DOJ Report Exposes Firing of U.S. Attorneys

WASHINGTON, D.C. – Over 18 months ago, after examination of Justice Department emails and memoranda released in response to congressional subpoenas, AVN deduced that U.S. Attorneys Daniel Bogden (Nevada) and Paul Charlton (Arizona) had been fired by Attorney General Alberto Gonzales' second-in-command Kyle Sampson because, in the words of Obscenity Prosecution Task Force head Brent Ward, they were "unwilling to take good cases we have presented to them."

That deduction has now been confirmed, at least as to Bogden and possibly as to Charlton, by the Justice Department Inspector General's report, "An Investigation into the Removal of Nine U.S. Attorneys in 2006." In fact, the report went even further and suggested that Debra Yang, the U.S. Attorney for Los Angeles, may also have been asked to resign in part for her resistance to prosecuting obscenity.

The examination of Bogden's firing begins on page 220 of the report. After giving a bit of Bogden's background and his 2003 EARS (Education and Administrative Reporting System) evaluation – Bogden was "highly regarded" and "a capable leader" – the report traces Bogden's first appearance on the list of attorneys to be considered for firing – and wouldn't'cha know it, he doesn't show up on the list until Sept. 13, 2006, the same day Arizona's Paul Charlton first appeared. That was just two weeks after Dick Hertzberg, representing Five Star Video, which had been indicted the previous May in Phoenix, filed his Motion to Dismiss, citing the fact that the same "obscene" videos which his clients had been charged with selling had also been sold by the local Castle Megastore outlet, which then was in bankruptcy receivership, administered by U.S. Justice Department (DOJ) employees.

The firings themselves, which occurred in early December of '06, quickly became the subject of congressional hearings, and in February of 2007, it fell to (surprise, surprise!) the Justice Department's White House Liaison (and Regent University Law School grad) Monica Goodling and a small group under her leadership to create a chart listing the reasons for the U.S. Attorneys' firings.

"In her handwritten notes describing the reasons for Bogden's removal," the report says, "Goodling wrote: 'very important – terror, violent crime, drugs in important district, resistant to AG priorities (obscenity task force), Margolis, in over his head.'" [Emphasis added]

(Later, Associate Deputy Attorney General David Margolis testified that he had never told anyone that Bogden was "in over his head," and did not believe that to be the case.)

Based on the ultra-religious Goodling's notes, the Justice Department created a chart containing justifications for the firing of, among others, Bogden, and in pertinent part, that chart said, "Despite the national focus the Attorney General requested for offices to place on the federal crime of obscenity, which coarsens society, the USA [United States Attorney] failed to support the Department's prosecution of a case that was developed within his district."

The report also states that, "Other than Goodling, no one we interviewed said they recommended that Bogden be placed on the removal list."

Moreover, according to notes prepared by an official in the Justice Department's Office of Legislative Affairs, Deputy Attorney General Paul McNulty said during a Feb. 14, 2007 briefing that the reasons to remove Bogden included that he "lacked energy and leadership" and that he was "good on guns, but not good on obscenity cases."

The report goes on to trace the interactions between Bogden and the Obscenity Prosecution Task Force, which in 2006 asked Bogden to assign an Assistant U.S. Attorney to prosecute an obscenity case in his district.

(Perhaps of interest, the report quotes a "Task Force trial attorney" as saying that the Task Force does not "get a real warm reception" from any of the U.S. Attorneys' offices around the nation when it requests assistance. That would suggest that the USAs have a more realistic apprehension of how unpopular obscenity prosecutions are in their districts than does Washington ... although the Justice Department's 2003-2008 strategic plan entirely "omitted obscenity as a prosecution priority." None of that made Brent Ward very happy.)

"In January 2006," the report states, "Ward met with Bogden's First Assistant U.S. Attorney [AUSA] and his Criminal Chief to discuss, in general terms, potential obscenity prosecutions in Nevada. According to Ward, they told him that they were not interested in pursuing adult obscenity cases in Nevada... On August 16, 2006, Ward sent an e-mail to the Task Force trial attorney and the FBI agents assigned to the Task Force stating that he had scheduled a September 6 meeting with Bogden and his staff in Las Vegas to request that a grand jury be opened and that Bogden assign an AUSA to assist in the prosecution. Ward and the trial attorney told us that the Task Force preferred that a local prosecutor take the first chair at trial because of the perceived importance of persuading the jury that the case was an important local issue and not one being pushed solely by attorneys from Washington, D.C."

It is perhaps worthwhile to note that the above is a tacit admission that obscenity prosecutions were indeed "being pushed solely by attorneys from Washington, D.C.," and that during the Five Star trial in Phoenix, the local AUSA, Paul Rood, asked virtually no questions, leaving the "first chair" duties almost exclusively to Task Force prosecutor Ken Whitted – yet another reason to think that obscenity prosecutions played a larger part in the firing of Paul Charlton than the report credits.

"In Ward's prepared outline for the meeting with Sampson," the report continues, "Ward identified several reasons why he believed the Task Force's mission was not succeeding, including insufficient resources and lack of support from the FBI, the Criminal Division front office, and the Office of the Attorney General. Ward's outline also contained the following notation: 'Big districts thumb nose – word gets around CDCA [Central District of California (which includes Los Angeles)], AZ, NV.' Ward told us that he and Sampson discussed during that meeting problems Ward had encountered in the Los Angeles U.S. Attorney's Office (U.S. Attorney Debra Yang), the Phoenix U.S. Attorney's Office (U.S. Attorney Paul Charlton), and the Las Vegas U.S. Attorney's Office (Bogden)." (More evidence that Ward's obscenity mania played a role in Charlton's firing and Yang's resignation.)

Ward got even angrier when Bogden emailed Ward prior to their scheduled meeting on Sept. 6 that he likely wouldn't be able to provide the AUSA that Ward was looking for, due to "severe manning and personnel shortages" in the district. Ward immediately forwarded the email to Kyle Sampson (a fellow Mormon), Gonzales' Chief of Staff Matthew Friedrich and several other senior DOJ officials, remarking, among other disparaging comments about Bogden, "This is now typical and has brought our efforts virtually to a standstill."

"Ward and several FBI agents met with Bogden and several of his senior staff on September 6 in Las Vegas," the report continues. "Bogden said that he also asked the local FBI Special Agent in Charge to attend the meeting with Ward and his team. Bogden said that before the meeting he met alone with Ward and again told him that he lacked the resources to take on the adult obscenity matter."

"In his interview with us, Bogden said that in addition to the resource issue, he did not view the case Ward presented to him as particularly significant. He said it was a 'small potatoes' prosecution that would not have made 'a huge impact.' Bogden also said that the participants in the allegedly obscene acts depicted were the target of the investigation and his wife. Bogden also said that the target lacked significant assets and that there were no money laundering or criminal tax aspects to the case." [Emphasis added, for those who may think large asset forfeitures to the government aren't a significant factor in choosing federal obscenity prosecutions.]

"Bogden also told us that he was not persuaded by the Task Force that venue for the prosecution was in Nevada because it was not clear where the website was located for venue purposes," the report continues. "In addition, Bogden said that the case 'needed a whole lot of work,' and the sole basis for the prosecution was the fact that an agent had viewed the material on the website and thought it obscene. Bogden said he did not consider the videos to be particularly egregious. Bogden said more work was needed regarding the subject, his finances, and the venue issue."

Again, it would appear that Bogden had a better grasp on the realities of what constitutes "obscene material" than did the D.C. DOJ.

Almost needless to say, "Ward disagreed with Bogden's assessment of the case, although he acknowledged that the target had few assets. Ward and the trial attorney said that the target and his wife were participants in the videos, but asserted that other females appeared in the videos as well. Ward and the trial attorney also told us that the material depicted women being abused and engaging in egregious behavior. Ward said he thought the case was a significant matter."

(Of course, we may never know which assessment is more accurate, since the discussed prosecution never took place.)

It was just one week after Ward's meeting with him that Bogden's name was placed on the firing list – and just one week after that – Sept. 20, 2006 – that Ward "sent an e-mail to Sampson with another complaint about Bogden and Charlton: 'We have two U.S. Attorneys who are unwilling to take good cases we have presented to them. They are Paul Charlton in Phoenix (this is urgent) and Dan Bogden in Las Vegas. In light of the AG's comments at the NAC [National Advocacy Center] to "kick butt and take names", what do you suggest I do? Do you think at this point that these names should go through channels to reach the AG, or is it enough for me to give the names to you?'"

Gonzales' talk at the National Advocacy Center, to which Ward referred, took place Sept. 13-15, 2006, and its purpose was "a training seminar for Department personnel and other law enforcement agencies about investigating obscenity cases." It may be recalled that former Attorney General John Ashcroft had held a similar training in May, 2002, attended by the leaders of several pro-censorship organizations as well as U.S. attorneys and FBI agents.

"Sampson responded that Ward should go through regular channels," the report continues. "Ward therefore sent an e-mail that same day to several Criminal Division front office staff stating in part, 'the Attorney General expressed his desire to "take the names" of U.S. Attorneys who will not assign an AUSA on obscenity cases. ... There are two U.S. Attorneys who fit squarely in that category right now, Paul Charlton ... and Dan Bogden ... I would like to position them for calls from the Attorney General.'"

As previously noted, the parenthetical following Charlton's name stating "this is urgent," with Charlton's name having been added to the firing list just one week previous, plus the fact that Gonzales wanted to "take the names" of Bogden and Charlton, continues to be strong evidence that the debacle over Hertzberg's Motion to Dismiss in the Five Star case, filed Aug. 31, was the primary motivating factor for Charlton's name to first appear on the firing list. However, when questioned by the Inspector General, both Sampson and McNulty pleaded "no[] recall" and "no clear recollection" of ever discussing the matter.

The report's section on Bogden then goes on to debunk some of Monica Goodling's other objections to Bogden's job performance, noting that "no one we interviewed raised th[e] contention or offered any evidence that [Las Vegas as a target for terrorism] was considered a reason for removing Bogden."

"Rather, we believe that the primary reason for Bogden's inclusion on the removal list was the complaints by Ward, the head of the Department's Obscenity Prosecution Task Force, about Bogden's decision not to assign a Nevada prosecutor to a Task Force case," the report concluded.

The report's analysis of Paul Charlton's firing is more complicated. Like Bogden, Charlton received a good EARS evaluation, which stated that he was "well-respected" by his peers and the judiciary. Some months after Charlton was placed on list of USAs that "We Now Should Consider Pushing Out" on the same day that Bogden's name also appeared, Goodling prepared a chart for McNulty as to reasons why Charlton was fired. These included, "(1) Charlton advocated for additional resources for his office directly with [Arizona] Senator [John] Kyl; (2) Charlton instituted a policy for tape recording interrogations; (3) Charlton did not timely file a notice that the Department would seek the death penalty in a particular case; and (4) Charlton refused to prosecute obscenity cases."

Those first three reasons, roughly translated, were that when Kyl visited Charlton's office during an annual visit to the area and asked whether there was anything the district needed, Charlton mentioned that he could use more attorneys for his department, but put no pressure on Kyl to do anything about it; that Charlton wanted federal law enforcement officials to tape-record interrogations of suspects, since he believed his office was losing cases due to the lack of such recordings, and that Charlton implemented such a requirement even though it was contrary to department policy; and that Charlton recommended against seeking the death penalty in the case of a murder which had taken place during the course of a drug deal, and that he was late filing the department's notice that it would in fact seek the death penalty in that case.

In short, the report would have its readers believe that Charlton was more likely fired for seeking to do his job better by getting more U.S. attorneys into his office, and tape-recording confessions that would be useful later at trials and during guilty pleas, or for the late filing of one notice to seek the death penalty, when similar slip-ups must take place in every U.S. attorney's office in the country, than because he stood up to Brent Ward's mania to put more pornographers on trial.

The report notes that Ward first spoke with Charlton in March, 2006 to discuss, among others, the Five Star case, although that company is not named in the report.

"Charlton said that Ward requested that Charlton assign an AUSA from his office to act as the 'second chair' to a Task Force trial attorney through the investigation and ultimate prosecution of the case," the report states. "Charlton told us that he initially expressed reluctance to assist the Task Force because he believed his office did not have sufficient resources to take on the additional cases the Task Force had identified. Charlton also said that while he believed that Task Force attorneys should be primarily responsible for the prosecutions, he nevertheless agreed to support the case by assigning a prosecutor to assist the Task Force attorney assigned to the Arizona case."

Those who followed the Five Star case are aware that its course was somewhat unusual, in that before the case finally came to trial in the fall of 2007, the judge who had originally been assigned to the case had been replaced, and the originally-assigned U.S. attorney had somehow managed to be relieved of the case as well – possibly due to exactly the manpower shortage that Charlton had claimed to exist. Despite that shortage, Charlton told the Inspector General's investigators, "Ward tried to persuade Charlton to have his office take over the case or to assist with the trial... E-mail records show that by the end of June 2006, Ward had begun to request that Fisher's office assist him in persuading Charlton and U.S. Attorney Debra Yang of the Central District of California to accept responsibility for prosecution of two Task Force cases... In an August 28, 2006, e-mail, Ward complained to Sampson that the Task Force's efforts were at a standstill because Charlton, Bogden, and Yang refused to take over the obscenity cases the Task Force had identified and had begun to develop in their districts."

While it's unclear which case Ward wanted Yang to take over – the choices seem to be either Max Hardcore or Evil Angel, neither of which had been filed in mid-2006 – the e-mails lend further credence to the likelihood that Charlton was fired and Yang was forced out because they failed to cooperate sufficiently with Ward.

"On August 29, 2006, Ward sent an e-mail to Friedrich stating that Charlton and Bogden's failure to cooperate with the Task Force was going to lead to a 'showdown with the FBI'," the report continues. "Ward also wrote that the FBI seemed to minimize its participation in the Task Force after Charlton allegedly 'thumbed his nose' at Ward and the FBI SAC [Special Agent in Charge] at their May 22, 2006, meeting."

As we already know, however, it's unlikely that it was any lack of cooperation on Charlton's part that caused the FBI to minimize its participation (if it did) in the Task Force: When the memo announcing openings for the bureau's Adult Obscenity Squad was posted in the FBI's Washington headquarters, the agents' reaction to it was generally one of ridicule. According to the Washington Post, "I guess this means we've won the war on terror," said one exasperated FBI agent. "We must not need any more resources for espionage." Others scrawled on the posting itself, "Things I Don't Want On My Resume, Volume Four," and "I already gave at home."

By mid-September, Ward, a confirmed anti-porn zealot – just ask Phil Harvey! – was on the warpath.

"That same day [Sept. 20], Ward again complained to Friedrich and others in the Criminal Division, stating, 'I would like to position them [Charlton and Bogden] for calls from the Attorney General'," the report says. "On September 21, 2006, Ward provided Friedrich with summaries of the 'problem districts' in which he described Charlton as 'a hardened hold-out [who] will probably not budge until the AG calls, if then.' We found no evidence that the Attorney General or anyone else ever called Charlton to discuss these matters."

Sampson told the investigators that it wasn't Ward's complaints that caused him to put Charlton's name on the "to be fired" list, but considering that it happened on the same day that Bogden's name was added, and that there's no question that Bogden was put on because of Ward, maybe Sampson should rethink whether he even recalls why Charlton was added.

The report's bottom line?

"It is unclear whether, and to what extent, the task force leader's complaints about Charlton played a role in his removal."

Seems pretty clear to us!