Judiciary Committee Aide: Letter to DOJ Requesting Kagan-Related Documents and Interviews ‘Not a Formal Investigation’

July 8, 2011 - 3:14 PM

Lamar Smith

House Judiciary Chairman Lamar Smith (R-Texas) (CNSNews.com/Penny Starr)

(CNSNews.com) - A letter that House Judiciary Chairman Lamar Smith (R.-Texas) sent to Attorney General Eric Holder on July 6 -- asking that by July 29 the Justice Department provide the committee with four categories of documents relating to former Solicitor General Elena Kagan and that it arrange “witness interviews” of two department officials -- was a “request for additional information” and does not mean the committee has “launched a formal investigation at this time,” a Judiciary Committee aide told CNSNews.com in a written statement.

The initial posting of a July 6 CNSNews.com story—“Judiciary Committee Launches Probe of Kagan’s Involvement in Obamacare”—used the word “investigation” in three places to describe what the committee was initiating with Chairman Smith’s letter to the attorney general. The committee requested a correction of the story; and the story now uses the word “inquiry” in the three places where it had previously said “investigation.”

“The Committee has contacted the Justice Department for additional information, but we have not launched a formal investigation at this time,” the aide told CNSNews.com in the emailed statement.

Chairman Smith’s “request for additional information” from the Justice Department came in response to a letter that 49 House members sent to Smith on June 24. The first paragraph of that letter said: “We respectfully call upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General. Contradictory to her 2010 confirmation testimony before the Senate Judiciary Committee, recently released Department of Justice (DOJ) documents indicate that Justice Kagan actively participated with her Obama administration colleagues in formulating a defense of PPACA.”

The documents referenced in the letter by the 49 congressmen had been released by the Justice Department pursuant to a Freedom of Information Act (FOIA) request initially filed by CNSNews.com on May 25, 2010. On March 15, 2011, the Justice Department released 66 pages of internal department emails in partial response to that request. The Media Research Center—the parent organization of CNSNews.com—joined by Judicial Watch has sued the Justice Department in U.S. District Court seeking the release of additional documents under this FOIA request.

Chairman Smith’s letter to Attorney General Holder enclosed a copy of the letter that Smith had received from the 49 congressmen calling for the Judiciary Committee to “promptly investigate” the Kagan matter. However, Smith did not use the word “investigate” in his letter to Holder.

“On June 24, 2011, I received the enclosed letter from 49 Members of Congress,” Smith wrote to the attorney general. “On their behalf, I write to request relevant documents and witness interviews in order to properly understand U.S. Supreme Court Justice Elena Kagan’s involvement in health care legislation or litigation while serving as United States Solicitor General.

“In recent weeks,” Smith continued in his letter to the attorney general, “questions have been raised about whether Justice Kagan’s prior work on what became the Patient Protection and Affordable Care Act (PPACA) while serving as Solicitor General should disqualify her from hearing challenges to its constitutionality. All parties agree the critical question is the extent of her involvement, as Solicitor General, in formulating the administration’s legal position on the PPACA, which was signed into law by President Obama on March 23, 2010.

“During her Senate confirmation,” Smith continued in his letter, “then-Solicitor General Kagan answered ‘no’ when questioned about whether she had ever been 'asked about [her] opinion' or 'offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation.’

“Yet,” Smith continued to Holder, “documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial.

“Based on a review of these released documents, and in order to properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General,” Smith continued, “I request the Department produce the following materials from the period between March 20, 2009 and August 7, 2010:

“1. All documents referring to any meetings or conversations (personal or electronic) about potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned, or copied,” Smith told Holder in his letter.

“2. All documents referencing potential or actual health care legislation or litigation in which Solicitor General Kagan was involved, mentioned or copied,” Smith further told Holder.

“3. All documents referencing excluding Ms. Kagan from any matters relating to health care legislation or litigation while she was Solicitor General,” Smith continued.

“4. All documents referencing possible recusal by Solicitor General Kagan from any matters relating to health care legislation or litigation if she were to be confirmed as a Supreme Court Justice,” Smith wrote to Holder.

Smith also told Holder the committee wanted to interview two individuals.

“In addition,” Smith wrote, “the Committee seeks to interview: 1. Neal Katyal, departing Principal Deputy Solicitor General. 2. Tracy Schmaler, Deputy Director, Office of Public Affairs.”

Smith told Holder he would like the materials provided and interviews arranged by July 29.

“Given the speed with which PPACA litigation is proceeding I ask that these materials be provided and arrangements for interviews be made by July 29, 2011,” Smith wrote Holder.

A federal law—28 USC 455—governs when Supreme Court justices must recuse from a case. The law says in part:”(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: … (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Justice Kagan said she would abide by the “letter and spirit” of this law.

Rep. John Fleming (R.-La.) led the group of 49 House members who sent the letter to Chairman Smith that called “upon the House Judiciary Committee to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General.” Members joining Fleming in signing this letter were House Oversight and Government Reform Chairman Darrell Issa (R.-Calif.), House Republican Policy Chairman Tom Price (R.-Ga.), Rep. Michele Bachmann (R.-Minn.), and Rep. Ron Paul (R.-Texas.)

Rep. Fleming has posted a PDF of Chairman Smith’s letter to Holder on his website. It can be viewed by clicking here.