Will Fox Report On Fortune Bombshell That Fast And Furious Didn't Involve Gunwalking?

As right-wing media cheer on a partisan Republican effort to find Attorney General Eric Holder in contempt with regard to Congress' inquiry into the ATF's Operation Fast and Furious, Fortune magazine has released a stunning investigation which concludes that ATF “never intentionally allowed guns to fall into the hands of Mexican drug cartels” in that case.

The Fortune piece is based on a six-month investigation that included the review of “more than 2,000 pages of confidential ATF documents” and interviews with “39 people, including seven law-enforcement agents with direct knowledge of the case.” Its author, Katherine Eban, is an award-winning investigative reporter who writes for major national magazines and whose work has been featured on national broadcast news programs.

Operation Fast and Furious has long been presented by the politicians of both parties and by right-wing, traditional, and progressive media - including here at Media Matters - as a failed ATF operation in which agents were instructed to allow guns to be trafficked in order to build a complex case against a Mexican drug cartel. In that scenario, the guns were allowed to cross the border and were later recovered at crime scenes, including at the site of the murder of border patrol agent Brian Terry. Several members of Congress, including Oversight Committee chair Darrell Issa (R-CA), have followed the National Rifle Association and right-wing media in promoting a more sinister conspiracy theory: that the operation was conceived from the beginning to deliberately arm the cartels in order to promote a gun control agenda.

In contrast to both the conventional and conspiratorial narratives, Eban writes:

Quite simply, there's a fundamental misconception at the heart of the Fast and Furious scandal. Nobody disputes that suspected straw purchasers under surveillance by the ATF repeatedly bought guns that eventually fell into criminal hands. Issa and others charge that the ATF intentionally allowed guns to walk as an operational tactic. But five law-enforcement agents directly involved in Fast and Furious tell Fortune that the ATF had no such tactic. They insist they never purposefully allowed guns to be illegally trafficked. Just the opposite: They say they seized weapons whenever they could but were hamstrung by prosecutors and weak laws, which stymied them at every turn.

Eban's report raises important questions about the media's conventional wisdom on the case. As of publication, Fox News -- which has provided a constant flood of reports and commentary on every minor occurrence in Fast and Furious -- has not mentioned the story, which was published at 5 a.m. this morning.

In Eban's telling, ATF agents weren't deliberately allowing guns to be walked, but rather were subject to federal prosecutors who told them at every turn that they lacked probable cause to make arrests and interdict the weapons, citing the weak gun laws they were working under:

It was nearly impossible in Arizona to bring a case against a straw purchaser. The federal prosecutors there did not consider the purchase of a huge volume of guns, or their handoff to a third party, sufficient evidence to seize them. A buyer who certified that the guns were for himself, then handed them off minutes later, hadn't necessarily lied and was free to change his mind. Even if a suspect bought 10 guns that were recovered days later at a Mexican crime scene, this didn't mean the initial purchase had been illegal. To these prosecutors, the pattern proved little. Instead, agents needed to link specific evidence of intent to commit a crime to each gun they wanted to seize.

None of the ATF agents doubted that the Fast and Furious guns were being purchased to commit crimes in Mexico. But that was nearly impossible to prove to prosecutors' satisfaction. And agents could not seize guns or arrest suspects after being directed not to do so by a prosecutor. (Agents can be sued if they seize a weapon against prosecutors' advice. In this case, the agents had a particularly strong obligation to follow the prosecutors' direction given that Fast and Furious had received a special designation under the Justice Department's Organized Crime Drug Enforcement Task Force. That designation meant more resources for the case, but it also provided that prosecutors take the lead role.)

Eban cites a contemporaneous email from David Voth, the leader of the ATF unit that ran Fast and Furious, in which he expressed his “barely suppressed rage” at the idea that following the dictates of prosecutors could be considered “letting these guns walk” pointing out that “Without Probable Cause and concurrence from the USAO [U.S. Attorney's Office] it is highway robbery if we take someone's property.”

According to Eban, the claim that Fast and Furious involved gunwalking “starts with a grudge” between Voth and John Dodson, the lead ATF whistleblower in the case. She reports that Dodson and two other whistleblowers in the case, Olindo “Lee” Casa and Lawrence Alt, “seemed to chafe at ATF rules and procedures” :

Dodson's faction grew antagonistic to Voth. They regularly fired off snide e-mails and seemed to delight in mocking Voth and his methodical nature. They were scornful of protocol, according to ATF agents. Dodson would show up to work in flip-flops. He came unprepared for operations--without safety equipment or back-up plans--and was pulled off at least one surveillance for his own safety, say two colleagues. He earned the nickname “Renegade,” and soon Voth's group effectively divided into two clashing factions: the Sunshine Bears and the Renegades.

Eban points out that while the groups regularly offered email complaints about things like the shifts they were asked to work, “there is no documentary evidence that agents Dodson, Casa, or Alt complained to their supervisors about the alleged gun walking, had confrontations about it, or were retaliated against because of their complaints, as they all later claimed.”

Eban further reports that a crucial Voth email that conservatives - and CBS News - have said showed differences of opinion among the ATF agents about gunwalking actually addressed complaints from Dodson's faction over the schedule for monitoring a wiretap in the case:

Voth returned to Phoenix fully expecting his team to unite for the work that lay ahead. But instead he found a minor mutiny--over the schedule for the wire, which needed to be monitored around the clock. Dodson didn't want to work weekends. Casa felt his seniority should exclude him from the effort.

Agents were getting pulled from other field offices to assist, and on March 11, one wrote to ask Voth, “You're not going to give the out-of-towners the crappy shifts, are you?” Voth responded, “I am attempting to split the weekends so everyone has to work one of the two days that way no one gets screwed too hard and everybody gets screwed a little bit.”

The next day, March 12, Voth sent out the wire schedule at 5:15 p.m. but got such a blizzard of complaints about the shifts that, two hours later, he sent another e-mail to the group. It read in part: "[T]here may be a schism developing amongst the group. This is the time we all need to pull together not drift apart. We are all entitled to our respective (albeit different) opinions however we all need to get along and realize we have a mission to accomplish. I am thrilled and proud that our Group is the first ATF Southwest Border Group in the country to be going up on [a] wire...I will be damned if this case is going to suffer due to petty arguing, rumors or other adolescent behavior...I don't know what all the issues are but we are all adults, we are all professionals, and we have an exciting opportunity to use the biggest tool in our law enforcement tool box. If you don't think this is fun you're in the wrong line of work--period! This is the pinnacle of domestic U.S. law-enforcement techniques. After this the tool box is empty."

Eban writes of Dodson's initial appearance as a whistleblower on CBS Evening News in early 2011:

As Voth watched the program from his living room, he says, he wanted to vomit. He saw sentences from his “schism” e-mail reproduced on the TV screen. But CBS didn't quote the portions of Voth's e-mail that described how the group was divided by “petty arguing” and “adolescent behavior.” Instead, CBS claimed the schism had been caused by opposition to gun walking (such alleged opposition is not discussed anywhere in the e-mail, which is below). CBS asserted that Dodson and others had protested the tactic “over and over,” and then quoted portions of Voth's e-mail in a way that left the impression that gun walking was endorsed at headquarters. CBS contacted the ATF (but not Voth directly). The result was a report that incorrectly painted Voth as zealously promoting gun walking. (A CBS spokeswoman, Sonya McNair, says CBS does not publicly discuss its editorial process but notes, “The White House has already acknowledged the truth of our report.” )