Holder Refuses to Provide Testimony on Kagan’s Involvement in Obamacare

Terence P. Jeffrey | June 12, 2012 | 3:19pm EDT
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Attorney General Eric Holder testifying in the Senate Judiciary Committee on June 12, 2012. (AP Photo/J. Scott Applewhite)

(CNSNews.com) - Attorney General Eric Holder has refused to provide written testimony to the Senate Judiciary Committee in response to "questions for the record" submitted to him by Sen. Jeff Sessions (R.-Ala.) that focus on Supreme Court Justice Elena Kagan's involvement in the Patient Protection and Affordable Care Act--AKA Obamacare--while she was President Barack Obama's solicitor general.

Question: “Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which information related to the Patient Protection and Affordable Care Act and/or litigation related thereto was relayed or provided to her?”

Question: “When did your staff begin ‘removing’ Solicitor General Kagan from meetings in this matter? On what basis did you take this action? In what other matters was such action taken?”

Question: “Did you ever have a conversation with Justice Kagan regarding her recusal from matters before the Supreme Court related to the Patient Protection and Affordable Care Act? If so, please describe the circumstances and substance of those conversations.”

These are three of the eight questions that Sessions submitted to Holder on Nov. 15, 2011 to be included as part of the official record of Holder’s testimony in an oversight hearing that the Senate Judiciary Committee held on Nov. 8, 2011. Sessions is a senior member of the committee.

Holder did not provide the committee with a formal response to Session's questions until June 7, 2012—seven months after Sessions submitted them.

When he finally did officially respond, Holder did not answer any of the questions.

Instead, in responding to each, he simply referred the Judiciary Committee to a letter Assistant Attorney General Ronald Weich had sent to Sessions on Feb. 24.  This letter, in turn, responded to a letter Sessions had sent to Holder on Jan. 31 noting that Holder had not yet answered the questions that Session had submitted in November.

Weich’s February letter informed Sessions directly that the Justice Department would decline to answer his questions to Holder about Kagan’s involvement in Obamacare.

Back in March 2010, on the same day that President Obama signed his health care law, Florida and Virginia sued the administration challenging the law in federal court. At that time, Elena Kagan was Obama’s solicitor general, and her job was to defend his administration’s position in federal court disputes.

Obama did not nominate Kagan to the Supreme Court until May 10, 2010--seven weeks after he had signed the health care law and Florida and Virginia had filed their suits against it. Kagan did not recuse herself from her duties as solicitor general until after Obama nominated her to the court.

On two occasions last year—March 15 and Nov. 9 (the day after Holder appeared in the Senate Judiciary Committee)—the Department of Justice released internal department emails in response to a Freedom of Information Act request that CNSNews.com had originally filed on May 25, 2010--a month before Elena Kagan’s Supreme Court confirmation hearings. That FOIA had sought documents and records connecting Kagan to Obamacare, litigation arising from Obamacare, and discussion of when she should recuse herself from a case as solicitor general because they might later come before her if she were confirmed to a federal court.

DOJ did not release any of the emails in question until after the Media Research Center, the parent organization of CNSNews.com, filed a lawsuit in November 2010, seeking DOJ's compliance with the FOIA request.

The first set of emails released on March 15, 2011, showed, among other things, that on Jan. 8, 2010, Kagan had personally assigned her top deputy to handle the expected litigation against Obamacare.

That was four months before Obama nominated Kagan to the court.

Assistant Attorney General Weich’s Feb. 24, 2012 letter to Sen. Session informing him that DOJ would not answer his written questions to Holder pointed to a similar request for information about Kagan's involvement in Obamacare that House Judiciary Chairman Lamar Smith (R.-Texas) had first sent to Holder in a July 6, 2011 letter.

Weich indicated that the Justice Department not only was declining to respond to the questions Sessions had submitted as a member of the Senate Judiciary Committee but also that it was declining to provide Smith with the information he had requested as chairman of the House Judiciary Committee.

Weich noted that the Justice Department had released documents relating to Kagan and Obamacare in response to FOIA requests (filed by CNSNews.com and Judicial Watch) and that it would not release any further information.

“During the past year, the Justice Department has responded to several requests from House Judiciary Committee Chairman Lamar Smith for documents and other information relating to Justice Kagan’s activities while she served as Solicitor General, with particular reference to the Patient Protection and Affordable Care Act,” Weich wrote Sessions.

“The Department has disclosed documents relating to that topic in response to requests pursuant to the Freedom of Information Act; we have offered copies of those documents to the House Judiciary Committee and would be pleased to provide them to you as well if you wish,” Weich wrote. “Beyond that, we have serious concerns about a congressional inquiry regarding this matter. Enclosed are copies of our letters to Chairman Smith on this subject.”

Weich told Sessions the topic of Kagan’s involvement in Obamacare would have been appropriately explored during her Supreme Court confirmation process.

In fact, during that confirmation process, Sessions and other Republicans on the Senate Judiciary Committee did ask Kagan a series of written questions about her involvement in Obamacare.

When they asked Kagan whether she had ever been present at a meeting where Florida’s lawsuit against Obamacare was discussed, she said: “I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred.”

When they asked her whether she had ever been asked her “opinion regarding the merits of or the underlying legal issues” in Florida’s lawsuit against Obamacare, she said: “No.”

When they asked more generally whether she had ever been asked her opinion “regarding any other legal issue that may arise” from Obamcare, she said: “No.”

The Republican senators also asked Kagan whether she had ever been asked her opinion “regarding the underlying legal or constitutional issues related to any proposed health care legislation,” including but not limited to Obamacare, “or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

She said: “No.”

Kagan also said "no" when the Senate Judiciary Committee Republicans asked her if she had ever “offered any views or comments” regarding the underlying legal or constitutional issues related to any proposed health care legislation or litigation arising from such legislation.

In his July 6, 2011 letter to Holder requesting additional documents and interviews with DOJ personnel relating to Kagan’s involvement in Obamacare, House Judiciary Chairman Smith said: “Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial.”

Responding to Sen. Sessions in his Feb. 24 letter, Assistant Attorney General Weich said: “As we told Chairman Smith, we believe that the rigorous confirmation process was the appropriate forum to explore any concerns about the nominee’s role in the legislative process relating to this statute, and, in fact, then-Solicitor General Kagan responded to questions about this matter during the Senate Judiciary Committee confirmation proceedings.

“Moreover, there is an established legal process for parties to pending litigation to raise their concerns about possible conflicts of interest that may bear on a Justice’s decision to recuse,” Weich wrote Sessions. “Under these circumstances, we have respectfully declined to respond to further congressional inquiries into the pre-confirmation activities of a sitting Justice of the Supreme Court, which we believe pose an unacceptable risk of inappropriate encroachment on the judicial branch. For these same reasons, we must respectfully decline your request for information about this matter.”

On June 7, in finally officially responding to the "questions for the record" for the Judiciary Committee's Nov. 8, 2011 hearing, Holder answered each and every question about Kagan by simply referring the committee to Weich's Feb. 24 letter to Sessions.

For example, to the question of whether he was aware of then-Solicitor General Kagan being present during any conversation or meeting in which the Patient Protection and Affordable Care Act and/or litigation related to it were discussed, Holder said: “Please see the attached letter sent to Senator Sessions on February 24, 2012.”

A federal law, 28 USC 455, says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

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

Sen. Sessions prefaced his "questions for the record" to Holder by citing several of the internal DOJ emails (that had been released under FOIA to CNSNews.com) that mention Kagan in the context of discussing the pending health-care legislation and the anticipated lawsuits against it.

For example, Sessions drew Holder's attention to an Oct. 13, 2009 email that Kagan’s top deputy, Neal Katyal, sent her, saying “we got [Sen. Olympia] Snowe on health care.” This referred to the fact that Snowe, a Republican from Maine, was voting for Obamacare in the Senate Finance Committee.

Sessions also drew Holder’s attention to an email chain created on Jan. 8, 2010, two weeks after the Senate passed Obamacare. This chain starts with Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, sending an email to Katyal, Kagan’s top deputy, to let him know that the associate attorney general planned “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”

Katyal responded: “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone.”

Shortly after receiving the email from Hauck, Katyal forward it to Kagan, saying: “I am happy to do this if you are ok with it.” Kagan quickly responded, assigning her top deputy to work on the anticipate lawsuits against Obamacare. “You should do it,” she said.

A couple of hours later, Katyal emailed back to Hauck. “Brian,” he wrote, “Elena would definitely like OSG [Office of the Solicitor General] 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.”

On March 16, 2010, as Sessions pointed out in his questions to Holder, Kagan herself sent an email to David Barron, then acting-assistant attorney general for the Office of Legal Counel. In this email, written five days before Obamacare passed the House, Obama’s solicitor general asked the lawyer running DOJ’s Office of Legal Counsel if he had seen former federal appellate judge Michael McConnell’s recent op-ed in the Wall Street Journal.

The op-ed in question argued that the so-called Slaughter Rule was unconstitutional. This was the procedure—named for then-House Rules Chairman Louise Slaughter, and under consideration by the House leadership at the time--that would have allowed the House to “deem” Obamacare passed without directly voting on it.

Barron responded to Kagan: “YES—HE IS GETTING IT STARTED.”

In his "questions for the record" to Holder, Sessions also drew the attorney general’s attention to an email chain that indicates that Kagan was brought into the loop when the Justice Department was considering how to handle a lawsuit against Obamacare, predicated on the unconstitutionality of the Slaughter Rule, that Mark Levin’s Landmark Legal Foundation was vowing to file if the law was enacted using the rule.

In this email chain, created on March 18, 2010 (three days before Obamacare passed the House), Kagan’s deputy, Katyal, alerted Associate Attorney General Perelli on the urgency of dealing with Landmark’s threatened suit. Katyal copied Kagan on the email and mentioned her in it.

“Tom, I was just looking at the draft complaint by Landmark Legal Foundation,” Katyal wrote. “It is clearly written to be filed when the House approves the reconciliation bill and before the President signs it.”

“As such, we could be in court very soon,” Kaytal said in the email copied to Kagan.

“In light of this, for what it is worth, my advice (I haven’t discussed this with Elena, but am cc’ing her here) would be that we start assembling a response, [redacted text] so that we have it ready to go,” Katyal wrote. “They obviously have their piece ready to go, and I think it’d be great if we are ahead of the ball game here.”

Sessions also cited for Holder an email exchange between Kagan and Harvard Law Prof. Laurence Tribe, who was then working for the Justice Department. This exchange took place on March 21, 2010, the day the House approved Obamacare.

Tribe sent Kagan an email with the subject line: “fingers and toes crossed today!” Kagan emailed back, saying: “I hear they have the votes, Larry!! Simply amazing.” He responded to her: “So health care is basically done! Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

That same day, as Sessions noted for Holder, Katyal received an email from Associate Attorney General Perrelli inviting him to a meeting to be held at the White House the next day to plan for the litigation against Obamacare. Katyal forwarded the email to Kagan. “This is the first I’ve heard of this,” Katyal told her. “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

Kagan emailed him back: “What’s your phone number?”

When the Supreme Court heard oral arguments in the lawsuits against Obamacare earlier this year, Kagan participated in the cases. The court is expected to decide them by the end of this month.

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