Wiretap Applications Don't “Prove” Senior DOJ Officials “Approved” Gunwalking

Conservative media outlets are credulously reporting House Oversight Committee Chairman Darrell Issa's claim that wiretap applications signed by senior Justice Department officials “prove” they “approved” of dangerous gunwalking tactics in the ATF's failed Operation Fast and Furious, contradicting prior DOJ statements. In doing so, they ignore that the DOJ has repeatedly stated that senior officials do not necessarily review wiretap applications themselves, but rather largely rely on summaries of those applications produced by line attorneys.

“Documents prove senior Justice officials approved Fast and Furious, Issa says,” reads the headline of Daily Caller reporter Matthew Boyle's latest foray into reporting on the ATF's fatally flawed gunwalking operation.

Leaning heavily on Issa's just-released letter to Attorney General Eric Holder, Boyle reports that Issa has obtained wiretap applications for that operation that were signed by senior DOJ officials. Boyle notes that Issa claims those documents “show that immense details about questionable investigative tactics were available” to those officials via those applications, supposedly disproving numerous DOJ statements that senior officials there were not privy to the details of gunwalking.

But there's one question that this sort of credulous recitation of Issa's claims does not address: Did those officials actually review the wiretap applications that Issa says contained that information? According to prior DOJ statements dating back to at least last year, the answer is no.

This is not the first time Issa has claimed that wiretap applications supposedly proved knowledge of gunwalking techniques on the part of senior DOJ officials. In February, his committee made similar allegations, claiming in a staff report that “Congressional investigators have learned about the information contained in one Wiretap Authorization and Wiretap Affidavit from Fast and Furious that Jason Weinstein signed. The Wiretap Affidavit presented Weinstein with the details of at least two instances in which ATF agents had witnessed illegal straw purchasing and the subsequent transfer of the purchased weapons to other individuals.”

But Politico reported at the time that “Weinstein told investigators that it was his 'general practice' not to read the underlying affidavits in such cases but to rely on a so-called cover memo prepared by another Justice Department office.” This was consistent with Politico's report last November in response to similar claims that the wiretap applications could have bearing on what senior DOJ officials knew of Fast and Furious:

The Justice official, who spoke on condition of anonymity, said wiretap applications are reviewed by another DOJ office which writes a detailed cover memo that is usually the focus of review by Breuer's staff.

“What gets pulled out for their review is therough the lens of those two questions: necessity and probably cause,” the official said.

In a letter that the committee's ranking member, Rep. Elijah Cummings (D-MD), released in response to Issa's letter today, he reiterated these points in even greater detail.

Cummings states that in an interview with committee staff, Weinstein said that senior DOJ officials generally don't actually review the wiretap applications themselves. Because “thousands” of such applications are received each year, a team of line attorneys reviews the documents and submits to the DAGs summary memos that include “just the information that we need to be able to make that legal determination” that a wiretap is proper or not. The DAGs then recommend that the wiretaps be approved or not based on those memos. According to Weinstein, they are following precedent that has been “consistent across administration.”

The letter quotes extensively from Weinstein's interview with committee staff, including his statement, “my practice in every case, in every wiretap I reviewed since I came on the job, is to review the summary memo. And I can probably count on one hand the number of times when there's been something in the memo that was poorly written, that left me confused about the meaning of a dirty call or a legal issue that caused me to have to go to the affidavit.” Based on these statements, Cummings concludes that “without any information to contradict this record, it is inaccurate to assert that senior Department officials were aware of the detailed contents of these wiretap applications.”

Are Weinstein's statements accurate? That's a question worth asking, and indeed in his letter Cummings suggests calling on the other DAG who reviewed wiretaps in the case, Kenneth Blanco, who was appointed Deputy Assistant Attorney General in April 2008 under the Bush administration and is also criticized in Issa's letter. But until it's answered, there's no evidence to support claims that the wiretap applications in question “prove” that senior DOJ officials “approved” gunwalking tactics.