In a report released Monday, the U.S. Department of Justice Office of the Inspector General (OIG), former U.S. Attorney for Arizona Dennis Burke, was found to have violated Justice Department policies by releasing a memo written by an Operation Fast & Furious whistleblower to the media. The report called Burke’s actions “wholly unbefitting a U.S. Attorney.”
On July 8, 2011, the Office of the Inspector General (OIG) received information from an attorney representing John Dodson, a Special Agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), concerning the alleged unauthorized disclosure of sensitive ATF information. According to Dodson’s attorney, Dodson had received an e-mail from a Fox News producer asking for comment about excerpts from an internal ATF investigative memorandum that Dodson had drafted and which described a proposed undercover operation for an ATF firearms investigation.
The OIG believes Burke’s release to Fox News “to be particularly egregious because of Burke’s apparent effort to undermine the credibility of Dodson’s significant public disclosures about the failures in Operation Fast and Furious. We further believe that the seriousness of Burke’s actions are aggravated by the fact that they were taken within days after he told Deputy Attorney General Cole that he took responsibility for his office’s earlier unauthorized disclosure of a document to The New York Times, and after Cole put him on notice that such disclosures should not occur.”
The OIG found that “Burke also knew at the time of his disclosure of the Dodson memorandum that he was under investigation by OPR for his conduct in connection with the earlier disclosure to The New York Times. As a high-level Department official, Burke knew his obligations to abide by Department policies and his duty to follow the instructions of the Deputy Attorney General, who was Burke’s immediate supervisor.”
The IOG is referring the matter to the Office of Professional Responsibility for a determination of whether Burke’s conduct violated the Rules of Professional Conduct for the state bars in which Burke is a member.
OIG Analysis:
Burke admitted that he provided a copy of the Dodson memorandum to Fox News reporter Levine. We did not identify any other Department employee who disclosed the memorandum to Levine or to any other member of the media.
We concluded that Burke’s disclosure of the Dodson memorandum to Levine violated Department rules pertaining to media relations contained in the United States Attorneys’ Manual, Sections1-7.210, 1-7.320, and 1-7.330. As described in Section II.B. of this report, these provisions require that OPA be kept informed of requests of national media organizations that relate to matters of national importance or significance, and that any media efforts of a Department component that relate to such matters be coordinated with OPA.
These Department rules clearly applied here. Burke disclosed the memorandum to a reporter who worked for Fox News, a national media organization. Further, Burke clearly knew at the time he disclosed the memorandum to Levine in June 2011 that Operation Fast and Furious was a matter of national importance. The Fast and Furious case had been the subject of separate congressional and OIG inquiries for months and had gained significant attention from the media and the public. Burke also knew there were extensive and at times contentious discussions between the Department and Congress about the production of documents and that final decisions about what materials would be disclosed were being made by senior leadership offices in Washington, D.C. Under these circumstances, Burke was required by the U.S. Attorney’s Manual to inform OPA of Levine’s request for information and to coordinate any media efforts he or his office might make with respect to Levine’s request. We found no evidence that Burke did this. In fact, Burke told congressional investigators that he did not discuss his decision to disclose the memorandum to Levine with anybody from OPA.
As noted earlier, Burke declined our request to interview him about the disclosure of the Dodson memorandum and therefore we did not receive from him a detailed explanation for his conduct. However, Burke told congressional investigators and others that at the time he provided the document to Levine, he believed Levine had already obtained or seen the document and the document had already been produced to Congress. Burke also told congressional investigators that it was a mistake to provide the document to Levine, but that he did not think it was at the time he did it.
We rejected this explanation. First, regardless of whether Burke in fact believed Levine or Congress already had the memorandum, that belief would not excuse his failure to comply with Department policy concerning media inquiries. The USAM policy is unambiguous that communications with national media organizations regarding matters of national significance must be coordinated with OPA. Thus, Burke should have informed OPA of the request whether or not he believed Levine or Congress already had the memorandum.
Second, we found that Burke disclosed the Dodson memorandum despite knowing he was under investigation at the very same time by OPR for virtually the same alleged misconduct – the unauthorized disclosure of the Avila memorandum to the media. Indeed, his disclosure of the Dodson memorandum occurred on the day after the Deputy Attorney General of the United States chastised Burke for lying to the Deputy Attorney General about his involvement in the disclosure of the Avila memorandum and put him on notice that such disclosures should not happen. We do not believe that under these circumstances, Burke thought he could release the Dodson memorandum to a reporter without prior consultation with and approval from OPA and the Office of the Deputy Attorney General.
Third, the manner in which Burke provided the Dodson memorandum to Levine demonstrated to us that Burke was aware his actions were improper, particularly in light of Burke’s recent experience in improperly disclosing the Avila memorandum to The New York Times. As described earlier, that disclosure was quickly traced back to the U.S. Attorney’s Office because the banner on the image of the document indicated the date and time the document had been facsimiled from the office. In contrast, Burke told congressional investigators he e-mailed the Dodson memorandum from his personal e-mail account to a friend in Washington, D.C., so that his friend would hand-deliver a hard copy of the document to the reporter. We believe that by providing the memorandum indirectly to the reporter through a friend and from his personal e-mail account, Burke took calculated measures to reduce the possibility that the disclosure could be traced back to him and to the U.S. Attorney’s Office. Burke acknowledged that it would have been easier to send the Dodson memorandum directly to Levine, but said he transmitted the Dodson memorandum through a friend because he had some concern about the document being circulated on the Fox e-mail system. Given that Burke intended delivery of the memorandum to a national news reporter, and the ease with which a document can be converted to a portable document format (pdf) for attachment to an e-mail, we did not find Burke’s explanation credible.
We also concluded that Burke’s disclosure of the Dodson memorandum to Levine was likely motivated by a desire to undermine Dodson’s public criticisms of Operation Fast and Furious. Although Burke denied to congressional investigators that he had any retaliatory motive for his actions, we found substantial evidence to the contrary.
First, we found the timing of the disclosure coupled with Burke’s apparent frustration regarding Dodson’s testimony to Congress to be strong indicators of his state of mind and motivation. Both the First Assistant and the Executive Assistant in the U.S. Attorney’s Office told us that Burke was frustrated with Dodson’s June 15, 2011, public congressional testimony that was highly critical of the handling of Operation Fast and Furious. The First Assistant told us that Burke felt Dodson was “not necessarily completely sincere” when he criticized the tactics used in Operation Fast and Furious while proposing to use those very tactics in his own investigation. The Executive Assistant told us that she understood Burke disclosed the document to help the U.S. Attorney’s Office defend against what were considered hypocritical criticisms being made by Dodson. That disclosure occurred less than two weeks after Dodson’s public testimony before Congress.
Burke expressed similar feelings just two months earlier regarding what he considered to be Dodson’s hypocrisy. As we described earlier, CBS News published a story on March 3, 2011, that featured an interview with Dodson in which he stated that ATF was intentionally allowing firearms to go to Mexico, a tactic referred to as “walking” guns, and that he was ordered not to take any action to stop the firearms and that the tactic was approved by Department officials. The story also reported that Sen. Grassley began investigating Operation Fast and Furious after his office spoke to Dodson and several other ATF sources. About one month later, in response to Criminal Chief Cunningham’s April 5, 2011, e-mail identifying to the Department the Dodson memorandum as potentially responsive to the recently issued congressional subpoena, Burke stated,
Yep. 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.
Second, according to Burke’s account of his conversation with Levine, Burke believed that Levine was working on a story that would expose what Burke considered Dodson’s hypocrisy. Burke said that Levine told him the story involved a memorandum Dodson had written that, from Levine’s perspective, contradicted Dodson’s congressional testimony about the tactic of “walking” firearms to build an investigation. Indeed, Burke’s counsel stated in a letter sent to the OIG on November 8, 2011, that “[Burke’s] intention [in providing the Dodson memorandum to a reporter] was to give context to information that the reporter already had to explain that investigations similar to Operation Fast and Furious had been previously proposed by ATF.” In other words, Burke’s intention in disclosing the memorandum was to show that ATF, through Dodson, proposed in another investigation the very tactics that Dodson and other agents were criticizing ATF for using in Operation Fast and Furious. We believe that this explanation, taken together with the other evidence cited above, demonstrate that Burke’s conduct in disclosing the memorandum to Levine was likely motivated by his desire to undermine Dodson’s public criticisms.
Third, in connection with the Department’s review of the disclosure of the Avila memorandum, Burke provided information to the Department regarding his role in providing the memorandum to The New York Times and whether he misled Deputy Attorney General Cole during their telephone conversation on June 16, 2011. Burke stated that the “unprecedented scrutiny and investigations while weathering scurrilous media attacks” concerning Operation Fast and Furious had been a “nightmare” and resulted in a lack of confidence by Burke that the Department was protecting the interests of his office. Burke was critical of OPA, as well as the Office of the Deputy Attorney General and Office of Legislative Affairs, and stated that “several U.S. Attorney’s commented to me that the Department was throwing my office under the bus . . .” Burke’s statements to the Department reflected a belief that he could not rely on the Department to respond to criticism of his office’s handling of the Fast and Furious investigation, and we found that he responded to this belief by deciding to defend the office himself through, in part, the unauthorized disclosure of information to the media. The story that Burke believed Levine was working on provided Burke with a vehicle to do just that.
In sum, we found that Burke violated Department policy when he provided the Dodson memorandum to Fox News reporter Levine without Department approval, and that his explanations for why he did not believe his actions were improper were not credible. We believe this misconduct to be particularly egregious because of Burke’s apparent effort to undermine the credibility of Dodson’s significant public disclosures about the failures in Operation Fast and Furious. We further believe that the seriousness of Burke’s actions are aggravated by the fact that they were taken within days after he told Deputy Attorney General Cole that he took responsibility for his office’s earlier unauthorized disclosure of a document to The New York Times, and after Cole put him on notice that such disclosures should not occur. Burke also knew at the time of his disclosure of the Dodson memorandum that he was under investigation by OPR for his conduct in connection with the earlier disclosure to The New York Times. As a high-level Department official, Burke knew his obligations to abide by Department policies and his duty to follow the instructions of the Deputy Attorney General, who was Burke’s immediate supervisor.
We found Burke’s conduct in disclosing the Dodson memorandum to be inappropriate for a Department employee and wholly unbefitting a U.S. Attorney. We are referring to OPR our finding that Burke violated Department policy in disclosing the Dodson memorandum to a member of the media for a determination of whether Burke’s conduct violated the Rules of Professional Conduct for the state bars in which Burke is a member.