What were the odds that the worst thing associated with the name Fast & Furious wouldn’t be Vin Diesel?

Next week, by all reports, Darrell Issa and the House Committee on Oversight and Government Reform will vote to hold US Attorney General Eric Holder in contempt for refusing to turn over documents that pertain to the Fast & Furious scandal. Whether this action will be the “break-through” in making anyone but politico-philes notice or care about this scandal remains to be seen.

But if the charge of contempt is formally made, then by this time next week the blogs will be all a flutter with pundits claiming either that this proves Obama is the worst most corrupt politician in modern history, or that no one has done anything wrong and that all of this is a political witch hunt. Both of these views seem self-servingly (and purposefully) shortsighted to me. One of the more interesting tasks in my job is working with clients on employee relations & ethics mediation, trying to strip away the emotional preconceptions of events and tease out the basic issues that need to be dealt with in order to make the organization stronger. So I’m going to take a moment now, before the poopy hits the fan, to attempt to strip away the political bravado and make sense of the scandal, the aftermath, and what it says about the ability to make our nation stronger in today’s fractured political landscape.

A quick note to say that this site is full of readers who will have been following this story far more closely than I and will have more detailed information than I give here; also, attorneys, government workers, ethicists, and others will have professional knowledge that can highlight, complement, or refute what I’m about to say. I encourage all of them to chime in. Consider this post a thinking-out-loud inquiry.

And now, to the issues as I see them:

The Gunwalking Issue – For those that are unaware, gunwalking is a law enforcement strategy that was designed to use the flow of illegal weapons to determine organized crime hierarchies. In theory, you sell large quantities of guns to relatively low level criminals, and then later trace those guns to where they end up, thus showing (in this case) the reverse flow of drug money from the drug lords to their street soldiers.

Gunwalking was the principal strategy used in a series of ATF sting operations directed toward Mexican drug cartels that started in 2006. However, it does not appear that it has ever been a successful strategy. The first operation put 200 guns in the hands of alleged criminals, and no arrests were made until the beginning of a new presidential administration in 2009; none of those (very small number of) arrests were significant. It is surprising, then, that operation Fast and Furious was ever green-lighted later in 2009. By the end of F&F, it had sold suspects over 1,600 illegal firearms. Worse, a subsequent firefight between border patrol agents and drug runners ended with the death of an agent by gunfire. Though the bullet that killed him was damaged enough to prevent positive ID, two of the guns used by the drug runners turned out to be F&F purchased weapons.

I am in no way a trained law enforcement specialist, but I have to say the thought of selling large numbers of especially deadly firearms to violent drug cartels to “see what happens” seems mind-bogglingly stupid. I do not believe that when I say this I am Monday-morning quarterbacking. Had you tossed that idea out prior to this scandal breaking, I am fairly sure I would have had the same opinion then as I do now. The closest analogy I can think of (from, admittedly, movies and television, so take this for what it’s worth) is undercover agents posing as drug buyers/sellers in order to catch an actual drug dealer. But the difference between risking a drug dealer getting his hands on a few kilos of weed without an arrest and selling large numbers of weapons to people that you’re trying to catch because they keep killing people seems so obvious that I’m not going to bother spelling it out.

All of which brings me to what I see as the next issue.

Possible Corruption – When I discuss employee ethics issues with my non-profit clients, one of the things I try to get them to understand is that it is just as important to guard their organization against the appearance of impropriety as it is impropriety itself. And not only for public relations reasons – working to eliminate the former actually helps curb the latter. Federal government agencies, despite their reputation amongst conservatives as being groups of know-nothings that couldn’t find work anywhere else, are in fact quite sophisticated. So I have to assume that officers of the ATF at any level of authority would be aware of this need to avoid the appearance of impropriety as well.

This makes the entire F&F fiasco even more troubling to my eye. Just because the ATF leadership under Bush sold weapons but never bothered making arrests doesn’t prove that there was corruption in the ATF. That the only arrests that were ever made at all was when there was a review during a White House administration changing of the guard above everyone’s head doesn’t prove corruption in the ATF. That illegal arms were continued to be sold, in ever increasing numbers, to rich drug cartels with a reputation for bribing public officials that led to no subsequent arrests under Obama doesn’t prove there was corruption in the ATF. But all of it together sure makes is seem like there’s some corruption in the ATF. At the very least, there were a large number of decisions made at some level of the ATF to get these operations approved that look incredibly dirty, even if everyone was on the up and up.

Congressional Aftermath – The coming to light of F&F through internal whistleblowers led to its dismantling, and a call for an investigation by the Oversight and Government Reform Committee by Issa. Supporters of the White House (read: Democrats) have claimed that this investigation is political theatre. This may well be true; since Obama’s election, Issa’s constant hearings on anything and everything Obama is certainly a little eye-rolling to me. Especially those investigations of items like TARP, where Obama’s actions are investigated but Bush’s are not. That I know Issa the person mostly from his being a frequent panelist on Bill Maher doesn’t exactly give him extra credit points. In short, I have no doubt that this investigation’s scope, depth, and (possible) outcomes are politically motivated, and would have been “overlooked” had McCain prevailed in ’08.

But so what?

We don’t have government oversight committees to test their panelist’s motives. We have them to overlook areas of the government where corruption threatens its mission. The gunwalking scandal clearly falls into that category. Might it be better to investigate the entire gunwalking operations, rather than focus on the one that occurred under only Obama’s watch, and not those that occurred under Obama’s and Bush’s? Of course – and shame on Issa and right-wing pundits for not doing so. But given the choice between shining a light on half of a corrupt system or not shining a light at all, why on Earth would you choose the latter? That way you at least know what’s going on, and if you find fire with that smoke you might force the committee to shine the light on the other half as well.

As I said above, it may well turn out that the gunwalking stings were well thought out and successful if we knew the whole truth; it might well turn out that they were poor ideas that failed, but were absent of any corruption. But when covert government actions looks as bad as this does, you have to investigate. To liberals arguing for anything less, I humbly suggest that doing so is asking for the government you’ll get as a result.

Contempt & Executive Privilege – The last relevant issue that I see has to do with the White House’s response to the request for documents by the Oversight Committee. In order to squelch the investigation, executive privilege in being invoked. Issa, standing firm on the other side, says that invoking this privilege will result in Holder being held in contempt.

So, how much could Issa do to Holder if his committee does hold the AG in contempt? Not much, it turns out, because there is a carefully-written precedence that says Congress can’t ask law enforcement to act against a Justice Department official for failing to comply with a subpoena. The writer of that ruling was Theodore Olson, who wrote it in his role is in the Office of Legal Council. The ruling was written, ironically, to protect the White House under George W. Bush  Ronald Reagan, and it was championed by Republicans and condemned by Democrats. Which just goes to show you, executive privilege is not an absolutely good or bad policy; it is wholly dependent on which side of the Iron-Barred fence at 1600 Penn Ave. your party currently stands on.

(Side note: One of the most entertaining aspects of how this is playing out in the right punditsphere is the meme that Obama’s asking for executive privilege in regards to the investigation  makes him similar to – but worse than! – Nixon. I’m not sure which part of this I find more hilariously cynical: that in order to find a president that invoked executive privilege they went all the way to Nixon even though W. Bush invoked it six times (including four times over a 40 day period in 2007) — or that when given a scenario of a Presidential administration that got in hot water for selling guns to not nice people in the Latin Americas no one else came to mind.)

I’m not comfortable with the use of executive privilege being used to protect government officials from ethics investigations. It should have been unacceptable when Bush used it to protect Rove, and it is unacceptable now. The worst case (realistic) scenario that I can see would be that Holder lied to Congress about when he had been made aware of the F&F operation. If that ends up being the case, then he has to go. And not because of politics, but because of good practice. You shouldn’t be allowed to be AG and lie to an oversight committee about the details of your day-to-day operation.

Would it be a black eye for the White House? Probably, but not an insurmountable one. In fact, I can see how they might be able to use it to their advantage. Not a lot of people care about this story right now, and if the White House makes this story about them Doing the Right Thing, I don’t know that most people aren’t more happy to side with Obama (who they kind of sort of like a bit) than they are Congress (who they truly loathe). More importantly, it would be a reversal of a dangerous trend that Clinton and Bush irresponsibly pushed for their own cynical gain. Everybody wins. (Well, everybody but Holder, if he lied.  In which case screw him.)

To me, though, those are the only issues that should be on our radar: the wisdom of gunwalking, the possible corruption in the ATF, the ability for an oversight committee to do its job, and whether or not using executive privilege is a trend we wish to continue or reverse.  Everything else is political theatre, but those four items deserve our scrutiny.

I’m curious to hear the thoughts of the Hive mind on this.