Another wrinkle in Bush/DOJ Attorneys' scandal: employment discrimination

At The Atlantic Murray Waas discusses the controversial firing of Daniel Bogden, one of the 9 US Attorneys sacked by the Bush administration in 2006 apparently for political reasons. No justification has ever been identified publicly for firing Bogden, a career government lawyer who was highly respected. Waas highlights one aspect of the firing, without however noting its legal significance.

Attorney General Alberto Gonzales' deputy, Paul McNulty, repeatedly raised objections to firing Bogden with Gonzales' chief of staff, Kyle Sampson. At one DOJ meeting, McNulty argued that they should take into account Bogden's family. When told that Bogden is a bachelor, however, McNulty dropped his objection to firing him.

Waas does not note that federal law prohibits employment discrimination based on marital status. Thus Bogden appears to have a solid legal case for demanding reinstatement to his former job as US Attorney for Nevada.

Here is the relevant section of Waas' article:

But if Dan Bogden was unable to learn from the report why he was fired, he was able to find out something else about the circumstances of his firing: If he had had a wife and kids at home, he might not have lost his job at all.

As it turns out, McNulty had expressed qualms to other Justice Department officials about getting rid of Bogden, Just prior to Bogden’s firing, according to the DOJ report,McNulty emailed Sampson to say, “I am a little skittish about Bogden. He has been with DOJ since 1990 and at age 50 has never had a job outside government…. I’ll admit [I] haven’t looked at his district’s performance. Sorry to be raising this again/now… It is just on my mind last night and this morning.”

Indeed, Bogden’s entire life had been devoted to public service. Upon graduating from law school in 1982, he had become a member of the United States Air Force Judge Advocate General’s Office, where he remained for five years. Then, from 1987 until 1990, he served as a prosecutor for the Washoe County District Attorney’s Office in Reno, Nevada. In 1990, he became an assistant U.S. attorney in Nevada and, in 2001, he was named to the top job.

Shortly after McNulty conveyed his qualms to Sampson via email, McNulty reiterated the concerns in a meeting. He “came into my office,” Sampson told investigators . “I’m concerned about Bogden,” MCNulty told Sampson and a few other senior DOJ officials in the room. “… he’s 50, hasn’t had a job in [the] private sector, and what about his family.”

According to Sampson’s account, another senior official corrected McNulty: “He’s a bachelor,” the official said, “He’s single.”

As Sampson recalled to investigators, McNulty responded, “Okay never mind.” McNulty, Sampson said, “then got up and left my office.”

When questioned by investigators, McNulty did not disagree with Sampson’s basic version of events. Having learned that Dan Bogden was a bachelor, McNulty recalled, “I guess I don't have any objection [anymore] to going forward.”

Here is the relevant part of the Justice Dept. report on the firing of the US Attorneys, which Waas draws upon:

McNulty continued to be concerned about Bogden’s removal. On December 5, 2006, 2 days before the plan to remove the U.S. Attorneys was to be executed, McNulty sent an e-mail to Sampson stating:

I’m still a little skittish about Bogden. He has been with DOJ since 1990 and, at age 50, has never had a job outside government . . . . I’ll admit [I] have not looked at his district’s performance. Sorry to be raising this again/now; it was just on my mind last night and this morning.

After McNulty sent this e-mail, he met with Sampson to discuss his concerns about removing Bogden. Elston or Mercer may also have been present at the meeting. Sampson testified that “his best guess” was that the meeting lasted “about 90 seconds.” When asked what occurred during those 90 seconds Sampson stated:

My recollection is that Mr. McNulty and those other people came into my office, and I said, “I got your e-mail.” And he said, “I’m just concerned about Bogden” – you know, essentially what he says in the e-mail, about that he’s 50, hasn’t had a job in [the] private sector, and what about his family. And I think Mike Elston or Bill Mercer said, “He’s a bachelor. He’s single.” And Mr. McNulty said, “Okay. Never mind,” and then got up and left my office.

Elston denied that he ever told McNulty that Bogden was single, and stated that he never knew Bogden’s marital status. Mercer, who was the Principal Associate Deputy Attorney General at the time, also denied telling McNulty at this meeting that Bogden was single.135

According to McNulty, he told Sampson that he was “worried about [Bogden’s] wife and kids. I was worried it might have an impact on his family . . . .” McNulty said that Sampson told him that Bogden “didn’t have a family, he was single.” McNulty said he then replied “I guess I don’t have any objection to going forward.”

Wonder why nobody wanted to take credit afterwards for introducing the (non-)issue of Bogden's bachelorhood into the deliberations about his firing?