Guest Host: Susan Page

The standoff between Congressional Republicans and Attorney General Eric Holder over Fast and Furious escalated yesterday. President Barack Obama for the first time invoked executive privilege over the botched gun-trafficking operation. A few hours later, a house committee voted to recommend the attorney general be held in contempt for not handing over some documents in the probe. Holder has been under pressure by Congress over alleged security leaks. Some say this is mostly politics at play others say holder must go. Guest Host Susan Page and her panel of experts discuss the Congressional pressure on Attorney General Eric Holder.

Guests

  • Major Garrett chief White House correspondent at CBS News.
  • Philip Heymann James Barr Ames Professor of Law at Harvard Law School, former Deputy Attorney General in the Clinton Administration
  • Rep. Eleanor Holmes Norton (D-DC) Member of the House Committee on Oversight and Government Reform
  • Evan Perez reporter at The Wall Street Journal.
  • Rep. John Mica (R-FL) Member of the House Committee on Oversight and Government Reform, Chairman of the House Transportation and Infrastructure Committee

Transcript

  • 10:06:57

    MS. SUSAN PAGEThanks for joining us. I'm Susan Page of USA Today, sitting in for Diane Rehm. Diane is out sick with a cold. A congressional committee voted yesterday to recommend that Atty. Gen. Eric Holder be held in contempt over Fast and Furious. It is the third time in history that a congressional panel has taken a step against an attorney general. Hours earlier, President Obama invoked executive privilege on the botched gun-trafficking operation.

  • 10:07:26

    MS. SUSAN PAGEWith me in the studio to discuss what's at stake: Evan Perez with The Wall Street Journal and Major Garrett of National Journal. Joining us from a studio at Harvard, Philip Heymann, former deputy attorney general in the Clinton administration. Welcome to you all.

  • 10:07:41

    MR. EVAN PEREZThank you.

  • 10:07:42

    PROF. PHILIP HEYMANNGood morning. It's good to be with you.

  • 10:07:43

    MR. MAJOR GARRETTThank you.

  • 10:07:44

    PAGEFirst, we're going to be joined by phone from her office by Democratic Congresswoman Eleanor Holmes Norton who's a member of the House Committee on Oversight and Government Reform. Congresswoman, thank you for being with us.

  • 10:07:57

    REP. ELEANOR HOLMES NORTONOh, of course. Good morning.

  • 10:07:58

    PAGESo why did this vote take place yesterday? Why did Republicans vote to hold the attorney general in contempt?

  • 10:08:06

    NORTONIt seemed inevitable, frankly. The attorney general spent time the night before and turned over even more documents, documents that he did not have to turn over. Remember we started with the committee wanting documents that were part of ongoing investigations, documents that were under seal. We finally drove them down to a narrow group of documents. The attorney general came forward and said that if he would turn over documents, that we could work toward winding up the contempt proceeding.

  • 10:08:53

    NORTONThey refused to say we worked toward winding up the contempt proceeding. So he did not turn over the documents. He had every right, as we see by the president's invoking of executive privilege, not to turn over documents. They were pre-decisional. They were documents or conversations, communications, internal communications before any decision was made. Typically, presidents at this juncture have refused to allow highly placed officials to turn over such deliberative matters.

  • 10:09:40

    NORTONOtherwise, justice will turn over the whole ball of wax to the Congress, and you will kill those kinds of necessary communications that officials engage in in order to decide what to do.

  • 10:09:54

    PAGENow, Congresswoman, in your view, is this driven mostly by politics?

  • 10:09:59

    NORTONWell, let me tell you what the evidence for that is. This Fast and Furious, under another name, started in the last administration under a former attorney general, Mr. Mukasey. We had a -- we put an amendment on the floor that because there was evidence that showed he was personally briefed, whereas there is no evidence that shows that Atty. Gen. Holder was personally briefed. Atty. Gen. Holder gets called, Mukasey does not get called.

  • 10:10:33

    NORTONMoreover, we asked to have called the former head of the ATF. It is the Alcohol, Tobacco and Firearms which initiated this investigation. I am responsible for it. If the point is to find out why an agent was tragically killed, you don't want to just start at the end with the attorney general that stopped it and call none of the officials who started it. The former ATF head said in investigative testimony that no highly placed Justice Department official had been informed of Fast and Furious.

  • 10:11:14

    NORTONHis deputy also testified to that effect. We asked that they be called. They're the officials that were -- decided to do this along with the attorney general. But the committee decided that it only wanted to hear from this attorney general down to and including deliberative documents, even though this is the attorney general that stopped Fast and Furious.

  • 10:11:41

    PAGEAnd, Congresswoman, just briefly, what will -- this was a party-line vote yesterday. What will or can Democrats do next about this?

  • 10:11:49

    NORTONWell, inevitably, since this is an election year party-line vote, not just a party-line vote -- and this is why this is such a futile exercise. When Democrats did something conferrable and a party-line vote occurred and, in fact, there was a vote on the floor -- and expect a vote on the floor -- there's certainly going to be one next week -- it went to, inevitably, the U.S. attorney for the District of Columbia. At that time, he was Republican. He chose not to get involved in a partisan dispute of this kind. It demeans the office of the U.S. attorney.

  • 10:12:29

    NORTONWhat do we have now? Well, we have a Democratic attorney general. It's going to go to a Republican Congress, and it's going to be given to a Democratic U.S. attorney in the District of Columbia. I wouldn't expect him to move forward on such a partisan matter and drag the U.S. attorney's office, which is always seen as above politics, into this kind of a partisan contempt fight.

  • 10:12:56

    PAGEAll right. We'll see how that unfolds. Democratic Congresswoman Eleanor Holmes Norton, thank you so much for being with us.

  • 10:13:02

    NORTONMy pleasure.

  • 10:13:03

    PAGELater in this hour, we'll be speaking with a Republican member of this committee. So, Evan Perez, you write in The Wall Street Journals this morning that this whole issue, which we've been talking about for some time, Fast and Furious, the botched gun-trafficking operation, that it got really escalated yesterday not only by this vote in the committee in the House but also by President Obama for the first time in his administration asserting executive privilege. What does that do, the president's action, and were you surprised that at this point he exercised that?

  • 10:13:35

    PEREZWell, yeah. I think a lot of people were surprised. There lies the chairman of House Oversight Committee that held this vote yesterday has essentially been daring the Justice Department and the administration to do this. He -- in several letters he has mentioned, by the way, you haven't asserted executive privilege. So it's almost like he was daring them to do that. And I think they decided to pull this at the last minute, knowing that it would throw things into disarray yesterday. There was a little bit of disarray in the committee yesterday when they were trying to vote on this.

  • 10:14:09

    PAGEAnd, Major Garrett, is -- do you think Eric Holder is in some peril here? I mean, Eleanor Holmes Norton made the point that it's unlikely that in this end, this gets prosecuted by a Democratic -- by a Justice Department that's...

  • 10:14:22

    GARRETTRight.

  • 10:14:23

    PAGE...that's led by Eric Holder. But is there -- how big a problem is this for him and his tenure at the Justice Department?

  • 10:14:31

    GARRETTWell, there's no evidence the president has lost any confidence in Eric Holder or feels particularly bedeviled by the House Republicans push for a contempt vote first in the committee and then quite possibly a contempt vote on full for the House next week. There is another potential avenue that this could go down. There are three ways that a contempt citation from Congress have historically been adjudicated.

  • 10:14:55

    GARRETTOne, we no longer do -- no one gets jailed anymore. That happened in the 19th century. There's one incident in 1934 involving a postmaster general. That doesn't happen anymore. Then they gave it to the U.S. attorney, and, exactly as Delegate Holmes Norton explained, a House run by Republicans giving that to a democratically appointed U.S. attorney, that's not going to go anywhere.

  • 10:15:14

    GARRETTBut if the chairman is empowered by the House to use either House council or is given funds by the House to obtain outside council, he can take this to a U.S. District Court and ask for civil review of the administration's exertion or extension of executive privilege and have this reviewed by the court. That is another means by which this could be dealt with.

  • 10:15:34

    GARRETTThat's what happened when Harriet Miers, the White House council for President Bush, was found in contempt, as was Karl Rove, in a matter dealing with the firing in 2005, 2006 of U.S. attorneys. That was adjudicated and finally resolved when? 2009. These things take a very, very long time. I think the most important aspect of the White House assertion of executive privilege is this guarantees that this issue, if it's not resolved through a negotiation, will not be resolved politically or legally until long after Nov. 6.

  • 10:16:06

    PAGEWell, Philip Heymann, you have long experience in these matters. You're not just a professor at Harvard Law School now but a former deputy attorney general in the Clinton administration. Is this a real clash of powers, or is it political stunt? What's your perspective on it?

  • 10:16:25

    HEYMANNI honestly believe it's pretty close to a political stunt. Let me explain why 'cause I had to justify that. The assertion of executive privilege has always been a murky area ever since George Washington did it. There's no very clear line as to what the executive can do and what the legislative can do. It's always been worked out. No attorney general has been ever held in contempt. There's always a public dimension to it where the public comes out.

  • 10:16:56

    HEYMANNBut it's been worked out and negotiated. Where it turns out on the merits depends upon how strong the executive case for confidentiality is and how strong the legislative case that there is something badly amiss in the legislature -- I'm sorry, in the executive branch. The -- let me just take each of those briefly. The executive privilege, in this case, is part of a constant fight -- I've watched it since I was working at Watergate -- between the executive and the legislature over internal executive documents.

  • 10:17:41

    HEYMANNThe government needs to maintain a certain amount of privacy about its deliberations. The Supreme Court, when it got to it, said only this very strong showing that President Nixon's documents, which he wanted to withhold there importantly on criminal matters, allowed them to overrule him.

  • 10:18:06

    HEYMANNIn this case, the government is asserting an executive privilege and the -- and refusing to produce further documents is not about the underlying Fast and Furious investigation but about their initial mistaken -- I don't know why -- Feb. 4, 2011 letter saying that they had never -- that the government had never allowed guns to move to Mexico.

  • 10:18:37

    PAGEAnd we'll talk more about that after we take a short break. And we'll go to the phones, take some of your calls and read some of your emails. Stay with us.

  • 10:20:04

    PAGEWelcome back. I'm Susan Page of USA Today, sitting in for Diane Rehm. And with me in the studio: Major Garrett, he's a congressional correspondent for National Journal, and Evan Perez, he's a reporter with The Wall Street Journal, and, joining us from a studio at Harvard University, Philip Heymann. He's a former deputy attorney general in the Clinton administration. Evan, we've been talking about Fast and Furious. Not everybody may know what we're talking about. What is this operation that's become the center of so much controversy?

  • 10:20:32

    PEREZWell, the Bureau of Alcohol, Tobacco, Firearms, Explosives ran this operation in 2009, 2010. Agents in Arizona decided that this was a good way to try to find top-level arms traffickers, essentially, who smuggle weapons into Mexico. And part of the operation was using this tactic called gun-walking in which agents allowed suspected smugglers to obtain firearms. About 2,000 firearms is what they ended up allowing them to buy, and many of the firearms ended in Mexico.

  • 10:21:07

    PEREZWe believe many of them have turned up in crime scenes, including the 2010 border shooting that killed a U.S. border agent, Brian Terry. So the operation essentially began out in Phoenix, and what Republicans have been trying to figure out or say that they've been trying to get to the bottom of is how high in the Justice Department approvals for this operation went.

  • 10:21:33

    PEREZThey haven't been satisfied with the thousands of documents the department has produced, which so far show that it was a low-level sort of operation. Should higher-level people have known? It does appear that they should have, but they just -- it doesn't seem like they did.

  • 10:21:51

    PAGEWell, Philip Heymann, you mentioned before the break that the Justice Department initially sent an inaccurate letter to congressional -- to the congressional folks that misrepresented what had happened in Fast and Furious. Is that unusual? They had to later retract the letter and apologize.

  • 10:22:09

    HEYMANNI regard it as -- I -- in 15 years in the federal bureaucracy, a lot of it in justice, it seems to me to be a bad mistake but nothing totally unusual. Let me just say that both Alcohol, Tobacco and Firearms and the Drug Enforcement Administration have a principle of never letting either the guns or the drugs go public, let them walk, in effect. Having said that, they both do it occasionally in order to make big cases, and, in fact, as I think you said, this operation began under the last Republican attorney general.

  • 10:22:54

    HEYMANNThey then -- when it blew up, when Agent Terry was tragically killed, they went back to find out what had happened. And they asked the attorney general, the U.S. attorney in Arizona and the leaders of Alcohol, Tobacco and Firearms, both of whom stated the long-time principle blandly as if it had applied here, and it hadn't applied here. They -- this was an exception, and they were letting guns walk.

  • 10:23:23

    HEYMANNThe argument now is about how that letter happened. Well, that's not very surprising how that letter happened. They went to two people who had made mistakes in -- run a clumsy operation without high-level consent. There seems to be no evidence that either Obama or Holder knew about the operation at the time. That's totally consistent with my experience of major undercover operations. And they went to two people who did have control, and they asked them, well, what's happened? And they said, oh, no. We never do this. That's lying, it's false, it's wrong, and it's not totally surprising.

  • 10:24:07

    PAGEAnd really sets the stage for what's followed. Major Garrett?

  • 10:24:10

    GARRETTAnd a couple of other things that have happened. There have been some whistleblowers or those who represent themselves within the federal bureaucracy, close to this, who have been trying to feed information to the committee that they don't believe is consistent with the currently public -- publicly available Justice Department representations about what was known and when.

  • 10:24:26

    GARRETTCharles Grassley, Republican from Iowa, started this investigation and was told by the Justice Department, you don't have subpoena power, so we're not going to be responsive to some of your initial inquiries. That's why Darrell Issa and the House, because he is the chairman of this committee, does have subpoena power, and, therefore, that's why this has been ratcheted up in that regard. Another thing that's worth pointing out, yes, the Bush administration had an operation. It was called Wide Receiver.

  • 10:24:48

    GARRETTBut Operation Fast and Furious, based on my knowledge of this, and I think Evan will back me up on this, was different in kind, degree and ambition, OK? The idea of widespread use of cooperative gun shop owners in Arizona to sell guns with a theory that they could be successfully traced was an expanded and more ambitious way of trying to figure out how many U.S. guns or guns sold in the United States were ending up in Mexico because that was becoming an irritant for the Mexican government.

  • 10:25:19

    GARRETTAnd the Obama administration, more aggressive or more interested and curious about gun running in this country than possibly the Bush administration, amped this operation up. Two thousand firearms is the rough number, 1,400 still unaccounted for. And Brian Terry definitely was killed by one of these firearms, and that is sort of what has become the emotional toehold for Republicans in this case. But the family still would like more and clearer representations from the Justice Department about what happened and why and who knew and who didn't.

  • 10:25:51

    GARRETTOne last point, recently, within the last month or so, it has become clear that wire taps were approved at the high levels of the Justice Department as a part of Operation Fast and Furious. And those wire taps being approved, I believe the deputy attorney general level, indicate an operational level of awareness that had previously not been disclosed, which has led House Republicans to be a bit more skeptical about the representation so far.

  • 10:26:14

    PAGEAnd we heard a lot about Brian Terry and, of course, his very tragic death in the hearing that was held yesterday. Well, let's go to the phones and take some callers. Joe is calling us from Bethesda, Md. Joe, hi. You're on the air.

  • 10:26:27

    JOEThank you for taking my call.

  • 10:26:28

    PAGEYes.

  • 10:26:29

    JOEI'm a 47-year-old lifelong Democrat who came of age when we were all glued to the television of one scandal after another in the Nixon administration -- secret war in Cambodia, Pentagon Papers, Watergate -- and I'm challenged to find a difference between what happened in the Nixon administration and what is currently happening with the Obama administration. I vote enthusiastically for change I could believe in. I got change that I am appalled by.

  • 10:26:59

    JOEAnd there seems to be a general lawlessness about this administration that I find just shocking. And I'd like the guests to comment specifically on the issue of the, you know, assertion of executive privilege to deny Congress its right to review these documents with the Nixon administration's assertion of executive privilege to try to deny Congress its right to listen to the Oval Office tapes that memorialized some of the facts of the Watergate scandal.

  • 10:27:32

    PAGEAll right. Joe, thanks for calling. Now, Philip Heymann, did you say earlier that you had actually started in government at the time of the Watergate investigation?

  • 10:27:40

    HEYMANNNo, I started long before that. But I was there for the Watergate investigation. The Supreme Court did not require the executive branch to give over any documents or information to Congress. It did require to give over information to the special prosecutor Archibald Cox and only on the basis of his having shown a very, you know, strong record evidence that there was a cover-up in the White House.

  • 10:28:10

    HEYMANNThere's no indication that I can see of a cover-up in the Justice Department. There was a understandable, clumsy response to Sen. Grassley. There is no claim that anybody was trying to hide something by that clumsy response as a result of, I think, correct leaking of information by Alcohol, Tobacco and Firearms. People are saying, yes, there was a willingness to let the guns "walk."

  • 10:28:44

    HEYMANNThe administration had to write a second letter saying, we were dead wrong in the Feb. 4 letter saying that the guns were not permitted to travel freely, 2,000 of them lost. And at that time with the letter, they attached an explanation of how Feb. 4 came about, how the mistake in information that we never do came about. They quoted specifically from the document, from the emails they had relied on and the phone conversations they had relied on.

  • 10:29:18

    HEYMANNThis doesn't seem to me to be remotely a scandal, weak, weak, weak congressional case for needing that information. It's no longer an argument about what happened, who authorized it. It's a question of why was a false letter written on Feb. 4. Weak, weak, weak congressional need, significant executive need to be able to have its own huddle and decide how to respond to Congress while Congress has its own huddle and decides what to demand from executive branch. You can't let the other side into your huddle.

  • 10:29:54

    PAGENow, there is -- some critics of President Obama do make the point that as a senator and as a presidential candidate, he took a somewhat different position. He took -- he was critical of President Bush for invoking executive privilege in some cases. Evan, has he changed his attitude on executive privilege now? Does this indicate that?

  • 10:30:13

    PEREZWell, I mean, it definitely shows that, you know, when you're president, you start thinking differently from when you were senator. And that's not surprising, I suppose. The president also signed this very lengthy transparency order which was supposed to discourage this kind of thing. It so happens that Atty. Gen. Eric Holder is basically the guy, the point man on how to determine that, so, again, not a very surprising determination.

  • 10:30:40

    PEREZLook, one of the things that, I think, we're -- we have to point to is the fact that on Tuesday, the day before this vote happened, there was a 20-minute meeting at which Eric Holder and Darrell Issa and the other members who are interested met. And it became this I describe as a game of chicken, essentially, because one side -- you know, the attorney general says, look, I'll give you these documents, but you have to tell me that these are going to satisfy your subpoena and essentially -- and the contempt threat.

  • 10:31:13

    PEREZAnd Issa says, well, I can't do that until I see the documents. So it became, you know, well, you go first, and the other one says, you go first. And so this is what this has become. You know, going back just one -- real quick to the documents that are in question, it is a -- it is basically deliberative material, which is stuff that -- they were trading emails back and forth, saying, you know, what's going on here? What are we going to do?

  • 10:31:37

    PEREZAnd I think some of this is going to be embarrassing to the department when it comes out. It's going to show that a lot of people just didn't know what was going on and perhaps not going to paint them in a very good light. And so, you know, you do have to wonder how much of this is just trying to avoid embarrassment and how much of it is actually what the Republicans say is a cover-up.

  • 10:31:55

    GARRETTAnd the courts have held that embarrassment alone is not protective -- protected statutorily or in the engagement between the legitimate investigatory curiosity of Congress and the executive branch. That you would be embarrassed by your deliberations is not excuse enough for it to be successfully and legally withheld.

  • 10:32:13

    GARRETTIf it is purely deliberative and is part of the actual functioning of government, yes. But that you would like it not to be publicized because it would embarrass you is not statutorily -- and the courts have held this, Supreme Court has said this -- enough grounds to legitimize an assertion of executive privilege.

  • 10:32:30

    PAGEI'm Susan Page, and you're listening to "The Diane Rehm Show." We'd hoped we're joined at this moment by Republican Congressman John Mica of Florida, who's also a member of this House Committee on Oversight and Government Reform. We're informed he's been pulled into a meeting with the speaker. We're hoping he'll be able to join us before the hour is out. Major Garrett, this isn't the only controversy Eric Holder is facing. There's also a dispute over leaks of classified information. Can you tell us something about that?

  • 10:32:57

    GARRETTWell, the -- there are -- two attorneys have been -- prosecutors have been appointed by Atty. Gen. Eric Holder to look into whether or not White House or administration officials close to the White House, sympathetic to the president, authorized, were aware of or in somehow, someway either accelerated, expedited or gave a knowing and understood wink to those who wanted to divulge what appear to be highly classified or at least semi-highly classified pieces of information about counterterrorism operations, drone strikes, computer viruses used to deal with Iran or potentially deal with Iran or slow their pursuit of nuclear weapons, all of these things.

  • 10:33:41

    GARRETTAnd that's -- to me, that doesn't feel like something that Eric Holder is under suspicion of or in the crosshairs of. He has to administer it on behalf of a White House that has felt some degree of political pressure to be responsive to questions and allegations that there might have been some political motive behind these leaks.

  • 10:34:04

    PAGEAnd yet, Evan, Eric Holder does seem to be a frequent target...

  • 10:34:08

    PEREZYeah.

  • 10:34:08

    PAGE...for Republicans. Why is that?

  • 10:34:11

    PEREZWell, I mean, you know, this job, the attorney general's job has become this punching bag. It's sort of the lightning rod and a proxy by which you can attack the president. Let's not forget, I mean, I think despite all this -- the complaints by the Democrats, they did some of the same things against the Bush-appointed Atty. Gen. Alberto Gonzales. They managed to get him out of office, push him out of office.

  • 10:34:35

    PEREZAnd there was a similar kerfuffle over documents production, which lasted, as you know, as Major mentioned, that lasted for years. In the end, what happens with these things is they usually get a negotiation, a negotiated end. I think neither side really wants to see this run out to get determined by the courts. And so, in the end, what happens is they come together and figure out some kind of resolution.

  • 10:34:59

    PEREZEric Holder, in this case, I think, has become the lightning rod. He was in charge of looking at the -- working out the government's -- the administration's plan to close Guantanamo. He proposed trying the 9/11 plotters in civilian court in downtown New York, which then became -- the administration surrendered to Republican criticism on both issues. So he's become kind of the guy that's sitting out there, getting all the attacks. And, frankly, a lot of the White House -- the White -- some of this is the White House's fault, not backing him up on many of these things.

  • 10:35:34

    PAGEDo you think the White House has not backed him up the way you might expect them to back up the attorney general?

  • 10:35:39

    PEREZWell, I mean, you know, I think they see the political calculations, and they -- when they realized that they've lost it, they have to surrender I think is what they would view it as. I think, you know, Holder is not going to go anywhere. I mean, we have seven months left in, I guess, the current term. Most people don't expect him to return in a -- in any possible Obama second term. So I think he looks -- they look at this as running out the clock. There's no way he would leave now.

  • 10:36:09

    PAGEMajor, what's your sense of the White House view of how the attorney general is doing?

  • 10:36:14

    GARRETTDoing well enough. I mean, look, the president said he wanted to close Guantanamo. It's also worth pointing out that President Bush, as he was leaving office, said he would eventually like to see Guantanamo closed. It wasn't as if this was a great partisan difference of opinion. But Eric Holder did not -- and the president did not -- live up to that promise that vow to the American people to close Guantanamo.

  • 10:36:33

    GARRETTThe president supported the attorney general's perspective on the ability to successfully try terrorist suspects in federal court in New York City. That was the agreed-upon position of not only the attorney general, but the president himself. He believes that that is a better way to go. He didn't want to use Guantanamo not only as a detention facility, but he preferred not to use it as a trier of fact. But now Guantanamo is a trier of fact.

  • 10:36:58

    GARRETTSo the president and the attorney general walked in lockstep on that, but they also had to retreat in lockstep. So they've made those steps together, and they are very close personally. There have been -- Daniel Klaidman's recent book indicates that perhaps David Axelrod and Eric Holder are not the best of chums, but they're both very close.

  • 10:37:14

    PEREZAnd Rahm Emanuel.

  • 10:37:16

    GARRETTAnd Rahm Emanuel as well. But, look, every administration peopled by strong personalities and strong intellects -- and I think Philip Heymann will back me up on this -- have clashes, and presidents adjudicate them and deal with them in their own way. But there's no evidence whatsoever that Eric Holder is going out of the Justice Department.

  • 10:37:32

    PAGEMajor Garrett of National Journal. And also with us this hour, Evan Perez of The Wall Street Journal and Philip Heymann from -- a professor at Harvard Law School and veteran of the Justice Department. We're going to take a short break. When we come back, we'll go to the phones, 1-800-433-8850. Stay with us.

  • 10:40:04

    PAGEWe've got some pretty specific questions from some emailers. From Peachland, N.C., Hal is asking us, "What is the exact number of people who have been murdered as a result of Operation Fast and Furious?" Evan, is that something you know?

  • 10:40:18

    PEREZYou know, I don't think we know exactly. I mean, I think Republicans have cited a number in the hundreds. I think they said they -- someone at the hearing said yesterday 300, I think. I don't know where they're getting that from. I don't think it's noble. I do -- we do believe, obviously, that, you know, for years to come, people are going to get -- be getting killed by these firearms which are...

  • 10:40:40

    PAGEMostly in Mexico, we think, yes.

  • 10:40:41

    PEREZ...mostly in Mexico, but some of them have ended up on this side of the border as well. And guns, you know, obviously, you know, until they're seized, you know, can keep on killing.

  • 10:40:50

    GARRETTAnd there was a representation at the hearing that the number was 300, and they were attributed to the Mexican government. They did not attribute it to an official. They did not attribute it to a specific document. I have not seen a document that would verify that. But it is worth noting the Justice Department has conceded that, quite likely, people have died in Mexico at the hands of these drug traffickers or weapons traffickers with guns that walked. And, quite clearly, Brian Terry died in the United States, in Arizona at the hands of a gun that went walking.

  • 10:41:21

    HEYMANNI think that's all a little bit overstated. Certainly, people -- the only thing we really know about guns in Mexico is we know that of all the killings, a very high percentage are done with guns from the United States. I don't know whether it's something like 70, 80, 90 percent. The -- Mexico has no difficult -- Mexican gangs, Mexican drug-trafficking organizations have no trouble getting access to guns.

  • 10:41:50

    HEYMANNWhat you're really talking about it how many -- what we should be talking about is how many people have their lives put at greater risk because of these guns. I suspect that the greater risk would be a very hard thing to either give a number or two or to make the number very high.

  • 10:42:10

    GARRETTAll true, but there also, to my knowledge, have been no prosecutions brought against alleged or suspected gunrunners as a result of Operation Fast and Furious. That's another problem with this operation, that at its core mission, it has yet to yield a successful or even initiated prosecution of a suspected gunrunner. That's another problem that the Justice Department has also acknowledged.

  • 10:42:33

    PEREZOne of the issues -- one of the -- to indicate how political this has become, in the Bush administration, the administration agreed that most of the -- that most of not, you know, many of the firearms that were being used by the narcotraffickers in Mexico came from the United States, and they tried to do something about it as well.

  • 10:42:54

    PEREZIt -- under the Obama administration, Republicans have kind of decided that they don't necessarily agree with that anymore. And so there's now a dispute as to whether or not most of the weapons come from the United States. And so you even have now a disagreement about this issue.

  • 10:43:10

    PAGEPhilip Heymann, go ahead.

  • 10:43:12

    HEYMANNWhichever way you go on that, it will turn out that this set of guns is a relatively small percentage of the total guns.

  • 10:43:21

    PEREZRight. I mean, that's accurate. I think...

  • 10:43:22

    GARRETTBut a larger number than is ever been allowed to talk by the ATF or any other law enforcement agency in the federal government.

  • 10:43:31

    PEREZRight.

  • 10:43:31

    GARRETTIt's a different thing. It was different in kind, and it didn't work.

  • 10:43:34

    PAGEAnd no one is arguing that this is not a botched operation

  • 10:43:37

    PEREZRight. I think everyone agrees that it wasn't a good idea and that -- and also, I mean, frankly, I mean, there were so -- there's such a flood of firearms going over the border. In Mexico, it's very difficult to buy weapons legally, so the illegal trade is really the way everything goes there.

  • 10:43:54

    PAGEWe've got some callers and emailers who say, "Well, if this operation started in the Bush administration, why aren't congressional Republicans at least also pursuing officials from the Bush administration in this investigation?"

  • 10:44:09

    PEREZWell, there's an additional complication to that. So the Bush administration had instances of this -- not as great a scope as Major pointed out, but still, they had these operations, one called Wide Receiver. In the Obama administration, high-level people, including Lanny Breuer, the head of the criminal division, find out about this. And instead of telling the attorney general and perhaps raising a greater stink about it to try to make sure it doesn't happen again, it appears that they didn't do that.

  • 10:44:41

    PEREZThey essentially went to the ATF and said, you know, this isn't a good idea, let's not do this again but didn't do more to sort of make sure that this did not happen again. And Republicans point out that they tried to prosecute a case that came from those earlier operations in that way almost encouraging ATF. At least, that's the way they view it.

  • 10:45:00

    PAGEJoining us by phone now from his office is Republican Congressman John Mica of Florida. He's a member of the House Committee on Oversight and Government Reform. Congressman, thank you for being with us.

  • 10:45:09

    REP. JOHN MICAGood to be with you.

  • 10:45:10

    PAGESo why did Republicans vote to hold the attorney general in contempt yesterday?

  • 10:45:16

    MICAWell basically 'cause he is in contempt of Congress. First of all, this is a scheme that was devised early on in the administration and maybe even used by other administrations to filter guns to drug lords in Mexico. It got out of hand. The weapons found their way through to a number of narcoterrorists. They killed a United States agent and up to -- the estimates are up to 200 other people. So the Congress asked questions. Last year, for 11 months, the DOJ, Department of Justice denied any involvement.

  • 10:46:06

    MICAAnd they actually fessed up to knowing about the program that reached pretty high levels in the AG's office. Then we've subpoenaed documents for the last eight months. They've given us a little dribble-drabble. They came in the last minute and offered to provide additional documents if we would close down the investigation. And that's not acceptable.

  • 10:46:36

    MICAThis is a very serious matter. It should be fully investigated. So that's where we are. The attorney general still has an opportunity between now and next week before the full House considers the contempt measure. If he turns over the documents we've asked for, then he won't be held in contempt.

  • 10:46:54

    PAGEDo you think -- we've noted on this program during this hour that these -- we've had disputes similar to this in the past, and they've been worked out by negotiation. Do you think that will happen in the next week?

  • 10:47:04

    MICAWell, again, I think all we want is the documentation we've asked for. Seven or 8 percent of the communications, the documents are not acceptable. It's not acceptable for Congress to take on terms to close on an investigation, to take a partial delivery of what we've requested. We have this authority and responsibility. An agent was killed. Others were killed. The program went badly south, and we just need to get to the bottom of that and hold people accountable, make sure it doesn't happen again.

  • 10:47:38

    MICAHow would you feel if you were the Terry family and lost your loved one and no one wants to be truthful or forthcoming in the circumstances surrounding that death? So I think we're on pretty solid grounds. Sometimes, you know, the past, there are political things. This isn't an October surprise or anything. We've been trying to get the information for a year and a half, and I think we tried to be as reasonable as we can be.

  • 10:48:09

    PAGEI know we're all very sorry for the death of that border patrol agent, Mr. Terry. Eleanor Holmes-Norton was on the show earlier in this hour. And she said it's just politics that play here. That's what Republicans are doing.

  • 10:48:20

    MICAI think that's not a good response. Again, this is a very, very serious matter. This is the chief prosecutorial office of the United States that has supplied weapons to drug dealers that have killed an agent and possibly as many as hundreds in the testimony we had yesterday and the documentation we've gotten so far. So we need to find out what went wrong, who is responsible for letting it go awry and then also make certain it doesn't happen again. That's a basic investigative and oversight responsibility of Congress. So that just, you know, trying to put a political spin on it is not going to do it.

  • 10:49:08

    PAGEAnd this one last -- just one last question, Congressman Mica. If the House votes to hold the attorney general in contempt, it then gets referred for prosecution to, I guess, Mr. Holder and his Justice Department on whether to pursue. Do you think this would -- this will go anywhere, or is this going to be treated with some delay and some consideration and not actually go further after the House?

  • 10:49:30

    MICAWell, it'll go as far as they allow it to go. If he turns over the documents, the contempt citation will be dropped. He is in contempt until he complies with our request. Refuse to do that, it is, you know, it's shameful. The whole thing is shameful on the Department of Justice and now to not have them be responsible as one of the chief judicial arms of the United States in the investigation. And I think it's just -- there's no question that it's warranted. It just needs to be completed, and it will be one way or the other.

  • 10:50:10

    PAGECongressman Mica, thank you so much for being with us on "The Diane Rehm Show."

  • 10:50:13

    MICAGood to be with you. Thank you. Bye.

  • 10:50:14

    PAGEThat was Congressman John Mica of Florida, a member of the House Committee on Oversight and Government Reform. Philip Heymann, there's something like...

  • 10:50:20

    HEYMANNWhat seems to...

  • 10:50:21

    PAGEYou wanted to get in on this conversation?

  • 10:50:22

    HEYMANNYeah. I don't know. I was sort of getting all worked up as the congressman was talking. He makes it, you know, all the flavor is politics, vengeance, a totally irresponsible department. There is no sign of any of that. I have testified against Democrats. I have testified -- I've brought cases against Republicans. I wanted to ask the congressman, does he think that there -- does he think that Eric Holder had anything to do with the foolish letter written on Feb. 4 at a lower level?

  • 10:50:57

    HEYMANNSomething that an attorney general would never see, saying that this was all -- that no guns were allowed to walk. Eric Holder didn't have anything to do with that letter. And when they found out about it, it did take him a long time, about 10 months. That -- he was right about that. They wrote and said our letter was wrong. And they've always said this was a bad operation. He talks -- the congressman talks as if this is an intentional effort to deliver guns to drug dealers. It wasn't that.

  • 10:51:28

    HEYMANNThere's a -- sometimes -- this is why the principal of DEA and ATF is never uniformly applied. Sometimes by allowing some drugs or some guns to travel, to walk, you may be able to make a big case that will have a huge dent on problems we have with guns and with drugs. And in those cases, you have to take it seriously. And each administration has taken it seriously. And it's not taking it seriously to talk and say, oh, we purposely gave guns to drug dealers, and, as a result of that, the drug dealers killed in the terrible -- in the terribly tragic event Agent Terry.

  • 10:52:10

    HEYMANNBasically, this is a botched operation, probably badly planned, certainly badly executed, admitted by the administration to be those things. The only remaining issue of documents is about what happened that the Justice Department wrote a I am innocent letter on Feb. 4 when it wasn't. There has been a complete answer to that I think.

  • 10:52:32

    HEYMANNAs a matter of fact, the people who gave the information that misled the Justice Department have testified before the Congress and have said it was totally their doing. I'd -- and yet the congressman comes on, and he talks as if this is all, you know, this -- we just have to slowly work our way through to the point where we can see why the administration was knowingly giving drugs or giving guns, in this case, to drug trafficking organizations.

  • 10:53:00

    PAGEYes. I'm Susan Page, and you're listening to "The Diane Rehm Show." Evan, what do you think?

  • 10:53:05

    PEREZWell, one last thing I think we should insert here is the -- probably as early as next month, we're going to see a report from the inspector general of the Justice Department which will probably be the definitive account, because it won't be political, will be a definitive account of what happened. He's had access to everything, including the stuff that the Republicans have said that the Justice Department should turnover.

  • 10:53:27

    PEREZAnd so when that report comes out, which probably will be next month, we'll find out more about everything, including whether or not there was a cover up after this letter -- when this letter was sent out. We'll probably also find out that there are a couple of other investigations that have been spawned by this. We reported this a couple days ago. And so I think some of the tension over this is going to be perhaps let out by this report.

  • 10:53:56

    PAGELet's go to Chris. He's calling us from Galesburg, Mich. Hi, Chris.

  • 10:54:00

    CHRISHi. Thank you for taking my call.

  • 10:54:01

    PAGEYes.

  • 10:54:02

    CHRISI think what's being forgotten and lost in this is the sale of the guns to begin with. These are guns that were observed. But how many thousands have not been observed? And as I understand it, they were legally sold from a gun shop to somebody who then smuggled them into Mexico. And the real embarrassment is the politicians who have allowed these laws to be in existence, that this can be done legally. The NRA has bought and paid for Washington politicians who have then gone and done this.

  • 10:54:36

    PAGEChris, that's such an interesting point. And I want to ask Evan if -- what you think about what Chris said, and also if the controversy over Fast and Furious has affected the effort to go after these guns that get sold in -- over the boarder in Mexico.

  • 10:54:50

    PEREZWell, a couple of things. I mean, we've not had a reasonable discussion about gun laws in this country. As a result of this, I think Democrats would liken to discuss that because there is this problem of gun sales. The administration has tried to put new rules to try to do more tracking. There's resistance from that in Congress. The other problem here is that the ATF, which has been has been a dysfunctional agency for many years including under the Bush administration where Republicans would not allow a director to be appointed.

  • 10:55:20

    PEREZAnd so you have an agency that's been dysfunctional for many years, which is what give -- has given rise to this kind of thing. I think that the caller is right in the sense that there is this problem in which, you know, there is a lot not known about how the smuggling happens. And the prosecutions that have occurred have not really dented the flow of firearms.

  • 10:55:40

    PAGEMajor.

  • 10:55:41

    GARRETTOne quick political observation. I do think part of Fast and Furious is a proxy for Republicans who want to articulate a grievance against the administration for even talking about tighter gun control or tighter regulations on the sale of guns from gun shop owners. One thing to distinguish in Chris' call, Fast and Furious, these were cooperative gun shops who were working with the ATF, and their sales were observed, and they thought these firearms would be tracked in the future by some other mechanism, GPS or things like that.

  • 10:56:12

    GARRETTSo there are two sets of gun shop owners here: Ones who sell guns to anyone who looks to be legitimate, and those guns can travel over the border and become part of crimes -- not part of this operation. Fast and Furious was cooperative gun shop owners who thought they were doing something good for themselves, good for their community and good for the government.

  • 10:56:29

    PAGEHere's an email from Matt in Indiana. We'll close with him. He said, "Most Americans regard congressional hearings for what they often are, political grandstanding to score political points. With all the huge problems we face, is this the best use of the government's time and money? One further thought. If contempt of Congress is a crime, by the last poll, 89 percent of Americans are guilty of it." Matt, thank you so much for your email. And my thanks also...

  • 10:56:52

    GARRETTWell said.

  • 10:56:53

    PAGE...to our panel. Major Garrett, Evan Perez and Philip Heymann, thank you so much for being with us this hour on "The Diane Rehm Show." I'm Susan Page of USA Today, sitting in for Diane Rehm. We should note that this is the last show produced by Monique Nazareth, who's been a producer on this show for some time. We wish her well on her next adventure. And thanks to you all for listening.

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