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.

Attorney General Eric Holder and Rep. Bobby Scott (D-Va.) (photo courtesy of Bobby Scott)

Rep. Bobby Scott (D-Va.) has introduced legislation that would make it illegal for government lawyers to request a waiver of attorney-client privilege as a measure of cooperation in civil and criminal investigations.

The Justice Department’s corporate charging guidelines prohibit prosecutors from considering waivers as a litmus test for whether a company has been cooperative.

But the policy does not extend to other agencies such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.

The bill, like the guidelines, also bars government lawyers from penalizing corporations for paying employees’ legal fees, or for entering into joint defense agreements with employees.

The 2008 guidelines, known as the Filip memo, after former Deputy Attorney General Mark Filip, are not enforceable under law, and the Justice Department has opposed previous attempts to render them so.

The history of the guidelines begins with Attorney General Eric Holder, who as Deputy Attorney General during the Clinton administration signed a memo authorizing that a corporation’s waiver of attorney-client and work product privileges could be considered when assessing cooperation in a criminal investigation.

Holder has said he intended for prosecutors to ask for waivers in instances where a corporation was already cooperating with the government. But the memo became a tool of coercion, in some cases, with prosecutors demanding waivers as a condition of cooperation.

Scott’s bill, which was introduced on Wednesday, is identical to one passed by the House in the 2007. Sen. Arlen Specter (D-Pa.) introduced similar legislation in February.

White & Case LLP partner Carolyn Lamm, president of the American Bar Association, welcomed the legislation, saying it would create “a sensible, uniform standard of conduct for all federal agencies.”

See Lamm’s full statement below:

The American Bar Association applauds the introduction in the U.S. House of Representatives of legislation, H.R. 4326, designed to roll back federal agency policies that continue to erode fundamental attorney-client privilege, work product and employee legal protections.

The Attorney-Client Privilege Protection Act, introduced yesterday by Rep. Bobby Scott and cosponsored by numerous House Judiciary Committee members from both parties, recognizes the importance of the attorney-client privilege to our legal system, our nation’s economic health and our society as a whole.  Protecting confidential attorney-client communications from government-compelled disclosure fosters voluntary compliance with the law, and that benefits everyone.  Government tactics that coerce disclosure, on the other hand, undermine these benefits and our adversarial system of justice, and can unfairly threaten the very survival of organizations, including even the largest, most robust corporations.  In addition, government policies that pressure companies to refuse to provide employees with legal assistance while investigations are pending, or to fire them for asserting their Fifth Amendment rights, weaken the constitutional presumption of innocence and undermine principles of sound corporate governance.  The ripple effect harms employees, investors and all of society.

While the ABA supports the revised corporate charging guidelines issued by the Justice Department in August 2008 that expressly bar prosecutors from forcing organizations and their employees to waive fundamental protections during investigations, those guidelines do not have the assurance of permanence and do nothing to change the similar policies still in effect at the Securities and Exchange Commission, the Environmental Protection Agency, the Department of Housing and Urban Development, and other agencies.  Such policies, like the Justice Department’s previous policy, pressure organizations to waive their privileges and violate their employees’ Sixth Amendment right to counsel and Fifth Amendment right against self-incrimination to receive cooperation credit during investigations.

H.R. 4326 — like the similar Senate bill, S. 445, introduced by Sen. Arlen Specter in February — would make the Justice Department’s reforms permanent, give them the full force of law and apply them to all federal agencies.  The legislation would create a sensible, uniform standard of conduct for all federal agencies and strike the proper balance between the legitimate needs of prosecutors and regulators, and the constitutional and fundamental legal rights of individuals and organizations.

The American Bar Association strongly urges Congress to approve this critical legislation as soon as possible.

Deputy Attorney General David Ogden said the Obama DOJ would continue a policy of giving corporations credit for cooperation in criminal investigations based on the information they share with prosecutors, not whether they agree to waive attorney-client privilege.

David Ogden (usdoj)

Ogden’s remarks came in a speech Thursday at Washington’s Mayflower Hotel at a conference hosted by Compliance Week magazine. View the speech here. Ogden affirmed the Justice Department’s adherence to the August 2008 “Filip Memo,” written by Ogden’s predecessor, then-DAG Mark Filip and incorporated into the U.S. Attorney’s manual.

The Filip memo said prosecutors could no longer pressure companies to waive attorney-client privilege in order to receive credit for cooperating in an investigation. The practice had caused an uproar in general counsel and other corporate offices. Members of Congress had vowed to change the law if the DOJ didn’t act. View the DOJ’s corporate charging guidelines here.

Ogden said in his speech:

These changes were made, in part, to address concerns voiced by the members of the bench, the defense bar, and Congress about how prior versions of the guidelines had been applied – or misapplied – by federal prosecutors around the country.  Chief among these concerns was the belief that under the prior guidelines, corporations, as a practical matter, were required to waive the attorney-client privilege and/or attorney work-product protection in order to receive cooperation credit by federal prosecutors.  We have now made clear that nothing could be further from the truth:  cooperation is properly measured by a full and complete sharing of information – not whether the corporation disclosed attorney-client or work-product materials. 

Mark Filip, the deputy attorney general from March 2008 to January 2009, was hired by Kirkland & Ellis LLP and will split his time between its Chicago and D.C. offices, The Wall Street Journal reported this afternoon.

Filip, who also briefly served as acting attorney general this year, will work on “government-enforcement cases, internal investigations and corporate-governance issues” at his new firm, the WSJ said.

We previously reported that Filip was against a draft of a still-unreleased Justice Department Office of Professional Responsibility report that is critical of the legal opinions that sanctioned brutal interrogations. As the second highest appointee at the Justice Department, he was responsible for the day-to-day management of Main Justice.

Newsweek’s Michael Isikoff reports that then-Attorney General Michael Mukasey and his deputy, Mark Filip, last year objected to a draft report from DOJ’s Office of Professional Responsiblity. The internal ethics watchdog, headed by H. Marshall Jarrett, criticized the work of the Bush-era Office of Legal Counsel, whose Republican activist attorneys provided the shaky legal justifications for torture. 

Writes Isikoff:

According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

But then–Attorney General Michael Mukasey and his deputy, Mark Filip, strongly objected to the draft, according to the sources. Filip wanted the report to include responses from all three principals, said one of the sources, a former top Bush administration lawyer. (Mukasey could not be reached; his former chief of staff did not respond to requests for comment. Filip also did not return a phone message.)

If new Attorney General Eric Holder accepts the OPR report, its conclusions could be forwarded to state bar associations for possible disciplinary action against Bybee, Yoo and Bradbury, Isikoff reports.

Staff members in Deputy Attorney General Mark Filip’s office had the honor of telling the Obama transition team the Bill Richardson grand jury probe was more “significant” than he’d indicated, the WaPo says.

And since we’re on the subject of Obama’s diffiiculties in finding a Commerce Secretary who can get confirmed, remember Penny Pritzker? The Chicago billionaire-Obama advisor/fundraiser was floated as potential Commerce Secretary but swiftly demurred. The Pritzker empire (the family owns Hyatt hotels) was pioneering in the use of off-shore trusts to shield their fortune from taxes. And Penny Pritzker also helped lead a bank that pioneered sub-prime mortgages that collapsed amid allegations of unsound financial practices and predatory lending. Now that would have been a confirmation hearing.