January 21, 2012

Fast and Furious: Arizona official to plead Fifth

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 against self-incrimination.

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 government.”

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 prosecution.

“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 that.”

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 “sterling reputation.”

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 report.

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