How Eric Holder and the Justice Department Failed Each Other

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Stripped of its political overtones, the Fast and Furious gun scandal was about unprofessional conduct by government officials.

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Holder testifies before the Senate Judiciary Committee in June. (Reuters)

In the end, the much-heralded, much-maligned Office of the Inspector General's report on the "Fast and Furious" gun scandal tells us what we already know: Attorney General Eric Holder should resign if President Barack Obama wins another term. Even viewing the documents and investigation in a light most favorable to the current head of the Justice Department, even discounting the conspiracy theories offered by the Administration's most ardent critics, the Inspector General's report tells us that Holder ultimately failed to do what he absolutely had to do at Justice when he succeeded caretaker Attorney General Michael Mukasey in early 2009.

The prime directive -- then and now -- was to restore more professionalism to the Department after years of partisan abuse and misuse by the Bush Administration. It's been five years, and many smart people already have forgotten, but the Justice Department under the reign of Attorney General Alberto Gonzales was an outright catastrophe, with episodes including but not limited to the U.S. Attorney scandal. Mukasey began the job of cleaning it up during his brief tenure following Gonzales. But it was Holder's responsibility, when he got the job in January 2009, to ensure that the Department, at a minimum, no longer did anything patently stupid.

That's not a high standard. And yet Holder's Justice Department in this regard has failed to meet it. Whatever else you want to say about "Operation Fast and Furious," whatever else you want to say about a plan to allow massive gun trafficking in order to stop massive gun trafficking, whatever else you want to say about Republican complicity on the gun front in Mexico, the program itself was demonstrably stupid. Here's how the DOJ's Inspector General, Michael E. Horowitz, put it this week in a summary to his 471-page report:

We concluded that both Operation Wide Receiver and Operation Fast and Furious were seriously flawed and supervised irresponsibly by ATF's Phoenix Field Division and the U.S. Attorney's Office, most significantly in their failure to adequately consider the risk to the public safety in the United States and Mexico. Both investigations sought to identify the higher reaches of firearms trafficking networks by deferring any overt law enforcement action against the individual straw purchasers -- such as making arrests or seizing firearms -- even when there was sufficient evidence to do so. The risk to public safety was immediately evident in both investigations. Almost from the outset of each case, ATF agents learned that the purchases were financed by violent Mexican drug trafficking organizations and that the firearms were destined for Mexico.

Yet, in Operation Fast and Furious, we found that no one responsible for the case at either the ATF Phoenix Field Division or the U.S. Attorney's Office raised a serious question or concern about the government not taking earlier measures to disrupt a trafficking operation that continued to purchase firearms with impunity for many months. We also did not find persuasive evidence that any supervisor in Phoenix, at either the U.S. Attorney's Office or ATF, raised serious questions or concerns about the risk to public safety posed by the continuing firearms purchases or by the delay in arresting individuals who were engaging in the trafficking. This failure reflected a significant lack of oversight and urgency by both ATF and the U.S. Attorney's Office, and a disregard by both for the safety of individuals in the United States and Mexico.

This wasn't supposed to happen during an Administration run by a former constitutional law professor known for his critical questioning of subordinates during staff meetings. And it certainly wasn't supposed to happen to a Justice Department run by a seasoned federal lawyer, a consummate Washington insider, whose whole career leading up to his nomination as Attorney General was designed to reassure us that, if he didn't know all the answers, at least he knew when and how to ask all the right questions. Yet, evidently, no one of rank or import asked those vital questions as Fast and Furious proceeded.

The OIG Report concludes that Holder didn't know about Fast and Furious until February 2011, and that is likely enough to protect the Attorney General from any further legal recriminations. But avoiding perjury or obstruction of justice, or being ignorant of your department's biggest scandal, is no cause for relief. His rabid detractors will never accept the idea that Holder could have been ignorant of the program. But whether he knew or not there's no dispute that he should have known. In an exemplary Justice Department, someone, anyone, should have stepped up and said to the boss: "There's something screwy going on in Arizona."

Which brings us to Lanny Breuer, the head of the Justice Department's Criminal Division. The OIG report confirms that Breuer knew about the program in 2010 and yet failed to tell his boss about it. Never mind what Breuer then said to Congress; this initial failure to report the critical information up the line is inexcusable and unacceptable. And so is Holder's failure this week even to mention, in his remarks responding to the OIG report, what Breuer belatedly conceded was his "mistake." Breuer should have resigned long ago. And, since he didn't, this week Holder should have fired him. Trust me, the Department can live without Lanny Breuer.

I understand that the folks at the ATF deserve blame here -- as well as those in the U.S. Attorney's office in Phoenix. Over and over again, as the OIG report details, these public stewards failed or refused to candidly assess the program. They were, it turns out, the wrong people for the job, and, ultimately, that's also the fault of the nation's chief law enforcement official, the Attorney General of the United States. When Holder took the job, he promised rigorous attention to detail, and fealty to candor within the Department, and the reemergence of integrity in all things. By each of those standards, the Justice Department has failed here.

I take no joy in writing this. I don't for a moment think that Eric Holder is another Alberto Gonzales. But even if you take the politics out of this scandal -- even if you strip it down to the bare essence of governance -- the central truth of the story is that the Justice Department failed to stop something stupid (and dangerous and, ultimately, tragic) from happening. And then, when the scandal came, the Department didn't move quickly enough to confront the truth, to reveal it, and then to take responsibility for what had happened. That wasn't good enough when the hapless Gonzales was running the show, and it's not good enough now.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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