Top Justice Department officials either knew about the controversial “gun-walking” aspect of Fast and Furious or ...

Josh Gerstein
Politico Contributor

Top Justice Department officials either knew about the controversial “gun-walking” aspect of Fast and Furious or had access to enough information that they could — and should — have put a stop to the practice, Republican congressional investigators said Thursday.

The memorandum pinning blame for the gun-trafficking operation on senior Justice Department officials was released just hours before Attorney General Eric Holder was set to testify before the House Oversight and Government Reform Committee about the Bureau of Alcohol, Tobacco, Firearms and Explosives operation that reportedly allowed more than 1000 guns to flow from licensed gun dealers in the U.S. to Mexican drug cartels.

“Main Justice had much greater knowledge of, and involvement in, Fast and Furious than it has previously acknowledged,” said the memo from aides to House Oversight Committee Chairman Darrell Issa (R-Calif.) and the top Republican on the Senate Judiciary Committee, Chuck Grassley of Iowa. “The Justice Department’s Criminal Division—including Deputy Assistant Attorney General Jason Weinstein and Assistant Attorney General Lanny Breuer—was in a position to know the key investigative techniques employed.”

The GOP staff memo firmly asserts for the first time that at least one wiretap application approved by Weinstein in the Fast and Furious case contained language that explained how ATF was allowing guns to “walk” to straw purchasers who were suspected of funneling guns to the Mexican drug gangs.

“Congressional investigators have learned about the information contained in one Wiretap Authorization and Wiretap Affidavit from Fast and Furious that Jason Weinstein signed. The Wiretap Affidavit presented Weinstein with the details of at least two instances in which ATF agents had witnessed illegal straw purchasing and the subsequent transfer of the purchased weapons to other individuals,” said the memo.

Weinstein told investigators that it was his “general practice” not to read the underlying affidavits in such cases but to rely on a so-called cover memo prepared by another Justice Department office. He has said he was not aware of the “gun-walking” tactic in Fast and Furious at that time and would have acted quickly to end it if he had been.

The GOP investigators’ memo does not quote from the wiretap applications, which are under seal pursuant to federal law and a federal court order, nor do the Congressional aides say where they obtained such details.

The GOP memo also says officials at Justice Department headquarters should have been aware of the “gun-walking” because a Criminal Division prosecutor, Joe Cooley, was assigned to work on the case with federal prosecutors in Arizona. Cooley spent three months in late 2009 and early 2010 “suggesting prosecutorial strategy to the lead federal prosecutor in Arizona, Emory Hurley, and receiving briefings on operational details,” the memo says. Cooley served as a link between Main Justice and the Arizona prosecutors “that bypassed ATF leadership,” investigators add.

“Main Justice has consistently blamed the U.S. Attorney’s Office for mismanaging Fast and Furious. The congressional investigation has shown, though, that at the time, Main Justice was confident enough in the U.S. Attorney’s Office that it removed its assigned prosecutor from the case,” the Republican staffers determined.

The GOP Congressional investigators’ bottom-line conclusions about the culpability of top Justice Department managers were essentially the opposite of the findings of a report the panel’s top Democrat, Rep. Elijah Cummings of Maryland issued on Tuesday. That report found there was “no evidence” officials at Justice Department headquarters knew about the “gun-walking” aspect of Operation Fast and Furious in real time.

Documents and testimony obtained as part of the Congressional probe show that some ATF agents had deep concern about allowing large numbers of guns to be purchased under suspicious circumstances. However, supervisors persisted with the operation and appear to have discouraged arrests of low-level purchasers in the hope that higher-ranking cartel members could be charged.

In December 2010, two guns from Fast and Furious were found at the scene of the shooting death of a Border Patrol agent in Arizona. That episode triggered complaints to Grassley and, eventually, the Congressional probe.

In written testimony released in advance of his appearance Thursday, Holder reiterated his disapproval of the tactics used in Fast and Furious and several investigations initiated during the Bush administration.

“Allowing guns to ‘walk’ – whether in this Administration or in the prior one – is wholly unacceptable,” Holder’s prepared testimony said. “This tactic of not interdicting weapons, despite having the ability and legal authority to do so, appears to have been adopted in a misguided effort to stem the alarming number of illegal firearms that are trafficked each year from the United States to Mexico. To be sure, stopping this dangerous flow of weapons is a laudable – and critical – goal. But attempting to achieve it by using such inappropriate tactics is neither acceptable nor excusable.”

Holder said he’s put into place “vital reforms” to prevent “gun-walking” in the future, such as additional levels of review for certain undercover investigations and new procedures for handling informants.

The Justice Department also announced last week that it has changed some procedures related to wiretap applications like the ones Weinstein approved. However, department officials have not conceded that he made any error by apparently failing to review the underlying documentation related to the proposed wiretaps.

The Justice Department’s Office of Inspector General has been investigating Fast and Furious, at Holder’s request, for nearly a year. So far, no public findings have been issued in that probe.