Former Deputy Attorney General David Ogden, making his first public speaking appearance since leaving the department last month, talked on Tuesday about everything from the failed prosecution of Ted Stevens to proposed legislation on terror prosecutions, the stalled nominations of key officials and the ethics investigation of the lawyers who wrote the so-called torture memos.
Ogden said that, "in theory," enacting detainee legislation “makes sense as a matter of good government” but noted that political difficulties could stand in the way. Sen. Lindsey Graham (R-S.C.) has proposed legislation to create a congressionally mandated framework for the prosecution of terror suspects, The Washington Post reported Tuesday.
Ogden, who returned to the Washington office of Wilmer Cutler Pickering Hale and Dorr after his Justice stint, delivered his remarks at American University Washington College of Law and then took questions from Professor Daniel Marcus, with whom Ogden had worked at Justice during the Clinton administration. The entire session lasted about 90 minutes.
Ogden said the department’s decision to ditch the Ted Stevens prosecution amid allegations of prosecutorial misconduct was “painful.” The department, he said, “abandoned a case it believed in on the merits.” Attorney General Eric Holder’s Jr.’s decision, in April 2009, rankled career prosecutors and hurt morale, Ogden admitted. (A criminal investigation of the prosecution team is ongoing.)
Still, Ogden defended the decision. “I believe it was the right thing to do based on the circumstances of that case.” It served a broader point, he said—that Justice will respect the rights of defendants at all costs. The department has since implemented new guidelines for criminal discovery and increased training for prosecutors. Ogden said a an internal review of discovery practices showed that intentional violations were infrequent and most stemmed from a lack of training.
On the delayed nominations of several assistant attorneys general, Ogden said, “It causes problems for the department not to have key” positions filled.
Dawn Johnsen’s nomination for head of the Office of Legal Counsel has stalled amid Republican criticism of her views on national security and abortion. Ogden called Johnsen a “brilliant” lawyer. “It would make a big difference to have her in there,” he said. “It’s just not right that it’s been held up so long.” Ogden also praised the work being done by David Barron, the acting head of OLC. Barron, a former Harvard Law School professor, was appointed last year as the principal deputy assistant attorney general in OLC.
Ogden defended the department’s ethics review process, which has come under fire recently for the investigation of former OLC attorneys John Yoo and Jay Bybee, the authors of the so-called torture memos. A career lawyer, David Margolis, rejected the Office of Professional Responsibility’s recommendation that Yoo and Bybee be referred to state bar disciplinary authorities. Ogden called Margolis a “diligent, hard-working and principled” lawyer.
Ogden said DOJ officials examined whether to break from what he said was traditional procedure in having a career official have the final say on ethics investigations.
“We thought about the question of whether, for some reason, we should deviate from that given the importance and profile of this,” Ogden said. "It would be a mistake because, what happens if a political appointee, albeit one of unimpeachable good faith, reverses, disagrees with David Margolis, or agrees with him. Does that help anybody at all?"