Bench Memos

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DAG Nominee David Ogden and Knox v. United States—Part 1


Among the many cases in which Deputy Attorney General nominee David Ogden has advocated the interests of the porn industry is a child-pornography case, Knox v. United States, that caused considerable embarrassment to the Clinton administration.  In that case, the Department of Justice under President George H.W. Bush had successfully prosecuted Stephen A. Knox for violating a federal anti-pornography law.  But when Knox sought Supreme Court review of the federal appellate decision upholding his conviction, Clinton’s Solicitor General Drew Days surprised the Court by reversing the government’s position and refusing to defend the conviction.  After the Senate condemned Days’ action by a 100-0 vote and the House did so by a 425-3 vote, Clinton publicly chastised Days and Attorney General Reno eventually overturned his position.

On behalf of the ACLU and other clients, Ogden submitted a Supreme Court brief that advocated the same statutory and constitutional positions that Days has taken.  So the Senate is now being asked to confirm as Deputy Attorney General someone who advocated the same extreme positions on a federal child-pornography statute that the Senate unanimously repudiated 16 years ago.  Is that what President Obama means by change you can believe in?

Yes, yes, I can hear the objections that Ogden was merely representing his client.  But that argument is unsatisfactory in two respects.  First, Ogden has extensively represented the porn industry and its interests.  It is an entirely sensible (though certainly not infallible) inference that he is sympathetic to their interests.  Second, as I will discuss in Part 2, a previously undisclosed memo provides evidence that Ogden has long had an ideological agenda in favor of obscenity and pornography and that he has sought to use his position in government to twist the law to advance his agenda.

Tags: Whelan


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