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Federal prosecutor to take 5th Amendment in Fast and Furious probe

A senior federal prosecutor in Arizona intends to invoke his Fifth Amendment rights rather than testify before a House committee next week looking into the Justice Department's handling of the Fast and Furious gunrunning investigation, the prosecutor's attorney told Congress in a letter on Thursday.

On Wednesday, House Government Reform and Oversight Committee Chairman Darrell Issa issued a subpoena to Patrick Cunningham, the chief of the criminal section at the U.S. Attorney's Office in Arizona. The deposition subpoena came after a plan to have Cunningham appear for a less formal interview fell apart.

Sources say Cunningham is concerned that he's caught in a pincer of sorts between senior Justice Department officials in Washington eager to shift blame to lower-ranking staffers and Congressional investigators eager to see heads roll over the investigation, which allegedly allowed more than 1000 weapons to cross the border into Mexico despite suspicions they were destined for drug cartels.

"Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly," Cunningham's personal attorney, Tobin Romero of Williams & Connolly, wrote to Issa.

"As a professional courtesy and to avoid needless preparation by the committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself," Romero wrote. "My client is, in fact, innocent, but he has been ensnared by the unfortunate circumstances in which he now stands between two branches of government. I will therefore be instructing him to assert his constitutional privilege."

Issa said Friday that the Fifth Amendment claim signals serious wrongdoing at the Justice Department.

"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 in a statement. "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."

In his letter (posted here), Romero indicates that Cunningham passed on accurate information about the investigation to his supervisor, presumably U.S. Attorney Dennis Burke who resigned last August amidst the furor over the operation. Romero says the answers to be delivered to Congress were vetted with others in Cunningham's office but not included in DOJ's February letter to Congress, which DOJ formally withdrew late last year because of inaccurate information it contained about so-called "gunwalking," a technique under which law enforcement relinquishes control of weapons or fails to prevent them from falling into criminal hands.

UPDATE: This post has been updated with Issa's reaction.