The U.S. attorneys scandal gets dirty

Mary Beth Buchanan, a U.S. attorney in western Pennsylvania who has also served in several executive roles in the Justice Department since 2001, has led two obscenity prosecutions under Gonzales. One was a reinstated case against online purveyors of hardcore videos, a case Buchanan had first pursued in 2003 but that had been thrown out by a federal judge as unconstitutional. She also prosecuted a 2006 case against a woman who published stories about child molestation -- which were fictional and contained no images -- on the Internet. "I cannot imagine material more offensive," Buchanan said about the fictional, text-only stories in the case.

Last year Buchanan reportedly consulted with Sampson as he worked on identifying U.S. attorneys to be fired. Just prior to the group firing in early December, Buchanan received another prestigious appointment, when President Bush tapped her to head the Justice Department's Office on Violence Against Women.

William Mercer, the U.S. attorney for Montana, continued his own multiyear campaign against obscenity in 2005, prosecuting two men for conspiring to transport obscene materials. Like Buchanan, Mercer has served simultaneously in an executive role at Justice; he was first tapped by Gonzales in 2005 to be principal associate deputy attorney general. His absence for duties in Washington prompted a chief federal judge to call Mercer's Montana office "a mess" from lack of leadership and to demand that Gonzales replace him, though Mercer still allotted time back home to convict the two men for shipping hardcore videotapes. That followed a 2004 prosecution he conducted against a purveyor of such video titles as "Ride'um Cowgirl" and "Dogs and Horses and Pigs and Chickens," a case Mercer hailed as Montana's first ever win on obscenity.

In September 2006, Mercer got a second promotion at Main Justice, when Bush appointed him to be associate attorney general. Now Gonzales' third in command, Mercer was involved in various communications concerning the group firing of U.S. attorneys, including telling Bogden and Charlton that they were being forced out so that other Bush appointees could have their posts.

Bogden maintained in the recent phone interview that he was never told by superiors of any concerns they may have had with him about policy or performance, including on obscenity.

Charlton gave similar testimony to Congress in early March, as did several of Bogden and Charlton's colleagues who were fired. In Charlton's case, top officials offered contradictory reasons for his dismissal. He also drew criticism over drug enforcement, though a senior Justice Department official defended Charlton at length on that issue in an e-mail exchange made public last month by congressional investigators. Meanwhile, in testimony in March, Associate Deputy Attorney General William Moschella gave an entirely different set of reasons, telling lawmakers that Charlton was fired for his views on the death penalty and recording the confessions of suspects interviewed by law enforcement officials.

But Ward's criticism of Charlton on obscenity, which later appeared on a chart of alleged performance problems circulated to top Justice Department and White House officials, is an especially curious twist. The Arizona U.S. attorney's office in fact worked on two obscenity cases under Gonzales -- as many as any other U.S. attorney's office in the nation. Its case targeting the distribution of porn via SPAM was the first of its kind and had the potential to benefit the public much more broadly than any prior obscenity prosecution. The other case, on which Charlton's staff was assisting one of Ward's task force prosecutors from Washington, targeted a hardcore porn distributor called Five Star Video.

The Five Star Video case was already months under way when Ward visited in September 2006, but Ward was requesting that Charlton commit additional resources, according to an attorney knowledgeable about the staffing and caseload of the Arizona U.S. attorney's office. Ward wanted a local prosecutor to help take the case through trial because he was concerned about getting a conviction per local community standards with only a Washington lawyer sitting at the table.

At the time, the Arizona office was 20 percent understaffed with prosecutors, according to the attorney, and had already been forced to cut back on its criminal caseload. The office would've had to take a prosecutor off another case to go to trial with Ward's case. "You're literally robbing Peter to pay Paul," the attorney said. That concern was raised with Ward, particularly regarding cases on child exploitation. "There were enough of those cases for the Arizona office to be doing them 24/7," the attorney said. "Nobody debates that if resources are limited, those cases should be a priority over cases involving material with consenting adults."

The staffing shortages that forced such choices were raised with Gonzales at least as early as July 2006. That month, the attorney general received a letter from senior House Democrats Henry Waxman of California and John Conyers of Michigan detailing an investigation into budget cuts at the Justice Department. "U.S. attorneys offices across the nation are severely understaffed," the letter warned. "Due to hiring freezes, experienced prosecutors who leave for the private sector are not being replaced. In several key offices, 20% or more of prosecutor positions remain unfilled." The letter noted "eight to ten vacancies" in the Arizona office.

Between the strain on resources and an array of demands on criminal divisions around the country, Gonzales' obscenity conference in October 2006 raised some eyebrows. "It was meant to rally the troops and get them excited, and they presented it as another priority that needed to be done," said the senior law enforcement official who attended. "But people were wondering why we were having a national conference on this. For starters, what's obscene in Dubuque won't even bat an eye in Las Vegas. And we've got a lot of more serious problems out there."

Bud Cummins, who was the U.S. attorney for the Eastern District of Arkansas from 2001 until he was forced out last year, says that adult obscenity was discussed several times in his district after Gonzales declared it a priority, but no agency ever brought his office a case. "I wouldn't have refused, but we would have studied any case presented for any of the legitimate issues that make such prosecutions difficult," Cummins said by phone recently. "That is what we were getting paid for. I would have certainly been cautious about pursuing obscenity cases, even here in the heart of the Bible Belt." He said that the apparent heat on Bogden for exercising caution and discretion over obscenity prosecutions in a place like Las Vegas is "pretty ridiculous." As with every other issue raised about the fired U.S. attorneys' performance, he added, "nobody told Dan he wasn't doing what they wanted on obscenity. At best, that is lousy management. At worst, it is a pretext for something else they don't want to discuss."

In an Op-Ed in last Sunday's Washington Post, Gonzales gave a preview of his congressional testimony to come. He apologized for his poor handling of the U.S. attorney firings, while maintaining that none of them had been carried out for "an improper reason."

He ended on an upbeat note, emphasizing that he looked forward to furthering "the great goals of our department" in the coming weeks and months. "During the past two years," Gonzales wrote, "we have made great strides in securing our country from terrorism, protecting our neighborhoods from gangs and drugs, shielding our children from predators and pedophiles, and protecting the public trust by prosecuting public corruption."

Adult obscenity did not make his list.

Additional research for this story was contributed by Salon editorial fellow Jonathan Vanian.

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