- The Washington Times - Friday, January 20, 2012

The chief of the criminal division in the U.S. Attorney’s Office in Arizona has cited his Fifth Amendment rights against self-incrimination in refusing on 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 Issa, California Republican and committee chairman, said the prosecutor, Patrick J. Cunningham, had been subpoenaed by the committee to testify on Tuesday but his attorney notified the panel that Mr. Cunningham intended to exercise his right not to incriminate himself at his scheduled deposition.

“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. “The former head of the [Bureau of Alcohol, Tobacco, Firearms and Explosives] has previously told the committee that the Justice Department is managing its response to Operation Fast and Furious in a manner designed to protect its political appointees.

“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,” he said.

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

“Coming a year after revelations about reckless conduct in Operation Fast and Furious were first brought to light, the assertion of the Fifth Amendment also raises questions about whether President Obama and Attorney General [Eric H.] Holder have made a serious and adequate response to allegations raised by whistleblowers,” 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?” he said. “The committee will continue to demand answers.”

In a letter to the committee, Mr. Romero wrote: “As a professional courtesy, and to avoid needless preparation by the committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself. The Supreme Court has held that ‘one of the basic functions of the privilege is to protect innocent.’

“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 was fear that testimony could aid one’s own criminal prosecution. He said in his response to the committee, Mr. Cunningham’s attorney rejected assertions made by other senior Justice Department officials in Washington that his client held key responsibility for reckless tactics in Fast and Furious and false information provided to Congress.

Mr. Cunningham, who will leave his post on Jan. 27 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. A former assistant U.S. attorney in the Organized Crime and Drug Enforcement Task Force in Arizona, Mr. Cunningham 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 had refused on several occasions to testify voluntarily before the committee about his role in the Fast and Furious operation. The committee was seeking information on 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 several months. They discovered 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 ATF to be “walked” to drug smugglers in Mexico.

More than 1,400 of the weapons are still unaccounted for.

Two AK-47s purchased at a gun shop in Glendale, Ariz., were discovered at the site of the shooting death 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 Fast and Furious operation.

• Jerry Seper can be reached at jseper@washingtontimes.com.

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