The ranking Republican on the Senate Judiciary Committee wants to know whether U.S. Attorney Ronald C. Machen Jr. has the independence to conduct an investigation of his boss, Attorney General Eric H. Holder Jr., as part of a contempt of Congress citation approved by the House in the botched Fast and Furious investigation.
Sen. Chuck Grassley of Iowa, who began the probe into the gunrunning operation after the death of U.S. Border Patrol agent Brian A. Terry in December, says he's concerned about Mr. Machen's independence in the wake of a letter to House Speaker John A. Boehner from Deputy Attorney General James M. Cole saying the Justice Department intended to take no action in response to the House contempt of Congress resolution.
Mr. Grassley said that since no one has determined whether Fast and Furious documents withheld by the Justice Department and sought under subpoena by the House Oversight and Government Reform Committee were protected by President Obama's claim of executive privilege -- which prompted the contempt citation -- a decision to not investigate the matter would be in "sharp contrast" to the independence and integrity for which Mr. Machen has been praised.
"The deputy attorney general's letter has put the cart before the horse," Mr. Grassley said, adding that without a "particularized description" of the withheld documents or a listing of the documents over which executive privilege has been asserted, Mr. Machen "cannot reasonably make an intelligent judgment as to the validity of any privilege claim and his duty to present the citation to a grand jury."
Mr. Grassley expressed his concerns to Mr. Machen in a letter last month, to which he has received no response.
Mr. Machen's spokesman, William Miller, confirmed that the office had received Mr. Grassley's letter, but had no comment on it.
Mr. Grassley said that the law and accountability demand that the citation be presented to a grand jury, noting that Mr. Machen's independence and integrity were cited as a reason there was no necessity to appoint a special prosecutor.
"This matter gives you an opportunity to live up to that high praise and prove your independence," Mr. Grassley said.
The Cole letter said Mr. Holder's refusal to turn over Fast and Furious documents sought under subpoena did not constitute a crime and, as a result, the department would not bring the contempt citation before a grand jury "or take any other action to prosecute the attorney general."
Mr. Grassley said the letter's language was "quite clear and simple to comprehend," but under federal law, it was Mr. Machen's duty to take the contempt citation before the grand jury.
"It is not optional," he said. "Moreover, the law clearly assigns that duty to you and to no one else. It could have assigned the duty to the attorney general or to the deputy attorney general or some other official. But, it does not. As for the ultimate decision to proceed with a prosecution after you have exercised your duty to present the matter to a grand jury, that decision is for the citizens empaneled in the grand jury, not for you or for the deputy attorney general or for the department generally to make."
More than 2,000 weapons were transferred to Mexican drug smugglers in the Fast and Furious probe, including nearly 1,000 that remain unaccounted for. Two weapons purchased by "straw buyers" in the operation, both AK-47 semi-automatic assault rifles, were found at the site of the Terry killing.
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