When Impeachment Is Too Good: Independent Counsel Needed for D.O.J.

BY Glen Tschirgi
2 years, 10 months ago

This post is sparked by a short article in The Hill:

A senior GOP lawmaker said Thursday that Attorney General Eric Holder could be impeached over botched gun-tracking operation Fast and Furious.

Rep. Jim Sensenbrenner (R-Wis.) suggested at a House Judiciary Committee hearing that Congress may impeach Holder if it does not get satisfactory answers about inaccurate statements and information the Department of Justice provided on the operation.

“If we don’t get to the bottom of this — and that requires your assistance on that — there is only one alternative that Congress has, and it’s called impeachment,” Sensenbrenner said. “And I don’t want to go this far, but if we keep on getting pushed down the road and the can keeps on getting kicked and we don’t get closure to this, what is Congress to do so that we don’t spend all of our time in court arguing privilege, which is not a way to get at the truth?”

Sensenbrenner, a former chairman of the House Judiciary Committee, was referring to a letter DOJ wrote to Congress that denied any agency involvement in “walking” guns — letting weapons fall into the hands of suspected criminals. That letter has since been withdrawn because of its inaccurate statements.

First off, kudos to Congressman Sensenbrenner for at least having the nerve to raise impeachment as a possibility.  Far too often, the GOP members of Congress are simply too afraid of the Leftist Media (and their own shadow) to take a firm stand on anything.

When Sensenbrenner states, however, that the only alternative is impeachment, he is either ignorant of or intentionally avoiding the power of Congress to appoint a Independent Counsel to investigate and, if necessary, prosecute members of the Executive Branch, such as Attorney General Holder, or subordinates in the Department of Justice.

I am fine with impeachment proceedings that involve dereliction of duty and require removal of an incompetent or otherwise compromised member of the Executive Branch.   But there are two reasons why Republicans should not be talking about impeachment with regard to the DOJ (not to mention the other agencies involved) in the “Fast and Furious” gunrunning conspiracy.   (And I use the term “conspiracy” decidedly).

First, there is zero chance that impeachment of Holder or lesser minions would succeed.   Although the odds are good that the Republican-majority House could vote to impeach, actual conviction and removal of the impeached official (as we know all too well from the Clinton Follies) requires a two-thirds majority vote in the Senate.   There is no way to get to that margin, period.   So impeachment is a non-starter unless it is undertaken simply to expose the lawlessless of the Obama Administration.   In my opinion, the light is not worth the candle.

The second reason impeachment should not be considered is more substantial:  mere impeachment is simply too good for those in the Department of Justice.   Even if these officials could all be removed from office by impeachment, they will otherwise escape any, real punishment for their crimes.   And that is the heart of the matter.   Eric Holder and the Administration want us to believe that Fast and Furious was simply a good idea that was executed poorly— a mistake that will not be repeated.   According to Holder:

Holder defended DOJ’s actions and blasted Republicans for trying to “score political points.”

He called the tactics used in Operation Fast and Furious “flawed” and “unacceptable.” He also pointed to recent changes in training and oversight measures taken by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), which headed the failed operation, to ensure it never happens again.

The attorney general stressed that the mistakes made under Fast and Furious, which oversaw the sale of thousands of weapons to known and suspected straw buyers for Mexican drug cartels in an effort to track and dismantle gun-trafficking routes, must not detract from the larger goal of stopping the flow of weapons south of the border.

He has been joined by congressional Democrats in his push to use the issue of Fast and Furious to highlight the weaknesses within the ATF, including the agency’s lack of a confirmed director and the lack of a law requiring gun dealers in the Southwest to report multiple purchases of long guns.

This is nonsense and a shameful example of lawlessless, something that cannot be tolerated in a nation of laws.  “Fast and Furious” and the associated “Gunwalker” programs are not about “flawed” tactics.   Multiple federal (and international) laws were broken.

A good synopsis of this that has not been touched on elsewhere is this article by James K. Stinebower posted at PJ Media.   According to Stinebower:

As we continue to watch the general uproar over the Operation Fast and Furious program, and specifically what Attorney General Holder knew and when he knew it, it needs to be noted that perjury is not the only apparent violation of law to have occurred.

I refer to the apparent violation of at least one (probably two) major U.S. laws by the Holder Justice Department. A few years ago, the International Emergency Economic Powers Act (50 U.S.C. 1701, the follow-on to the Trading with the Enemy Act) was expanded in order to criminalize any transactions between U.S. entities — to include departments and agencies of the U.S. government — and all foreign drug cartels.

I am familiar with these prohibitive statues because several years ago, while serving as the senior drug analyst for the Senate Intelligence Committee, I was tasked to initiate and became the principal drafter of legislation which became known as the Kingpin Act (21 U.S.C. §§ 1901-08). The Kingpin Act is an extension of the highly successful IEEPA sanctioning program specifically targeting Colombian drug cartels. It expands sanctions authority against various drug cartel operations worldwide — including Mexico — which have been determined by the president to be threats to the national security, foreign policy, or economy of the United States.

A violation of any of the IEEPA sanctioning programs or the Kingpin Act carries stiff penalties, both criminal and civil, and potentially totaling decades in prison and tens of millions of dollars in fines. It is not necessary that an individual or governmental entity be shown to have “knowingly” violated any of these programs: it is illegal for any U.S. entity or individual to aid, abet, or materially assist — or in the case of Operation Fast and Furious, to facilitate others to aid, abet, or materially assist — designated drug traffickers. There are no exceptions within IEEPA programs for unlicensed U.S. law enforcement or intelligence agency operations.

Based on the July 5, 2010, memo to Eric Holder, it would appear that Fast and Furious facilitated the delivery of weapons to — at a minimum — the Sinaloa cartel in Mexico. The U.S. Department of the Treasury, which administers both the IEEPA and Kingpin Act programs, has designated numerous members of the Sinaloa cartel under both programs. IEEPA prohibitions apply to the U.S. government as well as to individuals, and as stated there are no exceptions within IEEPA programs for unlicensed U.S. law enforcement or intelligence agency operations.

I am sure that this is only the tip of the iceberg in terms of laws being broken.   Nonetheless, it is a good example of just how outrageously the Administration has acted in this regard.  Congress has an absolute duty to exercise its Constitutional power to oversee and reign in (when necessary) the excesses of the Executive Branch.   While there have been calls for the appointment of independent counsel (formerly known as a “special prosecutor”), those calls have been directed at the Obama Administration to make that appointment, presumably under Article II, Section 2, Clause 2 of the Constitution known as, “The Appointment Power.”   But this power is not the exclusive prerogative of the Executive Branch.  According to the case of Morrison v. Olson, 487 U.S. 654 (1988), Congress has the power to indirectly appoint “inferior officers” such as Independent Counsel by directing the Judiciary to make such an appointment with its approval.   This power arises for the very reason that the Executive Branch cannot always be expected to cooperate in appointing an Independent Counsel when Executive wrongdoing is involved.

There are many things today that engender cynicism and despair in the ordinary citizen when it comes to politics, but perhaps nothing corrodes and undermines our national coherence like elected officials and appointees who thumb their noses at our laws— the very laws that would be used mercilessly and without hesitation against you or me– and are not brought to account.   If this were a Republican administration and the House was in the hands of Democrats, you can be absolutely certain that a veritable crop of Independent Counsels would be springing up under similar circumstances.   When you throw in the Solyndra loans, the failure to enforce the civil rights laws against Black Panther intimidation of voters and the brewing scandal over money being laundered for the Sinaloa Cartel by the Drug Enforcement Agency, it is incredible to me that there is not a firestorm in Congress right now to prosecute everyone involved in this abuse of power.




You are currently reading "When Impeachment Is Too Good: Independent Counsel Needed for D.O.J.", entry #7998 on The Captain's Journal.

This article is filed under the category(s) BATFE,Firearms,Guns,Project Gunrunner and was published December 9th, 2011 by Glen Tschirgi.

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