Prepare Statement of Ranking Member Chuck Grassley
Senate Committee on the Judiciary
Executive Business Meeting
James Cole to be Deputy Attorney General
Thursday, March 17, 2011
I have serious concerns with the nomination of James Cole to be the Deputy Attorney General at the Department of Justice. The Deputy Attorney General is the second in command at the Justice Department and responsible for overseeing the day to day operations of the Department. Managing this vast bureaucracy is a difficult task that requires a serious commitment to protecting our national security, enforcing our criminal laws, and safeguarding taxpayer dollars. We need a qualified individual to fill this slot, an individual who possesses the ability to not only provide leadership for the Department, but also an individual who has the smarts, capability and willingness to manage Department programs and root out inefficiencies and abuses in those programs. After reviewing all his responses and his hearing testimony, I concluded that I could not support Mr. Cole’s nomination to be the Deputy Attorney General.
In particular, I’m seriously concerned about Mr. Cole’s views on national security and terrorism. Back in 2002, Mr. Cole was the author of an opinion piece in the Legal Times. In that piece, he stated, “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.”
He added, “The acts of Sept. 11 were horrible, but so are…other things.” The other things he referred to were the drug trade, organized crime, rape, child abuse and murder. Mr. Cole’s opinion piece argued that notwithstanding the involvement of foreign organizations, such as al Qaeda, we have never treated criminal acts influenced by foreign nationals or governments as a basis for “ignoring the core constitutional protections ingrained in our criminal justice system.”
Mr. Cole concludes his opinion piece by arguing that in addition to stopping future terrorist attacks, the Attorney General is a criminal prosecutor and that he has a special duty to apply constitutional protections engrained in our criminal justice system to everyone, including terrorists captured on a foreign battlefield.
Mr. Cole wrote this opinion piece two days short of the first anniversary of the September 11 attacks. Given the close proximity in time to the September 11 attacks, we must understand this opinion piece to be Mr. Cole’s true beliefs about the application of the civilian criminal justice system to terrorism cases, including those who masterminded the 9/11 attacks.
From the opinion piece and his responses to our inquiries, it appears that if given a choice of prosecuting high ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts based upon his longstanding belief in the role the Attorney General plays in protecting the principles of the criminal justice system. Absent a clear statement from Mr. Cole about what factors would warrant selecting a civilian or a military forum, it is hard to look at his entire record of past opinions, his testimony, and responses to our questions and reach a different conclusion.
Military tribunals have many advantages to civilian criminal courts and are better equipped to deal with dangerous terrorists and classified evidence while preserving due process. I’m troubled that Mr. Cole does not appear to share this belief. Based upon his responses and testimony, I have serious concerns about Mr. Cole’s support for civilian trials for terrorists captured on a foreign battlefield given that the Deputy Attorney General oversees the National Security Branch at the Justice Department.
Second, I have concerns about Mr. Cole’s abilities relative to oversight of government programs. First, in his responses about oversight of DOJ grant programs, Mr. Cole failed to commit to a top to bottom review of the programs. We’ve had enough examples of the tremendous inefficiencies, duplication and waste in these programs. I’m disappointed that Mr. Cole has failed to recognize that there is a need for a comprehensive review of DOJ’s grant programs – not only for the sake of saving taxpayer dollars, but also to ensure that grant objectives are being met in the most efficient and effective manner possible.
Third, I have concerns about Mr. Cole’s abilities based on his performance as an Independent Consultant tasked with overseeing AIG. By way of background, the Justice Department provided copies of the reports Mr. Cole issued when he was overseeing AIG, but they were labeled “Committee Confidential”. Consequently, I cannot discuss with specificity the contents of those documents publicly.
Nevertheless, when taken into context with the public responses provided by Mr. Cole to my questions, a troubling picture develops about Mr. Cole’s performance in his Independent Consultant responsibilities. The responses and reports do not dispel the serious questions raised about Mr. Cole’s independence and completeness. Further, they reveal what appears to be a level of deference to AIG management one would not expect to see from someone tasked as an “independent” monitor.
In order to clarify a number of questions on this matter, Senator Coburn and I sent a follow-up letter seeking additional answers from Mr. Cole. Mr. Cole’s reply clarified that DOJ, SEC, and New York Attorney General’s Office were aware of his practice of seeking input from AIG and making modifications to the reports. He indicated that the changes AIG made were often factual changes such as AIG employee names, dates of materials, and events. He also indicated that some of the changes requested by AIG were included in a section of the reports entitled “AIG Response.” However, he added that “on a few occasions” AIG would “suggest a stylistic change of phrasing in the analytical section of the report.” He stated that while he included the edits made by AIG, he “did not believe that a detailed presentation of this factual review process was necessary to an understanding of each party’s position.”
As a result, the reports did not necessarily show which edits AIG made that were incorporated. Instead, he said that those changes were available in working papers that were “available to the SEC, the DOJ, the New York Attorney General’s Office.” Unfortunately, he added, “the agencies—which were aware of this practice—did not request such documents.”
While I appreciate Mr. Cole’s responses to these clarifying questions, they raise concerns about how independent his monitoring was, what changes were ultimately requested by AIG, what changes were included, and how much the SEC and DOJ really knew about edits AIG was making to the “independent” reports.
Finally, I have serious concerns about Mr. Cole’s decision to suspend the compliance review at AIG’s Financial Products division, following the government bailout. In his testimony, Mr. Cole acknowledged that following the government bailout of AIG, he scaled back his efforts until the future of AIG as a corporation was determined. After Mr. Cole suspended his monitoring, AIG restructured its compliance office and terminated a number of staff overseeing the company’s compliance with SEC regulations. Mr. Cole said that after it was determined that AIG’s Financial Products division would not be dissolved, the compliance and monitoring were “revived and are being reviewed and implemented where applicable.” Under Mr. Cole’s watch, AIG not only got $182 billion of taxpayer money, it was able to talk the Independent Consultant—Mr. Cole—out of monitoring what the company was doing.
Based upon these factors, I’m concerned about Mr. Cole’s ability to perform the duties required of the Deputy Attorney General. In the position, he would be in a position to potentially influence future compliance monitors appointed under settlements between the Justice Department, SEC, and other corporations that have violated the law. Independent monitors need to be truly independent and completely transparent. They are selected and appointed to ensure that the interests of the American people are protected.
Besides my concerns regarding Mr. Cole’s qualifications, I am troubled by President Obama’s recess appointment of Mr. Cole to this position. I have been consistent in my opposition to recess appointments. When the President bypasses the Senate, then such nominees will not receive my support.
Based on these factors, which I have summarized here, but discussed in greater detail on prior occasions, I cannot support the nomination of Mr. Cole to be Deputy Attorney General.