President Obama did Attorney General Eric Holder a favor last week by finally appointing a deputy attorney general. The appointment may be a favor for the rest of us as well.
Obama nominated James M. Cole for the number two job at Justice last May. The Deputy AG more or less runs the place on a daily basis, overseeing the 100,000 + staff spread across the country, helping set policy, resolving disputes among offices.
The Senate Judiciary Committee supported the nomination and sent it to the full Senate in July; a final vote was blocked by the Republican minority. The stalled nomination circled back to the White House following the Senate's adjournment last month. The President used a recess appointment to put Cole into office, ending the longest vacancy for the post in thirty years.
Cole is your prototypical Democratic DC door revolver: private attorney/government official/power player. He spent thirteen years at Justice (1979-92), first as a trial attorney in the Criminal Division, and later as deputy chief of the public integrity section which handles prosecutions of public officials (elected and appointed), and where he worked with Holder. Following service on Bill Clinton's transition team, he returned to private practice. He joined the Washington office of Bryan Cave as partner in 1995 where he specialized in--you guessed it--white-collar criminal defense. Cole was back on the public payroll in 1997 as special counsel to the House Ethics committee's investigation of Speaker Newt Gingrich.
Eighty-four ethics charges were lodged against Gingrich during his four-year reign as Speaker. Eighty-three were ultimately dropped. Cole's investigation found that Gingrich had used a tax-exempt college course for partisan purposes, and then lied about it. The IRS let Gingrich off the hook but the House did not: it voted 395-28 to reprimand the Speaker and levied a $300,000 fine to recoup the costs of the investigation. Gingrich won the distinction of first Speaker ever to receive an ethics spanking.
Republicans had two complaints about Cole during the Judiciary Committee hearings in July. Senators Coburn, Cornyn, Grassley, and Sessions questioned Cole's role as an independent consultant for AIG hired in 2004 as part of an agreement with the federal government. AIG was charged with shoddy accounting; it paid a $126 million fine without admitting guilt. Cole was to ensure the company stayed out of legal trouble. We all know how well that went. Conveniently for Cole, he'd been sworn to secrecy as to what he did for the firm, and the mountain of documents underlying his work were also off limits to the committee as they concerned deferred prosecutions. Press reports had it that Cole had "allowed AIG management to revise his quarterly reports to the SEC."
Those same reports claimed that Cole had ordered an independent review of all AIG's derivatives transactions but exempted those made by the AIG-Financial Products group (AIG-FP). AIG-FP is the subsidiary of AIG that was responsible for the derivative deals that ultimately led to the $182 billion bailout, and a majority stake in the firm for the American taxpayer. Cole reportedly went so far as to recommend "the appropriate independent review of the proposed derivative transactions or programs should be conducted by AIG-FP."
Perhaps these were just nasty rumors designed to hurt the nominee. But given that it was the collapse of AIG-FP derivatives that brought the company to its knees, and the demise of the firm that triggered the meltdown to follow, it would surely be useful to understand Cole's role in the mess. Obama's recess appointment, however, means that we likely never will.
This AIG business is not what I had in mind when speculating about the possible "favor" Cole's appointment might do us. That's located in the other Republican complaint aired at the confirmation hearing. Alabama Senator Jeff Sessions liked neither the tone nor the substance of a 2002 op-ed Cole wrote for Legal Times . Cole had the temerity to suggest that after 9/11 the US ought to have pursued a criminal justice approach to terrorism rather than launch the War on Terror on the Homeland.
"[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."
The fact that Cole was and is right is matters not with the Terror Warriors. His explicit criticism of Bush AG John Ashcroft also earned Sessions' scorn.
"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 that 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?"
What indeed. Sessions did not admit that Cole was right about the legal disposition of much of the domestic front of the War on Terror either. The former US Attorney and Alabama Attorney General apparently forgot about Hamdi vs. Rumsfeld (US citizens held as "enemy combatants" must be able to legally challenge their status), Rasul vs. Bush (Guantanamo detainees may challenge the terms of their detention), Hamdan vs. Rumsfeld (Bush's military commissions violated both the Uniform Code of Military Justice, and the Geneva Conventions), and Boumediene vs. Bush (the military commission system put in place after Hamdan still violated habeas corpus review requirements).
If the controversy over Cole were simply about the large AIG stain on an otherwise distinguished career, we might consider this as just another case of "failing upward" in our nation's capital. But the fact that the man appears to have his head screwed on straight in War on Terror terms is quite remarkable. I don't believe there's another example of an anti-Terror Warrior at this level in the Obama administration. How'd he get by the personnel vetters in the White House? Cole and Holder must be some pals. And Holder is likely out of chits with the President for the foreseeable future. The progressive media might seek Cole out for his views on germane topics. He might become a regular on "Democracy Now!" If Cole adds even a little sanity and balance to an Obama Justice Department heretofore determined to wage the War on Terror nearly as furiously as The Decider, the recess appointment will have been worth it.