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Justice Job Considered For Ousted Prosecutor

By Paul Kane
washingtonpost.com Staff Writer
Tuesday, March 20, 2007

With the Senate poised to rein in the attorney general's powers to appoint federal prosecutors, the Justice Department is engaged in discussions aimed at giving a new job to one of the seven U.S. attorneys dismissed without explanation on Dec. 7, according to a Capitol Hill Republican.

Under fierce pressure from a Senate Republican, Justice Department officials are considering a new position for Daniel Bogden, the ousted U.S. attorney from Nevada who, agency officials explained to Congress, was dismissed in an effort to get "new energy" into the job.

An aide to Sen. John Ensign said finding a new job for the fired prosecutor would be a key step in restoring his reputation, which the Nevada Republican has set as a benchmark for whether he will continue to support Attorney General Alberto R. Gonzales remaining in office.

"The talks are between the Justice Department and Daniel Bogden," said Tory Mazzola, Ensign's spokesman.

Bogden did not return a call seeking comment yesterday, and Justice officials declined to comment.

Ensign's fight on behalf of Bogden is emblematic of the way many senators, Republicans and Democrats alike, have come to view the prosecutor controversy: as an assault on their privileges, which traditionally allow them great leeway in choosing federal prosecutors and judges from their states.

The Senate opened debate yesterday on legislation that would strip the attorney general of a power, granted to him in the 2006 reauthorization of the USA Patriot Act, to appoint interim U.S. attorneys for indefinite periods without Senate confirmation. After earlier resistance from Gonzales and Senate Republicans, the bill is expected to pass easily amid continued fallout from the scandal.

Democrats say that the Bush administration used the new power as a means to fire U.S. attorneys who were not "loyal Bushies" -- a phrase used by Gonzales's top aide, D. Kyle Sampson, who has since resigned, in crafting the dismissal proposal -- and then to circumvent the Senate in the confirmation process.

"We need to close the loophole exploited by the Department of Justice and the White House that facilitated this abuse," Judiciary Chairman Patrick J. Leahy (D-Vt.) said yesterday.

Previously, if U.S. attorneys left mid-term, the White House and the Senate had 120 days to nominate and confirm a successor. Otherwise, a federal judge from that prosecutorial district would appoint an interim U.S. attorney while the Senate considered the nomination.

But, in an almost completely overlooked provision, the Patriot Act included a measure taking that power from judges and handing it to the attorney general, with the appointment running for an indefinite period. According to Sen. Arlen Specter (R-Pa.), the Judiciary Committee chairman at the time, the change was pushed by a senior Justice official and inserted into the reauthorization by his chief counsel.

Gonzales testified in January that he never intended to circumvent the Senate's long-held privilege of "advice and consent" in nominations when selecting successors to the fired prosecutors. But, in e-mails released last week, Sampson described a plan to use the power to install their favored candidates, particularly a former aide to White House adviser Karl Rove.

The former Rove aide, Tim Griffin, was opposed for the job by Sen. Mark Pryor (D-Ark.), who under Leahy's practices on the committee would have had home-state privileges of blocking any nominee he opposed. But Sampson outlined a plan to install Griffin and then "run out the clock" by pretending to engage Pryor in consultation over who would receive the permanent appointment.

Upon reading Sampson's e-mails, Pryor -- one of six Senate Democrats to vote for his confirmation -- said Gonzales is a "liar" and called for his resignation.

House Speaker Nancy Pelosi (Calif.), in an interview yesterday with Chicago media, joined the chorus of Democrats criticizing the attorney general but stopped short of asking for his resignation.

"I don't think Alberto Gonzales fundamentally understood the difference between being the president's lawyer and the attorney general of the United States and the premier defender of the Constitution," she said.

Two Senate Republicans, John E. Sununu (N.H.) and Gordon Smith (Ore.), both facing potentially difficult reelections next year, have called for Gonzales's removal.

But Ensign has been perhaps the most vocal GOP critic of the attorney general who has not sought his resignation. Ensign first put Bogden's name forward for the prosecutor's job in 2001, one of the first federal appointments he advanced after winning his seat in 2000.

In a news conference last week, Ensign called for Gonzales to "restore" Bogden's reputation, noting that the attorney general's repeated assertions that the prosecutors had been fired for performance or policy reasons were not accurate.

Later in the week, Ensign told The Washington Post that "the jury is out" on Gonzales's continued tenure, continuing his call for some public gesture on Bogden's behalf.

While he doubted Bogden would get his job back, Ensign suggested that Gonzales might "find him something in the Justice Department."

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