Written by Andrew C. McCarthy
Whom is executive privilege protecting?
The media commentary about “executive privilege” makes your eyes glaze over. That’s intentional: When you are throwing sand in the public’s eyes, as the administration is in the Fast and Furious scandal, you want the talking heads droning on about the jurisprudence of “presidential communications” and “deliberative process.” Blather about the legal contours diverts your attention from the only question that really matters: Why?
Why is President Obama denying Congress and the public access to critical information about his administration’s part in a shockingly ill-conceived investigation that resulted in the murder of Brian Terry, a heroic federal Border Patrol agent and veteran U.S. Marine. And when I say “his administration’s part,” that, too, is intentional.
When the president intervened with an eleventh-hour privilege assertion as the House committee verged on citing his obstructive attorney general for contempt, the Obamedia storyline, naturally, was that Obama was protecting Holder. But if we know anything after a half-decade of closely watching Barack Obama, it is this: The One is in it for The One. The president invoked executive privilege because he is protecting himself.
On March 22, 2011, in an interview on Spanish-language television, President Obama, unbidden, brought up Fast and Furious in what were obviously considered remarks. He declared:
There have been problems, you know. I heard on the news about this story that — Fast and Furious, where allegedly guns were being run into Mexico, and ATF knew about it, but didn’t apprehend those who had sent it. Eric Holder has — the attorney general has been very clear that he knew nothing about this.
By the time the president volunteered these words, a cover-up was already well underway within his administration. Weeks earlier, on February 4, 2011 — nearly two months after Agent Terry was murdered — Holder’s Justice Department sent Congress a letter flatly denying that it had facilitated the illegal transfer of weapons to Mexico and insisting that its agencies always make “every effort to interdict weapons that have been purchased illegally and prevent their transportation to Mexico.” These representations, we now know, were outrageous falsehoods. But what is not well understood is just how outrageous.
In point of fact, top Justice Department officials certainly knew about the Fast and Furious investigation’s use of the fateful “gunwalking” tactic for many months before this letter was submitted — probably for over a year. They were banking on Fast and Furious as a great success story. But when Agent Terry was killed, they abruptly changed tack, first denying that gunwalking had happened and, when that failed, scrambling to distance the Justice Department’s political appointees and the White House from the inevitable murder and mayhem the gunwalking has caused — and will continue to cause. That was the burden of the president’s unsolicited comments: to maintain that “ATF knew” about the gunwalking but Holder did not and Obama did not.
Indeed, on May 3, 2011, in astounding House testimony, Holder claimed that he’d only heard about Fast and Furious “for the first time probably over the last few weeks.” This not only contradicts Obama’s account, which has Holder discussing the case (and denying knowledge of its tactics) two months earlier; it defies everything we now know, including that Holder was planning to attend a triumphant Fast and Furious press conference back in 2010 — before Agent Terry’s death sent the Obama administration reeling.
Understanding this calls for some “inside baseball” about how the Justice Department works. In particular, you’ll want to introduce yourself to “OCDETF,” a term near and dear to the DOJ heart, though one unknown to the public — and boy, does the administration ever want to keep it that way.
OCDETF stands for the Organized Crime Drug Enforcement Task Force. It was created during the Reagan administration to throw the coordinated muscle of Justice’s component investigative agencies — especially the FBI and the DEA — at domestic and international organized crime, a scourge that had been dramatically exacerbated by unprecedented drug-trafficking millions.
I was working at the U.S. attorney’s office in Manhattan at the dawn of OCDETF — which at DOJ is referred to as if it were a word, “Osedef.” In those days, with New York City both the notorious capital of La Cosa Nostra and the target market of Colombian drug cartels, I was fortunate to be assigned to some of the original “Osedef cases.”
Very soon, everybody wanted to work on them, and investigative agencies jabbed their sharpest elbows in the competition to have their prize investigations designated OCDETF. The reason was straightforward: OCDETF cases were the cases the Justice Department cared about, meaning: They were the cases that got bottomless funding and extensive resources.
OCDETF cases are Justice’s crown jewels: the investigations that go on for months (sometimes more than a year) and result in vast arrest sweeps, bells-and-whistles press conferences, high-profile trials, and epic convictions and sentences. To carry such cases off demands mega manpower. Besides developing and exploiting informants, the agencies infiltrate criminal conspiracies with undercover agents, use the information gathered as the basis for wiretaps, and coordinate this eavesdropping with physical surveillance. It takes scores of agents to monitor bugs, conduct sometimes 24/7 spying on multiple subjects, and manage informants, who tend to be very high-maintenance. This costs money, lots of money.
OCDETF money pours out, but not without one very big string attached: the involvement of Justice Department headquarters in Washington — known as “Main Justice” in DOJ circles.
The vast majority of federal criminal investigations have virtually nothing to do with Main Justice. They are run exclusively by the local district U.S. attorney’s offices (of which there are 94 throughout the country), working in each case with the field offices of a federal investigative agency: FBI, DEA, ATF, Secret Service, postal inspectors, etc. Almost never do these mundane cases involve wiretaps or multiple agencies conducting extensive surveillance. When they end successfully, the investigative agency and the U.S. attorney may put out a press release to the local media, but no one in Washington ever hears about them.
OCDETF cases are very different. They get to the front of the line when it comes to resources, particularly wiretapping — one of the only investigative techniques for which federal law requires approval by the attorney general or his designee (a top DOJ official) before the investigating agency and the district U.S. attorney may seek court approval. (For example, no Main Justice green-light is needed to seek a search warrant, make an arrest, flip an informant, convene a grand jury, issue a subpoena, or collect evidence in sundry other ways.)
Moreover, as you might expect, given that the “OC” in OCDETF stands for “Organized Crime,” OCDETF investigations almost always contemplate — and frequently indict — racketeering charges under RICO (the statute outlawing “Racketeer Influenced and Corrupt Organizations”). RICO is one of the few federal laws under which a district U.S. attorney needs permission from Main Justice before indicting.
Why go through all of this detail? Because the Obama administration has offered a palpably false narrative about Fast and Furious. It is this: Acting on their own, recklessly irresponsible ATF agents in Arizona — under the ostensible direction of the local U.S. attorney, who was actually asleep at the switch — dreamed up the Fast and Furious investigation, with its rogue “gunwalking” tactic. Against all government protocols, thousands of firearms were allowed to be transferred from “straw purchasers” to violent Mexican drug gangs, in the vain hope that they’d turn up in crime scenes and searches of high-ranking cartel operatives, enabling the U.S. government to make spectacular cases against the kingpins rather than the low-ranking nobodies.
This went on for a time with inadequate supervision, and, predictably, when the arsenal fell into the hands of the savage criminals, it resulted in violent crimes, including murders — murders that tragically included Agent Terry’s. Finally, word of the operation slowly made it across the country to Washington, where Obama DOJ appointees raised concerns with top ATF officials. Though they may be faulted for moving too slowly, eventually these DOJ appointees alerted their boss, Attorney General Holder, who was horrified and acted decisively to shut the operation down.
Bunk. In fact, Fast and Furious was an OCDETF case. That made it a Main Justice case, not the orphan Arizona debacle of media portrayal.
The Justice Department is so high on OCDETF, and has been for 30 years, that the program has its own special place on the DOJ website. There, readers learn that OCDETF is “the centerpiece of the United States Attorney General’s drug strategy to reduce the availability of drugs by disrupting and dismantling major drug trafficking organizations and money laundering organizations and related criminal enterprises.” The most important of these “related enterprises” is the illegal acquisition and use of guns — which, besides being evidentiary staples of narcotics and RICO prosecutions, are coveted by investigators because they significantly increase jail sentences upon conviction.
The website goes on to explain that the “OCDETF strategy” is implemented “under the direction of the Deputy Attorney General” — second in command to Holder at DOJ (and, in fact, the position Holder himself occupied in the Clinton/Reno Justice Department). With the coordinated effort of numerous investigative agencies and U.S. attorneys under Main Justice’s leadership, OCDETF is depicted as not only “disrupt[ing] the drug market” but “bolster[ing] law enforcement efforts in the fight against those terrorist groups supported by the drug trade.” Main Justice annually develops a “Regional Strategic Plan” for the country by requiring OCDETF participants to “identify major Regional Priority Organizational Targets.” And it has established an “OCDETF Fusion Center” as “the cornerstone” of its “intelligence-driven law enforcement, an essential component to the OCDETF program.”
In other words, the defining features of OCDETF are investigative coordination under the Justice Department’s leadership and the liberal sharing of information across the department’s array of agencies. No OCDETF case is an outlier.
Now let’s consider some of the information chairman Darrell Issa’s House investigating committee has gathered — much of it from whistleblowers, not Holder’s stonewallers.
Fast and Furious began in the fall of 2009, when agents in ATF’s Phoenix office developed their strategy — including the fateful gunwalking tactic — with the U.S. attorney. But things really got going in January 2010. It was then that the case became an OCDETF investigation. This does not just happen in the blink of an eye. It is a deliberate process. ATF and the U.S. attorney had to apply to Main Justice for OCDETF status. A case gets approval for funding — which can run well into the millions of dollars — only if senior Justice Department officials, after studying the formally submitted proposal, determine that the investigation has great promise.
The Obama Justice Department made exactly that determination. And this was no rubber stamp — it never is, given the number of agencies across the country competing over the OCDETF pot of gold. Chairman Issa’s most recent memo (dated May 3, 2012) explains that, to win its OCDETF designation, Fast and Furious was “reorganized as a Strike Force including agents from ATF, FBI, the Drug Enforcement Administration (DEA), and the Immigration and Customs Enforcement (ICE) component of the Department of Homeland Security.” Because of the investigation’s importance, a senior ATF agent (who later became a whistleblower) was transferred to Phoenix to help oversee the case.
The OCDETF designation enabled Fast and Furious investigators to use wiretaps. This is highly unusual in ATF-run cases — almost all federal wiretapping is done in investigations led by the FBI or the DEA. As noted above, wiretapping requires Main Justice approval. But that’s not all: As I’ve previously outlined, federal wiretap law mandates that the application to the court describe the investigative tactics that have been used in the investigation and explain why those tactics cannot achieve the investigation’s objectives without wiretapping. If the Fast and Furious wiretap applications complied with federal law, they must have described the gunwalking tactic. These applications cannot be submitted to a federal judge until they have been approved by Main Justice; they are submitted to the Department’s Office of Enforcement Operations, which screens them very carefully.
There is little doubt that the wiretap applications would show that senior DOJ officials were aware of the gunwalking tactic long before Agent Terry was gunned down on December 14, 2010. But that’s not the half of it. Bet your bottom dollar that gunwalking was discussed in the consideration of whether to make Fast and Furious an OCDETF case in the first place. OCDETF investigations, moreover, are carefully monitored by the Justice Department throughout, to ensure that the extraordinary flow of funding continues to be worthwhile. I’m wagering that senior DOJ officials — which is to say, Obama-administration political appointees — knew about the gunwalking for close to a year before Agent Terry’s death.
With that as background, consider this little-noticed paragraph from the Issa memo:
Washington-based Justice Department officials had earlier [in 2010] discussed bringing Attorney General Eric Holder to Phoenix for a triumphant press conference with Arizona U.S. Attorney Dennis Burke to herald the conclusion of the Department’s flagship firearms trafficking case. In the aftermath of Agent Terry’s death, the task of announcing indictments at a press conference fell to ATF Phoenix Division Special Agent in Charge William Newell and Burke. Holder did not attend.
The “lights, camera, action” press conference is a standard feature of OCDETF cases. It is discussed for weeks, if not months, on end. It has to be. The amount of funding lavished on these cases results in great pressure to bring them to a fittingly spectacular conclusion as soon as practicable — with a barrage of arrests and search warrants. But the attorney general will be made to look foolish if, after enormous sums have been spent, in addition to thousands of agent and prosecutor work hours invested, the case ends without arrests, or the suspects arrested are not the main culprits, or the main culprits manage to flee before agents can find and put handcuffs on them.
Orchestrating the “takedown” is thus no mean feat. It always results in extensive consultations among all the participating components, including Main Justice, to decide when the arrests should occur, what the state of the evidence is against the main targets, and whether the main targets are “in pocket” — covered by surveillance so agents know they can be grabbed the moment the takedown starts. This goes double when there is to be a press conference attended by the attorney general himself.
If, prior to Agent Terry’s murder, plans were already being made for Attorney General Holder to appear at the anticipated press conference to announce arrests, it is inconceivable that discussions about the case were not ongoing between the U.S. attorney’s office and Main Justice — which, of course, would already have been quite familiar with the case because of the OCDETF designation and the wiretaps.
OCDETF cases get the attention of the Justice Department’s top hierarchy. What gets that level of attention gets the attorney general’s attention. And what gets the attorney general’s attention very often gets the president’s attention.
That would be the president who just invoked executive privilege.
SOURCE: National Review Online
Andrew C. McCarthy is the author, most recently, of The Grand Jihad: How Islam and the Left Sabotage America.