The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena.Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious."To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." Romero told Issa.This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.
Readers may well wonder why we didn't cover the subpoena of reluctant witness Patrick Cunningham, chief of the Criminal Division in the U.S. Attorney’s Office for the District of Arizona, whose resignation on 27 January was broken by David Codrea on Wednesday. The reason is both simple and complex.
It is simple in that I knew more was coming on the story of Cunningham and didn't want to go until I had something to write about. It is complex because this event comes at what may be a critical juncture in the investigation which some are interpreting as a reluctance on the part of the Issa committee to fully explore the many leads they have already developed because of their political sensitivity.
"I won't say that the fix is in, but the Committee seems to be buying into the 'Made-in-Phoenix' line pushed by the White House," said one source with inside knowledge of the investigator's work. This seems to be reflected in the subpoena letter from Issa to Cunningham. From the Politico story linked above:
“Senior Justice Department officials have recently told the Committee that you relayed inaccurate and misleading information to the Department in preparation for its initial response to Congress,” wrote Issa. “These officials told us that even after Congress began investigating Fast and Furious, you continued to insist that no unacceptable tactics were used.”
The White House is happy for Issa to go after Cunningham for this is consistent with their denial that the White House had anything to do with gunwalking. Indeed, from the evidence above it would seem that the White House has determined Cunningham to be one of the designated sacrificial goats to that end.
This also comes at a time when journalists -- "mainstream" and despised bloggers alike -- have for weeks encountered a black hole when it comes to trying to find out what the Committee is working on and whether the story is progressing. "They've become the roach motel of press inquiries," said one. "Inquiries go in, but nothing comes out."
"The Issa Committee has always played their cards very close to the vest, but now," said a journalist, "they won't even admit they're in the game." One source described what he called "the lame excuse" floated by one Committee insider that the strategy was to get Holder "by not letting him know that they know what he knows." At this, I blurted out in response, "What? Like Holder and Company don't know what crimes they committed? Don't know the evidentiary trail -- the emails, the meetings? They're the CRIMINALS for Pete's sake, and believe me by now they understand exactly how well they are compromised by leaks and whistleblowers."
I added, "What they don't know is the political will of the GOP to pursue the trail to the end." The source agreed. The exact extent of the willed purpose of the Issa investigators is brought into greater suspicion by reports that they are no longer sharing all their information with the staff of Senator Charles Grassley. Requests by this reporter, both directly and indirectly, of committee staffers have yielded no reply beyond silence.
Another source familiar with the Issa investigation shared his fears about the direction and speed of the investigation. "They are afraid of the FBI" and are unwilling to really go after the Brian Terry murder cover-up and the use of FBI paid informants to buy weapons from the straw-buyers, he said. "They are afraid of the White House, too," indicating a reluctance to go after certain players in the early meetings such as that one held in March 2009 between ATF SAC Bill Newell and White House and DHS operatives, including, according to one report, Dennis Burke.
If it is true that Burke participated in the March 2009 meeting -- and I hasten to add that I have not confirmed it -- that predates his appointment as U.S. Attorney for Arizona when he was still Janet Napolitano's right-hand guy on terrorism and border issues. That is hugely significant, given Burke's predilection for gun control. (See "Personnel is Policy" Part One and Part Two.)
The Issa Committee investigators may indeed simply be playing a deep game here with the final goal of taking on all of the powerful players in the Gunwalker Conspiracy. Or, it could be that the fix is in for the "modified, limited hangout." Time, and the actions of the committee, will tell.
But for the moment at least, the committee isn't telling.
As long as they understand that the entire legitimacy of their two-party system hangs in the balance, with ghastly consequences if they fail, I suppose we can do nothing but wait, uneasily. Saying a prayer wouldn't hurt either.