The nominee for the No. 2 post at the Justice Department raised a caution flag Tuesday about filing criminal charges against corporations like BP in the Gulf oil spill. The nominee, longtime Washington lawyer James Cole, also rejected suggestions by Senate Judiciary Committee Republicans that he is soft on terrorism.
At his nomination hearing to be deputy attorney general, Cole said prosecuting individual executives is the best deterrent when there is corporate misconduct. He did not oppose charging corporations criminally, but added that doing so can unfairly penalize innocent shareholders and employees.
In the Enron scandal, Cole counseled Arthur Anderson LLP on revamping its document retention policies, then watched the accounting firm collapse after the Justice Department brought a criminal case.
Cole "seems to go beyond strict enforcement of the law" in an effort to preserve corporations that should perhaps be charged and suffer the consequences, Sessions said.
Cole disagreed. He said that charging any corporation is a sensitive subject within the Justice Department and that doing so can impact "thousands and thousands" of employees and shareholders with no role in the misconduct.
It is important to balance an effective deterrent and individuals, Cole said.
"How much empathy you have for employees: I think you have to be careful with that philosophy," said Sessions, whose state has been hard hit by the oil spill.
Attorney General Eric Holder announced criminal and civil investigations into the Gulf oil spill two weeks ago.
Cole said he holds to the view that "not a penny of taxpayer money" is going to be used for reparations in the oil spill and he indicated that if the law limits liability, the law should be changed.
On terrorism, Cole disputed suggestions that he had taken a soft position after the Sept. 11 attacks.
He said both military commissions and civilian courts are useful tools and that the government must do everything in its power to protect Americans, consistent with the rule of law.
Sessions pointed to a Sept. 9, 2002 op-ed piece by Cole.
"You said the attorney general is not a member of the military fighting a war" but instead is "a prosecutor fighting crime," Sessions said.
Cole said the point he was making was that "we must use every tool we have to fight terrorism." In the 8-year-old op-ed piece in Legal Times, Cole wrote that the attorney general should be an aggressive advocate in the fight against terror and must seek every extension of the law and advantage he can imagine to fight the battle.
If confirmed by the Senate, Cole would succeed Washington lawyer David Ogden. Ogden left the post early this year amid differences in management styles with Holder.