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Obama's skirts Congress to appoint lobbying lawyer

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President Obama's latest recess appointment is a corporate lawyer, hailing from a leading Democratic lobbying firm where he represented defense contractors and health care companies.

The nomination of James M. Cole, now deputy attorney general, never made it to the Senate floor thanks to questions about his time as a compliance monitor at AIG, and his views on fighting terrorism.

Cole embodies two typical Obama practices: The president often flouts his tough, anti-lobbyist talk, and he uses recess appointments so that his party's senators don't have to vote on nominees with tainted backgrounds.

Cole was never a registered lobbyist, but he was a partner for years at Bryan Cave LLP, a prominent lobbying firm with strong connections to the Democratic Party and a client list that included Walmart, Microsoft, Peabody Energy, the Biotechnology Industry Organization, Blue Cross Blue Shield, and Ford Motor.

Bryan Cave's lobbyists and lawyers include veterans of the Obama campaign and former top Hill staffers, White House aides, and former lawmakers. The firm's political action committee gave 62 percent of its contributions to Democrats.

BryanCave.com says Cole's job included "representation of corporations and individuals before grand juries, in congressional hearings, in court proceedings, and before federal agencies." One might think that "representation of corporations ... in congressional hearings ... and before federal agencies" might count as lobbying, but Cole has never registered under the Lobbying Disclosure Act.

Cole represented weapons giant McDonnell Douglas, and his Web site says he has also represented "individuals and companies in the health care field concerning disputes concerning billing fraud and abuse and FDA regulatory issues." Drugmaker AstraZeneca is a Bryan Cave lobbying client.

Cole is also a generous Democratic donor, having given the maximum to Obama in 2008 and more than $17,000 to political action committees and candidates since 2000.

The fact that Obama's ethics rules "barring" lobbyists don't apply to Cole -- a Democratic donor and corporate lawyer working at a lobbying firm and representing corporations before Congress -- shows how toothless those rules are. As further evidence, look at Cole's colleagues at his new job.

The Justice Department's antitrust chief, Christine Varney, and Associate Attorney General Tom Perrelli, are both former K Street lobbyists. Office of Legal Counsel lawyer Karl Thompson was a lobbyist for Hess and Occidental Petroleum when Obama plucked him from K Street's O'Melveny & Myers.

And the man they all work for -- Attorney General Eric Holder -- was a registered lobbyist at the storied Covington & Burling.

In other words, it's been clear for two years that Obama's "war on lobbyists" was hot air. Tapping "non-lobbyist lobbyist" Cole is just icing.

Two issues held up Cole's nomination. Many Republicans objected to Cole's views in a 2002 op-ed painting the fight against al Qaeda as a criminal prosecution more than a military one, and calling on then-Attorney General John Ashcroft to protect the rights of accused terrorists.

But a handful of Republican lawmakers said they were unhappy with Cole's answers about his stint at AIG. As part of a legal settlement with the U.S. government, AIG was required to hire an independent monitor who would keep an eye on the insurer's regulatory compliance, and report back to the Securities and Exchange Commission and Justice Department. From 2004 to 2006, that was Cole.

The Government Accountability Project, a self-described "whistleblower protection organization," has repeatedly criticized Cole for not answering more questions about his time at AIG -- specifically about his interactions with other AIG/K Street types, such as Kathleen Chagnon and Fannie Mae alumna Anastasia Kelly.

With all of this baggage, Republicans placed a "hold" on Cole's nomination after it cleared committee, spurring charges of "unacceptable delay" from Democrats and the Washington Post. But were it important enough, Majority Leader Harry Reid could have moved the nomination to the floor, invoked cloture, and confirmed him. The Republican "hold" didn't block a vote: It merely forced debate. Top Judiciary Committee Republican Jeff Sessions said Cole would be confirmed if Reid moved the nomination.

So why the recess appointment?

Cole's past as a lobbyist-in-all-but-name and the his AIG stint both made him an inconvenient character for Senate Democrats this past year, especially as they campaigned on phony populism and charges of GOP coziness with K Street, Wall Street, and corporate America.

Enter an Obama innovation in presidential power: While George W. Bush used recess appointments to install officials who couldn't clear a Democratic filibuster, Obama -- with the Cole appointment and that of Donald Berwick as Medicare chief -- uses recess appointments to avoid embarrassing floor debates and spare his party's senators from embarrassing votes.

Obama promised to be a trailblazer. What he didn't mention was that he would blaze trails around public accountability.

Timothy P.Carney, The Examiner's senior political columnist, can be contacted at tcarney@washingtonexaminer.com. His column appears Monday and Thursday, and his stories and blog posts appear on ExaminerPolitics.com.