In the course of Justice Elena Kagan’s nomination to the Supreme Court, emails came to light suggesting that she had worked on behalf of Obamacare when she was in the Department of Justice. Under normal conflict of interest principles, she would not be able to sit as a judge on a case where the issue is the constitutionality of a statute that she supported as a lawyer. So Congressional Republicans have pressed repeatedly for information on the role that Kagan played in relation to Obamacare when she served in the Department of Justice. The response of Eric Holder’s DOJ has been to stonewall.
On November 8, 2011, Holder testified at a Senate Judiciary Committee hearing on Kagan’s involvement in defending Obamacare against legal challenges while she was a member of the Obama administration. Following that hearing, Senator Jeff Sessions sent Attorney General Eric Holder a letter posing follow-up questions that arose out of Holder’s testimony at that hearing:
At the hearing, you were asked whether the Department of Justice planned to comply with the House Judiciary Committee’s letter asking for any documents related to Justice Kagan’s involvement in the health care legislation and related litigation during her tenure as Solicitor General. You testified that you were not aware of the request, but that you recalled instances in which your staff would “physically, literally move [then-Solicitor General Kagan] out of the room whenever a conversation came up about the health care reform legislation.” However, during her confirmation hearing, Justice Kagan herself testified that she “attended at least one meeting where the existence of the litigation [in State of Florida v. U.S. Dep’t of Health and Human Services] was briefly mentioned.” In addition, emails that the Department of Justice was compelled to release in response to lawsuits under the Freedom of Information Act the day after your appearance before the Judiciary Committee and earlier this year seem to contradict your purported lack of cognizance of the House Judiciary Committee’s request and your assertion that at all times in this matter Solicitor General Kagan was excluded from discussions and/or deliberations regarding these matters. I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing. The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable. I have set forth the substance of the aforementioned emails below. Please review them and provide answers to the questions that follow.
According to an email dated October 13, 2009 – well before March 5, 2010, the date Justice Kagan stated that she was aware she was being considered as a potential Supreme Court nominee – her top Deputy, Neal Katyal, informed her “we got [Senator Olympia] Snowe on health care.”
According to a January 8, 2010 email chain – two weeks after the Senate passed the health care legislation – Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, emailed General Kagan’s principal deputy, Neal Katyal, 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.” Katyal instantly replied: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.” At 10:57 a.m., Katyal forwarded Hauck’s email to General Kagan and said: “I am happy to do this if you are ok with it,” to which General Kagan responded four minutes later: “You should do it.” Approximately two hours later that day, Katyal emailed again to Hauck informing him of General Kagan’s determinations: “Brian, 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 [REDACTED] and will bring in Elena as needed.”
A March 16, 2010 email from General Kagan asks then-Acting Assistant Attorney General for the Office of Legal Counsel David Barron whether he has seen former Judge Michael McConnell’s “piece in the wsj,” referring to a March 15th op-ed in the Wall Street Journal in which Judge McConnell discussed House Democrats’ proposal to circumvent a potential Senate filibuster of the health care bill. Barron responds: “YES – HE IS GETTING THIS GOING.”
In a March 18, 2010 email, Katyal wrote to Perrelli and copied General Kagan, discussing in detail a draft complaint by the Landmark Legal Foundation and strategy regarding the potential litigation:
“Tom, I was just looking at the draft complaint by Landmark Legal Foundation. It is clearly written to be filed when the House approves the reconciliation bill and before the President signs it. See paras 15-17. http://www.landmarklegal.org/uploads/Landmark%20Complaint%20(00013086-2).pdf
Also para 27 says the action is being brought before it is signed by President so that no expectations of regularity can be asserted, etc. As such, we could be in court very soon.
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, [REDACTION] so that we have it ready to go. They obviously have their piece ready to go, and I think it’d be great if we are ahead of the ball game here.”
Then, on March 21, 2010 – the date the House of Representatives passed the Patient Protection and Affordable Care Act – General Kagan wrote to Justice Department adviser Laurence Tribe regarding the health care legislation: “I hear they have the votes, Larry!! Simply amazing.” The subject line of that email chain, which was initiated by Tribe, states “fingers and toes crossed today!” in an apparent reference to the vote. Tribe responded: “So health care is basically done! Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!” – an apparent reference to the group of House Democrat congressmen who had indicated they would not vote for the legislation if it permitted federal funds for abortions and later acquiesced when the President agreed to sign an executive order preventing federal funding for abortions.
At 6:11 p.m. that same day, General Kagan had an email exchange with her deputy, Neal Katyal. This email chain – titled “Health care litigation meeting” – was initiated when Associate Attorney General Tom Perrelli emailed a group of Justice Department lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge the health care legislation. At 6:18 p.m., Katyal forwarded this email chain to General Kagan, stating: “This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.” At 6:19 p.m., General Kagan replied: “What’s your phone number?”
a. Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which she was present in any meeting or conversation in which the Patient Protection and Affordable Care Act and/or litigation related thereto was discussed?
b. Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which she was asked for her opinion or otherwise consulted, in her capacity as Solicitor General or otherwise, regarding the Patient Protection and Affordable Care Act and/or litigation related thereto?
c. Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which she offered any views or comments in her capacity as Solicitor General or otherwise regarding the Patient Protection and Affordable Care Act and/or litigation related thereto?
d. Are you aware of any instances during Justice Kagan’s tenure as Solicitor General of the United States in which she reviewed any documents in her capacity as Solicitor General or otherwise related to the Patient Protection and Affordable Care Act and/or litigation related thereto?
e. 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?
f. 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 was such action taken?
g. As noted above, in a January 8, 2010 email, Deputy Solicitor General Neal Katyal wrote that “Elena would definitely like OSG to be involved in this set of issues.” Katyal later wrote that he wanted the Solicitor General’s office to be “heavily involved even in the dct [district court].” Are you aware of any conversation or meeting in which Justice Kagan approved the involvement of the Solicitor General’s office as described in this email, i.e., “in the [district court],” or the basis on which she justified that involvement?
h. 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.
Given the emails that suggest Ms. Kagan was involved in preparing the constitutional defense of Obamacare, contrary to the assurances the Obama administration has given Congress, Senator Sessions’s questions are extremely apt. But Eric Holder has ignored them. No surprise there: “stonewall” and “Eric Holder’s Department of Justice” go together like “5th Amendment” and “the defendant is guilty as Hell.”
Senator Sessions isn’t letting the matter rest; yesterday, he sent this letter, reminding Holder that he has not replied, and asking for a response:
Of course Holder will continue to stonewall. The stakes are much too high for ethics considerations to be given weight. The Republicans have no recourse except to public opinion, since the Supreme Court justices themselves are the ultimate arbiters of their own ethics rules. It is noteworthy, however, that liberals have asserted frivolous ethics charges against Clarence Thomas and demanded that he recuse himself from certain cases, while the questions about Kagan are not frivolous at all, but are supported by documentary evidence: and the Obama administration is perfectly comfortable with its preferred manner of responding to issues about its ethics: the stonewall.