The U.S. attorneys scandal gets dirty

As Congress prepares to grill Alberto Gonzales, Salon has uncovered another partisan issue connected to the mass firings: Pornography.

By Mark Follman

Read more: Pornography, Las Vegas, Politics, Department of Justice, News, Attorney General, Pedophilia, Mark Follman, Alberto Gonzales, U.S. Attorneys, Bud Cummins

April 19, 2007 | Facing a torrent of criticism that the Department of Justice has been tainted by politics, Alberto Gonzales is poised for the defense argument of his life. The attorney general must explain to Congress an accumulation of embarrassing partisan e-mails and inaccurate statements by top Bush officials, which have helped transform the quiet firing of eight U.S. attorneys last year into an explosive Washington scandal.

Gonzales will be grilled about alleged Republican meddling on issues from corruption to cronyism, widely documented in the four months since the purge. But a Salon investigation has uncovered another partisan issue dirtying the U.S. attorneys scandal: adult pornography.

Questions remain about the real reasons behind the firings and to what degree the nation's chief prosecutors were pressured to carry out the political agenda of the White House and its Republican allies. There is evidence that the politicization of the Justice Department has included recasting the Civil Rights Division and pushing election-fraud investigations in ways favorable to Republicans. Some U.S. attorneys were told they were being forced out of their posts so that up-and-coming Bush loyalists could have a chance to burnish their résumés for yet higher political appointments. Troubling allegations persist that some U.S. attorneys were fired to thwart corruption probes against Republican officials.

Although the prosecution of adult obscenity has long been a fixation for right-wing Republicans, since the Reagan era it has never been more than a negligible fraction of the Justice Department's work. Yet, the alleged failure of two U.S. attorneys to go after porn prosecutions became part of a dubious set of "performance-related" reasons given by top officials for the recent firings. Meanwhile, several of the small handful of porn cases done under Gonzales were conducted by high-ranking officials close to the attorney general. Those officials were also involved in the group firing of the U.S. attorneys, and two of them recently received promotions.

Two of the fired U.S. attorneys, Dan Bogden of Nevada and Paul Charlton of Arizona, were pressured by a top Justice Department official last fall to commit resources to adult obscenity cases, even though both of their offices faced serious shortages of manpower. Each of them warned top officials that pursuing the obscenity cases would force them to pull prosecutors away from other significant criminal investigations. In Nevada, ongoing cases included gang violence and racketeering, corporate healthcare fraud, and the prosecution of a Republican official on corruption charges. In Arizona, they included multiple investigations of child exploitation, including "traveler" cases in which pedophiles arrive from elsewhere to meet children they've targeted online.

The U.S. attorneys' doubts about prioritizing obscenity cases drew the ire of Brent Ward, the director of the Obscenity Prosecution Task Force in Washington, who went on to tell top Justice Department officials that the two were insubordinate over the issue. But the obscenity case that Ward pressured Bogden to pursue was "woefully deficient" according to a former senior law enforcement official who spoke to Salon last month. And Charlton's office was in fact on the leading edge of adult obscenity prosecutions, including a recent case aimed at stopping pornography distributed via SPAM e-mail.

According to Bogden, his office was short eight of its allotted 45 criminal prosecutors when Ward paid a visit last September to present the porn case he wanted handled in Nevada.

"I would have had to take someone else off another criminal case to put them on it," Bogden said in a recent phone interview. At the time, the Nevada U.S. attorney's office was maxed out with several high-profile prosecutions. A public corruption trial was just beginning against Lance Malone, a Republican county commissioner accused of accepting bribes and violating the RICO act. (Several of his fellow commissioners, all Democrats, had already plea-bargained or been convicted.) A major case was under way against corporate officials for Medicare fraud and kickbacks to doctors totaling $22 million. Less than two weeks after Ward's visit, multiple trials were set to begin involving more than 40 members of the Hell's Angels for a violent confrontation with a rival gang inside a Harrah's Casino, using firearms, knives, hammers and wrenches, that had resulted in three deaths.

After determining that Ward's obscenity case was thin and would require a lot of work, Bogden suggested that the case wait until January, when two new prosecutors were slated to join Bogden's staff. "Mr. Ward went along with that plan," Bogden said. "He said, OK fine, we'll wait till after the first of the year."

Bogden said he never heard anything else about the matter from Ward or anyone else in Washington -- though by then Ward had already e-mailed a superior in the deputy attorney general's office calling Bogden a "defiant U.S. attorney" who was offering "lame excuses."

Adult obscenity prosecutions are notoriously difficult to win, since prosecutors must show that materials involving and used by consenting adults have violated local "community standards." In the post-9/11 era, law enforcement experts have questioned whether a focus on federal obscenity cases makes sense, given the massive resources diverted to counterterrorism and the demands of other criminal priorities like gun violence, identity theft and the proliferation via the Internet of sex crimes against children.

"With everything else going on, should they really have FBI agents and prosecutors devoted to sitting around watching dirty movies?" said a senior law enforcement official who attended a national conference on adult obscenity orchestrated by the Gonzales Justice Department in October 2006. "We're not the policymakers," he said. "But I guarantee you won't find any office in any major metropolitan area that would seriously consider this a priority."

But Gonzales apparently considered it one. After taking the helm of the Justice Department he declared the prosecution of adult obscenity a top priority, launching a new task force devoted to it in May 2005. His renewed war on porn, an agenda that had gathered dust ever since the publication of the obscenely large Meese Report in 1986, was seen by some political observers as a sop to right-wing Republicans who suspected Gonzales wasn't authentically conservative on social issues. His answer to those doubts was a task force that would pack the punch of four full-time attorneys, a postal inspector, an IRS agent and computer and forensics experts in the Justice Department, and would coordinate with a new Adult Obscenity Squad at the FBI, 10 agents strong.

Nonetheless, obscenity cases have remained a minuscule portion of the Justice Department's prosecutions since Gonzales launched the initiative -- fewer than 10 among the more than 20,000 criminal cases carried out each year, according to Justice Department statistics and research by Salon.

Four of the obscenity cases were conducted by three high-ranking officials close to Gonzales.

Ward, who zealously went after porn as a U.S. attorney himself in Utah in the 1980s, helped argue a 2006 case in Florida against the producer of the widely advertised and sold "Girls Gone Wild" videos. Although the videos pale by comparison with explicit sexual material available all over television and the Internet, Ward found an angle with which he could score a win: The producer had failed to properly document whether a number of the young women flashing some skin for his cameras were of legal age.

After pressing Bogden and Charlton last fall to devote resources to obscenity prosecutions in each of their states, Ward disparaged the two U.S. attorneys as "unwilling to take good cases" in an e-mail to Kyle Sampson, Gonzales' recently resigned chief of staff. Sampson was coordinating with White House lawyers on a hit list of U.S. attorneys to be replaced. "If you want to act on what I give you," Ward wrote to Sampson, "I will be glad to provide a little more context for each of the two situations."

Next page: A serious warning sent to Attorney General Gonzales in July 2006