Rep. Darrell Issa (R-Calif.), Rep. Lamar Smith (R-Tex.) and Sen. Charles Grassley (R-Iowa) were roundly criticized for investigating whistleblower allegations of “gun walking.” The inspector general’s report validated their work and exposed the fact that “gun walking” was missed by at least two administrations and countless senior level Department of Justice officials in both administrations, and isolated instances of ATF agents defending the practice as an appropriate law enforcement technique were roundly and summarily debunked.
“Gun walking” is best understood as law enforcement having both the opportunity and the legal authority to seize weapons and failing to do so. It is never an appropriate investigative technique. While there are differences between “Operation Wide Receiver” and “Operation Fast and Furious”, those differences are best left to another forum. But the fact that something improper was done previously is hardly a defense to subsequent misconduct. I don’t recall at what age my parents quit accepting the excuse “but others are doing it too” as mitigation for my own conduct, but it was well before I began my career as a prosecutor. Having Agent Brian Terry’s family, friends, and the American public wait 20 months for answers because of yet another attempt to blame the Bush Administration for an Obama Administration mistake was unnecessary.
Secondly, the inspector general was clear the wiretap approval process must be reformed. The inspector general concluded that not only were the affidavits in support of the underlying applications for wiretap approval sufficient to place the reader on notice of the inappropriate tactic of “gun walking” but the summaries –easily and quickly read by a motivated reader – were also sufficient to alert the reader to the ill-conceived tactic. Further to same, the inspector general concluded senior level Department of Justice officials failed to “connect the dots” and this failure to connect the dots was in no small part due to a management style that is equal parts befuddling and calculated to inoculate the supervisors from actions that need to be supervised.
Further to same, critics of the congressional investigation routinely sought to shift away from discussing false letters to Congress and a failed management style and cited the need to change federal gun laws. That is a conclusion devoid of a factual predicate. The current federal law for straw purchasers provides a ten-year statutory maximum. But the appropriate follow-up is how often did federal prosecutors ask for the statutory maximum? Complaining about low sentences is hardly persuasive when the advocates for higher sentences never asked for higher sentences when it was timely. Among other limitations, federal judges are not able to read the minds of the federal prosecutors standing before them.
Perhaps more significant the inspector general correctly noted current federal gun laws provide for a five-year consecutive sentence for firearms used during violent crimes or drug trafficking crimes. In addition, each subsequent weapon is another consecutive five-year sentence. If the weapon is automatic, is semi-automatic, or utilizes a silencer, the sentences increase to twenty years consecutive or in some instances life without parole sentences. So unless our colleagues on the other side are prepared to advocate for the death penalty for gun trafficking or unless the suspected cartel leader is named “Rasputin” a life without parole sentence should do the job – and that is current law.
Thirdly, and arguably most importantly, the inspector general’s report reminds us the Department of Justice is not simply another cabinet level agency created to advance the political agenda of the chief executive. What attracts women and men to careers in law enforcement, judging or prosecuting, is that these jobs are intrinsically apolitical. Prosecutors don’t ask crime victims about political affiliation. Judges don’t look at political platforms before issuing orders or opinions. Law enforcement officers don’t ask defendants whom they voted for before deciding whether to administer Miranda warnings. The Lady who represents the concept of Justice is blindfolded. She can see who stands in front of her; she just chooses not to. This restraint is what makes our justice system the best ever developed.
The next attorney general – regardless of what happens in November – must take care that demonstrably false letters are never written to committees of Congress. The next attorney general must never have to be subpoenaed, held in contempt of Congress, or sued in federal court to simply turn over documents relevant to the murder of a federal law enforcement officer. The next attorney general must understand that justice transcends politics, and our fellow citizens have to have confidence in the justice system regardless of political ideology.
Gowdy (R-SC) serves on the House Judiciary, House Oversight and Government Reform, and House Education and the Workforce committees. He was also a former federal and state prosecutor for 16 years.