Dispatch April 2009

A U.S. Attorney's Story

Dan Bogden, one the nine U.S. attorneys infamously axed by the Bush Administration, may never get to the bottom of his mysterious firing. But he just might soon have his old job back.
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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 investigators talked to as many people involved in the firings as possible and exhaustively gathered information, but senior officials from the Bush White House declined to answer their questions and the Bush White House refused to turn over relevant documents and emails. Even so, 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.

But if Dan Bogden was unable to learn from the report why he was fired, he was able to find out something else about the circumstances of his firing: If he had had a wife and kids at home, he might not have lost his job at all.

As it turns out, McNulty had expressed qualms to other Justice Department officials about getting rid of Bogden, Just prior to Bogden’s firing, according to the DOJ report,McNulty emailed Sampson to say, “I am a little skittish about Bogden. He has been with DOJ since 1990 and at age 50 has never had a job outside government…. I’ll admit [I] haven’t looked at his district’s performance. Sorry to be raising this again/now… It is just on my mind last night and this morning.”

Indeed, Bogden’s entire life had been devoted to public service. Upon graduating from law school in 1982, he had become a member of the United States Air Force Judge Advocate General’s Office, where he remained for five years. Then, from 1987 until 1990, he served as a prosecutor for the Washoe County District Attorney’s Office in Reno, Nevada. In 1990, he became an assistant U.S. attorney in Nevada and, in 2001, he was named to the top job.

Shortly after McNulty conveyed his qualms to Sampson via email, McNulty reiterated the concerns in a meeting. He “came into my office,” Sampson told investigators . “I’m concerned about Bogden,” MCNulty told Sampson and a few other senior DOJ officials in the room. “… he’s 50, hasn’t had a job in [the] private sector, and what about his family.”

According to Sampson’s account, another senior official corrected McNulty: “He’s a bachelor,” the official said, “He’s single.”

As Sampson recalled to investigators, McNulty responded, “Okay never mind.” McNulty, Sampson said, “then got up and left my office.”

When questioned by investigators, McNulty did not disagree with Sampson’s basic version of events. Having learned that Dan Bogden was a bachelor, McNulty recalled, “I guess I don't have any objection [anymore] to going forward.”

In each of the last two years since their firings, the fired U.S. attorneys have held annual reunions—the first hosted by fired U.S. attorney for San Diego, Carol Lam, the second hosted by Bogden at Lake Tahoe, near his home in Reno.

These reunions are, as one participant told me, a “bohemian affair,” the cuisine often no better than pizza or take-out food—with a congenial atmosphere, in which participants engage in a certain amount of commiseration. At one reunion, the group clustered around a laptop and watched a Saturday Night Live skit depicting Alberto Gonzales evading congressional questioning.

It has also become something of a pastime at these gatherings for the former prosecutors to speculate as to why Bogden was terminated. David Iglesias, the ex-U.S. attorney for New Mexico, observed to me: “Most of us have gotten some sense, if not a good sense, as to why we were fired. But unlike the rest of us, Dan has never had that. There has never been any credible allegation or unyielding reason known as to why he was fired.”

Whatever the reason for his firing, Bogden’s fellow ex-U.S. attorneys hold him in high esteem. Paul Charlton, the former U.S. attorney for Arizona described Bogden to me as that rare prosecutor who is motivated to see that justice gets done rather than simply to secure convictions for the sake of winning. “To Dan Bogden,” Charlton said, “nobody had a monopoly on the truth. Not prosecutors, not agents, not targets of investigation, not judges… Dan has dedicated his life to the principles of being the best possible prosecutor.” And David Iglesias told me: “All of us loved being U.S. attorneys. But Dan just had this immense emotional attachment to being a U.S. attorney. If you know him, you can see what the job meant to him.”

Extraordinarily, Bogden might get another chance to demonstrate just what it does mean to him.

Last month, Nevada Democratic Senator Harry Reid, who happens to be the Senate majority leader, asked the White House to consider rehiring Bogden as Nevada’s U.S. attorney. “I just think it is so unfair what happened to him,” Reid told reporters: “It is just not fair to have Bogden with this mark, this scarlet letter, of being a bad U.S. attorney… He was a good guy.” A spokesman for Reid confirmed by phone that Reid has asked that the Obama administration and Justice Department consider reappointing Bogden as U.S. attorney.

Nevada’s other Senator, Republican John Ensign, has likewise indicated that he would like to see Bogden reinstated. In 2007, a few months after the firing, he vouched for Bogden, saying “Dan Bogden has a solid performance record at the U.S. Attorney's Office, which is why I urged the Department of Justice to restore his reputation. There should be no doubt that he demonstrated leadership and performed well as Nevada's United States Attorney."

On March 9 of this year, as the news broke about Reid’s request to the White House, Ensign released a new statement, saying, “Dan Bogden continues to be a highly respected professional, litigator and manager. I am confident in his ability to once again lead our U.S. Attorney’s office.”

A Justice Department official told me that the idea of hiring Bogden back is in fact a real possibility, and said that the White House counsel’s office has been quietly vetting his background in anticipation of his possible reappointment—not a difficult task, considering that he has been employed by the government for the majority of his adult life.

If Bogden is reappointed as U.S. attorney, his supervisor will be one of the authors of the Justice Department’s report on the U.S. attorney firings that praised Bogden and severely criticized the Bush administration appointees who fired him. Last Thursday, Attorney General Eric Holder reassigned H. Marshall Jarrett, the head of Justice’s Office of Professional Responsibility, to head the executive office of U.S. attorneys, where he will oversee the nation’s 94 U.S. attorneys. By naming Jarrett to his new position, a senior Obama administration official told me, “I think this administration is sending a message that the era of politicization of the Department should be long due over.” The same official told me: “The continued service of Dan Bogden might hopefully send the same message.”

Though Bogden declined to comment for this story, it seems likely that, were he offered the job, he would readily accept. Indeed, after signing off on Bogden’s firing back in 2006, Alberto Gonzales spoke with him by phone three times. During each conversation, Gonzales asked if there was anything he could do for Bogden.

Bogden’s only response was that he wanted to be reinstated as U.S. attorney.

Murray Waas wrote this profile of another fired U.S. attorney, Todd Graves, in June 2007.  He also recently wrote about the direction of the criminal inquiry into the firings of the U.S. attorneys for TPM Muckraker, and about the Justice Department’s investigation of Alberto Gonzales for allegedly misleading Congress about the Bush administration’s domestic eavesdropping program for the Atlantic.com in September 2008.
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