Saturday, July 2, 2011

Judicial Watch Asks Congress To Review Supreme Court Justice Elena Kagan's Role in Obamacare

From the Desk of Judicial Watch President Tom Fitton:
Congress Urges Review of Kagan Obamacare Role in Response to JW Disclosures
Judicial Watch
LINK
Back in May I told you that JW had uncovered explosive documents from the Obama Department of Justice (DOJ) indicating Supreme Court Justice Elena Kagan was heavily involved in crafting a defense for Obamacare while she served as Solicitor General. The documents appear to contradict Kagan’s contention that she was merely an uninvolved bystander. Well, now Congress has joined the effort to get to the truth in the matter, calling for a full investigation.

According to today’s The Washington Times:

Forty-nine Republican members of Congress have asked the House Judiciary Committee to “promptly investigate” Supreme Court Justice Elena Kagan’s role in preparing a legal defense for President Obama’s health care law when she served as solicitor general.

In a letter to committee Chairman Lamar Smith, Texas Republican, and the panel’s ranking Democrat, John Conyers Jr. of Michigan, the lawmakers said that “contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee,” recently released Justice Department documents show that Justice Kagan “actively participated with her Obama administration colleagues in formulating a defense” for the law.

Here’s a copy of the letter that was issued from the congressional office of Rep. John Fleming, who is also a physician, by the way. The letter states: “This revelation raises serious questions about Justice Kagan’s ability to exercise objectivity in any case relevant to [Obamacare] that comes before the U.S. Supreme Court.”

Of course, the “Justice Department documents” referenced in the Washington Times report and in a release issued by Rep. Fleming’s office announcing the letter were disclosed through Judicial Watch. We are very glad to have played a role in helping to focus congressional attention on this crucial issue.

How crucial?

In one of the new emails, Kagan’s Deputy Solicitor General urged her to attend a healthcare litigation meeting, calling the legal fight over Obamacare, “litigation of singular importance.”

(Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents were first produced in the Media Research litigation.)

The U.S. Supreme Court will ultimately settle the issue regarding whether or not Obama’s socialist healthcare overhaul will be the law of the land. Everyone knows it. And if Elena Kagan is forced to recuse herself from hearing the case that will be one fewer dependably liberal vote on the Supreme Court for Obamacare.

Since I covered our document discovery in May, I won’t re-publish all of the document excerpts we discovered. For a complete review, please click here.

This action by 49 members of Congress is further testament to the importance of Judicial Watch’s work and is a prime example of your Judicial Watch’s leading watchdog role. When it comes to uncovering the truth and holding our Washington public officials (on the courts and in elected office) accountable to the rule of law, it often wouldn’t get done but for Judicial Watch.

Documents Raise Questions about Kagan’s Role in Obamacare Defense

If Obamacare reaches the U.S. Supreme Court, which it surely will, one key question may determine whether or not the president’s socialist healthcare takeover will remain the law of the land: Will Supreme Court Justice Elena Kagan recuse herself from the case?

Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.

But documents obtained by Judicial Watch as result of a Freedom of Information Act (FOIA) lawsuit suggest that Kagan helped coordinate the Obama administration’s legal strategy to defend Obamacare.

(Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)

According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:

Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

In another email exchange that took place on January 8, 2010, Katyal’s DOJ colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal’s position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.

For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG [Solicitor General’s] office was consulted?...

Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”

Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”

Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.

For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.

The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.

The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”

So let’s sum up. Kagan instructs her office “to be involved” in crafting the Obama administration’s defense of health care reform legislation, which is certainly consistent with her former responsibilities as Solicitor General. As documented in the emails and Vaughn index, she was constantly kept apprised of ongoing litigation strategy discussions. As recently as March 2010, Kagan’s top deputy urged her to attend a high level briefing on Obamacare litigation, without a hint that it might be inappropriate.

Then the president nominates Kagan to the Supreme Court in May 2010, and all of the sudden she knows nothing about the Obama administration’s legal strategy for defending Obamacare? Moreover, Kagan scolds a Justice Department spokesperson for not clearing all sound bites over the matter through her personally.

So what does the law say about these kinds of judicial conflicts of interest? What is the standard for recusal? As reported by CNS News:

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.

According to the law, a “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” It further says any justice “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

Any reasonable person would read these documents and come to this conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the DOJ continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court.

What Did Kagan Tell Her Deputy About Winning the Health-Care Case? DOJ Won’t Say
Tuesday, April 26, 2011
By Terence P. Jeffrey
LINK
(CNSNews.com) - To an ordinary American it might seem like an obvious question with an obvious answer.

When Solicitor General Elena Kagan--whose job was to defend the administration’s position in federal court cases--assigned her top deputy to handle the anticipated legal challenges to the health-care bill that President Barack Obama was pushing through Congress in 2010 did she indicate to that deputy that the administration should defeat those challenges?

Common sense might say: Of course.

But if the common sense answer were in fact the true answer, then the plain sense of the law governing recusals by Supreme Court justices would seem to require Kagan to recuse herself from judging the legal challenges to President Obama’s health-care law.

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in determining whether she needed to recuse herself from any case as a Supreme Court justice.

This law says that any “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” It further says any justice “shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.”

If Kagan indicated to the subordinate she assigned to handle the health care case that the administration should win it, might it not then be reasonable to question her “impartiality” when that case comes before her on the Supreme Court?

If Kagan discussed the “merits” of the health care case with the subordinate she assigned to it, would it not be in keeping with the “letter” of the law--not to mention with its spirit--for her to recuse herself?

But Kagan told the Senate Judiciary Committee, in writing, that she never was asked and never offered her views on the underlying legal or constitutional issues related to any proposed health care legislation--including the health-care reform law signed by President Obama--and that she never was asked nor offered her views on the underlying legal or constitutional issues related to potential litigation resulting from any proposed health care legislation.

The Justice Department will not respond to similar questions CNSNews.com has posed to Acting Solicitor General Neal Katyal--citing as its reason for not answering ongoing litigation over a CNSNews.com Freedom of Information Act (FOIA) request that seeks records relevant to whether Kagan ought to rescuse herself from the health-care case.

On Jan. 8, 2010, then-Solicitor General Kagan personally assigned Katyal, then the principal deputy solicitor general, to be the person in the Office of the Solicitor General (OSG) to handle the expected legal challenges to the health care bill. That same day Katyal had indicated in an email to DOJ colleague Brian Hauck—who worked in the associate attorney general’s office—that he hoped they would “crush” the legal challenges to the health-care bill.

Katyal also wrote Hauck that day that “Elena would definitely like OSG to be involved in this set of issues” regarding the expected health-care litigation and that Katyal would “bring in Elena as needed.”

Katyal has now signed legal briefs representing the Obama administration in the lawsuits brought against Obama’s health-care law by Florida and Virginia.

Among the questions CNSNews.com has put to Katyal that the Justice Department will not answer are:

--“Did you personally speak at any time that day [when Kagan assigned him to handle the expected legal challenges to the health-care bill] to Solicitor General Kagan about what the Justice Department viewed as the inevitable challenges to the health-care proposal or the department’s need to plan to defend against them?”

--“If you did speak to Solicitor General Kagan that day about the inevitable challenges to the health care proposal or the Justice Department’s need to start planning the administration’s defense against them, what did you say to her and what did she say to you?”

--“How did you know on that day that Solicitor General Kagan ‘definitely’ wanted her office involved in planning the administration’s treatment of the ‘set of issues’ involved in the inevitable challenges to the health-care proposal?”

--“Did you follow through on your statement in the email to Brian Hauck and ‘bring Elena in as needed’ in planning the administration’s treatment of the ‘set of issues’ involved the administration’s defense against the inevitable challenges to the health care proposals?”

--“Did you ever in any way communicate to Solicitor General Kagan, as you did to Brian Hauck in your Jan. 8, 2010 email, your desire to ‘crush’ or otherwise defeat the challenges to the health-care proposal? If so, how did Solicitor General Kagan respond?”

--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to succeed in its defense against challenges to the health-care proposals?”

--“Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to fail in its defense against challenges to the health-care proposals?”

--“Did you at any time communicate to your colleagues or subordinates in the Solicitor General’s office, or persons elsewhere in the administration, about what Solicitor General Kagan wanted them to do, or would like to see happen, in regard to legal challenges to the health-care proposals?”

The bases for these questions are facts revealed in a series of internal Justice Department emails the department released last month to CNSNews.com in partial response to the FOIA request CNSNews.com had filed in May 2010.

On Dec. 24, 2009, the Senate passed the health-care bill that President Obama later signed. A week later, the New York Times published an article reporting that Florida Attorney General Bill McCollum was considering a lawsuit to challenge the bill if it became law and that there were “nearly a dozen other states who have also threatened to sue over the mandate.”

On Jan. 8, 2010, Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, emailed Neal Katyal, principal deputy solicitor general, to tell him that Perrelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.” On receiving that email, Katyal immediately emailed back to Hauck, saying: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.”

Katyal, who was Kagan’s top subordinate, then forwarded Hauck’s email to Kagan and said, “I am happy to do this if you are ok with it.” He also offered his colleague Deputy Solicitor General Ed Kneedler as a possible candidate for handling the health-care issue, or the two of them together.

Kagan instantly assigned Katyal. “You should do it,” she said by return email.
Neal Katyal

That email exchange took place at about 11:00 am on a workday. About two hours later, shortly after 1:00 pm, Katyal emailed again to Hauck in the associate attorney general’s office ostensibly to inform him of his boss, Elena Kagan’s, determinations.

“Brian,” Katyal wrote, “Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [name redacted] and will bring in Elena as needed.”

At this time, Kagan’s job as solicitor general was to represent the administration’s position in federal court. Her boss, President Barack Obama, had just seen his signature legislation, the health-care bill, squeak through the Senate. States were already threatening law suits to stop it. Kagan, according to the questionnaire she filled out for the Senate Judiciary Committee, would not be informed by the White House until March 5, 2010 that the president wanted to consider her for a possible Supreme Court vacancy.

On March 23, the day President Obama signed the health-care law, Florida and Virginia filed suit against it in federal court. Supreme Court Justice John Paul Stevens, whom Kagan would eventually replace, did not announce his retirement, or formally inform President Obama of it, until more than two weeks later on April 9, 2010. And Obama did not inform Kagan he wanted to nominate her to replace Stevens until May 9, 2010, publicly making the announcement of her nomination the next day.

On Jan. 8, when Kagan assigned her deputy Katyal to handle the expected lawsuits against the health-care bill, she was fully engaged as Obama’s full-time solicitor general--and she would not recuse herself from her duties as solicitor general for another four months. When Katyal emailed back to his colleague Hauck in the associate attorney general’s office that January day that “Elena would definitely like OSG to be involved in this set of issues,” and that he would be bringing “in Elena as needed,” there was no reason for Kagan not to be involved in the issue.

There also was no apparent reason on that day that Obama’s solicitor general and her top deputy--expecting lawsuits against the health-care bill--should not have felt free to discuss the legal and constitutional issues those lawsuits would raise.

But Kagan informed the Judiciary Committee that she never discussed these issues with anyone.

There should have been no apparent reason for Kagan not to expect—and want—the subordinate she assigned to handle the expected legal challenges to President Obama’s health-care bill to work aggressively to defeat those challenges.

But the law says Kagan cannot sit in judgment of a case on the Supreme Court if her “impartiality might be reasonably questioned”—or, if, as a government employee, she ever expressed her opinion on its “merits.”

In July 2010, during her confirmation process, Republican members of the Senate Judiciary Committee asked Kagan in a letter: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

They also asked: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to any potential litigation from such legislation?”

Kagan’s answer to both questions was: “No.”

When CNSNews.com initially sent a series of questions to Acting Solicitor General Neal Katyal on March 25 asking him about his conversation and contacts with then-Solicitor General Kagan about the health-care issue, the Justice Department responded with a brief emailed statement.

“During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that,” said Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs.

When CNSNews.com followed up with an email asking if that was “the totality” of what the Justice Department wanted to say in response to the questions submitted by CNSNews.com, Schmaler responded: “Yes—given the subject is matter of ongoing litigation.”

(See the full set of questions CNSNews.com sent to Katyal on March 25 here.)

On April 14, CNSNews.com sent a follow-up set of question to Katyal, with a carbon copy going to Schmaler. CNSNews.com asked Katyal if it was his view that he could not answer the questions CNSNews.com had sent him on March 25 “because of the litigation you are currently working on that involves the health-care legislation the U.S. Senate passed on Dec. 24, 2009?”

CNSNews.com then asked Katyal three additional questions based on two of the questions that the Judiciary Committee Republicans had asked Kagan—and to which she answered, “No.”

CNSNews.com asked: “At any time when Elena Kagan was solicitor general did you and she ever discuss, or did you ever witness her discuss with someone else, the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

CNSNews.com asked: “Did she ever verbally express to you, or in your presence express to someone else, an opinion about whether the administration should win or lose any court challenge made against the health-care legislation that was passed by the Senate on Dec. 24, 2009 and later signed into law by President Obama?”

And CNSNews.com asked: “If the answer to question 2 or 3 is yes, could you please explain the nature and context of what then-Solicitor General Kagan said?”

(See the full set of questions CNSNews.com sent to Katyal on April 14 here.)

DOJ Deputy Public Affairs Director Schmaler responded to the questions emailed to her and Katyal on April 14. Rather than actually answer the questions, she referred CNSNews.com back to the statement DOJ had issued in response to CNSnews.com’s initial questions: “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the small number of documents that were released reflect that.”

Schmaler also clarified that the Justice Department was not declining to answer CNSNews.com’s questions to Acting Solicitor General Katyal because of the health-care litigation itself, but because of the ongoing litigation—brought by the Media Research Center (CNSNews.com’s parent organization)—over the Justice Department’s compliance with CNSNews.com’s Freedom of Information Act request.

“[T]he litigation I was referencing [in response to previous set of questions sent by CNSNews.com]– it’s the ongoing FOIA litigation ….not the ACA litigation,” wrote Schmaler.

On Nov. 23, 2010, the MRC filed a complaint against the Justice Department in the U.S. District Court for the District of Columbia. The complaint asked the court to direct the Justice Department to comply with a FOIA request that CNSNews.com had initially submitted to the Office of the Solicitor General on May 25, 2010.

CNSNews.com’s FOIA request sought three categories of records. These included records of any meetings or communications Kagan might have participated in as solicitor general that involved President Obama’s health-care reform plan, records of any meetings or communications Kagan might have participated in in which legal challenges to the health-care legislation signed by President Obama were discussed, and records of any meetings or communications Kagan might have participated in in which there was discussion of whether Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that case might later come before her were she confirmed to a seat on a federal court.

The Justice Department initially asked the court to dismiss the MRC’s complaint. Then on March 15, the Justice Department released 66 pages of documents to CNSNews.com. These documents were primarily internal Justice Department emails. The MRC is seeking the release of additional records responsive to its FOIA request and the case is ongoing in the U.S. District Court for the District of Columbia

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