Justice Done at Justice: U.S. Attorney fired by Bush administration rehired for old job by Obama

In an appointment that senior Justice Department officials say demonstrates the Obama administration’s commitment that the Department will reverse the Bush administration’s politicization of the Department, a U.S. attorney fired by President Bush was reappointed to his old job on Friday.

Danile Bogden,  who was fired in the fall of 2006 by the Bush administration from his position as U.S. attorney in Nevada,  was offered his old job back by the Obama administration, and  was formally nominated by President Obama for the position on Friday.

Bogden’s confirmation by the Senate is all but assured:  He has spent his entire adult life in government service, and as a former U.S. attorney was confirmed by the Senate before.  He was also thoroughly vetted for his new position by the White House Counsel’s office prior to his most recent nomination even though he was vetted during his first appointment as U.S. attorney by the Bush administration.  Moreover, he has the backing of his two homestate Senators, Harry Reid, a Democrat, and John Ensign, a Republican.  That Reid is a Senate Majority Leader, and Reid personally suggested to the President that Bogden get his old job back probably won’t hurt matters.

Ironically, Bogden’s formal reappointment as U.S. attorney comes exactly one day after former Bush political adviser Karl Rove gave sworn testimony before the House Judiciary Committee regarding the firings of Bogden and eight other U.S. attorneys fired by the Bush administration.  A federal grand jury is currently investigating whether Bush administration officials and members of Congress obstructed justice in pressing for one or more of the firings, and also, whether they misled Congress as to why the prosecutors were fired.

Bogden’s firing in the fall of 2006 is referred to by many in the Justice Department as the firing that came about as a result of some sort of Immaculate conception:  For two years, the Justice Department’s two watchdog agencies, its Inspector General and Office of Responsibility, sepnt 18 months investigating the firings of the nine U.S. attorneys.  When it came to Bogden, however, the investigators were not only unable to determine why he was fired, but even who ordered his firing.  Every single Justice Department official and Bush administration official, disclaimed responsibility.

As I wrote in this dispatch for the Atlantic last April:

Dan Bogden, who served as the United States attorney from Nevada until he was abruptly dismissed from his job during the infamous wave of firings of U.S. attorneys in late 2006, hoped to someday learn why he was let go. By most accounts, Bogden had served his community and the Department of Justice with distinction: former Deputy Attorney General James Comey, who had once directly supervised Bogden, would later testify before Congress that Bogden was one of his best prosecutors, and that he could not understand why anyone would want to fire him.

But more than two years later, Bogden still has no official explanation as to why he was fired, or even who made the decision.

Two Justice Department watchdog units, the Office of Inspector General and the Office of Professional Responsibility, studied the matter. For 17 months, from March 2007 to September 2008, lawyers there investigated the firings of nine U.S. attorneys by the Bush administration. Last September, they released a 358-page report detailing their findings… The final DOJ report contained enough information that most of the fired prosecutors were able to learn key details about why they were dismissed and who was responsible.

Dan Bogden got no such closure. An entire chapter of the report was devoted to his firing, but it concluded only that investigators “could not determine who was responsible for Bogden’s name being placed on the U.S. Attorney removal list.” His firing, if the accounts of senior DOJ officials responsible for terminating him are to be believed, was one of Immaculate Conception.

At the time of the firings, Alberto Gonzalez was attorney general. His chief of staff, D. Kyle Sampson, was in charge of compiling the list of names of U.S. attorneys to be fired – allegedly for poor performance (though those involved later admitted the firings were in fact made for political reasons). In interviews with investigators, according to the Justice Department report, Sampson “acknowledged that he must have physically placed Bogden’s name on the list.” But Sampson “denied that he made the decision to add Bogden to the list,” and asserted that “he did not remember who made the recommendation.”

Deputy attorney general Paul McNulty, who was the second highest-ranking official in the Department at the time, told investigators that he too “did not know why Bogden’s name was on the list of U.S. Attorneys to be removed.”

And Gonzales himself, who resigned in disgrace in large part over his role in the firings, denied to investigators that he had even wanted Bogden fired. Gonzales told federal investigators that he “did not have an independent basis for understanding why Bogden was to be removed.”

At least a half dozen lesser ranking Justice Department officials involved in the firings also were questioned, but they too said they had not recommended Bogden be fired, nor did they know why he made the list.

Karl Rove had previously refused to cooperate with the investigations by the Justice Department’s Inspector General and the OPR.  Rove’s deposition, taken Thurdsay by the House Judiciary Committee, will most probably shed little new light as to why Bogden was firing.  No evidence has previously surfaced that Rove was personally involved in Bogden’s firing, although he had played a role in the dismissal of other prosecutors.  Rove’s deposition will likely be made public later this month.

In reappointing Bogden, Justice Department officials believed they were not only putting an exceptional prosecutor back on the job, but that they were demonstrating to the public that they were committing to reversing the politicization of the Department by the Bush administration.

At the Huffington PostSam Stein got it about right when he wrote:  “That [Bogden] would be reinstated by a Democratic administration to the position he lost is undoubtedly meant to be a message from the Obama White House that they are elevating law above politics, or at least removing partisanship from the Department of Justice.”

More on Bogden’s reappointment from the New York Times.

Meanwhile, the Las Vegas Sun should have  more than a little egg on its face for writing Thursday– only one day before President Obama formally nominated Bogden to be U.S. attorney, that:

Four months after Sen. Harry Reid recommended bringing back a former Bush appointee as U.S. attorney for Nevada, the Obama administration is still vetting Daniel Bogden.

Jon Summers, a spokesman for Reid, maintains that the Democratic Senate majority leader has not had any second thoughts about Bogden.

But federal prosecutors and politically connected attorneys in Las Vegas who do not support Bogden say the lack of White House action is fueling speculation that Reid’s recommendation has run into trouble.

Since May, the White House has forwarded the names of 13 of the 93 potential U.S. attorney nominees to the U.S. Senate for confirmation. Bogden, one of the earlier recommendations, conspicuously has failed to make the list.

“There’s nothing in his background that would cause any issues,” a lawyer with Beltway ties said. “You would think that someone who already has been cleared for the job and who is from the majority leader’s home state would be easy to nominate, and that just hasn’t happened.”

A federal prosecutor added, “It’s obvious to everybody that something is afoot. Harry Reid is the most powerful person in Congress, and yet the name of his guy isn’t moving forward.”

The White House this week again declined to comment on the status of the recommendation.

If there was ever a news story that was so wrong, this one was.  But even if the reporter simply had sources steering him wrong, the writing and editing of the story contains too much surmise, innuendo, and supposition, for what should be published in a newspaper.  A reading of the article appears to indicate that the reporter’s sources were all people on the periphery of the action and had no real idea whether Bogden was going to renominated or not.  The paper should have made that clear to its readers– or better yet, not have written a story in the first place based on such since (and ultimately wrong) sources.

The same article goes on to say: “Bogden, who did not return phone calls from the Sun, has been criticized for his lack of leadership skills and outreach to the community.”  Quite an allegation, but there is little if any sourcing in the rest of the article to substantiate those charges.

In terms of disclosure, while writing a profile of Bogden, I spoke to a broad range of people– Justice Department officials,  assistant U.S. attorneys who had worked for Bogden, his fellow U.S. attorneys, other law enforcement officials, and defense counsel in Nevada– and a small number of people voice some of the same complaints that the Las Vegas Sun has given voice to.  But the complaints were a small majority, and after reviewing specifics of their complaints, the facts often showed something otherwise.

Extraordinarily, the same story also did not quote a single person who had anything positive to say about Bogden.  Is it because the newspaper could not find anybody to say anything nice about Bogden?

In an earlier story taking aim at Bogden’s appointment, the Sun quoted some supporters of Bogden:

Following his firing, former Las Vegas FBI chief Ellen Knowlton said he was the finest U.S. attorney she had ever worked with in her 24 years with the FBI. And U.S. District Judge Howard McKibben described Bogden as a thorough and well-balanced prosecutor.

This week, Reno attorney Craig Denney, who worked as a prosecutor under Bogden, called him a “great boss” with the “highest integrity.”

One wonders why such people weren’t quoted more recently in the erroneous article suggesting that Bogden was not going to be named U.S. attorney.

Since Bogden’s nomination, the Las Vegas Sun continues to take shots at their former/soon to be U.S. attorney, writing this time:

President Barack Obama’s nomination of Daniel Bogden as U.S. attorney for Nevada was met Friday with initial disappointment from defense attorneys and prosecutors who had questioned his leadership abilities.

There was, however, hope that Bogden — a registered nonpartisan who headed the U.S. attorney’s office for more than five years under the Republican Bush administration — will be able to adapt to the policies of a more progressive Democratic White House.

“Many people within the U.S. attorney’s office do not see Bogden’s appointment as the type of ‘change you can believe in’ that Obama promised,” one prosecutor said. “But we’re hoping that Bogden has changed as a result of his experience under the Bush administration and will demonstrate a greater commitment to diversity in hiring and promoting within the office.”

During his previous tenure at the helm, Bogden also had developed a reputation of not being cordial with defense attorneys and the media.

But he loosened up after he was fired by the Bush administration with eight other U.S. attorneys in what some on Capitol Hill called a political purge.

Nevada Sen. Harry Reid, the majority leader, had recommended Bogden, despite complaints from prominent Democrats who wanted Reid to promote someone within his own party for the plum assignment.

Bogden’s nomination is now about as close to a lock as it can be because it moves to the Senate, which Reid controls, for confirmation.

The nomination also is likely to hasten the departure of current U.S. Attorney Greg Brower, a Republican, who was appointed by the Bush administration last year to succeed Bogden.

The names of Brower and U.S. District Judge Brian Sandoval have been among those mentioned as possible Republican challengers to Reid in 2010.

This criticism, dressed up as straight news coverage,  is just all too strange, too– and for several reasons:

It is unclear exactly why Bogden was fired.  But at least seven of the nine U.S. attorneys purged by the Bush administration were fired because the Bush administration believed them to be out of step with the political and ideological agenda of the administration or the White House.

Although the Justice Department’s report on the firings of the U.S. attorneys said it could not determine exactly why Bogden was fired, it presents evidence that he took a lot of heat from conservative allies of the Bush administration who said he was not aggressively enough prosecuting certain pornography cases.

Goznales testified to the the Senate Judiciary Committee in April of 2007 that Bogden’s failue to press certain pornography cases as zealously as some in the Bush administration wanted was a central reason for Bogden’s firing: “There were concerns about the level of energy, generally, in a fast-growing district, concerns about his commitment to pursuing obscenity,” Gonzales said at the time.  (Bogden said he could do no more than follow the law and Gonzales later admitted to Justice Department investigators he did not really know why Bogden was fired, although he approved the firing.)

As for criticisms that Bogden might be ideologically out of step with an Obama administration, they are ironic in that his perceived ideological or political differences from some in the Bush administration might have lead to his firing.

U.S. attorneys, however, are charged with executing the law and prosecuting criminal, follow the law, and set aside politics.  That is what the Bush administration’s U.S. attorney scandal was all about in the first place.  There is absolutely reason to believe that anyone in the Obama administration wants their U.S. attorneys to toe some ideological or political line, as the story cited above asserts– quoting private attorneys and nobody in the Obama administration itself.  Presidents and Attorney Generals can set priorities for U.S. attorneys, but there is no reason to believe that Bogden, a government attorney his entire life, would not follow those.

In the end, Dan Bogden will likely be the first U.S. attorney to be appointed and fired by the same President, only to be appointed U.S. attorney again by another President.  In that way, he will stand alone.

Related articles by Murray Waas:

Murray Waas and Justin Rood, “White House Involved in U.S. Attorney Firings,” ABC News.com, Sept. 29, 2011.

Murray Waas“A U.S. Attorney’s Story,” the Atlantic,  April 20, 2009.

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