Fast and Furious: Arizona official to plead Fifth
by Dennis Wagner -
Jan. 20, 2012 10:01 PM
The Republic | azcentral.com
The top criminal prosecutor at the U.S. Attorney's Office in Phoenix
is refusing to testify before congressional investigators about an
Arizona gunrunning scandal, asserting his Fifth Amendment right
Patrick Cunningham, chief of the Criminal Division, told the House
Oversight and Government Reform Committee on Friday through his
attorney that he will not respond to questions during a deposition
planned next week.
Cunningham was unavailable for comment. Washington, D.C., attorney,
Tobin Romero, who represents Cunningham, told USA Today that his
client is innocent but has been "ensnared by the unfortunate
circumstances in which he now stands between two branches of
The congressional inquiry focuses on Operation Fast and Furious, a
federal gun-trafficking case in Arizona that allowed an estimated
1,400 guns into the hands of cartel criminals in Mexico. Although
Justice Department officials have said the objective was to track
guns to drug lords, a wealth of criticism arose because the weapons
helped fuel narco warfare that has claimed thousands of lives south
of the border. At least two guns from the probe also were recovered
in December 2010 at a crime scene near Nogales, where U.S. Border
Patrol Agent Brian Terry was killed.
Cunningham recently tendered his resignation and was planning to
leave Jan. 27. Former U.S. Attorney Dennis Burke resigned last August
after testifying before House investigators about Fast and Furious.
The U.S. Attorney's Office in Phoenix referred questions about
Cunningham's status to Justice Department officials in Washington,
D.C., who declined comment.
Cunningham had been scheduled to testify voluntarily last week, but
declined at the last minute, prompting the issuance of a subpoena
requiring his appearance Tuesday.
In a news release Friday, Rep. Darrell Issa, R-Calif., chairman of
the House Committee on Oversight and Government Reform, said
Cunningham could have only one valid reason for using the Fifth
Amendment: fears that testimony could aid in his own criminal
"The assertion of the Fifth Amendment by a senior Justice official is
a significant indictment of the department's integrity in Operation
Fast and Furious," Issa said. "This is the first time anyone has
asserted their Fifth Amendment right in this investigation and
heightens concerns that the Justice Department's motivation for
refusing to hand over subpoenaed materials is a desire to shield
responsible officials from criminal charges and other embarrassment."
Last week, in a letter informing Cunningham of the subpoena, Issa
said he believed the Arizona prosecutor played an "outsized role" in
Fast and Furious. "Senior Justice Department officials have recently
told the Committee that you relayed inaccurate and misleading
information to the Department in preparation for its initial response
to Congress," Issa wrote. "These officials told us that even after
Congress began investigating Fast and Furious, you continued to
insist that no unacceptable tactics were used."
In interviews last year with The Republic, Cunningham denied his
office let guns flow into Mexico. Instead, he said, Bureau of
Alcohol, Tobacco, Firearms and Explosives agents repeatedly assured
prosecutors that firearms were not being allowed to cross the border.
On Friday, a number of legal experts said the Fifth Amendment defense
appears to be unprecedented for a high-level Justice Department
lawyer who serves as an officer of the court.
"I've never heard of it," said Peter Tague, a law professor at
Georgetown University who specializes in criminal procedure.
David Chesnoff, a prominent Las Vegas attorney, stressed that all
citizens have a right to constitutional protections. He said any
perception Cunningham has done wrong because he exercised his Fifth
Amendment right would be unfair, because clients may take that
position based on fears of being falsely accused of a crime.
Chesnoff and others noted that the Fast and Furious case is
politically volatile, with some in Congress calling for the firing of
Attorney General Eric Holder. As for Cunningham's stand, he said, "I
don't think that's unusual when you have a bunch of politicians
screaming bloody murder. All it means is: Give him immunity. If
they're interested in getting to the truth, they should think about
Michael Black, a Phoenix attorney, agreed that Cunningham might be
compelled to testify if granted immunity; however, he said Congress
is loath to offer that option because it can interfere with
subsequent prosecution efforts.
Black said he's bewildered by events because he has known Cunningham
for 20 years as a "bright, honorable, energetic prosecutor" with a
Cunningham joined the U.S. Attorney's Office in 2010. As criminal
chief, he oversees about 100 employees handling federal felony cases
as well as victim and witness services statewide. Cunningham was
deputy director of the Arizona Department of Environmental Quality
from 2003 until 2010, and worked 12 years at the Attorney General's
Office before that, according to information in a U.S. Attorney's
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