White House Believes Senate Will Confirm by End of Year DOJ Nominee Who Monitored AIG and Likened Terrorism to Domestic Crimes

By Fred Lucas | December 10, 2010 | 5:24 PM EST

White House Press Secretary Robert Gibbs (AP Photo)

(CNSNews.com) - White House Spokesman Robert Gibbs said today that he does not believe the Senate will leave town for the year without confirming James Cole as deputy attorney general, the number two position at the Justice Department.

On Thursday, Senate Judiciary Chairman Patrick Leahy asked for unanimous consent to bring Cole's nomination to the floor for a vote but the request was blocked by Sen. jeff Sessions (R.-Ala.).

"This nomination does have controversy," Sessions said on the Senate floor. "Most of the nominations the President has submitted did clear unanimously in our committee, but this nomination resulted in all the Republicans on the committee voting against it. But I now understand that our two leaders, Senators Reid and McConnell, are working at this moment to try to figure which nominees should move before we recess--and hopefully before too many days--and perhaps this nominee will be in that group. But until those talks are complete, I would object."

Cole’s nomination has been controversial because he served as an independent consultant appointed by the Securities and Exchange Commission and the Justice Department to monitor the American International Group (AIG) in the years before the company received a $182 billion federal bailout, and because he likened international terrorism, including the 9/11 attacks, to domestic criminal acts.

In July, the Senate Judiciary Committee approved Cole’s nomination on a party-line vote, but Republicans have since held up the nomination.

If Cole is not confirmed at the end of the year when the current Congress ends, his nomination must be sent back to the president. The president could then give him a recess appointment, during the Christmas break, and thus avoid a Senate confirmation vote altogether, or re-nominate him in the next Congress, where Republicans will have more votes in the Senate.

When asked whether the president would consider giving Cole a recess nomination over Christmas, White House Press Secretary Robert Gibbs did not answer directly but said he does not believe the Senate will recess for the year without confirming Cole.

“I think it is somewhat unprecedented to have someone who in imminently qualified, but because of partisan politics, the Justice Department can’t fully staff -- staff itself up in something that is important to national security,” Gibbs told CNSNews.com Friday. “I do not believe the Senate will leave town with that job vacant.”

In a Sept. 9, 2009 op-ed published in the Legal Times, Cole wrote: “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.”

Cole’s op-ed continued: “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 wrote.

Cole did say in the Legal Times piece that there was an “arguable difference” between domestic rape, child abuse and murder and the 9/11 attacks, but added, “we have never treated such influences as a basis for ignoring the core constitutional protections ingrained in our criminal justice system.”

During his confirmation hearing in June, Cole sought to explain the op-ed to the Senate Judiciary Committee.

“The point of the article that I wrote in 2002 was to state that we must do so consistent with the rule of law,” Cole told the committee. “It was not meant to address whether or not we are at war. It was meant to deal with how we deal with one of the most devastating problems presented to our country.”

Also, from 2005 through 2009, Cole served as the independent monitor in the compliance office of AIG, an office established there by the Securities and Exchange Commission. In 2008, the federal government provided a $182 billion bailout to the troubled AIG in 2008.

In June, Sen. Charles Grassley (R.-Iowa), a member of the Senate Judiciary Committee, put out a press release explaining questions he had for Cole about his role in monitoring AIG.

“Grassley said that during his time monitoring AIG, it appears Cole issued several best practices documents regarding compliance with SEC rules and regulations,” said Grassley's release. “While the documents related to Cole's work have not been made public by the Department of Justice, one document purported to be part of his work as an independent consultant specifically outlined best practices on derivative transactions. In the document, it appears that the nominee recommended establishing a derivatives committee to review derivative contracts entered into by AIG, but the recommendation expressly exempted derivative transactions entered into by the AIG financial products corporation, the subsidiary responsible for the 2008 meltdown at AIG that led to a $180 billion taxpayer bailout of AIG. Instead, the recommendation said derivatives entered by AIG Financial Products would be independently reviewed by AIG Financial Products itself.”

"It looks to me like Mr. Cole let the fox guard the hen house,” Grassley said at the time.