Senate GOP Leaders To Holder: Your Kagan Testimony 'Belied By The Facts'

Terence P. Jeffrey | November 19, 2011 | 9:34am EST
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Attorney General Eric Holder testifies in the Senate Judiciary Committee on Nov. 8, 2011. (AP Photo/J. Scott Applewhite)

( - Senate Republican leaders sent a letter to Attorney General Eric Holder on Friday expressing their view that testimony he gave in the Senate Judiciary Committee last week on the Justice Department's handling of then-Solicitor General Elena Kagan's involvement in litigation arising from the administration's health care legislation was "belied by the facts."

The senators also urged Holder to comply with requests that have been submitted to the Justice Department by Congress seeking information about Kagan's involvement in the matter and expressed their view that Kagan's activities as solicitor general may have triggered two different provisions of a federal law that governs when a Supreme Court justice must recuse from a case.

"Unfortunately, your Department has rejected all Congressional oversight requests for information about her role in the Obama Administration's defense of this law," said the letter to Holder, which was signed by Senate Minority Leader Mitch McConnell (R.-Ky.), Senate Minority Whip Jon Kyl (R.-Ariz.), Senate Judiciary Committee Ranking Member Charles Grassley (R.-Iowa) and Sen. Mike Lee (R.-Utah), who is a member of the Senate Judiciary Committee.

"You recently told the Senate, incredibly, that you were not even aware of Congressional requests on this topic, and that your Department handled her duties as relates to such matters in a way that is belied by the facts, namely that you physically removed her from all meetings discussing litigation," the senators told Holder.

[Watch a video clip of Holder's testimony here:]

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Since last summer, the House Judiciary Committee, which has oversight of the Justice Department and federal courts, has been unsucessfully seeking Kagan-related documents and witness interviews from the Justice Department.

Sen. Lee questioned Holder about the House committee's requests in a Senate Judiciary Committee hearing on Nov. 8. On Tuesday, Sen. Jeff Sessions (R.-Ala.), a senior member of that Senate panel, demanded that Holder submit written testimony on the Kagan matter, following up on Holder's appearance in the committee--a standard practice in Senate oversight hearings.

In a July 6 letter to Holder, House Judiciary Chairman Lamar Smith (R.-Texas) had requested Kagan-related documents and witness interviews so that the committee could "properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General."

At issue in the House Judiciary Committee's request was whether Kagan must recuse herself from Supreme Court cases involving the health-care legislation that President Obama signed when Kagan was Obama's solicitor general--responsible for defending his administration's position in federal court disputes--and whether Kagan had accurately answered written questions put to her by Senate Judiciary Committee Republicans during her confirmation process.

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

In the House Judiciary Committee's July request for Kagan-related documents and witness interviews, Chairman Smith said that emails DOJ had released--in response to Freedom of Information Act requests filed by and Judicial Watch--raised questions about the written responses Kagan gave to the questions that Senate Judiciary Committee Republicans asked her during her confirmation.

"During her Senate confirmation, 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 ... litigation resulting from such legislation,'" Chairman Smith wrote Holder. "Yet, documents released by the Department in response to Freedom of Information Act requests raise questions about that unequivocal denial."

Chairman Smith's July 6 letter to Holder set a July 29 deadline for DOJ to comply with the committee's request for the Kagan-related documents and witness interviews.

Despite that deadline, DOJ did not reply to Smith's letter for almost four months.

On Oct. 27, Assistant Attorney General Ronald Weich sent a letter to Smith informing him that DOJ would not comply with the committee's request. Weich said in the letter that the committee's request was "unseemly."

The next day, on Oct. 28, Chairman Smith sent a second letter directly to Attorney General Eric Holder. This letter repeated the House Judiciary Committee's July 6 request for the Kagan-related documents and witness interviews. Here Smith told Holder that he wanted DOJ to either comply with the request by Nov. 4 or assert what legal privilege DOJ was invoking in refusing to comply with the request.

DOJ has not responded to this letter.

On Nov. 8, Holder testified at an oversight hearing in the Senate Judiciary Committee. At this hearing, Sen. Lee asked the attorney general if the Justice Department was going to comply with the House Judiciary Committee's request for the Kagan-related information. Despite the fact that the request had twice been sent to Holder in writing by the chairman of the House committee, and despite the fact that Holder's assistant attorney general had formally rejected the request in a letter sent to the House committee the previous week, Holder testified that he was unaware of the request.

“I'm not familiar with that request. I'd have to look at it,” said Holder. “I'm just not familiar with the request that has been made or what materials have been sought in that regard.”

Responding to follow-up questioning by Sen. Lee, Holder volunteered that Kagan had actually been physically removed from the room when the issue of health care came up in Justice Department meetings.

“Well, I can tell you that certainly one of the things that we did while she was solicitor general was to physically--physically, literally--move her out of the room whenever a conversation came up about the health-care reform legislation,” said Holder. “I can remember specific instances in my conference room where, when we were going to discuss that topic, we asked Elena, Justice Kagan, to leave and she did.”

In response to additional follow-up questions by Sen. Lee, Holder repeated his testimony that he was unaware of the requests from the House Judiciary Committee.

“Again, I don't know what the nature of the request is,” said Holder. “I can certainly look at it.”

In contrast to this testimony from Holder that Kagan had been "physically, literally" moved "out of the room whenever a conversation came up about the health-care reform legislation," Kagan herself told the Senate Judiciary Committee during her confirmation process, in written responses to questions submitted by committee Republicans, that she had been present in "at least one" meeting where Florida's lawsuit challenging the constitutionality of the health care law came up.

"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," Kagan said.

On Tuesday, Sen. Sessions, who led the Republicans on the Senate Judiciary Committee in submitting the written questions to Kagan on her involvement in the health-care issue, demanded that Holder provide written testimony to the Judiciary Committee following up on last week's hearing.

Session's request includes a series of questions revolving around Holder's awareness of Kagan's involvement in any discussion or treatment of the health-care legislation or litigation arising from it during her time as solicitor general.

One of the questions Sessions asked Holder is: “When did your staff begin 'removing' Solicitor General Kagan from meetings on this matter? On what basis did you take this action? In what other matters did you take this action?”

In the letter they sent Holder on Friday, the Senate Republican leaders cite several of the emails that DOJ has released to and Judicial Watch as a result of FOIA lawsuits that the Media Research Center (MRC),'s parent organization, and Judicial Watch filed against DOJ. ( initially filed its Kagan-related FOIA request with DOJ on May 25, 2010--before Kagan's June 2010 confirmation hearings. When DOJ did not respond to the request after six months, the MRC sued DOJ on Nov. 23, 2010 asking a federal court to make DOJ comply with request. A similar suit by Judicial Watch was joined with the MRC's suit. DOJ subsequently released 66 pages of Kagan-related internal emails on March 15. It released three additional email chains on Nov. 9, the day after Holder's testimony in the Judiciary Committee. Last month, U.S. District Judge Ellen Huvelle, a Clinton appointee, ruled that DOJ did not need to release any additional documents in response to these FOIAs. The MRC is appealing the decision.)

"Moreover, emails finally produced by your Department in response to lawsuits to enforce the Freedom of Information Act suggest involvement by then-Solicitor General Kagan in the Administration's preparation for defending PPACA," the Republican leaders told Holder in their Friday letter.

"In January 2010--two months before then-General Kagan was even aware she was being considered as a potential nominee to the Supreme Court--your Department began planning to defend this law against legal challenges," the senators wrote. "Neil Katyal, Mrs. Kagan's principal deputy, stated he would 'speak with Elena' about her office participating in a Department working group that would plan the Administration's litigation strategy, exclaiming that he wanted the Administration to 'crush' those challenging PPACA.

"A few hours later, Mr. Katyal indicated that he had spoken with Ms. Kagan about the legal working group, and said she 'definitely' wanted her office to participate in it," the senators wrote. "('Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues.') He said the working group would 'bring Elena in as needed.'"

The senators also noted in their letter to Holder a email that Kagan sent to Harvard Law Prof. Larry Tribe, who was then working at the Justice Department. This email was sent on March 21, 2010, the day the health-care bill would pass the House. "In an email entitled, 'fingers and toes crossed today!'," the senators told Holder, "Ms. Kagan happily says to Professor Tribe, 'I hear they have the votes, Larry!! Simply amazing."

Pointing to the provisions in 28 USC 455 that say a justice must recuse if her "impartiality might reasonably questioned" or if she "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," the Republican senators told Holder: "It appears that former Solicitor General Kagan's participation in the Obama Administration's defense of PPACA may satisfy both requirements for recusal." 

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