Booting Melson Won't Contain Gunwalker Scandal

Only whistle-blower fired, while major players transfered, with some seemingly promoted.

Kenneth Melson, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives

In what is being characterized by The Hill as the "first major investigative victory" for Congressman Darrell Issa (D-CA) in the Mexican gunrunning scandal known as Fast and Furious, Kenneth Melson, acting director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) is being replaced. Todd Jones, U.S. attorney for the District of Minnesota, will take over as acting director, according to an announcement released yesterday by the U.S. Department of Justice (DOJ). Mr. Melson is being reassigned to a lesser position at the Office of Legal Policy, where he will be retained in the role of senior advisor for forensic science.

Despite The Hill's assertion, Congressman Issa hardly sounded placated. “While the reckless disregard for safety that took place in Operation Fast and Furious certainly merits changes within the Department of Justice, the Oversight and Government Reform Committee will continue its investigation to ensure that blame isn’t offloaded on just a few individuals for a matter that involved much higher levels of the Justice Department,” said Issa in a statement. “There are still many questions to be answered about what happened in Operation Fast and Furious and who else bears responsibility, but these changes are warranted and offer an opportunity for the Justice Department to explain the role other officials and offices played in the infamous efforts to allow weapons to flow to Mexican drug cartels.”

Issa is undoubtedly referring to the fact that, over the July 4th weekend, Melson gave secret testimony to the congressional committee investigating Fast and Furious. He contended his superiors at DOJ attempted to undermine the investigation into the program which put more than 2,000 weapons into the hands of Mexican drug cartel members. 80 percent of those weapons went missing. Two of them ended up at the Arizona site where Border Agent Brian Terry was killed last December. Melson had been originally scheduled by the DOJ to appear on July 13th, but came in earlier when he became aware that he could appear with his own lawyer instead of one representing the DOJ -- and its interests.

Those revelations were reflected in the second part of Issa's statement. "I also remain very concerned by Acting Director Melson’s statement that the Department of Justice is managing its response in a manner intended to protect its political appointees. Senator Grassley and I will continue to press the Department of Justice for answers in order to ensure that a reckless effort like Fast and Furious does not take place again,” he promised.

The fallout from the scandal claimed another high-profile player as well. U.S. Attorney for Arizona Dennis Burke also resigned Tuesday, effective immediately, for his own role in the botched operation. Burke had been privately interviewed by congressional investigators on August 18th, and Fox News reported that according to "several sources," he became physically ill during his testimony and couldn't finish the session.

Burke was embroiled in a controversy relating to the scandal earlier this month, when his office opposed a routine motion by Agent Brian Terry's family to qualify as crime victims at the trial of Jamie Avila, the 23-year-old Phoenix man who allegedly bought the guns used to kill Brian. Victim status would have allowed family members to make statements during the sentencing phase of the trial. Burke argued that the family was not "directly or proximately harmed" by the illegal purchase of the murder weapon, adding that the victim in that case "is not any particular person, but society in general."

It is speculated that the move was made to protect the federal government in general, and possibly Burke himself in particular, from a wrongful death suit by Terry's family, if government negligence in the border agent's death can be proved. “The government’s already been put on notice that they might be facing a wrongful death action by the family," said Paul Charlton, the family’s attorney. "And you have to wonder if the government’s efforts to deny the family the status of ‘crime victims’ is part of a strategy to avoid legal responsibility for some of the tragic mistakes of Operation Fast and Furious.”

Those efforts get even more curious. The letter signed by Burke denying the family victim status was written by Assistant U.S. Attorney Emory Hurley. Hurley, who oversaw Fast and Furious on a day-to-day basis, is also being reassigned, from the Criminal Division to the Civil Division. This was ostensibly due to the promotion of three supervisors directly involved in the operation. The ATF disputes that assessment, contending that William G. McMahon, deputy director of operations in the West, where Fast and Furious was centered, along with field supervisors William D. Newell and David Voth, who both worked out of the Phoenix office, were "laterally transferred" from operational to administrative positions.

Yet a confidential email sent to agency members by Kenneth Melson announced that McMahon's promotion to the Office of Professional Responsibility and Security Operations, as well as the promotions of other employees, represented a reward for "the skills and abilities they have demonstrated throughout their careers." As for the other two men, Newell ended up as special assistant to the assistant director of the ATF's Office of Management in Washington, and Voth became branch chief for the ATF's tobacco division.

Those "lateral transfers" have incurred the wrath of at least one senator. On August 16th, Senate Judiciary Committee member John Cornyn (R-TX) blasted the administration. "Until Attorney General Holder and Justice Department officials come clean on all alleged gun-walking operations, including a detailed response to allegations of a Texas-based scheme, it is inconceivable to reward those who spearheaded this disastrous operation with cushy desks in Washington," he said.

It would seem equally inconceivable that one of the ATF agents who revealed the scandal would be fired. But agent Vince Cefalu, who told about the operation last December, two months before the story broke nationally, letter to the DOJ "requesting assurance" that the ATF "will not retaliate against witnesses who have provided information to this Committee."

As for Issa himself, it is a rather curious confluence of events that on August 14th, The New York Times ran an investigative story about the congressman entitled "A Businessman in Congress Helps His District and Himself," in which Issa was described as a man with "dual careers, a meshing of public and private interests rarely seen in government." The Times further contended that "[A]s his private wealth and public power have grown, so too has the overlap between his private and business lives, with at least some of the congressman’s government actions helping to make a rich man even richer and raising the potential for conflicts." Issa, who refused to cooperate with the reporter doing the story, cited 13 errors of fact in the story. The paper has so far issued three corrections.

Pure coincidence? Big Journalism columnist AWR Hawkins doesn't think so. "[M]y guess is that the real goal of the piece was to malign Issa’s character, thereby undercutting the momentum his investigation of 'Fast and Furious' has gained," he wrote on August 16th.

The Times is not alone in its attempt to take out Issa. On June 21st, the Washington Post ran a story claiming Issa knew about the scandal in 2010 "and did not express any opposition." They were also forced to issue a correction, which now appears above the story itself, noting the original headline "did not reflect that those accounts were disputed by an Issa spokesman." Pajamas Media reported that it has a "well-placed source" who told them the hit piece had been "shopped by the administration to several other news organizations. All passed on it, since there was no credible attribution for the story."

As for the Times' latest coverage of the scandal itself, one might find its headline, "Firearms Bureau Chief Is Out After Disputed Inquiry" (italic mine) followed by the characterization of Fast and Furious as "an ill-fated investigation into a gun-trafficking ring in Arizona" rather odd. So, too, their contention that, according to an unnamed Justice official, Mr. Holder was responsible for the "moves" which were made for "management reasons." The so-called "paper of record" also implies that Mr. Issa is on a bit of a witch-hunt, noting that the chairman of the House Oversight Committee "has repeatedly sought to link high-level Obama administration officials to the operation, although no evidence has yet emerged that they knew about its details."

One can only wonder what the Times thinks of Kenneth Melson's aforementioned testimony described in a letter sent to Attorney General Eric Holder by Issa and Senate investigator Charles Grassley. "Specifically, we have very real indications from several sources that some of the gun trafficking 'higher-ups' that the ATF sought to identify were already known to other agencies and may even have been paid as informants. The Acting Director said that ATF was kept in the dark about certain activities of other agencies, including DEA and FBI."

comment made yesterday by Rep. Lamar Smith (R-TX), chairman of the House Judiciary Committee, indicates that yesterday's action isn't likely to satisfy the skeptics. "This move by the administration indicates that Director Melson may be being used as a scapegoat for a much larger problem within ATF and DOJ," he contended. Nor will skeptics be placated by the deeply cynical reality that no one, except a whistleblower, has been fired.

One of the oldest political aphorisms is that the attempted cover up of a scandal is often worse than the scandal itself. Despite the grave nature of an operation that resulted in the deaths of two federal agents and as many as 150 Mexicans killed or wounded, the Justice Department's ongoing attempt to stonewall this investigation, or deflect it with a transparent shuffling of personnel, is appalling.

Perhaps in the self-constructed, and far too often media-protected bubble in which many members of this administration seemingly operate, yesterday's "moves" for "management reasons" may be considered sufficient to keep this scandal contained. Not a chance.