DOJ Report: US Attorney Leaked Memo To ‘Undermine’ Fast And Furious Whistleblower

May 20, 2013 2:29 p.m.

Update: May 21, 2013 10:54 AM

In a scathing new report Monday, the Department of Justice’s Office of the Inspector General accused onetime Arizona U.S. Attorney Dennis K. Burke of leaking confidential documents to a reporter in a politically-motivated attempt to “undermine” a whistleblower who helped spark the investigation into the “Fast and Furious” operation.

Burke, a former aide to Janet Napolitano while she was Arizona governor and then secretary of Homeland Security, was appointed as U.S. attorney by President Obama in 2009. He resigned as he was initially being questioned about the leak in 2011.

The Inspector General report described Burke’s conduct as “wholly unbefitting a U.S. Attorney” and referred the case for for possible disciplinary proceedings by the state bar in Arizona. The inspector general found it particularly egregious that Burke’s alleged leak came shortly after he was reprimanded for another leak, to the New York Times, involving the controversial Fast And Furious operation.

Fast and Furious was an ATF investigation conducted between 2009 and 2011 that was designed to identify firearms traffickers who acted as so-called “straw purchasers” and bought weapons in the United States on behalf of Mexican cartels. ATF hoped to track the guns to their ultimate destinations but in the end lost track of many of the firearms. Some of those weapons were subsequently found to have been used in crimes, including the 2010 murder of Brian Terry, a U.S. Border Patrol agent who was shot about 11 miles from the Mexican border.

Burke was the U.S. Attorney who was responsible for overseeing Fast and Furious and the Inspector General’s report indicates he had a strong, personal reaction to the ensuing negative coverage of the operation. According to the Inspector General’s report, Burke made multiple leaks designed to inspire more positive coverage.

The first leak involving Burke appeared in a New York Times article that was published June 14, 2011. That article detailed the congressional investigation into Fast and Furious being spearheaded by Sen. Chuck Grassley (R-IA) and Rep. Darrell Issa (R-CA). It included a link to a DOJ memo that detailed the investigation into a Fast and Furious suspect who purchased the guns used in Terry’s killing. That memo was presented as evidence of “the difficulty in catching straw purchasers.”

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A heading on the memo that appeared on the Times website indicated it had been faxed from the U.S. Attorney’s office in Arizona. Based on this, two days after the story was published, Deputy Attorney General James Cole called Burke to discuss the leaking of the memo. According to the Inspector General’s report, Burke told Cole “five or six people had access to the document” and he “did not even know” whether the office had a fax machine.

Cole called Burke again three days later. According to the report, Cole said that, during this conversation, Burke “acknowledged he had not been candid with Cole
during their first conversation” and said he accepted responsibility for the leak to the Times. Burke claimed the memo had been given to the Times by the “press person” in his office, but Cole said he got “evasive” answers when he tried to determine whether Burke personally authorized the leak or was simply taking responsibility as the head of the Arizona office. After this conversation, Burke declined to answer further questions from the DOJ about the Times leak. Cole told the Inspector General he responded by reprimanding Burke for “lying” and “leaking” and warning him not to make further unauthorized disclosures to the media.

According to the Inspector General’s report, Burke told DOJ investigators he leaked the memo to the Times because the “unprecedented scrutiny and investigations” and “scurrilous media attacks” associated with Fast and Furious were a “nightmare” that caused him to question whether the Justice Department was adequately protecting the reputation of his office.

Burke’s next leak, which is the focus of the IG report, occurred one or two days after he was reprimanded for the memo that appeared in the Times. It involved a whistleblower who helped start the congressional investigation into Fast and Furious and then became one of the operations most prominent critics.

John Dodson was an ATF agent who was in one of the squads involved in Fast and Furious. Over time, he became increasingly worried about guns that ended up in the hands of criminals through the operation. After Terry was killed, Dodson attempted to contact top officials at the DOJ and ATF about his concerns. When that proved unsuccessful, Dodson and other agents contacted Grassley leading to the congressional investigation into the operation. As part of his efforts to expose Fast and Furious, Dodson gave a March 2011 interview to CBS News and blasted ATF leadership in testimony before a House committee chaired by Issa on June 15, 2011.

Within two weeks of Dodson’s testimony, Burke leaked a memo Dodson had written. In the memo, Dodson sought approval for an investigation that, like Fast and Furious, would allow suspects to complete gun purchases. Burke was initially forwarded the memo as part of a review of documents that were being forwarded to Congress in conjunction with the Fast and Furious investigation.

“Unbelievable. This guy called Grassley and CBS to unearth what he in fact was proposing to do by himself. When you thought the hypocrisy of this whole matter had hit the limit already,” Burke replied after first reading Dodson’s email.

According to the Inspector General, Burke forwarded this memo to his private account on June 28, 2011, just one day after he was warned against further making further leaks. He then sent it to a friend of his in Washington, D.C., who ultimately gave it to Fox News’ Mark Levine, who had known Burke for over a year. The following day, Levine and another Fox News reporter contacted Dodson to ask, in light of his criticism of Fast and Furious, whether he had proposed similar investigations. The Inspector General’s report said Dodson informed Levine the memo actually was a proposal requested by his supervisor. Levine didn’t pursue the story, but Dodson’s attorney contacted the DOJ to alert them the memo had been leaked.

In the ensuing investigation, Burke admitted leaking Dodson’s memo to Levine. However, he said he only provided the memo because he believed Levine was already aware of it. Burke first discussed the leak of Dodson’s memo with the DOJ on August 12, 2011, one day after investigators issued requests for information about the leak. On August 13, Burke spoke with Cole about the memo and they discussed his decision to resign. Three days later, Burke called a DOJ investigator and admitted he leaked the memo to Levine. According to the Inspector General’s office, Burke said he was “at the airport preparing to board a flight and would be on
vacation the following week,” but would meet with investigators when he returned. However, the report said Burke “resigned as U.S. Attorney on August 29, 2011, and declined the OIG’s subsequent requests for an interview.”

The Inspector General’s report does not buy Burke’s claim that he only released the memo because he believed Levine was already aware of it. Firstly, the report found that, even if Burke thought the memo was already public, his actions violated DOJ requirements for staffers to contact the department’s Office of Public Affairs for any media requests “in cases that transcend their immediate district or are of national importance.” The report also noted Burke should have been acutely aware of this requirement because he was already under investigation for “virtually the same alleged misconduct” in conjunction with the Times leak. Finally, the report said the fact Burke provided the memo to Levine through a third party showed he “was aware his actions were improper.”

Along with claiming he believed Levine was already aware of the memo, Burke’s attorney, Chuck Rosenberg, has said the leak was not intended “to retaliate against Special Agent Dodson or anyone else for the information they provided Congress.” However, the Inspector General’s report, claimed the leak was “likely motivated by a desire to undermine Dodson’s public criticisms of Operation Fast and Furious” and that there was “substantial evidence” countering Burke’s contention his actions had no “retaliatory motive.” Namely, the report cited the anger Burke admitted feeling over the Fast and Furious controversy in conjunction with the Times leak and claims made by assistants in the U.S. Attorney’s Arizona to investigators that Burke was “frustrated” with Dodson’s House testimony and complained it was “not necessarily completely sincere” in light of the memo.

As a result of the findings detailed in the report, the Office of the Inspector General said Burke’s case will be referred to the DOJ’s Office of Professional Responsibility to determine whether his actions are sufficient enough to have him disbarred. Neither Burke nor his attorneys could immediately be reached to comment on the report.

Update: Burke’s attorney, Chuck Rosenberg said he had “no comment” on the report.”

View the full Inspector General’s report below.

DOJ OIG Report On Fast And Furious Whistleblower Leak by tpmdocs

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