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Posted at 9:30 AM ET, 01/ 2/2011

The Cole controversy won't go away

By Jennifer Rubin

You can expect that Republican congressmen and senators when they return this week will continue to decry the recess appointment of James Cole to the post of deputy attorney general. There is no doubt that recess appointments are constitutionally-authorized; but the question here is Cole's fitness to serve. And there is reason for Republicans and Democrats alike to be deeply concerned over the appointment. True, Cole will hold the position for only a year, but the number-two man in the Justice Department, who oversees myriad key decisions, can do quite a lot of harm in 12 months.

On Dec. 2, Sen. Jeff Sessions (R.-Ala.) took to the floor to explain his objections to Cole's then pending nomination:

Why does the President want to appoint somebody who thinks 9/11 was a criminal act and not an act of war? I think it is a big deal, so that is one of the reasons we have raised it. Is he going to bring some balance to Attorney General Holder or are they going to move even further left in their approach to these issues?

I would also note he was given a highly paid position as an independent monitor of AIG. This is the big insurance company whose credit default swaps and insurance dealings really triggered this entire collapse of the economic system. He was in the company at the time as a government monitor, and he did not blow the whistle on what was going on throughout this period of time.

It is argued that he wasn't precisely there to monitor. Sue Reisinger of Corporate Counsel wrote this about his handling of that matter: "It is as though Cole were spackling cracks in the compliance walls and never noticed that AIG's financial foundation was crumbling beneath his feet."

Likewise, at Cole's confirmation hearing before the Senate Judiciary Committee on June 15, 2010, Sessions argued:

In your [September 2, 2002 Legal Times] op-ed, you argued that, "the 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..." You compared the September 11th attacks to criminal acts like drug violations, organized crime, and murder, writing that "[t]he acts of Sept. 11 were horrible but so are these other things." You even accused Attorney General Ashcroft of taking America down a dangerous road and abandoning core American principles by supporting military commission trials. . . . .

I also disagree with your claim in your op-ed, where you characterize the civilian trial of Omar Abdul-Rahman--the mastermind behind the first World Trade Center attack--as a successful model for how to prosecute the 9/11 terrorists. And I am not alone. Both the lead prosecutor in that case, Andrew McCarthy, and the presiding judge, Michael Mukasey, disagree with the notion that the Rahman trial was somehow a model for prosecuting terrorism cases. Former Attorney General Mukasey has written that "terrorism prosecutions in this country have unintentionally provided terrorists with a rich source of intelligence" and specifically cited the Rahman trial as having tipped off Osama bin Laden through the production of a list of unindicted co-conspirators. Mr. McCarthy has said, "A war is not a crime, and you don't bring your enemies to a courthouse."

. . . . Briefly, let me say that your role as compliance monitor of AIG in the years leading up to the 2008 financial collapse and $182 billion bailout of AIG is also troubling. You were entrusted to monitor that company and put effective controls in place. I think we can both agree that the government's efforts were not effective. Some well-respected whistleblower organizations have raised questions about your nomination in light of the AIG matter. They have cited internal whistleblower claims that you allowed AIG executives to revise your reports to the SEC. Maybe we can discuss that and get your side of that. Mr. Cole, you were also reportedly responsible for reviewing transactions structured by AIG-Financial Products group, the one that was at the center of the credit default swaps.

So 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? Now surely, Democrats certainly must be as concerned as Sessions -- not only about Cole's position on the war on terror (which has been generally rejected not only by the administration but by many Democratic senators), but about his lack of diligence at AIG. It would seem both Cole and Eric Holder should do some explaining, under oath, once Congress reconvenes.

By Jennifer Rubin  | January 2, 2011; 9:30 AM ET
Categories:  law  
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Next: Is Eric Holder playing dumb on a Justice Department scandal?


Sessions makes a legitimate point about 9/11. Most of the people at GITMO should have been executed when captured and never brought there in the first place.

However then he strays into an area where he has no idea what he's talking about. Sessions, judging from his comments knows as much about being a compiance monitor as he does about being a dendrochronologist.

The problem at AIG, was that what it was doing was LEGAL, not illegal.

Posted by: 54465446 | January 2, 2011 10:15 AM | Report abuse

both sides do recess appoointments, I know. But this looks rather odd, given the fact that the guy could have been easily confirmed by the 111th congress. Looks like they wanted to avoid a vote for some reason.

Posted by: jmpickett | January 2, 2011 10:42 AM | Report abuse


"There is no doubt that recess appointments are constitutionally-authorized..."

Actually, there is some doubt, at least in the way that power has been abused by presidents of both parties, based on the length of the recess. See Michael Rappoport's argument in the UCLA Law Review: The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005).

Posted by: irishspy | January 2, 2011 11:56 AM | Report abuse

"It would seem both Cole and Eric Holder should do some explaining, under oath, once Congress reconvenes."

Like being under oath would matter to Holder or Cole.

Posted by: johnhiggins1990 | January 2, 2011 12:49 PM | Report abuse

It would seem now that executive appointments which are not immediately rubber-stamped by a compliant Congress are made anyway, regardless. Congressional approval, while useful as a cover, is no longer necessary. Dozens of new rules and regulations, emanating every day from an unelected federal bureaucracy, which has the ability to independently set its own agenda, have the power of law with fines and imprisonment for disobeying them. Always there is this endless push for ever more government, more coercion, and more centralized control. This is how a dictatorship normally evolves, which is what we are fast becoming.

Posted by: Ohiolad | January 3, 2011 8:38 AM | Report abuse

Can you tell the Republicans feel guilty for exposing the nation to attack on 9/11 by the Cheney/Bush friends, the bin Laden family?

Quoting someone like Jeff Sessions? Wow, some people have no shame. We presume Jennifer was fine with Little Abu in the DoJ.

Posted by: SydneyP | January 3, 2011 8:42 AM | Report abuse

Is the Attorney General appointed by the Pentagon? No - hence he is not a member of the military.
Is al-Qaeda a foreign nation? No - hence 9/11 was not, strictly speaking, an act of war. (Whether it was a criminal act, also strictly speaking, is debatable, but an act of war requires one nation attacking another. Pearl Harbor was an act of war.)

Posted by: ravensfan20008 | January 3, 2011 1:41 PM | Report abuse

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