State asks: Why was Bogden dismissed?

Wednesday, March 14, 2007 | 7:17 a.m.

WASHINGTON - Disclosures on Tuesday of the White House's deep involvement in the firing of eight U.S. attorneys failed to answer a question of interest to Nevada: Why the state's top prosecutor, Daniel Bogden, was among those pushed aside.

The more than 100 pages of e-mails between the White House and the Justice Department released Tuesday showed specific points of dissatisfaction with several of the prosecutors, largely for failing to act on issues important to Republicans. But they revealed no unhappiness with Bogden.

The e-mails show that as discussions about the firings began in late spring of 2005, some of the attorneys were singled out as "ineffectual managers and prosecutors," or because they "chafed against administration initiatives, etc."

The e-mails listed U.S. attorneys recommended for firing. Bogden fell into the "no recommendation" category of attorneys who "have not distinguished themselves either positively or negatively."

But as early as January 2006, Bogden's name was considered along with a handful of other attorneys under the heading "we should now consider pushing out."

By September, he was on the final list for discharge and on Dec. 7, he and others targeted received phone calls telling them their careers in the Justice Department were over.

Nevada's Republican Sen. John Ensign, who says he "went to bat" for the fired attorney, tried to shed some light on Bogden's firing by holding a press conference Tuesday. But Ensign may have only muddied the waters further.

Ensign said he was told during his meetings last week with Attorney General Alberto Gonzales and Deputy Attorney General Paul McNulty that "they didn't feel Dan was being aggressive enough" in two areas: adult obscenity cases and anti-terror cases.

Another Justice Department official, William Moschella, testified before a House Judiciary subcommittee that Bodgen exhibited no "particular deficiency." Justice wanted him replaced to bring new energy to the office, Moschella said.

Bogden testified in the same hearing that associates of his at Justice told him that he was being replaced to boost the resume of a newcomer.

Ensign has said that he was furious at the discrepancies emerging from the hearings last week. In fact, the e-mails released by the House Judiciary Committee on Tuesday show that as far back as Dec. 8, one day after the call informing Bogden he was being fired, Justice officials were trading e-mails about Ensign's unhappiness. Ensign had nominated Bogden for the job.

"Heads up about disgruntlement in Nevada," White House official William Kelley wrote to Kyle Sampson, the Justice Department's point man on the firings. Sampson resigned Tuesday.

"The senator is very unhappy about the decision to let Bodgen go, very unhappy about its timing and doesn't understand the urgency," Kelley wrote.

Ensign still doesn't know why Bogden was fired, a spokesman for the senator said Tuesday. Ensign, asked at his press conference if he felt lied to, said: "I was either intentionally misled or somebody was misinformed and unaware of the complete process. It seems more like the latter."

At a minimum, Justice needs to revamp its evaluation process so that prosecutors will know how their superiors view them, Ensign said.

The senator said Gonzales has assured him that those procedures will be improved.

Ensign also said he won assurances from Gonzales that the understaffed Nevada office would be beefed up under the new U.S. attorney.

"Mistakes were made," Ensign said. "Changes need to be made in the process and those changes are being made. The attorney general is taking steps. They have admitted the mistake to me that they made as far as the process was concerned ... as long as they are taking these steps and folks follow through, I will be satisfied."

But why was Bogden fired?

The e-mails show that on Sept. 20, one week after Bogden made the final list for dismissal, the Justice Department's top porn prosecutor, Brent Ward, e-mailed Sampson his concerns that Bogden and the attorney from Arizona, who was also fired, weren't being aggressive enough on such cases.

"We have two U.S. attorneys who are unwilling to take good cases we have presented to them," Ward wrote to Sampson. "In light of the AG's comments to 'kick butt and take names,' what do you suggest I do? I will be glad to provide a little more context for each of the two situations."

Bogden had been asked about his track record on obscenity cases during last week's hearings. He said under oath that he was "kind of surprised to hear" obscenity cases would be a concern since prosecutions of child exploitation cases had increased sharply during his tenure.

After the hearings Bogden told reporters that he had been given just one adult obscenity case to review. He said he was unable to find merit in it immediately, so he sought and received permission to delay the case until after Jan. 1, when new prosecutors were joining his office.

"The case is still in the preliminary investigation stage," Bogden said last week.

Ensign said that he has asked President Bush and the Justice Department to clear Bogden professionally.

A spokesman for Senate Majority Leader Harry Reid, D-Nev., said, "It will be interesting to see how the administration and the attorney general will restore Mr. Bogden's reputation, since they were the ones who harmed it by firing him and then making false claims."

Spokesman Jon Summers added that while the annual performance review process could use some improvements, it "didn't appear to be the problem."

Among the possible reasons critics cite for the firings is the opportunity the White House has to bypass the traditional Senate confirmation process for U.S. attorneys. Under a 2006 revision of the Patriot Act, the White House can make those appointments without Senate review.

Democrats are pushing for legislation to restore the constitutional confirmation process. Ensign, however, does not favor the Democratic proposal.

Bogden has cleared out of his office and is in Reno sorting out his options. No permanent replacement has been nominated.

In an interview last week, he said: "Right now I don't know what to believe. I know what I was told. It just appears to be a matter that they want someone else."

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