James Cole was sworn in on Monday as the new Deputy Attorney General.
Although Cole was nominated in May and was approved by the Senate Judiciary Committee in July along a party-line vote, his nomination was returned to President Barack Obama late last month. However, Obama appointed Cole to the position one week later, installing him while Congress was in recess.
Attorney General Eric Holder said, “I am pleased to welcome Jim back to the Department of Justice,” adding, “He will be critical in our work to keep the American people safe, ensure the fairness and integrity of our financial markets, and restore the traditional missions of the Department.”
Cole’s nomination became controversial among Republicans. They centered their concerns on Cole’s work as an independent monitor for insurance giant AIG, which the Federal Reserve bailed out during the 2008 financial industry crisis, and a 2002 article Cole wrote endorsing civilian trials for terrorism suspects.
In a Sunday blog posting, the Washington Post’s Jennifer Rubin came down hard on Cole. She wrote that Republican lawmakers “this week will continue to decry the recess appointment of James Cole … but the question here is Cole’s fitness to serve.” She went on to assert that “there is reason for Republicans and Democrats alike to be deeply concerned over the appointment,” despite the fact that he only will hold the position for one year. The DAG, she write, “can do quite a lot of harm in 12 months.”
She cited comments from Senator Jeff Sessions of Alabama, the judiciary panel’s leading Republican, about several positions Cole’ has taken and possible conflicts of interest.
Rubin concluded, “The question remains: why would the president and the attorney general select Cole from among all the qualified attorneys in the country to fill the number-two spot in the Justice Department?” She added, “It would seem both Cole and Eric Holder should do some explaining, under oath, once Congress reconvenes.”
President Barack Obama said Wednesday he will install James Cole as Deputy Attorney General through a recess appointment.
The appointment will allow Cole to serve a year in the department’s No. 2 job. A friend of Attorney General Eric Holder, Cole was nominated in May and was approved by the Senate Judiciary Committee in July along a party-line vote.
A parter at Bryan Cave LLP, Cole spent 13 years at the Department of Justice, including three years as deputy chief of the Public Integrity Section in the Criminal Division. Senate Republicans objected to a
For background on why his nomination became controversial, read our previous report here.
Here is a statement from Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.):
“Despite repeated requests, for more than five months, Senate Republicans refused to debate the nomination of Jim Cole to be the Deputy Attorney General. I have no question that Jim Cole is highly qualified to fill this vital law enforcement post. His nomination received bipartisan support from public officials and from high-ranking veterans of the Justice Department, and I believe that he would have been confirmed by the Senate had his nomination been given an up-or-down vote. The delays in considering his nomination were unnecessary and wrong. I am glad that he will now finally begin this important work to protect the American people.”
Senate Majority Leader Harry Reid on Wednesday said he would like the Senate to vote on Deputy Attorney General nominee James Cole before the Senate adjourns this year.
Reid said a senator is holding up the nomination for the No. 2 position at the Justice Department. The Democrat didn’t name the senator who is preventing the full Senate from considering the nominee. Read our previous reports on the stalled nomination here and here and here.
President Barack Obama nominated Cole on May 24. He was reported out of the Senate Judiciary Committee on July 20 with no Republican support.
“On nominations, the Republican leader knows the president is very, very concerned about having somebody at the Attorney General’s Office,” Reid said, according to The Blog of Legal Times. “We need somebody to be second-in-command, the deputy there. Mr. Cole has been [on the Senate calendar] a long time.”
Senate Judiciary Committee Chairman Patrick Leahy tried to move Cole’s nomination earlier this month. But Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary panel, objected to a motion from the Democrat to consider nominee, keeping the nomination off the Senate floor.
Cole has had a tense relationship with Republicans over the years.
He was the House ethics committee special counsel who investigated then-Speaker Newt Gingrich (R-Ga.) in the 1990s for the misuse of tax-exempt organizations for political purposes. The House issued a rare formal reprimand against Gingrich and ordered him to pay a $300,000 penalty.
But Republicans have focused their attacks on Cole’s work as an independent monitor for insurance giant AIG, which the Federal Reserve bailed out during the 2008 financial industry crisis, and a 2002 article Cole wrote in support of civilian trials for terrorism suspects.
A former DOJ Criminal Division official, Cole said during his nomination hearing in June that he supports “use [of] all available means” in defense of national security. The nominee, a partner at the law firm of Bryan Cave LLP in D.C., said recent improvements in military commissions now make commissions a more viable option than in 2002.
Cole has waited longer for confirmation than any other Deputy Attorney General nominee since before the Ronald Reagan administration. The Senate confirmed most of the Deputy Attorney General nominees over the last two decades within a few months of their nominations.
The Senate confirmed David Ogden, the last presidentially appointed Deputy Attorney General, less than two months after his nomination by Obama. Ogden stepped down in February. Gary Grindler has served as acting Deputy Attorney General since Ogden’s resignation.
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.
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The Senate Judiciary Committee endorsed Deputy Attorney General nominee James Cole at its meeting Tuesday.
The panel voted, 12-7, along party lines to report his nomination out of committee. The committee initially scheduled a vote for Cole last Tuesday. But his nomination was held over at the request of panel Republicans. Committee members can request to hold over a nominee one time.
GOP members expressed concern with Cole’s support for trying terrorism suspects in civilian courts and his tenure as an independent monitor for insurance giant AIG, which the Federal Reserve bailed out during the economic crisis in 2008.
“I’m concerned about Mr. Cole’s ability because in his position as Deputy Attorney General, he would be in a position to influence future compliance monitors appointed under settlements between Justice Department, [Securities and Exchange Commission] and other corporations that have violated the law,” said Sen. Charles Grassley (R-Iowa).
Sen. Benjamin Cardin (D-Md.) said the nominee did not have the authority under the terms of the deferred prosecution between AIG and the Justice Department to evaluate the economic strength of the company’s business decisions.
“I think we need to look at the entire record here,” Cardin said. “Obviously none of us are proud of what happened at AIG. But I don’t think we should have guilt by association because someone tried to take on the challenges and help the situation.”
Panel Chairman Patrick Leahy (D-Vt.) urged his colleagues to move quickly on the nomination, noting the Senate’s consideration of George W. Bush administration Deputy Attorneys General Larry Thompson, James Comey, Paul McNulty and Mark Filip.
McNulty was the only Deputy Attorney General in the group who was not confirmed within three months of his nomination. He was confirmed after a little more than four months.
President Barack Obama nominated Cole in May to replace acting Deputy Attorney General Gary Grindler, who has held the post since David Ogden stepped down in February.
This post has been updated from an earlier version.
The Senate Judiciary Committee postponed votes on the nominations of Elena Kagan for the Supreme Court and James Cole for Deputy Attorney General Tuesday in response to Republican requests to consider the nominees next week.
Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, said the GOP members of the panel needed more time to review the nominations. Panel members can ask to postpone consideration of nominees until the committee’s next meeting.
The Alabama senator said his Republican colleagues have lingering questions about the backgrounds of the nominees.
Sessions said he has concerns about Cole’s time as an independent consultant for insurance giant AIG. The ranking Republican also said he was worried about Kagan’s lack of judicial experience and her decision to bar military recruiters from the Harvard Law School career placement office when she was dean.
Panel Chairman Patrick Leahy (D-Vt.) implored the Republicans not to further delay consideration of the nominees. He noted that several senators have already announced whether they will support Kagan.
“I suspect that every single member of this committee knows how he or she will vote,” Leahy said.
Sessions said panel Republicans are cooperating with their Democratic colleagues to move the Supreme Court nominee through committee as quickly as possible. He said the committee might complete its work on Kagan quicker than when the panel considered then-Supreme Court nominee Sonia Sotomayor last summer.
“I think we are moving this nomination in a very expeditious manner,” Sessions said.
The panel is slated to meet again next Tuesday.
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The Senate Judiciary Committee is slated to consider Deputy Attorney General nominee James Cole at its meeting next week.
The panel scheduled the vote for its July 13 meeting. But Republicans could ask to postpone consideration of the nomination until the committee’s next meeting. The panel is also slated to consider Supreme Court nominee Elena Kagan at the meeting.
The Justice Department on Friday released Cole’s written answers to questions posed by panel members after the nominee’s hearing last month. In his responses, Cole promised to turn over reports he wrote on insurance giant American International Group, which panel Republicans also requested after his hearing.
The nominee was an independent consultant for AIG from January 2005 until earlier this year as part of a deferred prosecution agreement between the insurance company and the DOJ.
President Barack Obama nominated Cole in May to replace acting Deputy Attorney General Gary Grindler, who has held the post since David Ogden stepped down in February.
Deputy Attorney General nominee James Cole said Friday his reports on insurance giant American International Group (AIG) will be made available to the Senate panel before it votes on his nomination.
Cole promised the papers would be turned over in written answers to questions posed by Senate Judiciary Committee members after the nominee appeared before the panel last month.
In his responses, released by the Justice Department Friday, Cole also defended his work as the company’s independent monitor.
“Neither of the two consent agreements under which I worked gave me any legal authority to review the effect of credit default swaps on AIG’s financial health,” Cole said in his response to the supplemental questions. “Credit default swaps were unregulated and, therefore, fell outside my court-ordered legal authority.”
A former public corruption prosecutor and longtime friend of Attorney General Eric Holder, Cole worked as an independent consultant for AIG from January 2005 until earlier this year as part of a deferred prosecution agreement between Justice Department and the insurance giant.
GOP senators sought the non-public reports Cole prepared during his time as an independent monitor to AIG. Some critics have said that Cole, who has been picked for a critical DOJ job that requires a kind of radar to detect issues might prove troublesome, should have been more attentive to possible financial misdeeds and highly risky deals.
President Barack Obama nominated Cole to be Deputy Attorney General in May. He would replace acting Deputy Attorney General Gary Grindler, who has held the post since David Ogden stepped down in February.
To read Cole’s full written responses, see here.
Four Republican Senators urged the Justice Department to turn over non-public reports prepared by Deputy Attorney General nominee James Cole during his time as an independent monitor to American International Group (AIG).
Cole, a former public corruption prosecutor and longtime friend of Attorney General Eric Holder, worked as an independent consultant for AIG from January 2005 until earlier this year as part of a deferred prosecution agreement between Justice Department and the insurance giant.
In a letter to Assistant Attorney General for Legislative Affairs Ronald Weich, Senate Judiciary Committee Ranking Republican Jeff Sessions of Alabama along with GOP Sens. Charles Grassley of Iowa, John Cornyn of Texas and Tom Coburn of Oklahoma requested copies of all reports submitted by Cole to DOJ while he worked for AIG.
“We understand the confidential treatment of Mr. Cole’s reports… and his recommendations to AIG stem from the deferred prosecution agreements between the Department and AIG,” the senators wrote. “The Judiciary Committee cannot, however, fully and properly evaluate Mr. Cole’s nomination without this documentation.”
A Justice Department spokeswoman defended Cole’s role at AIG and said he made “significant progress in implementing critically-needed reforms” in the areas he was charged with overseeing.
“Critics who suggest that Mr. Cole was somehow too close to AIG misunderstand his relationship with the company,” said spokeswoman Tracy Schmaler. “His presence was imposed on the company by a federal court. In fact, as the [Congressional Research Service] report notes, AIG executives tried to have him removed.”
“[Cole] was never a general overseer or monitor of AIG’s entire operation nor was he assigned to examine many of the issues involving AIG’s near collapse, such as credit-default swaps or retention bonuses,” Schmaler added.
Sessions only briefly brought up Cole’s work for AIG at a confirmation hearing last Tuesday and focused his questions mainly on a 2002 opinion piece written by Cole about the use of civilian trials for terrorism suspects. Grassley and Coburn did not attend the hearing.
In his opening statement at the hearing last week, Cole defended his work on AIG. “The company resisted some of my efforts, but I insisted on tough measures,” Cole said.
Cole’s reports on AIG were confidential, but the Justice Department sent the reports to the House Oversight and Government Reform Committee last year. The panel asked the Congressional Research Service to issue a report on Cole’s oversight of the company.
President Barack Obama nominated Cole to be Deputy Attorney General last month. He would replace acting Deputy Attorney General Gary Grindler, who has held the post since David Ogden stepped down in February.
The letter and the full statement from the DOJ is reprinted below.
June 23, 2010
Assistant Attorney General
Office of Legislative Affairs
Department of Justice
Washington, D.C. 20530
Dear Mr. Weich:
We write regarding the nomination of James Cole to be Deputy Attorney General. Mr. Cole served as independent consultant to American International Group (AIG) for a number of years prior to that company’s near collapse and government-sponsored bailout in 2008. Numerous questions persist regarding Mr. Cole’s role in monitoring AIG in view of the company’s recent history. Such questions could not adequately be addressed at Mr. Cole’s June 15 hearing, however, because Mr. Cole appears to be prohibited from disclosing the nature of his work as an independent consultant and because the underlying documents apparently remain confidential. These documents include the deferred prosecution agreements, his recommendations to AIG, and his reports to the Department of Justice (Department), Securities and Exchange Commission (SEC) and the New York Attorney General’s Office (NYAG).
As a result of these claims of confidentiality, we have been unable to verify a number of reports that have questioned Mr. Cole’s activities as the independent consultant to AIG. For example, it has been reported that Mr. Cole “allowed AIG management to revise his quarterly reports to the SEC.” According to these same reports, Mr. Cole also made recommendations that there be independent review of all derivative transactions, but he expressly exempted derivative transactions made by the AIG-Financial Products group (AIG-FP). AIG-FP is the subsidiary of AIG that was responsible for the derivative transactions that ultimately led to a $182 billion taxpayer bailout. We understand Mr. Cole’s recommendation for derivative products by AIG-FP went even farther to state that “the appropriate independent review of the proposed derivative transactions or programs should be conducted by AIG-FP.” This recommendation raises serious questions about the thoroughness and independence of Mr. Cole’s review of these transactions. It was the devaluation of those high-risk transactions that led to AIG’s demise, and ultimately, the economic collapse.
If true, these reports about Mr. Cole’s deference to AIG and its subsidiaries would raise serious concerns regarding his performance as independent consultant. Due to the unknown nature of Mr. Cole’s work and the secrecy surrounding his recommendations and reports to the Department and the SEC, the Committee remains unable to verify or dismiss these reports.
We understand the confidential treatment of Mr. Cole’s reports to the Department, the SEC and the NYAG, and his recommendations to AIG stem from the deferred prosecution agreements between the Department and AIG. The Judiciary Committee cannot, however, fully and properly evaluate Mr. Cole’s nomination without this documentation. Accordingly, we request copies of all reports submitted by Mr. Cole in his role as independent consultant to the Department. To the extent the Department received such materials, we further request copies of Mr. Cole’s reports to the SEC and NYAG, as well as copies of all recommendations made to AIG by Mr. Cole. Finally, we request all responses submitted by AIG to the Department related to, or responding to, any report or recommendation issued by Mr. Cole as the independent consultant to AIG.
Thank you for your attention to this matter, which will help us to discharge our constitutional obligation to consider this nomination. To avoid any unnecessary delay, we respectfully ask you to provide this information as soon as possible so the Committee can consider Mr. Cole’s nomination.
Very truly yours,
Statement from Tracy Schmaler, Justice Department spokeswoman:
“James Cole was assigned by a federal court order to serve as an outside independent consultant to AIG as the result of two specific lawsuits the company settled charging it with engaging in bid rigging, helping its clients to falsify their financial condition, and violating accounting rules. Mr. Cole was never a general overseer or monitor of AIG’s entire operation nor was he assigned to examine many of the issues involving AIG’s near collapse, such as credit-default swaps or retention bonuses.
“For those areas of the company that the court did give Mr. Cole authority to address – fraudulent transactions and the company’s compliance with applicable laws and regulations – Mr. Cole made significant progress in implementing critically-needed reforms by making sure the company improved its reporting lines and the independence of compliance staff so that they could not be pressured by the company’s business managers.
“Critics who suggest that Mr. Cole was somehow too close to AIG misunderstand his relationship with the company. His presence was imposed on the company by a federal court. In fact, as the CRS report notes, AIG executives tried to have him removed.”
If James Cole is confirmed as Deputy Attorney General, he will help lead the Justice Department’s national security team, which has struggled over how to prosecute terrorism defendants — in civilian courts or military tribunals.
Cole is not known as a terrorism expert, having spent most of his career as a white collar crime prosecutor or defense lawyer, but in an eight-year-old op-ed, he expressed confidence that the civilian criminal courts could adequately handle even the most extreme terrorist cases, including the Sept. 11, 2001 attacks.
That view may not sit well with some Republicans on the Senate Judiciary Committee, which begins hearings on Cole’s nomination on Tuesday. Some Republicans have advocated wide use of military proceedings to try terrorism suspects.
In a Sept. 9, 2002, opinion piece for Legal Times, Cole wrote:
[T]he attorney general is not a member of the military fighting a war — he is a prosecutor fighting crime. For all the rhetoric about war, the Sept. 11 attacks were criminal acts of terrorism against a civilian population, much like the terrorist acts of Timothy McVeigh in blowing up the federal building in Oklahoma City, or of Omar Abdel-Rahman in the first effort to blow up the World Trade Center. The criminals responsible for these horrible acts were successfully tried and convicted under our criminal justice system, without the need for special procedures that altered traditional due process rights.
Our country has faced many forms of devastating crime, including the scourge of the drug trade, the reign of organized crime, and countless acts of rape, child abuse, and murder. The acts of Sept. 11 were horrible, but so are these other things.
Cole, writing at a time when John Ashcroft was Attorney General, added that “the attorney general justifies much of his agenda by pointing to the ‘war on terrorism’ and saying that it is an extreme situation that calls for extreme actions. But too much danger lies down the road. The protections built into our criminal justice system are there not merely to protect the guilty, but, more importantly, to protect the innocent. They must be applied to everyone to be effective. What are we fighting for if, in the name of protecting the principles that have raised this nation to the pinnacle of civilization, we abandon those very principles?”