Out of DOJ, Former Deputy Attorney General Ogden Opens Up

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?"

Comments

[Joltinjoe]

The U. S. Justice Department has failed to remember that it's attorneys wear 2 hats. One: for zealous advocacy for their particular case, and Two: Justice. They shoould never try to win a case that is unjust. An unjust case is one where the evidence doesn't support a conviction. Individual egos get in the way of justice. Prosecutors seem to be of the ilk that just can't let a certain case go when it is already gone. If it is not ego, then it is politics. Heaven forbid. Now you know!

[Eric Rasmusen]

The conduct of the Justice Dept. in the Stevens case--- which gave Democrats their crucial 60th vote in the Senate--- h was disgraceful. I don't know if it would have been admissible in a retrial, but if it was, how could they have gotten a conviction anyway?

It doesn't say good things about Ogden if he is more concerned about the department's morale than about its criminal violations:

"U.S. District Judge Emmet Sullivan called "outrageous" the conduct of lawyers from the Justice Department's Public Integrity Section, including unit chief William Welch and deputy Brenda Morris. He held the lawyers in contempt after they conceded having "no reason" to withhold the evidence.

"That was a court order, it wasn't a request," an irate Judge Sullivan said. "Isn't the Justice Department taking court orders seriously these days?" ...

Friday is not the first time prosecutors in the case angered Judge Sullivan.

During the trial, he chided them for failing to turn over evidence that potentially may have helped Stevens. Prosecutors maintained they made honest mistakes, and the judge ultimately determined the misconduct wasn't serious enough to warrant a dismissal....

But an unusual amount of post-trial activity has brought serious challenges to the candor of prosecutors, which Stevens' lawyers are seizing on to ask Judge Sullivan to overturn the verdict.

First, a witness claimed he committed perjury and the government knew it. That was followed by an explosive complaint in which an FBI agent who worked on the case made allegations of widespread prosecutorial misconduct. ..."

http://www.washingtontimes.com/news/2009/feb/14/ted-stevens-prosecutors-held-in-contempt/