A bipartisan group of eight former Deputy Attorneys General on Wednesday sent a letter to Senate Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) encouraging the Senate to consider the nomination of James Cole to be the Justice Department’s No. 2 official.

“Because of the responsibilities of the position of deputy attorney general, votes on nominations for this position usually proceed quickly,” the letter said.

The letter was signed by three former DAGs from the George W. Bush administration, Mark R. Filip, Paul J. McNulty, and Larry D. Thompson; two from the Clinton administration, Jamie Gorelick and Philip Heymann; one from the George H.W. Bush administration, Donald B. Ayer, and Carole E. Dinkins, who served during the Reagan administration.

President Barack Obama’s first DAG, David W. Ogden, who created the opening for Cole when he resigned in February, also signed the letter.

Obama nominated Cole on May 24. The Senate Judiciary Committee passed him out of committee on July 20. The former DOJ officials wrote that Cole’s nomination has been pending before the Senate for 120 days; the longest for a DAG in the past 20 years has been 32 days.

Senate Republicans have objected to a 2002 article Cole wrote in support in of civilian trials for terrorism suspects, and to his work as a corporate monitor for insurance giant American International Group Inc., one of the biggest recipients of government bailout funds during the financial crisis.

Cole is a white collar defense lawyer and partner at Bryan Cave LLP. As a special counsel to the House ethics committee in the mid 1990s, he investigated then-Speaker Newt Gingrich (R-Ga.) for misuse of tax-exempt organizations for political purposes.

If Cole isn’t approved before the 111th Congress adjourns in coming weeks, the White House will have to renominate him or find another candidate. The deputy attorney general is the day-to-day manager of the department.

Although acting DAG Gary Grindler is “capable,” he doesn’t have full authority on crucial national security decisions, the ex-DAGs wrote. Only a Senate-confirmed deputy can sign applications to the Foreign Intelligence Surveillance Court, the letter noted. The FISA court authorizes wiretaps to listen in on suspected foreign terrorists in the United States.

David Ogden (WilmerHale)

Monday marked the return of former Deputy Attorney General David Ogden to Wilmer Cutler Pickering Hale and Dorr LLP, according to a firm news release. In February, Ogden stepped down from his Justice Department post after less than a year.

Ogden will serve as co-chairman of the firm’s government and regulatory litigation group, according to the release.

In announcing his departure from DOJ in December, Ogden in a statement said he had taken the deputy position with the intention of returning to his private practice once he had helped the department repair its image, which he said was tarnished by the Bush administration.

“It was an honor to serve the American people as the Deputy Attorney General,” Ogden said in the release. “I am excited to be rejoining my friends and colleagues at Wilmer Hale, and I look forward to returning to my law practice.”

“We are very pleased that David has decided to return to Wilmer Hale,” William J. Perlstein, co-managing partner at Wilmer Hale, said in the release. “During his time as Deputy Attorney General, he played a significant role in revitalizing the Department and accomplished a great deal while seeking justice for the American people. David is an outstanding lawyer with keen legal judgment. We’re all eager to begin working with him again.”

This post has been updated from a previous version.

Former Deputy Attorney General David Ogden said he supported legislation governing long-term detention of suspected terrorists “in theory” but acknowledged political difficulties in enacting it.

David Ogden speaks at a Department of Justice event (Photo by Ryan J. Reilly / Main Justice).

“I think it makes sense as a matter of good government, in theory, to have with something of this magnitude a political consensus that would come out of legislation,” Ogden said Tuesday at American University Washington College of Law, his first public appearance since stepping down in February. He added that it “would be a desirable thing” to have a process, loaded on the executive branch rather than the courts, to guide the administration as suspected terrorists are scooped up around the world.

But he said that the possibility of a defective law gave him pause. And the politics would be tough with the diversity of views on the issue, said Ogden, now a partner at Wilmer Cutler Pickering Hale and Dorr LLP.

His remarks came on the same day The Washington Post reported that Sen. Lindsey Graham (R-S.C.) had submitted draft legislation to the White House that would develop a framework for handling terrorism suspects. The White House is urging Democrats to give the proposal serious consideration in hopes of striking a deal that would lead to the closure U.S. military prison at Guantanamo Bay, Cuba, and resolve other detainee-related issues.

A task force created by President Barack Obama on his second day of office recommended in January of this year that 50 of the nearly 200 detainees at Guantanamo Bay be held indefinitely. Until recently, the administration had not shown an interest in pursuing legislation that would change the current process of judicial review. Guantanamo detainees can challenge their confinement in federal court in Washington, but some judges on the court have asked for guidance from Congress, and thorny questions remain about indefinite detention and what process should be afforded to suspected terrorists held outside the United States.

On Tuesday, Ogden gave a speech on the restoring the Justice Department and was interviewed by American University law professor Daniel Marcus, a former Associate Attorney General in the Clinton administration who has been named as Ogden’s possible successor as DAG.

Marcus, who also served as general counsel to the 9/11 Commission, focused heavily on national security issues, at one point asking Ogden about a controversial ethics finding against the former Office of Legal Counsel lawyers who approved waterboarding and other interrogation methods. The Office of Professional Responsibility concluded that lawyers Jay Bybee, now a federal judge, and John Yoo, now a law professor, violated professional standards. A career official in Ogden’s former office, David Margolis, downgraded the finding of misconduct to “poor judgment.”

Ogden said the matter raised “big questions” about the role of the ethics office. ”I think there are real questions about the ability of…an ethics watchdog to really evaluate potential violations by an office like OLC, where the gist of the ethical allegations is that the opinion was so wrong that it couldn’t be in good faith,” he said. “This is really hifalutin stuff that these folks do. They’re the smartest — you hope anyway — they’re the smartest lawyers the government can find and put in that situation, and it’s tough to have other folks come in and look over their shoulder and say, ‘You know what, not only are you wrong, but you’re so outrageously wrong that I think you acted in bad faith’ — not to say that if someone did act in bad faith they shouldn’t be subject to discipline. It’s a really hard thing to do and a really hard thing to look at.”

While the five-year investigation and report-drafting process raised several novel issues, Ogden said, the decision to let Margolis have final say was in keeping with department precedent. Margolis, who as Associate Deputy Attorney General is the department’s senior career official, has overseen the ethics office since 1993.

“We took a look at this one, we thought about the question of whether for some reason we should deviate from that given the importance and profile of this,” Ogden said.

He concluded that ”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? It seems to me it doesn’t, particularly where that would be unusual.”

He added: “I’m a great believer… in normal process, and that’s what the normal process was.”

Watch David Ogden’s speech here.

David Ogden (Photo by Ryan J. Reilly / Main Justice).

Former Deputy Attorney General David Ogden is slated later this month to give his first public remarks since leaving the Justice Department.

His speech, on “Restoring the Department of Justice,” is scheduled for March 23 at American University Washington College of Law, according to a notice circulated to students and faculty within the school. Ogden is expected to discuss the “Obama Administration’s agenda for reform and restoration of the Justice Department; the progress made on achieving those goals during the first year of the Administration; and the outlook for the future,” the notice said.

After his remarks, he will be interviewed by Daniel Marcus, a law professor at American and former Associate Attorney General who, incidentally, has been named as Ogden’s possible successor at the department.

Ogden, who led the Obama administration’s Justice transition team, was confirmed as the department’s No. 2 official in March 2009 and stepped down in February of this year, his tenure shortened by disagreements with Attorney General Eric Holder over management issues.

Ogden has returned to the law firm Wilmer Cutler Pickering Hale and Dorr LLP, which he joined as a partner after serving various roles in the department during the Clinton administration. (His e-mail away message says he’ll begin working full time in April.) He is co-chair of the firm’s Government and Regulatory Litigation Practice Group and handles international legal disputes, regulatory litigation and government investigations.

The Justice Department wants to add dozens of tech-savvy staffers and several lawyers to handle the new problems posed by evolving technologies during the legal discovery process, according to the Justice Department’s budget proposal for fiscal 2011.

The Civil Division of the Justice Department is requesting 12 new positions and a $2 million budget increase, because it doesn’t have enough support staff with technical expertise. The Environment and Natural Resources Division has requested an additional $1 million and nine new positions. And, the Executive Office for U.S. Attorneys, which has no electronic discovery support in place, would like $2 million, to fund 12 new positions for electronic discovery and litigation support.

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“It’s going to be a mess. That much is clear,” said an expert on figuring out how to handle the issue of e-discovery.

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Newly appointed National Coordinator of Criminal Discovery Initiatives Andrew Goldsmith will act as the primary liaison to all of the United States Attorneys’ Offices and department components on issues related to electronic evidence in criminal cases, according to the Justice Department.

In May, former Deputy Attorney General David Ogden said that the department had established a working group under the direction of the Associate Attorney General, Tom Perrelli, “to look at our civil discovery practices and capabilities to ensure our litigators have the training and resources necessary to deal with the current demands in the electronic era.”

A Justice Department spokeswoman confirmed to Main Justice that the department is beefing up its training and seeking additional funding to hire new attorneys and technical staff.

“Based on interviews with e-discovery specialists from large, private law firms, it appears that the private sector is adapting to the demands of e-discovery by developing a cadre of lawyers with more sophisticated technological expertise,” according to a DOJ budget request for the Civil Division. The Civil Division will hire several “Tier-3” attorneys with e-discovery expertise to perform a number of functions including overseeing staff and coordinating with the government agencies they represent.

Consultant George Socha, the co-founder of the Electronic Discovery Reference Mode, which develops guidelines and standards for clients on the issues of electronic discovery, said the federal government, like private industry, is still figuring out the problems posed by new technology.

Unlike with paper, if you pick up a hard drive, said Socha, “you don’t have a clue what’s on it.” The amount of data that both government and private firms are dealing with is astronomical, according to Socha.

Varying requirements for the storage of information across the government agencies that the Civil Division has to defend could cause more confusion. Government is still figuring out ways to archive, store and search e-mail as a whole new set of problems — including new document formats, multimedia data that is not easily searchable and the movement towards “cloud-computing” — grow in popularity.

“Lawyers did not go to law school to figure out what to do with computers,” said Socha. “What we’re trying to do is to figure out what in the world it is we’re talking about. Can we break down this process into distinct units that become more manageable?”

Other decisions that the Justice Department would have to make is how to allocate resources — what percentage to dedicate to hiring new people, to providing training, to setting up formal processes and to purchasing new sets of tools to manage the flow of data, said Socha.

“It’s going to be a mess. That much is clear,” said Socha.

Andrew Ramonas contributed to this report.

President Barack Obama and Attorney General Eric Holder (White House photo).

We recently wrote about the Attorney General’s communication strategy over the past several weeks, as Republican criticisms of his national security decisions intensified. Holder’s approach had been very low-key — to a fault, his supporters told us — until about two weeks ago, when the Attorney General wrote a pointed letter to Sen. Minority Leader Mitch McConnell (R-Ky.) defending  his decision to charge the alleged Christmas Day bomber in the criminal justice system.

The New York Times today has a story that sheds more light on Holder’s messaging since his November announcement that the self-proclaimed mastermind of the 9/11 attacks, Khalid Sheikh Mohammed, and four other alleged conspirators would be tried in federal court in Manhattan. The plan crumbled in the face of intense criticism, but Holder never reemerged to explain himself — by White House design.

The Times reports:

The White House, wanting to move on quickly, overruled Mr. Holder’s request for more public appearances to explain the decision, administration officials said. In the resulting vacuum, critics denounced the civilian trial plan as a soft-on-terror capitulation to liberals.

Two weeks ago, probably just before the Feb. 3 letter to McConnell, Holder met with White House advisers “to discuss how to unite against common foes,” as the Times describes the meeting. The advisers agreed to let Holder speak out more — as we noted, he has not appeared on a Sunday talk show since his confirmation and has given few extended interviews, until this point — and Holder agreed to allow the White House to help sharpen his message.

Holder told the Times in an interview last week that the political attacks were “starting to constrain my ability to function as attorney general.”

“I have to do a better job in explaining the decisions that I have made,” he said, adding, “I have to be more forceful in advocating for why I believe these are trials that should be held on the civilian side.”

The Times story begins with an anecdote that highlights Holder’s shifting views of his role as department spokesman. (It also touches on his strained relationship with David Ogden, who stepped down as Holder’s deputy this month.)

After Holder gave a speech last year calling the United States a “nation of cowards” for avoiding discussions on race, President Obama distanced himself the remark. But his advisers went much further. According to the Times:

Rahm Emanuel and Jim Messina, the White House chief and deputy chief of staff, proposed installing a minder alongside Mr. Holder to prevent further gaffes — someone with better “political antennae,” as one administration official put it.

When he heard of the proposal at a White House meeting, Mr. Holder fumed; soon after, he confronted his deputy, David W. Ogden, who knew of the plan but had not alerted his boss, according to several officials. Mr. Holder fought off the proposal, signaling that his job was about the law, not political messaging.

His most important plan — to try Khalid Shaikh Mohammed, the self-described architect of the Sept. 11 attacks, in federal court in Manhattan — collapsed before it even began, after support from the public and local officials withered.

A year later, he is no longer so certain.

It appears we’ll be seeing a lot more of the Attorney General.

The Justice Department today released plans aimed at strengthening its efforts to fight crime in American Indian tribal lands.

The DOJ intends to make the Office of Tribal Justice a separate component within the Justice Department and will establish a “Tribal Nations Leadership Council” to help improve collaboration and communication between American Indian leaders and Justice Department officials, according to a DOJ memo. Currently the office is under the purview of the Deputy Attorney General, but is  not a permanent entity with the Justice Department structure.

In addition, U.S. Attorneys who have American Indian reservations in their districts and DOJ officials who handle tribal grants will be required to meet with tribal leaders, the memo said. DOJ will also establish an American Indian task force to create guidance and strategies for prosecutions of crimes of violence against women in Indian country, according to the memo.

“The Justice Department embraces this responsibility and the principles of tribal sovereignty and Indian self-determination,” the memo said. “The Department, at all levels, is committed to developing a comprehensive communication and coordination policy with tribes that is predicated on robust tribal input.”

The plans, which were sent to Office of Management and Budget on Jan. 27, will be financed through existing DOJ funds, according to a Justice Department spokeswoman. The department received more than $237 million in its fiscal 2010 budget for Indian country prosecutions and criminal investigations. The department has also made millions of dollars in grant money available to America Indian tribes, especially for programs that fight violence against women.

The proposed fiscal 2011 DOJ budget includes nearly $450 million to fund initiatives in American Indian tribal lands. The budget request also included $1.8 million for expanding the Office of Tribal Justice, according to the spokeswoman.

The Office of Tribal Justice was created under a federal statute in 1995, but exists at the discretion of the Attorney General. The Office of Tribal Justice serves as the department’s point of contact with American Indian tribes on justice issues.

The Senate Indian Affairs Committee approved legislation last September would give the Office of Tribal Justice a presidentially appointed head. The full Senate has yet to act on the bill.

The plans are the latest in a series of Justice Department initiatives to fight Indian country crime, which former Deputy Attorney General David Ogden said last month has hit “unacceptable levels” and is diminishing the quality of life for American Indians.

Last month, the DOJ announced a series of new Indian Country policies in an effort to combat the high level of crime there. Last year, Attorney General Eric Holder and top DOJ brass held several meetings with tribal leaders as part of a listening tour through Indian country.

South Dakota U.S. Attorney Brendan Johnson, chairman of the American Indian issues subcommittee of the Attorney General’s Advisory Committee of U.S. Attorneys, told Main Justice that the DOJ has taken great strides in addressing American Indian concerns.

“Tribal leaders have been heard in the past, but they haven’t been listened to,” Johnson said. He added: “[DOJ officials] have been listening to what tribal leaders have been telling us.”

Melinda Haag (Orrick)

The FBI has begun a background check of Orrick, Herrington & Sutcliffe partner Melinda Haag, signaling her likely nomination to be U.S. Attorney in San Francisco, reports The Recorder’s Dan Levine. [subscription required]

Agents began the background check within the past week, two lawyers who were contacted by the government told Levine.

Haag, a former federal prosecutor in the Northern and Central districts of California, was recommended by California Democratic Sen. Barbara Boxer’s vetting committee.

Haag’s firm bio says she was recruited by then-U.S. Attorney Robert Mueller, now FBI Director, to join the Northern District office, based in San Francisco. (Mueller was U.S. Attorney there from 1998 to 2001.) Haag was chief of the office’s White Collar Crime Section, and in private practice, she has represented several corporate general counsels accused of improperly backdating stock options.

The vetting committee also endorsed Kathryn Ruemmler, who recently left the Justice Department for the White House, and McDermott Will & Emery partner Matthew Jacobs. According to Levine, it was understood that Boxer preferred a woman for the job.

Ruemmler was outgoing Deputy Attorney General David Ogden’s top associate. She joined the White House counsel’s office as a deputy late last year, around the time Ogden announced he was stepping down. (Now, part of her job is moving nominees through the White House.)

President Bush nominated the current U.S. Attorney for the Northern District, Joseph Russoniello in late 2007. He was sworn in by January 2008.

As part of its initiative to address concerns about prosecutorial misconduct, the Justice Department today announced that an assistant chief in the Environment and Natural Resources Division will be its new national coordinator for its criminal discovery programs.

Andrew Goldsmith, First Assistant Chief of the ENRD’s Environmental Crimes Section, will direct the department’s efforts to educate prosecutors about their obligations to turn over potentially exculpatory or other information to defendants. His appointment comes a week after the department released new guidelines for federal prosecutors in applying discovery rules, part of an effort by the DOJ to head off judicial rules changes pushed by U.S. District Judge Emmet Sullivan that would restrict prosecutors’ discretion to decide what information in their possession is relevant to a defense team under Brady.

“Andrew brings a wealth of knowledge and experience in this field, and I am pleased he is taking on this crucial role,” Deputy Attorney General David Ogden said in a news release. “He will be instrumental in overseeing our efforts to ensure all of our prosecutors and law enforcement agents have the necessary training and tools to achieve fair and just results in the nation’s courts.”

Goldsmith’s job description includes, according to the news release:

• Creating an online directory of resources on discovery issues available to all prosecutors at their desktop

• Producing a handbook on discovery and case management similar to the Grand Jury Manual so that prosecutors will have an accessible and comprehensive resource on discovery obligations

• Implementing a training curriculum and a mandatory training program for paralegals and law enforcement agents

• Revitalizing the Computer Forensics Working Group to ensure the proper cataloguing of electronically stored information recovered as part of federal investigations

• Creating a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure that all the information is transmitted in the most useful way to federal prosecutors.

Justice Department Inspector General Glenn Fine said in a report to Congress last year that restoring confidence in the department is a major challenge after the high-profile public corruption case against former Sen. Ted Stevens (R-Alaska) case was thrown out because of prosecutor mistakes.

Attorney General Eric Holder moved to dismiss the charges against Stevens in April, after an internal DOJ review revealed prosecutors had failed to give the defense material favorable to Stevens’ defense. A court-appointed counsel is investigating whether they did so intentionally. Fine said in the report that the Stevens fiasco “created concern about the prosecutors’ adherence to professional standards of conduct.”

On Dec. 31, U.S. District Judge Ricardo Urbina rebuked prosecutors in the District of Columbia for their handling of a manslaughter case against five former Blackwater Worldwide guards accused in a shooting incident in Iraq that left 17 people dead.

In ordering dismissal of the indictment, Urbina said prosecutors had violated the defendants’ constitutional rights by making use of compelled statements the guards had given about the incident under threat of losing their jobs.

Deputy Attorney General David Ogden named a Northern District of Georgia prosecutor to coordinate national efforts to reduce child exploitation, the Justice Department announced today.

Assistant U.S. Attorney Francey Hakes will be the DOJ’s National Coordinator for Child Exploitation Prevention and Interdiction, a position within the Deputy Attorney General’s office. She will also work with Congress and federal agencies in developing the national strategy. Hakes has worked extensively on child exploitation cases since joining the Northern District of Georgia U.S. Attorney’s Office in 2002 and during her six years as a Georgia assistant district attorney.

“I am thrilled to announce Francey in this important position at the Department of Justice,” Ogden said in a statement. “The national coordinator will play a crucial role in combating child exploitation around the country, and I am certain that Francey will do an outstanding job.”

The position was created through the 2008 Protect Our Children Act. But Hakes is the first person officially to hold the title of National Coordinator for Child Exploitation Prevention and Interdiction.

Child exploitation became a higher priority for the Justice Department in 2006 when it launched Project Safe Childhood to fight the sexual abuse of children that has proliferated through the Internet. Each U.S. Attorney’s office now has a Project Safe Childhood task force.

“No child should have to endure the harm that results from predators and child pornographers on the Internet, abduction, being prostituted (a form of sex trafficking), sexual and physical abuse, and ‘child sex tourism’ in which travelers abroad seek to sexually abuse foreign children,” Attorney General Eric Holder said in testimony before the Senate Judiciary Committee in November.