Bogden firing may yet be explained

By Lisa Mascaro

Sunday, Aug. 3, 2008 | 2 a.m.

If former White House counsel Harriet Miers testifies before Congress, perhaps she can explain why Nevada’s U.S. attorney was among those fired in an unprecedented upheaval by the Bush administration.

Nearly two years after Daniel Bogden was on a list of eight prosecutors nationwide to be canned, the reason for his ouster remains unclear.

First the Justice Department said he was among those fired for his performance, before switching course and saying it just wanted to bring in new energy.

As hearings unfolded on Capitol Hill in 2007 and Democrats claimed the Bush administration was politicizing the Justice Department, then-Attorney General Alberto Gonzales could never really say why he let the Nevadan go.

Bogden is now an attorney in private practice in Nevada. But his story continues to underline a slow-moving narrative in Washington as the investigation into the firings continues.

Some see this as one of this country’s landmark struggles among the three branches of government, as each asserts its check on the others.

Last week, a Justice Department internal report said aide Monica Goodling and others had violated federal law by considering political beliefs in Justice hiring decisions unrelated to the attorneys.

There were those who had misgivings about firing Bogden, but Goodling was not one of them. She told a House panel she suggested he be let go when her boss showed her an early list, citing undefined concerns about his use of the Patriot Act and an undistinguished record.

Miers, though, may have further insight, as the lists also ran through her office in the White House.

The House Judiciary committee subpoenaed Miers to appear, but she refused. This year the House passed a resolution holding Miers and now-White House Chief of Staff Joshua Bolten in contempt for ignoring the subpoenas.

(The passage of that resolution was itself interesting: It was approved after 173 Republicans walked out that day, protesting Democrats’ decision to hold the contempt vote rather one on a wire-tapping bill. Republican Rep. Jon Porter refused to join his peers, having been critical of the attorney’s firing. But he also declined to vote for the resolution. His was the only vote logged merely as “present.” Rep. Shelley Berkley voted for it and Republican Rep. Dean Heller’s office declined at the time to disclose his position.)

Last week, the federal district court essentially said Miers cannot rely on the White House’s claim of executive privilege to stay out of the committee room.

Democrats plan to bring Miers before the committee in September — and they say former White House adviser Karl Rove should plan on coming, too. Rove has also ignored the committee’s subpoena; it passed a resolution last week holding him in contempt as well.

Those familiar with the ruling say the aides must testify, even if they decline to answer every question posed.

Watching from California, Douglas W. Kmiec, a legal counsel to both President Reagan and the first President Bush and now a professor at Pepperdine University Law School, shared his thoughts on the decision’s place in constitutional history.

“It is a truly historic and appropriate ruling that is important for maintenance of the separation of powers,” Kmiec said in a voice mail, while teaching a class at the Ronald Reagan Presidential Library.

“The doctrine of executive privilege, as asserted by the current administration, is well out of the bounds of what was intended by the constitutional structure.”

Kmiec went on to explain that executive privilege has its place — the White House can avoid testifying, say, to guard national security or military secrets.

But, he continued, “it’s not designed, as I said, to hide corruption or prevent a legitimate congressional inquiry.”

The court decision “is a way of rectifying the imbalance between the executive and the legislative, and it is overdue.” And he said, “much to be applauded and praised.”

The White House is reviewing its grounds for appeal.