Judicial Watch and the Media Research Center have obtained potentially explosive e-mails that could prove Supreme Court Justice Elena Kagan provided misleading answers during her Senate confirmation hearings when she said she had no involvement as U.S. Solicitor General in any strategizing over how to defend the health care reform law known as Obamacare. Whether or not she had any such involvement is crucial in determining whether she must recuse herself from cases dealing with the constitutionality of Obamacare.
Moreover, if the evidence does establish Kagan’s involvement as Solicitor General, Justice Kagan may have violated federal law governing recusals. That is because she evidently decided to participate in the decision of the Supreme Court in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
Federal statute 28 U.S.C. 455 states that a judge must step aside “in any proceeding in which his impartiality might reasonably be questioned” or in which he (or she) “participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”
During her Senate confirmation hearings for a seat on the Supreme Court, Elena Kagan denied any substantive personal involvement in connection with her Office of Solicitor General’s provision of legal advice on Obamacare or consideration of litigation strategies to defend Obamacare from constitutional challenges.
The following are responses by Elena Kagan to Supplemental Questions from Senators Jeff Sessions, Orrin Hatch, Charles Grassley, Jon Kyl, Lindsey Graham, John Cornyn, and Tom Coburn:
Question: Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?
Question: Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?
Kagan told the Senators that she would recuse herself from any Supreme Court case involving a matter in which she “participated in formulating the government’s litigating position… If I gave advice about the government’s litigating position or the content of a filing, then I would recuse myself from the case. In my view, this level of participation in a case would warrant recusal.”
But a series of “smoking gun” e-mails obtained by Judicial Watch and the Media Research Center pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011, reveal that Kagan positioned her Solicitor General Office (OSG) to be involved in the strategy to defend Obamacare from the very beginning.
In an e-mail (“Re: Health Care Defense”), authored by Kagan’s deputy Neal Katyal and dated January 8, 2010, Katyal responded to an e-mail from his Department of Justice colleague Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, who had suggested that a group be put together to think about “how to defend against inevitable challenges to the health care proposals that are pending.”
Katyal wrote back enthusiastically within three minutes of receiving the e-mail from Brian Hauck:
“Absolutely right on. Let’s crush them. I’ll speak with Elena and designate someone.”
Within a half a minute of responding to Hauck’s e-mail, Katyal fired off another e-mail directly to Kagan: “I am happy to do this if you are ok with it.”
Four minutes later, Kagan responded: “You should do it.”
The circle was completed two hours later on January 8, 2010 when Katyal followed up with this e-mail to Hauck:
“Elena would definitely like OSG to be involved in this set of issues…we will bring Elena in as needed.”
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: “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.”
Kagan decided to respond by asking for Katyal’s phone number, rather than creating a further written record of her intentions regarding participation in any White House Obamacare litigation strategy meetings.
There are other e-mails withheld by the Obama administration that raise more questions about Kagan’s truthfulness in responding to questions about her involvement as Solicitor General advising on legal questions related to Obamacare. From the Vaughn index that the Obama administration did disclose, which describes the items being withheld in general terms, it appears that Kagan was copied on e-mails discussing “what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” Another four dealt with “expected litigation” against the health care law. Elena Kagan wrote one of the four being withheld.
Once Kagan was nominated for the Supreme Court, the apparent cover-up of her role in Obamacare legal strategizing began.
On May 17, 2010, a spokeswoman from the Justice Department, Tracy Schmaler, sent Kagan’s deputy Katyal an e-mail, with the subject line “Re: HCR [health care reform] litigation,” asking:
“Has Elena been involved in any of that to the extent SG office was consulted?”
Within one minute, Katyal started to cover up Solicitor General Kagan’s tracks, responding that she had never been involved:
“No, she never has been involved in any of it. I’ve run it for the Office, and have never discussed the issues with her one bit.”
Katyal informed the Solicitor General and nominee to the Supreme Court at once about the inquiry he had received from the Justice Department spokeswoman, Tracy Schmaler, and how he responded.
If Kagan had never been involved “in any” bit of Obamacare and delegated everything to her deputy Katyal, then one would think she would have simply let Katyal directly handle all inquiries with Schmaler and remain uninvolved.
However, Kagan decided to take no chances. She wanted to manage the apparent cover-up herself. Within just seventeen minutes of Schmaler’s original inquiry to Katyal regarding Elena Kagan’s involvement in the “HCR litigation,” Kagan sent an e-mail to her deputy and cc’d Tracy Schmaler:
“This needs to be coordinated. Tracy, you should not say anything about this before talking to me” (emphasis added).
On June 15, 2010, Katyal sent Kagan an e-mail with the subject line “Fw: connecting you two,” warning Kagan that “AG just told me that he expects a big story coming out shortly about whether you are recused in health care litigation. I went over the timing and that you have been walled off from Day One.” The remainder of the e-mail was blacked out.
The official line that Kagan was “walled off from Day One” is a blatant lie, as evidenced by the e-mail exchanges of January and March 2010 referenced above.
A Congressional investigation needs to be launched at once, since Justice Kagan has already refused to recuse herself and participated in a Supreme Court decision not to accelerate consideration of Obamacare’s constitutionality. Subpoenas should be issued demanding all e-mails in unredacted form relating to Obamacare which mentioned Kagan’s name in the body of the e-mails or which were addressed to or received from Kagan while she was Solicitor General, including e-mails on which she was copied. Kagan’s diaries and White House visitor logs should also be subpoenaed.
If there is sufficient evidence establishing that Elena Kagan lied under oath during her confirmation hearings or violated the Federal statute governing recusals, impeachment proceedings must be considered.