- The Washington Times
Tuesday, December 17, 2013

House lawyers say Congress could resurrect an independent counsel’s office to prosecute “Fast and Furious”-related criminal charges against high-ranking Obama administration officials, according to new court records.

The independent counsel’s office, which probed the Clinton-era Whitewater scandal, ended in 1999. But in a footnote contained in a court filing late Tuesday, House lawyers said the congressional probe into the botched Fast and Furious gun-walking operation eventually could suggest the need for “additions to or modification of existing federal laws.”

In addition to “resurrecting some form of independent counsel,” Congress could consider:

— reorganizing the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) by removing it from under the Justice Department;

— creating a Justice Department ombudsman to address whistleblower complaints;

— amending the wiretap statute to ensure “substantive” review by senior Justice Department officials.

Congress has been probing Fast and Furious for years. The ATF undercover sting operation, designed to ensnare Mexican drug kingpins, allowed thousands of guns to be sold to straw buyers who took them across the border into Mexico. The operation ended when two weapons were found where a Border Patrol agent, Brian Terry, was fatally shot on Dec. 14, 2010.

But the House oversight committee has been engaged in a long and bitter battle with the Justice Department over access to Fast and Furious documents. The House already has voted to hold Attorney General Eric H. Holder Jr. in contempt for withholding records.

The latest court filings in the battle were a lengthy request for summary judgment against Mr. Holder.

The Republican-led committee says it needs the documents because it’s trying to uncover the extent to which senior Justice officials tried to block the congressional probe. The Justice Department had no immediate comment on the court filing.

Justice lawyers previously argued in court pleadings that the House had “no lawful right to the documents it seeks” because they’re protected by a “valid assertion of executive privilege.”

But U.S. District Judge Amy Berman Jackson, an Obama appointee, rejected Justice’s request to have the case tossed and allowed it to proceed.

In an affidavit attached to the new court filing, the oversight committee’s general counsel, Stephen Castor, said the congressional investigation initially focused on trying to understand the Fast and Furious operation.

Soon, however, a new question emerged.

“By the fall of 2011, the committee’s investigation had developed a second focus, i.e., whether DOJ deliberately was attempting to obstruct the committee’s underlying investigation into Operation Fast and Furious,” he said.

Mr. Castor said a third and last in a series of committee reports into Operation Fast and Furious hasn’t been drafted yet because the committee can’t access the relevant documents.

The House lawyers rejected Mr. Holder’s claim to withhold documents based on an exemption known as deliberative process.

“But deciding how to stiff Congress and spin the media is simply not a ‘policy’ to which the privilege attaches,” House general counsel Kerry W. Kircher argued in the pleading.

Mr. Kircher said the deliberative process exemption is designed to promote open and frank discussion among top-level agency decision-makers.

But “it is not designed to promote discussions — open and frank or otherwise — among high-level executive branch officials about how to subvert a congressional investigation,” he added.

• Jim McElhatton can be reached at jmcelhatton@washingtontimes.com.

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