- The Washington Times - Sunday, January 22, 2012

The chief of the Criminal Division in the U.S. Attorney's Office in Arizona cited his Fifth Amendment rights against self-incrimination in refusing Friday to testify before the House Oversight and Government Reform Committee in its ongoing investigation into the failed “Fast and Furious” gunrunning operation.

Rep. Darrell E. Issa, California Republican and committee chairman, said prosecutor Patrick J. Cunningham had been subpoenaed to testify Tuesday but his attorney notified the panel that Mr. Cunningham intended to exercise his right not to incriminate himself.

“The assertion of the Fifth Amendment by a senior Justice official is a significant indictment of the department’s integrity in Operation Fast and Furious,” Mr. Issa said. “This is the first time anyone has asserted their Fifth Amendment right in this investigation and heightens concerns that the Justice Department’s motivation for refusing to hand over subpoenaed materials is a desire to shield responsible officials from criminal charges and other embarrassment.”

Mr. Issa called Mr. Cunningham’s response to the subpoena “extremely rare,” adding that “even more alarming” was how broadly Mr. Cunningham had intended to rely on the Fifth Amendment. He said the prosecutor’s attorney, Tobin J. Romero, told the committee the only information Mr. Cunningham would provide was his name and Justice Department title.

“The assertion of the Fifth Amendment also raises questions about whether President Obama and Attorney General [Eric H. Holder Jr.] have made a serious and adequate response to allegations raised by whistle-blowers,” Mr. Issa said. “Did Attorney General Holder really not know a senior Justice Department official fears criminal prosecution or is this just another example of him hiding important facts?”

In a letter, Mr. Romero said that as a “professional courtesy, and to avoid needless preparation by the committee and its staff,” he wanted the panel to know that his client would assert his constitutional privilege “not to be compelled to be a witness against himself.”

“My client is, in fact, innocent, but he has been ensnared by the unfortunate circumstances in which he now stands between two branches of government. I will therefore be instructing him to assert his constitutional privilege,” Mr. Romero wrote.

Mr. Issa said the “only legally valid reason” for asserting the Fifth Amendment is fear that testimony could aid one’s own criminal prosecution.

Mr. Cunningham, who will leave his post this Friday for a private-sector job, has been chief of the Criminal Division in the U.S. Attorney's Office in Phoenix for the past two years. He supervises federal criminal prosecutions, victim and witness services, and asset forfeitures in Phoenix, northern Arizona and the Yuma section of the Arizona-Mexico border.

He refused on several occasions to testify voluntarily before the committee about his role in the Fast and Furious operation. The committee wanted to know what he knew about the operation and whether he approved any of the tactics used in it.

Mr. Issa and Sen. Chuck Grassley of Iowa, ranking Republican on the Senate Judiciary Committee, have been investigating the Fast and Furious operation for the past year. They found that more than 2,000 weapons illegally purchased by “straw buyers” at Arizona gun shops, including hundreds of AK-47 semi-automatic assault rifles, were allowed by the Bureau of Alcohol, Tobacco, Firearms and Explosives to be “walked” to drug smugglers in Mexico. More than 1,400 of the weapons remain unaccounted for.

Two AK-47s purchased at a gun shop in Glendale, Ariz., were discovered at the site of the fatal shooting of U.S. Border Patrol Agent Brian A. Terry, who was killed during a Dec. 14, 2010, gunfight with Mexican bandits just north of the border near Nogales, Ariz.

Mr. Obama and Mr. Holder have denied any responsibility for the botched operation.