Legal Ethics Expert: Kagan Must Recuse from Obamacare Case

By Elizabeth Harrington | December 14, 2011 | 4:13pm EST

Supreme Court Justice Elena Kagan.

( – Ronald Rotunda, a law professor and expert on legal ethics, says that Supreme Court Justice Elena Kagan must be recused from judging the challenge to President Barack Obama's health care law that will be heard by the Supreme Court early next year.

“I think she really has to be disqualified,” Rotunda said at a forum in Washington, D.C., on Tuesday that was hosted by Judicial Watch.

Rotunda is the Doy & Dee Henley chairman and distinguished professor of jurisprudence at Chapman University. He testified about the legal basis for Supreme Court recusals at Kagan's confirmation hearings and is the co-author of one of the most widely used textbooks on legal ethics, Problems and Materials on Professional Responsibility. He is also the co-author of Legal Ethics: The Lawyer's Deskbook on Professional Responsibility.

At Tuesday's Judicial Watch forum, Rotunda was joined by Judicial Watch President Tom Fitton, and Carrie Severino, chief counsel and policy director of the Judicial Crisis Network.

Prior to being confirmed to the Supreme Court, Kagan served as the Obama administration's solicitor general, with the job of defending the administration's position in federal court cases. While she was solicitor general, the Obamacare law was proposed, debated, threatened by lawsuits, enacted and, in fact, targeted by lawsuits filed by multiple states.

As first reported, she assigned her top deputy, Neal Katyal, to handle the anticipated lawsuits against Obamacare two months before the bill was signed into the law and  the suits were filed.

On May 25, 2010, filed a Freedom of Information Act request with the Justice Department seeking documents relating to Kagan's involvement with Obamacare and how she handled recusing herself from cases as solictor general. When the Justice Department did not respond for six months, the Media Research Center,'s parent organization, sued the department in federal court, seeking to compel it to comply with the FOIA request.

Judicial Watch filed a similar FOIA and a similiar lawsuit, and the MRC and Judicial Watch lawsuits were joined by the court.

On March 15, 2010, as the lawsuits proceeded, DOJ released to 65 pages of redacted internal DOJ emails and memos in response to the FOIA.  Judge Ellen Huvelle, a Clinton appointee, ruled in October that DOJ did not need to release any further documents or unredact those it has released. MRC is appealing the decision.

“If, really, she had nothing at all to do with it [preparing legal defense of Obamacare], not only would it be more logical for them [Justice Department] to release the documents, but she could have just said, ‘I never had anything to do with it, and I will sit on the case,  period,’” said Severino, in reference to Kagan’s July 2010 testimony before the Senate Judiciary Committee.

“Justice Kagan is very concerned about her legacy, I think that’s the only [thing] left for a Supreme Court Justice to be concerned with--their job security is already there,” said Severino.

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“But I think if you look at her statements, actually it suggests that she is trying to walk a very careful line," said Severino, "so that she’s not found to either, particularly have perjured herself, because a lot of these statements have been under oath that she’s made, and so that she has some kind of plausible deniability down the line.”

“If you look at the way she characterizes things, it’s very telling I think,” she said.

Prof. Ronald Rotunda. (AP Photo)

Rotunda said that in 1973 he served as assistant majority counsel for the Watergate Committee, investigating the scandal that resulted in President Richard Nixon’s resignation. He told a story from that investigation that he indicated was relevant to Kagan.

“Many years ago, when I was assistant majority counsel on the Senate Watergate Committee, the people on the other side said that the tapes will show that Nixon is innocent,” he said.  “And I said to myself, why would you have tapes that show you’re innocent and then hold them back?”

Rotunda continued: “Shortly before they were released by court order, [White House Chief of Staff H.R.] Haldeman testified under oath before the Senate Watergate Committee and said, ‘I’ve heard the tapes and they show that [White House Counsel John] Dean’s a liar.’ He was indicted and convicted under perjury for that, because the tapes show that Dean wasn’t a liar.”

“So, even then, when it was in litigation on whether or not he could turn over the tapes, Haldeman lied about what they said, confident--wrongly, we know--that the tapes would never be turned over,” said Rotunda.

Sen. Jeff Sessions meets with then-Solicitor General Elena Kagan on May 12, 2010, two days after President Barack Obama nominated her to the Supreme Court. (AP Photo/File)

“So, the--I represented a defendant in a death row case, I was convinced that he was innocent, in fact I even knew who did it, and we fought successfully for DNA evidence. And he said, 'That would prove I’m innocent,' and it showed he was guilty," said Rotunda. “There was just one DNA evidence for the right murder and it was only his [DNA].  So, people do things that I hope none of us would do.”

During her July 2010 confirmation hearing, Kagan said in written responses to the Senate Judiciary Committee that she had never been asked and had never offered her views on the underlying legal or constitutional issues relating to Obamacare or any other proposed health care legislation or litigation that might arise from such legislation. She also said that she had never been asked her opinion about any legal issue that may arise from Obamacare.

The documents DOJ has released in response to the and Judicial Watch FOIA requests, according to the panelists on Tuesday, indicate that Kagan, as solicitor general, was sufficiently involved in the Obamacare issue to require her recusal from the court challenge to it.

Judicial Watch President Tom Fitton. (AP Photo)

Judicial Watch President Tom Fitton said the released e-mails “suggest, in the least, the Solicitor General’s office of the Justice Department, which had been run by Ms. Kagan, was more involved in the legal defense of Obamacare than had been previously understood.”

Edward Whelan, president of the Ethics and Public Policy Center, and former law clerk to Supreme Court Justice Antonin Scalia, called for Kagan to recuse herself under 28. U.S.C. 455 (b) (3), which outlines grounds for recusal as, “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.”

Whelan dismissed the claim that Kagan was “walled off” from health care litigation as solicitor general, as Neal Katyal, former deputy solicitor general, wrote in an e-mail on June 15, 2010. Whelan said that walling off of Kagan could be charitably described as “convenient revisionism.”

“I think it’s clear that Elena Kagan was never ‘walled off,’” Whelan said.

“Our argument is this is the most important case of the century,” said Severino. “It is not the time to relax our recusal standards.”

“I think she really has to be disqualified,” Rotunda said of Kagan.

Separate from the FOIA request, House Judiciary Committee Chairman Lamar Smith (R-Texas) sent a letter to Attorney General Eric Holder on July 6, 2011 asking Holder for justice Department documents and interviews so the committee could “properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was solicitor general.”

The Justice Department has refused to comply with the House Judiciary Committee’s request.

Attorney General Eric Holder being sworn in before he testifies in the Senate Judiciary Committee on Nov. 8, 2011. (AP Photo/J.Scott Applewhite)

Testifying before the committee last week, Attorney General Holder could not cite a legal privilege to justify his department’s refusal to comply with this congressional oversight request.

“I think the scandal here is the Justice Department’s behavior,” said Fitton of Judicial Watch.  “This debate we were all involved to a certain extent, did revolve, during her confirmation, around what she would have to recuse herself of, her views especially on Obamacare.”

“This was a central issue to her confirmation debate, at least from critics of her confirmation, of which we were critics,” said Fitton.  “They had documents in their possession that reflected on the solicitor general’s office involvement, and her testimony, which I think the troubling aspect of her testimony is--is that if you viewed her testimony--she omitted seemingly the discussion and the nature of discussing the nature of her office’s involvement.”

“You would have thought there was one meeting, and it wasn’t a substantial meeting, that involved her office,” said Fitton.  “These e-mails suggest there were more meetings involved in her office, and it would have been a very different confirmation debate.”

“So, this is not necessarily a scandal about Justice Kagan and her recusal,” he said.  “The Justice Department has been stonewalling this from the get-go.”

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