By Jordy Yager - 06/07/12 09:00 AM EDT
With the help of a mole, Rep. Darrell Issa (R-Calif.) has turned the tables on Attorney General Eric Holder.
Issa has long been exasperated with Holder, claiming that the Department of Justice (DOJ) has been withholding information on a controversial gun-running operation. But through an anonymous source, Issa has obtained information about the initiative that is under a federal court-ordered seal.
Giving such information out is a federal crime, raising the question of whether the Justice Department will seek to prosecute what Republicans are calling a whistleblower.
If Holder does launch an investigation into where the leak originated, the powerful Republican could paint the move as an attempt by the DOJ to hide the documents’ contents. It would also raise the possibility that DOJ investigators will seek information from Issa, who has been trying to determine who approved the “gun-walking” tactics used in Fast and Furious along the U.S.-Mexico border.
On the other hand, not launching a probe would mean turning a blind eye to a criminal breach and could lead Issa’s source and others to reveal other information sealed by a judge.
Issa told Fox News on Wednesday that he has no intention of shining the light on his source: “We’re not going to make our whistleblower available. That’s been one of the most sensitive areas, because some of the early whistleblowers are already feeling retribution. They’re being treated horribly.”
Asked earlier this week where he got the wiretap applications, Issa told The Hill, “You can ask, but you should have no expectation of an answer. By the way, if I asked you where you got yours, would you give me your sources?”
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Of course, there is some political risk for Issa. The Obama administration could point out that he is stonewalling federal authorities after complaining throughout this Congress of being stonewalled by DOJ.
As the lead congressional investigator of Fast and Furious, Issa says the documents show top-ranking DOJ officials signing off on the condemned “gun-walking” tactics used in the failed operation. Senior DOJ officials have repeatedly denied that they approved the botched initiative.
The documents have not been made public, and Issa has apparently broken no laws by being given the information.
Regardless, the DOJ is not pleased.
“Chairman Issa’s letter makes clear that sealed court documents relating to pending federal prosecutions being handled by the U.S. Attorney’s Office for the Southern District of California have been disclosed to the Committee on Oversight and Government Reform in violation of law,” wrote Deputy Attorney General James Cole to House Speaker John Boehner (R-Ohio), House Majority Leader Eric Cantor (R-Va.), House Majority Whip Kevin McCarthy (R-Calif.) and Issa this week.
“This is of great concern to us,” the letter added.
A spokesman for the DOJ declined to comment about whether it was planning to launch an investigation into the leak.
Democrats say that Issa is exaggerating what he has. Rep. Elijah Cummings (D-Md.), the ranking member on Issa’s panel, reiterated this week that top-ranking DOJ officials didn’t personally review any of the six wiretap applications related to Fast and Furious. Issa sent Cummings the information he received from his source.
In the past, the DOJ has justified not turning over the wiretap applications to Issa by saying that doing so could jeopardize the current criminal cases it is prosecuting.
Two former prosecutors for the DOJ, who were not familiar with the details of this article, independently told The Hill that defense lawyers could use an instance of documents being leaked in violation of a court-ordered seal to justify seeking a mistrial.
It is unlikely that the DOJ, if it does investigate the leak, will have grounds to go after Issa for accepting the documents. In past instances of court-ordered seals being broken, it is the actual breaker of the seal who is held responsible, which in this case could mean criminal contempt proceedings and possible jail time.
The battle between Issa and the DOJ has escalated over the past month, with House Republican leaders writing a letter to Holder asking him to hand over information about who was responsible for Fast and Furious. The letter also asked whether the DOJ misled Congress on when officials, including Holder, became aware of the program.
Issa is set to square off against Holder on Thursday when the attorney general is scheduled to appear before the House Judiciary Committee. The Republican lawmaker will appear on a panel to discuss oversight of the DOJ.
Under the now-defunct Fast and Furious initiative, agents from the Bureau of Alcohol, Tobacco, Firearms and Explosives, which is under the DOJ, authorized the sale of firearms to known and suspected straw purchasers for Mexican drug cartels, but lost track of many of the weapons. Some of those guns might have contributed to the December 2010 shooting death of Border Patrol agent Brian Terry.