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.

Published April 19, 2007 11:50AM (EDT)

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."

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.

By Mark Follman

Mark Follman is Salon's deputy news editor. Read his other articles here.

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