– Senate Judiciary Committee
Chairman Chuck Grassley testified today at a hearing
before the House Committee on
Oversight and Government Reform about the process of oversight for Operation
Fast and Furious
since it began in 2010. His testimony comes alongside the
release of a joint committee report
between the Senate Judiciary Committee and House Oversight and Government
Reform Committee on the investigation.
In his testimony, Grassley
outlined the unprecedented obstruction of legitimate Congressional oversight by
the Justice Department, praised the whistleblowers who contributed to the
investigation and criticized the flawed reasoning behind a court decision
giving Congress access to documents but providing a misguided legal shield for
bureaucrats in future investigations.
Grassley also reminded lawmakers
of their constitutional responsibility to act as a check on the executive
branch and continue to pursue rigorous oversight of the federal government on
behalf of the American people.
“It cannot take years for this
body to get answers from a co-equal branch of government about information that
has no legal basis to stay hidden from Congress,” Grassley said. “That is why I am working
with my colleagues on proposals to modernize the rules of engagement in
congressional oversight. We need a package of rules and legislative changes so
that responders to congressional inquiries cannot rely on phony privilege
claims and delay tactics.”
Operation Fast and Furious was a Bureau of Alcohol, Tobacco,
Firearms, and Explosives (ATF) program during the Obama administration in which
ATF agents allowed guns to be trafficked into Mexico. In the course of the
operation ATF lost track of several of the guns, one of which was used in the
slaying of a United States Border Patrol agent. The Justice Department under
the leadership of then-Attorney General Eric Holder continuously obstructed
Congressional inquiries into the matter. Grassley, a longtime advocate for
government transparency and accountability, has been a leader in the
investigations of Operation Fast and Furious for nearly six years.
Full text of Grassley’s prepared
testimony follows, the joint committee report can be found here
and a video of Grassley’s testimony can be found here
Prepared Statement by Senator Chuck
Grassley of Iowa
Chairman, Senate Judiciary Committee
Hearing on Operation Fast and Furious:
Obstruction of Congress by the Department of Justice
June 7, 2017
Chaffetz, Ranking Member Cummings, Members of the House Committee on Oversight
and Government Reform, and members of the Terry family, thank you for giving me
the chance to testify about an important Congressional investigation that the
Justice Department has stonewalled for far too long: Operation Fast and
investigation began six years ago. The fact that it is still tied up in the
courts is proof positive that our system of checks and balances is broken.
Congress needs to reform its process for enforcing compliance with subpoenas.
all started when courageous agents blew the whistle on gunwalking to the Senate
Judiciary Committee. We learned that the Bureau of Alcohol, Tobacco, Firearms,
and Explosives sanctioned the sale of hundreds of assault weapons to straw
purchasers, who then trafficked the guns to Mexican cartels. These weapons have
since been discovered in the hands of criminals both in the United States and
Mexico. Two of these weapons were used in the firefight that led to the tragic
death of Border Patrol Agent Brian Terry in December of 2010.
it became clear that the government planned to cover it up, agents blew the
whistle. On January 27, 2011, I wrote to ATF for answers. But, the Department
of Justice and ATF had no intention of looking for honest answers and being transparent.
In fact, from the onset, bureaucrats employed shameless delay tactics to
obstruct the investigation.
a letter to me on February 4, 2011, Department officials denied that ATF had
ever walked guns. But the evidence kept mounting that the official denial was
just plain false. Through documents obtained during this long litigation, we
have learned how the bureaucrats and political appointees reacted when they
learned the truth. As the Department became aware that the information it
provided to Congress was wrong, it kept the truth hidden. It refused to come
clean, notify Congress, and correct the record.
soon as March 2011, officials at ATF and within the Department raised concerns
about the inaccuracy of the information in the February 4 letter. But the
Department failed to withdraw the letter until nine months later, in December.
Why did it take so long to admit the truth to Congress?
Committees requested documents from the Department that would shed light on
this delay. In October 2011, this Committee issued a subpoena for documents
from the Department of Justice, including documents related to the Department’s
responses to Congress. The Department initially refused to produce any
documents responsive to the subpoena. It refused to assert any privilege or
provide a log of withheld documents so that the Committee could consider
whether there were any legitimate reasons for not providing them. Instead, the
Department merely made vague, feeble claims that the documents implicated
“confidentiality interests” and “separation of powers” concerns.
June 2012, the Justice Department had to ask President Obama to give it some
cover by formally asserting executive privilege. The request came on the eve of
a vote in this Committee to hold the Attorney General in contempt. And the
President’s assertion was communicated to this Committee only minutes before
the scheduled vote. The Committee rejected the President’s claim on the merits,
and so did the full House in a historic bipartisan vote. It was the first time
an Attorney General was held in contempt of Congress.
add to the obstruction, the Obama Administration refused to present the
contempt citation to a grand jury as required by statute. Then, in August 2012,
this Committee filed a civil lawsuit to try and enforce its subpoena that way.
Once in the courts, even more lengthy delays began. Two years later, in August
2014, the court finally ordered the Department to review all the documents,
provide a log explaining why it wanted to withhold specific items, and to
produce everything that the Department itself admitted was not covered by any
privilege. The Department then produced more than 10,000 of the originally
withheld documents. These documents totaled more than 64,000 pages.
be clear—and this is very important—the Department tried to hide these
documents from Congress by getting President Obama to assert executive
privilege, but once the case was before a judge, the President totally
abandoned his claim. In effect, the government admitted that the privilege did
not apply to those documents. Why did it take a contempt citation from Congress
to force the Executive Branch to admit that it hid documents from the people’s representatives
for completely bogus reasons?
General Holder preferred to be held in contempt rather than admit the authority
of this committee to compel production of the documents through a subpoena—even
documents that the Justice Department itself and the President did not believe
were privileged. If that doesn’t illustrate how broken our system of
Congressional subpoena enforcement is, then I don’t know what does.
capitulation of the Department, once a judge finally forced its hand, proves
that the initial claims of privilege were deceptive and unfounded. It was
nothing more than an attempt to obstruct Congress’ investigation. The
Department’s belated admission that those 64,000 pages were not privileged puts
the gold seal of authenticity on the House’s bipartisan vote to hold the
Attorney General in contempt.
documents exposed the Justice Department’s intent to hide information from
Congress and upset the balance of powers. Obstructing a valid inquiry by a
separate, co-equal branch of government undermines our Constitutional system of
checks and balances. The documents show a highly politicized climate at the
Obama Administration’s Main Justice, focused more on spin and cover-up than on
transparency and fact-finding. Now, despite the court’s order to the Department
to produce documents that were admittedly not privileged, the Judge’s opinion
as a whole is problematic. Although she also later ordered the production of
more material, the Judge’s reasoning is fatally flawed. The judge erroneously
concluded that certain of the Department’s underlying privilege claims—although
waived—were valid. The judge gave the House a victory in practice, but gave the
Department a victory on the principle.
splitting the baby in this way, the opinion seeks for the first time to push
the scope of executive privilege outside the White House to cloak low-level
government bureaucrats in secrecy. This is new and unprecedented territory. It
is a major threat to the oversight powers of the legislative branch. The
President should not be able to shield information in all the vast agencies and
departments of government from Congressional scrutiny. If it has nothing to do
with advice to him by his advisors, then why should it be privileged?
is why the House must push forward with its appeal to get the District Court’s
opinion overturned. The so-called deliberative process privilege is no
constitutional privilege at all. It is a common law doctrine and a statutory
exemption under the Freedom of Information Act only. It only applies to
discussions about the formulation of policy, and only before a
final policy decision has been made. The privilege should not extend to allow
the Department to hide its internal communications about responding to
Congress. These communications were not to or from the President, and now we
know that they largely focused on obstructing Congress and strategizing to
avoid negative press coverage. Those communications can hardly be characterized
as formulating Department of Justice policy and should not even be
protected by the deliberative process statutory exemption, let alone some new
form of executive privilege.
this litigation has been ongoing for a long time. The American people,
including the Terry family here with us today, deserve a complete accounting
for questions posed in this investigation that began in 2011. It has been six
years, and we are all still waiting. But this is not just about documents in
Fast and Furious. This case also must be considered from the perspective of the
institutional role of Congress.
urge you to take off your partisan hats for a moment. Imagine if the shoe were
on the other foot. This case has broad implications for the ability of the
elected representatives of the American people to do our constitutional duty to
act as a check on the executive branch. Clearly, Congress needs to do
something. It cannot take years for this body to get answers from a co-equal
branch of government about information that has no legal basis to stay hidden
from Congress. That is why I am working with my colleagues on proposals to
modernize the rules of engagement in congressional oversight. We need a package
of rules and legislative changes so that responders to congressional inquiries
cannot rely on phony privilege claims and delay tactics. These changes will
make it easier for Members of Congress to get the information they need to do
their jobs for the people they represent.
look forward to continuing to work with my colleagues in the Senate and the
House on these proposals, and I hope you will all join me. Again, thank you for
allowing me to testify today.