by Ben Shapiro
Here are the fates of those in the ATF involved with Fast and Furious:
ATF agent William Newell, head of Group 7 in Phoenix: In August 2011, Group 7 head Newell became a special assistant to the assistant director of the ATF’s Office of Management. The ATF called it a transfer.56 Newell’s lawyer, former Justice Department attorney Paul E. Pelletier, said, “We need more, not less, public servants like Special Agent Newell and the men and women who, despite the challenges imposed by our nation’s gun laws and the legal system in which they operated, strove to make a difference and tried their level best to put an end to the illegal gun trafficking the plagues the Southwest Border.” He claimed that investigators from the offices of Issa and Grassley were politically motivated: “I have learned that the ultimate success and legitimacy of any investigation depends upon the capacity of investigators to blindly follow the evidence where it leads and to neutrally and dispassionately evaluate that evidence before reaching a conclusion. Given your staff’s tortured factual conclusions, your staff’s utter disregard of any evidence that contravened or rebutted the preordained and misdirected conclusions of misconduct, speculation to motive is unnecessary.”57 Despite Sharyl Attkisson’s report in December 2012 that Newell was likely to be fired,58 Newell is still working for the ATF in a low-level position in Utah, riding out the rest of his career. Calls to the ATF for comment were not returned.
ATF agent David Voth, Fast and Furious team leader: In August 2011, Voth became a branch chief for the ATF’s tobacco division. Again, ATF called it a transfer.59 Despite Attkisson’s report in December 2012 that Voth, like Newell, was likely to be fired,60 Voth is reportedly still working for ATF. Calls to the ATF for comment were not returned.
ATF agent George Gillett, former assistant special agent in charge, of ATF Phoenix: Gillett ended up at the ATF headquarters in Washington as a liaison to the federal Bureau of Prisons. In January 2013, the Wall Street Journal reported that he was under investigation because his gun, an FN Five-seven semiautomatic pistol, ended up at a crime scene in Mexico—a November 23, 2012, shoot-out between the Sinaloa Cartel and the Mexican military. At that shoot-out, Mexican beauty queen Maria Susana Gamez was killed.61
ATF agent Mark Chait, assistant director for field operations: Retired with full benefits. ATF did not return request for comment.
ATF agent Hope MacAllister, lead agent: MacAllister is reportedly still an agent in Phoenix, despite reports of upcoming disciplinary action by ATF.62 Request for ATF comment has not been returned.
ATF agent Tonya English: She’s reportedly still in Phoenix as well, despite similar reports of upcoming disciplinary action.63 Request for ATF comment has not been returned.
ATF deputy director William Hoover: Hoover resigned with benefits.64
ATF acting director Ken Melson: After Holder denied knowledge of Fast and Furious, Melson, who also said he knew nothing about Fast and Furious—an untenable position, given the documentary evidence—ended up telling the Department of Justice that their position was simply wrong.65 Almost immediately, rumors began to swirl that Melson would be fired. Meanwhile, the administration was already tapping anti-gun ATF Chicago head Andrew Traver for Melson’s replacement.66 Melson, worried that he might be fired, told Senator Grassley’s chief investigator that he wanted to talk. On July 4, 2011, he sat down with congressional staffers and explained that Justice had barred him from talking to Congress and that, according to the Washington Post, “Justice officials seemed to be more concerned about protecting the political appointees at the top of the department.” Issa followed up with Holder after the meeting, warning him not to retaliate against Melson for talking.67 In August 2011, Melson was reassigned anyway . . . within Eric Holder’s Justice Department.68 He retired with full benefits, and now is a lecturer in law at George Washington University. His biography, of course, contains no mention of Fast and Furious.69
And what of Eric Holder’s Justice Department? Nothing happened to anyone there, either:
Gary Grindler, Attorney General Eric Holder’s chief of staff: Grindler resigned from the Justice Department in December 2012 after the inspector general’s report labeled it “significant and troubling” that he supposedly didn’t inform Holder about Fast and Furious. Holder obviously didn’t see it that way—when Grindler left, Holder said that he had “demonstrated time and again his good judgment and an ability to make the tough—and correct—decisions.”70 He is currently a partner with the international law firm King & Spalding’s Special Matters/Government Investigations Practice Group—precisely his job before he left to join the Obama administration.71
Lanny Breuer, assistant attorney general: In January 2013, Breuer resigned with benefits. The Justice Department investigator general’s report blamed Breuer in part for failing to notify his higher-ups about Fast and Furious: “we believe that Breuer should have promptly informed the deputy attorney general or the attorney general about the matter in April 2010. Breuer failed to do so.” Eric Holder praised him to the skies, even going so far as to thank Breuer for what he had done in “the fight against violent crime along the southwest border and across the country.”72 Breuer is currently vice chair for Covington & Burlington.73
Ronald Weich, assistant attorney general for legislative affairs: In July 2012, Weich stepped down from Justice to become dean of University of Baltimore School of Law. He took his benefits with him. He left office still insisting that the ATF “doesn’t sanction or approve of the transfer of weapons to Mexico.”74
Emory Hurley, assistant U.S. attorney in Phoenix: Hurley was reassigned from the criminal to the civil division in August 2011.75
Dennis Burke, U.S. attorney for the District of Arizona: Burke resigned his position in August 2011, keeping his benefits. “I am very proud of the dedication and success of the employees in this office,” he wrote in his resignation letter to President Obama. “It has really been an extreme pleasure to serve you in this administration and I am confident this office will continue in its immense success and impact.”76 Upon his exit, Holder praised Burke for his “dedication and service to the Department of Justice over these many years and commend[ed] his decision to place the interests of the U.S. Attorney’s Office above all else.” There was no mention of Fast and Furious.77 Almost a year later, the Justice Department’s inspector general criticized Burke for leaking a document to Fox News attempting to discredit a whistle-blower. The inspector general called Burke’s actions “particularly egregious” and “wholly unbefitting a U.S. attorney.” Before that leak, Burke had leaked another document to the New York Times.78
Attorney General Eric Holder: He’s still attorney general.
In December 2012, the Terry family launched a lawsuit against the Justice Department and ATF seeking $25 million for wrongful death. The Terry family also sued the gun shops involved in the operation; many of the gun shop owners claim that they felt roped into the scheme, knowing that the ATF regulated their livelihoods.79 The complaint was directed against agents and officers with the ATF, as well as Emory Hurley, attorney with the department. Lone Wolf Trading Company Inc. and Andre Howard, who were responsible for the gun sales, were also named in the lawsuit.
Those parties, the lawsuit claimed, “conceived Operation Fast and Furious and throughout the conduct of that operation acted to ensure that dangerous firearms were distributed to the Mexican drug cartels, the most violent criminal organizations in North America.” Their plan, the lawsuit claimed, was formed “despite the foreseeable certainty that the Mexican drug cartels who Defendant Lone Wolf sold firearms to and who the ATF Defendants and Defendant Hurley intended to receive the firearms would then use those weapons to cause the injury and death to members of the public, including and especially other law enforcement officers like Brian Terry.”80
As of December 2012, just twenty people had been charged in the gunrunning case, and fifteen of them had pleaded guilty. With regard to Terry’s death, just two of the five men involved have been caught; three
others remain on the lam.81
CLOSING ARGUMENT
The three elements to involuntary manslaughter are certainly present in Fast and Furious. First, the prosecution must prove that someone was killed as a result of an act by the defendant. That element requires little argument to prove: beyond Border Patrol agent Brian Terry and Immigration and Customs Enforcement agent Jamie Zapata, Fast and Furious guns have been used in the deaths of hundreds of Mexicans.
The second element of involuntary manslaughter is that the act must have been inherently dangerous or reckless. Under Arizona law, the risk must be “of such a nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.” It is difficult to think of a more reckless plan than handing over guns without tracking devices to the Mexican drug cartels, knowing that they will not be identified until they are found at the scene of a crime. Recklessness doesn’t go far enough in describing such a plan. As Comedy Central’s Jon Stewart put it when he covered Fast and Furious in June 2011, “If this was the plan that they went with, what plan did we reject?”82 (Naturally, Stewart went back to doing the bidding of his Obama masters; within a year he was mocking Republicans for comparing Fast and Furious to Watergate.83 He’s right. Nobody died during Watergate.)
The third element of involuntary manslaughter is that the defendant knew or should have figured out that his or her action was a threat to life. Not only should the relevant players in Fast and Furious have known that their actions were a threat to life, they did know it—they were being told it day in and day out by the gun shop owners involved, as well as perturbed agents on the ground.
And yet nothing was done.
And so the question becomes: how high did this go?
We will likely never know the answer to that question, thanks to the Obama administration’s dramatic lack of transparency. Suffice it to say that were the Obama administration a private organization without executive privilege, prosecutions would surely be in order. As Tom Fitton of Judicial Watch put it, “Getting beyond the Obama administration’s smokescreen, this lawsuit is about a very simple principle: the public’s right to know the full truth about an egregious political scandal that led to the death of at least one American and countless others in Mexico.”84
Fast and Furious was, simply put, another Obama administration mafia-style operation. Gun trafficking south of the border is under the control of the president under the Arms Control Export Act, but it was certainly never designed to allow the executive branch to become complicit in the murder of Americans—and, in fact, the Arms Export Control Act bars the U.S. government from handing guns to terrorist entities. And that’s exactly what happened.
Relying on low-level enforcers anxious to impress the bosses, the administration’s political appointees at the Justice Department created Fast and Furious at least partially in order to stump for stricter gun laws. Those political appointees allegedly celebrated increased violence in Mexico. Those political appointees allegedly recognized that omelets required broken eggs. Eric Holder lied to Congress. Janet Napolitano, according to reports, lied to Congress. And President Obama sat above it all, smiling it away as something “dumb” while declaring that he, the Big Man, couldn’t know about everything going on in his administration.
It’s only dumb if you get caught. President Obama never was. And even those involved didn’t pay the price. Those who were hurt the most by Fast and Furious were the whistle-blowers involved. All of Obama’s top cabinet officials emerged unscathed, and continued to serve in his administration. Of the fourteen lower-level officials involved, six are still working in government; the other eight took the Frank Pentangeli option, and left their jobs for cushy jobs elsewhere, their government benefits intact. No one was ever prosecuted—even the guy whose personal firearm ended up at a Fast and Furious crime scene.
But one thing is certain: the president’s men were involved. Three years after Brian Terry was murdered in cold blood using American-produced, Justice- and ATF-approved firearms, they’re all still on the loose. That’s where RICO comes in. While RICO leaves state charges like involuntary manslaughter to the states, the obstruction of justice, retaliation against witnesses and informants, and tampering with witnesses and informants all fall under RICO.
Fast and Furious was a crime that stretched all the way to the top levels of the administration. And that administration must be held responsible in order for the deaths of Brian Terry and hundreds of other to have any meaning.
COUNT 3
VIOLATION OF INTERNAL REVENUE LAWS
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Whoever corruptly or by force or threats of force (including any threatening letter or communication) endeavors to intimidate or impede any officer or employee of the United States acting in an official capacity under this title . . . shall, upon conviction thereof, be fined not more than $5,000, or imprisoned not more than 3 years, or both. . . .
—26 U.S. CODE § 7212
[A]n employee may take an active part in political management or in political campaigns, except an employee may not use his official authority or influence for the purpose of interfering with or affecting the result of an election . . . [or] knowingly solicit or discourage the participation in any political activity of any person who has an application for any compensation, grant, contract, ruling, license, permit, or certificate pending before the employing office of such employee. . . .
—5 U.S. CODE § 7323
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OPENING ARGUMENT
His name was Luis Tascón, and he was just trying to help. Elected to the national legislature, the young left-wing radical was loyal to the president, and deeply committed to rooting out corruption. He knew that this president would do so if given the chance. That’s why, after his president’s opposition launched a massive campaign against Obama, Tascón began compiling the names of those opponents and publishing them online. He said he was trying to stop fraud.1
The president’s higher-level officials duly praised Tascón.2 The president appeared on television and joked with Tascón, asking him whether he was on Tascón’s list. Officers across the government used the list to purge opponents of the president’s rule, firing state employees, quashing job offers, killing contracts, destroying loans, bankrupting enemies.
Finally, after public attention to the list embarrassed the president, he suggested that it be “archived and buried.” He stated, “I say that because I keep receiving some letters . . . that make me think that in some places they still have the Tascón list to determine if somebody is going to get a job or not. Surely it had an important role at one time, but not now.” By the same token, when Tascón died, the president said, “I will always remember this great comrade with the deepest affection and acknowledge his integrity and strength.”3
The president was President Hugo Chávez; the country was Venezuela. But the theme crosses all borders. Every government is filled with Luis Tascóns, eager bureaucrats looking to get ahead. After all, the easiest way to get the attention of the higher-ups is to do them a service. Tascón himself was reelected to the National Assembly, and only found himself on the outs with Chávez after he accused a high-ranking official within the administration of corruption. When it comes to the workings of bureaucracies, there is little difference between tin-pot dictatorships and other forms of administrative government: everyone wants to get ahead, everyone wants to read the tea leaves, and everyone understands that the slightest signal from the top can mean a change in policy. Chávez supporters in Venezuela learned to wear red because the Comandante liked it; when one day he wore a yellow shirt, they considered whether to change the color of theirs.4
The enemies list has always been a fundamental tool for would-be banana republic–style leaders. And it’s not out of use in the United States.
Shortly after his accession to the Oval Office, President Obama took a trip to Ariz
ona State University to speak at their commencement. Noting that ASU had not given him an honorary degree, based on the fact that he hadn’t done anything yet, Obama casually joked, “I really thought this was much ado about nothing, but I do think we all learned an important lesson. I learned never to pick another team over the Sun Devils in my NCAA brackets. . . . President [Michael] Crowe and the Board of Regents will soon learn all about being audited by the IRS.” Professor Paul Caron of Pepperdine University rightly pointed out that Internal Revenue Service agents who threaten such audits are immediately terminated. Obama, however, grinned and moved on.5
Except that his administration didn’t.
THE CHARGES
The Hatch Act of 1939 was passed to prevent the executive branch from using its power to abuse its enemies. In the aftermath of Democratic Party politicians allegedly using the Roosevelt-era Works Progress Administration to pressure political enemies, Senator Carl Hatch pushed through his signature legislation. The original legislation actually included a provision that would have prohibited anyone in the executive branch from taking “any active part in political management or in political campaigns.” The Roosevelt administration worked to strip out the language.6
Over the past several years, there have been dozens of cases of Hatch Act violations, including Secretary of Health and Human Services Kathleen Sebelius, who gave a political speech during a government event. But there is no question that the Obama administration, in utilizing its power over taxation to hold up the applications of political opponents for the Obama reelection campaign’s electoral gain, violated the Hatch Act.
As for violations of the Internal Revenue Code itself, the U.S. Department of Justice’s Tax Division states of the so-called omnibus clause of 26 U.S. Code § 7212, “this charge might also be appropriate when directed at parties who engage in large-scale obstructive conduct involving actual or potential tax returns of third parties.” That is a perfect description of the use of the IRS as a political entity, barring entire classes of Obama political enemies from receiving the review and clearance to which they were entitled by law. To prove violation of the “omnibus clause,” we must prove that the defendant “(1) in any way corruptly (2) endeavored (3) to obstruct or impede the due administration of the Internal Revenue Code.”7 As we will see, that is precisely what happened from 2010 to 2012.
