Judiciary Committee Launches Probe of Kagan’s Involvement in Obamacare

July 6, 2011 - 7:18 PM

lamar smith

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

[Editor’s note: As originally posted, this story used the word “investigation” in three places to describe what the House Judiciary Committee was initiating with Chairman Lamar Smith’s letter to the attorney general which is cited in this report. In those three places, the word “investigation” has been changed to “inquiry.” The committee requested a correction of the story, saying Smith’s letter asking for four categories of documents from the Justice Department as well as “witness interviews” is a “request for additional information” and not the beginning of a “formal investigation.” “The Committee has contacted the Justice Department for additional information, but we have not launched a formal investigation at this time,” a Judiciary Committee aide told CNSNews.com in an emailed statement. To see a follow-up story click here.]

(CNSNews.com) - The House Judiciary Committee is launching an inquiry to probe the involvement that Supreme Court Justice Elena Kagan had in “health care legislation or litigation” when she was serving as President Barack Obama’s solicitor general and was responsible for defending the administration’s position in federal court cases.

The inquiry will look at whether Kagan is required by law to recuse herself from judging cases challenging President Obama’s health-care law and whether her answers to questions posed by the Senate Judiciary Committee during her confirmation process were accurate.

The Judiciary Committee inquiry follows up on a letter that 49 House members—led by Rep. John  Fleming (R.-La.)—sent to House Judiciary Chairman Lamar Smith (R.-Texas) and Ranking Member John Conyers (D.-Mich.) on June 24. That letter pointed to Justice Department documents it called “contradictory” to Kagan’s Senate confirmation testimony and called for the 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.”

A federal law—28 U.S.C. 455—prohibits a Supreme Court justice from judging a case in which her impartiality can be reasonably questioned or if, while in previous government service, she served as counsel or adviser on the case or expressed an opinion about its merits.

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

“In recent weeks, question 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,” Chairman Smith wrote Holder.

“All parties agree the critical question is the extent of her involvement, as Solicitor General, in formulating the Administration’s legal position on PPACA, which was signed into law by President Obama on March 23, 2010,” wrote Smith.

On that same day, Florida and Virginia filed suits challenging the constitutionality of the law President Obama had signed. At that time, Kagan was still in full service as Obama’s solicitor general. Obama would not nominate her to the Supreme Court until seven weeks later--on May 10, 2010--and she would not recuse herself from her duties as solicitor general until after her May 10, 2010 nomination.

The letter 49 House members sent to Chairman Smith and Ranking Member Conyers on June 24 pointed to documents released by the Justice Department as the result of a Freedom of Information Act request filed by CNSNews.com back on May 25, 2010, a month before Kagan’s Supreme Court confirmation hearings.

The CNSNews.com FOIA request sought DOJ records reflecting communications to or from Kagan and meetings attended personally or electronically by Kagan in which any of three things were topics: 1) the administration’s health care plan, 2) legal challenges to the health-care bill signed by President Obama, and 3) whether Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general because it might later come before her were she confirmed to a federal court.

The Justice Department stalled in responding to the CNSNews.com FOIA request. On Nov. 23, 2010, the Media Research Center—CNSNews.com’s parent organization—filed suit in the U.S. District Court for the District of Columbia, asking the court to make the Justice Department comply with the request.

On March 15, 2011, the Justice Department partially responded to CNSNews.com’s FOIA request--releasing 66 pages of internal DOJ emails—and the case is still pending in federal court where the MRC, joined by Judicial Watch, is seeking the release of additional documents.

A particular interesting email chain in the set released by the Justice Department shows that on Jan. 8, 2010, then-Solicitor General Elena Kagan personally assigned her top deputy, Neal Katyal, to handle the expected lawsuits against President Obama’s Patient Protection and Affordable Care Act, and that Katyal informed the Associate Attorney General’s office that Kagan “definitely” wanted her office involved in this issue.

This was two weeks after the Senate had passed PPACA—on Dec. 24, 2009--and four months before President Obama nominated Kagan to the Supreme Court.

In the Jan. 8, 2010 email chain, Brian Hauck, the senior counsel to Associate Attorney General Tom Perrelli, emailed Neal Katyal, Kagan’s principal deputy, 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 Hauck’s email, Katyal instantly emailed back to say: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.”

Katyal then forwarded Hauck’s email to Kagan and said: “I am happy to do this if you are ok with it.” He also offered Deputy Solicitor General Ed Kneedler as a 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.

That email exchange took place at about 11:00 am on a Friday, during Justice Department working hours. Shortly after 1:00 pm that same day, Katyal emailed again to Hauck in the associate attorney general’s office seemingly informing him of his boss, Elena Kagan’s, determinations.

“Brian,” Katyal said, “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.”

Two other interesting email chains occurred on May 17, 2010, a week after President Obama had nominated Kagan to the Supreme Court, and on June 15, 2010, two weeks before Kagan’s confirmation hearings in the Senate Judiciary Committee.

At 1:03 p.m. on May 17, 2010, Justice Department Spokesperson Tracy Schmaler sent an email to Kagan’s top deputy Katyal on which the subject line said: “HCR litigation.”

“Has Elena been involved in any of that to the extent SG office was consulted?” Schmaler asked Katyal in the email. “Know you have been point but expect I’ll get this q.”

Only a minute later, Katyal emailed back. “No, she never has been involved in any of it,” he said. “I’ve run it for the Office, and have never discussed the issues with her one bit.”

Another minute passed and then Katyal sent Schmaler another response, this time referencing the subject line of Schmaler’s original email. “Hcr is health care reform, right?” asked Katyal. “If so, then my previous answer stands.”

Six minutes after that, at 1:11 p.m, Schmaler responded. “Yes – thanks,” she told Katyal.

Only 8 minutes later, Katyal sent Kagan the original email exchange between him and Schmaler in which Schmaler had asked if Kagan had been involved in health-care legislation and Katyal had responded that she had never “been involved in any of it.”

“This is what I told Tracy about health care,” Katyal told Kagan in the email.

Kagan herself then responded to both Katyal and Schmaler. “This needs to be coordinated,” Kagan wrote. “Tracy, you should not say anything about this before talking to me.”

Four minutes after Kagan’s this-needs-to-be-coordinated email, Katyal responded to Kagan but not Schmaler. “Got it,” he said. “I have been receiving a plethora of inquiries, from Tracy, Ali, Kravis, etc. about a whole variety of things like the below for several days now. Most of them aren’t that sensitive so I don’t pass them on to you. I am very happy to just stay out of this and have you field these inquiries if you’d like. Just let me know.”

Schmaler later that day sent both Katyal and Kagan her response to Kagan’s this-needs-to-be-coordinated email. “Sure – no one asked yet … Just expecting it,” Schmaler said.

The June 15, 2010 email chain—which occurred just two weeks before Kagan’s confirmation hearings--was initiated by Katyal with a message to Kagan. Here he briefly told Kagan about a conversation he had with Attorney General Eric Holder and what he had told Holder about Kagan’s involvement in the health-care litigation.

“Also AG just told me that he expects a big story coming out shortly about whether you are recused in health care litigation,” Katyal wrote Kagan. “I went over the timing that you have been walled off from Day One.”

In the letter he sent today to Attorney General Holder, House Judiciary Chairman Smith is specifically asking to interview Katyal and Schmaler.

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

Smith is also asking the Justice Department for four categories of documents. These include documents relating to Kagan’s involvement in health care legislation or litigation and 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 gave the Justice Department a July 29 deadline to produce the documents. “Given the speed with which PPACA litigation is proceeding I ask that these materials be provided an arrangements for the interviews be made by July 29, 2011,” he wrote Holder.

During Kagan’s confirmation process, the Republicans on the Senate Judiciary Committee asked her a series of written questions about her involvement in the health-care issue. One question inquired whether she had ever been “asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation … or the underlying legal or constitutional issues related to potential litigation resulting from such legislation.” Another question asked her whether she had “ever offered any views or comments” on the same subjects.

Kagan answered both questions: “No.”

In his letter to Attorney General Holder, Judiciary Chairman Smith said: “Yet, documents released by the Department of Justice in response to Freedom of Information Act requests raise questions about that unequivocal denial.”