smugglers’ paradise. This was a secret to no one.
The Cover-Up Begins
Border agents were unsupported, overwhelmed, and underarmed to deal with criminals and illegal immigration. Journalist Sharyl Attkisson, then a top reporter for CBS News, identified at least a dozen cases where federal agents allowed guns to “walk” in places like Florida, New Mexico, and Texas, under covert programs called “Too Hot to Handle,” “Wide Receiver,” and “Castaway.” The feds encouraged U.S. gun dealers to sell guns to suspected traffickers to the cartels. The goal was to see where the weapons ended up and then make a big case against the cartels. That never happened, of course.
The Peck Canyon area was under siege, much like many other areas on our border.
On the night of December 14, 2010, after a few days in the area searching for smuggling activity, a U.S. Border Patrol Tactical Unit (BORTAC) encountered a “rip crew”—slang for armed bandits who rob drug smugglers without the bother of having to cross the border—in Peck Canyon. They called out “Border Patrol! Don’t move!”
A firefight ensued. Border Patrol agent Brian Terry, a Marine Corps veteran, was hit by a single bullet from an AK-47. The remote and rugged area, which now included armed criminals, was too dangerous for a medevac helicopter. Border Patrol agents carried Brian Terry for more than a mile to a safe place for the chopper to land. It was too late; Brian Terry’s spinal cord had been severed, along with an artery to his heart. Shortly after midnight, Terry lost consciousness and died en route to the hospital, according to testimony from fellow agents on the scene. He was forty years old.
Two AK-47-type assault rifles were recovered at the scene of Terry’s murder and traced to Operation Fast and Furious. A straw purchaser with known connections to the Mexican drug cartels had purchased the firearms from a shop in Glendale, Arizona, on January 16, 2010. ATF had been aware of the purchaser’s connection to a straw purchasing ring since it conducted surveillance of him on November 25, 2009. However, pursuant to the Fast and Furious operational strategy, ATF agents took no actions to disrupt the straw purchase.
At the time of Terry’s murder, officials at ATF, the U.S. attorney’s office, and the Justice Department knew about the tactics forming the basis of Operation Fast and Furious. In fact, on December 15, 2010, the day after Terry’s murder, ATF connected the firearms found at the murder scene to Operation Fast and Furious. But no one told the Terry family. Josephine Terry, Brian’s mother, first heard about Fast and Furious from reporters who started calling for her reaction.
In the subsequent weeks and months, the Terry family searched for answers about Brian’s murder. On February 8, 2011, Carolyn Terry, Brian’s stepmother, emailed Republican senator Charles Grassley of Iowa and asked for help. She wrote:
It’s hard to accept that our son was shot and murdered with a gun that was bought in the U.S. We have not had any contact from the Border Patrol or any other agents since returning home on the 22nd of [January]. Our calls are not returned. I truly feel that our son’s death is a cover-up and they hope that we will go away. That will not happen. We want to know who allowed the sale of that gun that murdered our son. Any help will [be] appreciated. We are the victims of this case and we want some answers.
Senator Grassley included that email in a letter to Obama’s attorney general Eric Holder on February 9, 2011. Documents show Holder agreed with Grassley that the Terry family deserved answers. According to an email from Gary Grindler, Holder’s chief of staff, to Assistant Attorney General Lisa Monaco, Holder was “particularly concerned” about “the assertion that there has been no contact with the victim’s family.” Monaco replied: “It sounds like [D]ennis’ office has been in contact with the family and that there are multiple factions in the family.”
However, officials in the U.S. attorney’s office seemingly disregarded Holder’s message that the Terry family deserved answers. Justice Department officials discussed the Terry family disrespectfully. For example, in a February 23, 2011, email, an official in the office of the U.S. attorney for the District of Arizona referred to the family as “disgruntled.”
A disturbing level of contempt for the family was documented in a June 2017 Joint Staff Report issued by the House Oversight and Judiciary Committees. According to the report, emails show DOJ staffers deliberately limited the amount of truthful information to share with the Terry family, and made those determinations based on concerns about media coverage. Days after U.S. attorney Dennis Burke’s meeting in Michigan with the Terry family, he and his colleagues were discussing their strategy for communicating with the Terry family. Assistant U.S. Attorney Jesse Figueroa emailed Burke and several others:
We are making a mistake by attempting to reason with the stepmother and the brother. Lisa and I have been dealing with them since the start of this case. . . . Stepmom is irrational and I firmly believe she and the brother enjoy being in the limelight. Whatever they are told will not change their irrationality and will just cause them to contact the news. If they learned about our hope for a wire I have no doubt that would have been on the news also. We should deal only with the intelligent side of the family.
Furthermore, the DOJ lawyers denied that the weapons used to kill Terry were part of Fast and Furious. In June 2011, the Terry family was still searching for answers.
According to the Justice Department’s Office of the Inspector General, under operations “Fast and Furious,” “Too Hot to Handle,” and “Wide Receiver,” indictments show that the Phoenix ATF office
, over protests from the gun dealers and some ATF agents involved and without notifying Mexican authorities, facilitated the sale of more than 2,500 firearms (AK-47 rifles, FN 5.7 mm pistols, and .50-caliber rifles) to traffickers destined for Mexico. Many of these same guns are being recovered from crime scenes in Arizona and throughout Mexico, which is artificially inflating ATF’s eTrace statistics of U.S. origin guns seized there. One gun is alleged to be the weapon used by a Mexican national to murder Agent Brian Terry on December 14, 2010. ATF and DOJ denied all allegations. After appearing at a congressional hearing, three supervisors of Fast and Furious (William G. McMahon, Newell, and David Voth) were reported as being transferred and promoted by ATF. The agency denied the transfers were promotions.
Turning on Their Own
One of the real dangers of confronting the Deep State is retribution. I experienced it as a congressman in the Secret Service scandal. But the true victims are the honest federal employees who see wrongdoing, become whistleblowers, and find themselves punished for it.
In June 2011, Vince Cefalu, an ATF special agent for twenty-four years who in December 2010 exposed ATF’s Project Gunrunner scandal, was notified of his termination. Two days before the termination, Representative Darrell Issa, Republican of California and at the time chairman of the House Committee on Oversight and Government Reform, sent a letter to the ATF warning officials not to retaliate against whistleblowers. Cefalu’s dismissal followed allegations that ATF does just that. ATF spokesman Drew Wade denied that the bureau is retaliating but declined to comment about Cefalu’s case.
Enough was enough. This is about a number of issues: border security and immigration, drug smuggling, and the Obama administration’s failure to tell the truth.
The Deep State Page 6
