Earlier this week the President asked for and received Attorney General Jeff Sessions’ resignation. It probably won’t be the only personnel move the administration makes after the midterm elections. Like almost all top cabinet level and agency officials, Sessions served at the pleasure of the commander-in-chief. Anyone in those jobs can be fired if the boss believes he isn’t performing well or furthering the policy interests of the administration.
The ATF, of course, has a number of similar top-level positions over which the President has control. One of those is that of Chief Counsel, a job which currently has outsized influence over the bureau and its policy and enforcement priorities.
First, a little history. After the Fast and Furious gunwalking debacle, then-acting ATF director Kenneth Melson resigned in 2011. Attorney General Eric Holder — no friend of gun rights, he — then named US Attorney B. Todd Jones as acting director in August of 2011. In January of 2013, just after the Newtown shooting, President Obama nominated Jones as full-time director. He was confirmed by the Senate in July of 2013.
Not long after Jones was nominated by Obama, Charles Gross, another US Attorney, was elevated to the position of BATFE Chief Counsel by Holder, presumably with the input of Jones.
B. Todd Jones is now long gone. He shuffled off to a higher paying gig with the National Football League in 2015 as senior vice president and chief disciplinary officer. Deputy Director Tom Brandon was named acting director in April of 2015, a position and status he holds to this day.
Why is all of this important? Acting Director Brandon, because of his interim status (his term as acting director has been extended twice), is limited in the policy and enforcement decisions he can make. As an acting director who hasn’t been confirmed by the Senate, he’s restricted (by tradition and by standard government agency practice) to a mostly administrative role. His job is basically to keep the trains running on time without making or implementing policy.
That has resulted in the Bureau’s policy and enforcement decisions falling to the ATF’s Chief Counsel, Charles Gross.
To get an idea of Mr. Gross’s policy and enforcement priorities, a good place to start is with the confusion and ATF-induced angst surrounding AR pistol braces. The ATF’s tech branch — who a number of industry sources tell us generally does a fair and even-handed job of interpreting and applying current laws — approved the first pistol brace for general use back in late 2012, just before Jones and Gross arrived.
In early 2015, toward the end of Jones’ tenure at ATF, the Bureau muddied the waters, apparently changing their interpretation of their earlier ruling. They issued an open letter on the “redesigning” of stabilizing braces which essentially said that shouldering them makes an AR pistol subject to NFA regulation.
While this letter was issued and signed by the ATF’s acting Technology Branch head at the time, we understand that this was, in fact, a political decision that came down from the top, i.e. Jones and Gross. After an uproar by both the makers of the braces and the buying public who owned them, the ATF was forced to back down, finally issuing a new clarifying letter in 2017 stating that shouldering an AR brace does not, in fact, violate the law.
Another example of Gross’s handiwork was the Bureau’s abortive effort to ban standard green-tip 5.56 M855 ammunition as supposedly “armor-piercing” and having no “sporting purpose.” That push came, again, in the final weeks of Jones’ time at ATF, a decision which we understand Gross was intimately involved with.
Don’t remember that whole kerfuffle? Click here for our extensive coverage. Again, the ATF was forced to back down under a deluge of public comment and Congressional pressure.
One positive change that now-former Attorney General Jeff Sessions made as head of the Department of Justice was to issue a moratorium on regulation via public letter or “guidance documents,” basically legislating via written fiat. Sessions directed all DoJ departments thusly:
The Department will no longer engage in this practice. Effective immediately, Department components may not issue guidance documents that purport to create rights or obligations binding on persons or entities outside the Executive Branch (including state, local, and tribal governments).
He directed the DoJ to go through the standard notice-and-comment process that gives the public a voice in a potential new regulatory stance or interpretation. It was that notice-and-comment process that defeated the ATF’s M855 ban attempt.
But the Bureau hasn’t let Sessions’ directive get in their way. Instead of creating new interpretations of law at will via open letter, the ATF has, instead, tried to get that done through private communications.
See, for instance, our post on the recent prosecution of an Ohio man for an allegedly un-registered short barrel rifle. The ATF prosecuted the man for violating a limit on the length of pull of an AR pistol. But that limit had only been revealed to pistol extension manufacturers in private communications. The public had never been notified of the arbitrary limit.
Which brings us back to the ATF’s Chief Counsel, Mr. Gross. That’s the kind of decision he would have had a hand in. He’s an Obama administration appointee and holdover, one who’s still in a unique position to make policy for the Bureau. And he has a demonstrated record of using that power to make gun owners’ lives more difficult when and where he can via regulatory fiat.
The good news is that, like his predecessor, President Trump has a pen and a phone, either one of which he can use any time he likes to replace Gross with someone who will make and implement policies that are more firearms- and Second Amendment-friendly. It would be an easy exercise in swamp drainage that could make a significant, practical difference to a constituency that hasn’t exactly been encouraged by some of the administration’s gun-related moves.
Since it appears that Trump is cleaning house at DoJ anyway, why not add one more name to the list?