Lamar Smith wants special counsel to find out if Holder lied to Congress

A senior House Republican is calling on President Obama to appoint a special counsel to investigate whether Attorney General Eric Holder lied to Congress about a controversial gun-tracking operation.

Rep. Lamar Smith (R-Texas), the chairman of the House Judiciary Committee, on Tuesday asked Obama to open an investigation into whether Holder told the truth when he testified that he only recently learned of Operation Fast and Furious, a gun-tracking operation staged by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Other top-ranking Republicans are demanding that Holder return to Capitol Hill to again testify under oath about the program.

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Sen. Chuck Grassley (R-Iowa), the ranking member of the Senate Judiciary Committee, told The Hill he will press ahead with the probe of Fast and Furious that he is conducting with Rep. Darrell Issa (R-Calif.), chairman of the House Oversight and Government Reform Committee.

Issa is pushing Smith to investigate the matter himself and bring Holder before either of their committees to dig deeper into the issue.

The Republican pressure comes after several memos from senior Justice Department officials to Holder were made public this week. The memos clearly refer to the gun-tracking operation, which was launched in 2009 and oversaw the sale of thousands of firearms in the Southwest to known and suspected straw purchasers for Mexican drug cartels. The program might have contributed to the death of Border Patrol Agent Brian Terry.

In testimony before the House Judiciary Committee on May 3, 2011, Holder told Issa that Fast and the Furious had been staged without his knowledge.

“I’m not sure of the exact date, but I probably heard about Fast and Furious for the first time over the last few weeks,” Holder said at the time. Holder later said that he “probably” learned about the operation before Obama discussed it in a March 22, 2011, interview with Univision. 

Rep. Jason Chaffetz (R-Utah) pressed Holder at the hearing to explain how he wouldn’t have been aware of an operation of the size and scope of Fast and Furious.

“You have to understand, something that is big — you described as big — in comparison to all the other things that are going on in the department at any one given time, might not seem quite as large,” said Holder. “I have 114-115,000 employees. The FBI, the ATF, the DEA.” 

But in a November 2010 memo, Assistant Attorney General Lanny Breuer notified Holder of a sealed indictment against alleged gun traffickers in Arizona by the DOJ’s organized crime and gang section.

Breuer wrote that the indictment would remain sealed “until another investigation, Phoenix-based ‘Operation Fast and Furious,’ is ready for takedown.” 

And in a July 2010 memo from Michael Walther, the director of the National Drug Intelligence Center (NDIC), Holder was notified that NDIC and a Phoenix drug enforcement task force would assist the ATF with an investigation of a suspected gun trafficker, Manuel Celis-Acosta, being run under Operation Fast and Furious. 

“This investigation, initiated in September 2009 in conjunction with the Drug Enforcement Administration, Immigration and Customs Enforcement and the Phoenix police department, involves a Phoenix-based firearms trafficking ring,” the memo states. 

“Celis-Acosta and [redacted] straw purchasers are responsible for the purchase of 1,500 firearms that were then supplied to Mexican drug trafficking cartels.”

Despite the apparent discrepancy in the memos, both Grassley and Issa expressed reservations about Smith’s call for a special counsel.

Issa said he is wary of a special counsel’s investigation because he doubts its ability to remain objective and impartial. Grassley said he fears DOJ might resist future congressional requests for documents even further if a probe is undertaken.

“A special counsel may happen, but it may also make the Justice Department circle the wagons more and make it even more difficult for Congress to get documents from them, but I have no intention of ending my investigation and I expect the Justice Department to cooperate with or without a special prosecutor,” Grassley said.

At press time, a DOJ official told The Hill, “The attorney general’s testimony to both the House and the Senate was consistent and truthful. He said in both March and May of this year that he became aware of the questionable tactics employed in the Fast and Furious Operation in early 2011 when ATF agents first raised them publicly, and at the time, he asked the Inspector General’s office to investigate the matter.  

“As the documents provided to Congress show, not a single one of these reports referenced the controversial tactics that allowed guns to cross the border, and in fact, in one example provided to Congress consisted of a single sentence referencing a Phoenix-based operation. These reports are compiled to provide regular updates to Department leadership and can contain references to hundreds of cases, investigations, filings, court opinions and initiatives going on around the country at any given time. None of the handful of entries in 2010 regarding the Fast and Furious suggested there was anything amiss with that investigation requiring leadership to take corrective action or commit to memory this particular operation prior to the disturbing claims raised by ATF agents in the early part of 2011.” 

Earlier this year, ATF agents testified to Issa that they were instructed to monitor the sale of the firearms to known and suspected straw buyers — a traditionally discouraged technique in the ATF known as letting guns “walk” — but were ordered not to provide the guns with adequate surveillance to successfully track them. 

Instead, agents were told to trace the serial numbers on guns found at subsequent raids and crime scenes back to the serial numbers of the guns sold under the operation, and try to make their cases that way.

Issa said he wants to question Holder further to try and ensure that decisions like those made in Fast and Furious do not happen again.

“Eric Holder certainly had an opportunity in those weekly memos to know enough to know this was a stupid program,” Issa said in an interview with The Hill. “Lanny Breuer clearly knew it was a stupid program. Now the question is: Who are we going to hold accountable for bad judgment that cost American and Mexican lives?

“The current information points to Attorney General Eric Holder, so that’s currently where we’re going to be focusing some attention”

Chaffetz agreed, saying that it’s too early to determine whether Holder perjured himself. “[Perjury] is a pretty strong word — I’m not necessarily ready to go that far,” he told The Hill.

— Posted at 1:36 p.m. and updated at 8:37 p.m.