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Kagan Directs Staff to “Be Involved” in Crafting Defense of Obamacare; Scolds Justice Colleague on the Issue of Her Participation: “This Needs to be Coordinated…You Should not Say Anything about This before Talking to Me.”

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Washington, DC — May 18, 2011

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has obtained documents suggesting Supreme Court Justice Elena Kagan helped coordinate the Obama administration’s legal defense of the Affordable Care Act (also known as Obamacare) while she served as Solicitor General. Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare. Moreover, the Supreme Court justice did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare.
The following are highlights from the documents obtained by Judicial Watch pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. (Judicial Watch’s lawsuit has been consolidated with a similar FOIA lawsuit that had been first filed against the DOJ by the Media Research Center. The lawsuits are now both before the U.S. District Court for the District of Columbia. The documents referenced in this release were first produced in the Media Research litigation.)According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy to defend Obamacare from the very beginning:

Subject: Re: Health Care Defense:Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]

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.”In another email exchange that took place on January 8, 2010, Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. “Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions.For example, the documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:

Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?…Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.The Vaughn index also describes a March 24, 2010, email exchange between Associate Attorney General Beth Brinkmann and Michael Dreeben, Kagan’s Deputy Solicitor General, with the subject header, “Health Care Challenges:” “…I had a national conference call with the Civil Chiefs. A memo also went out the day before. I am forwarding right after this. Let’s discuss if you have more ideas about what to do.”As reported by CNS News:

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in deciding whether she felt compelled to recuse herself as a Supreme Court Justice from any case that came before the High Court.According to the law, a ‘justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.’ It further says any justice ‘shall also disqualify himself … [w]here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings or expressed an opinion concerning the merits of the particular case in controversy.’

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the High Court,” said Judicial Watch President Tom Fitton.

Documents Uncovered

Should Justice Kagan Recuse Herself if Obamacare Reaches Supreme Court?

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Washington, DC — March 3, 2011

Judicial Watch, the public interest group that investigates and prosecutes government corruption, announced today that it has filed a Freedom of Information Act (FOIA) lawsuit against the Obama Department of Justice (DOJ) to obtain documents detailing Supreme Court Justice Elena Kagan’s participation in discussions related to the Patient Protection and Affordable Care Act of March 23, 2010, also known as Obamacare, while she served as U.S. Solicitor General (Judicial Watch v. U.S. Department of Justice (Case No. 11-426)). The constitutionality of the “individual mandate” in President Obama’s health care reform may end up before the U.S. Supreme Court.
Through its FOIA request, filed on June 19, 2010, Judicial Watch seeks the following information:

All records of communication, briefing materials and/or legal opinions concerning the constitutionality of the Patient Protection and Affordable Care Act of March 23, 2010.Any and all records of communications between the Office of Solicitor General and any of the following entities concerning the constitutionality of the Patient Protection and Affordable Care Act: (a) The Executive Office of the President; (b) The Department of Justice Office of Legal Counsel; and (c) The Office of Attorney General. 

As Judicial Watch notes in its lawsuit, the Patient Protection and Affordable Care Act “is one of the most controversial pieces of legislation in U.S. history. It has already been the subject of much litigation, and the constitutionality of the Act will likely be decided by the United States Supreme Court within the next two years.” On January 31, 2011, federal Judge Roger Vinson ruled Obamacare unconstitutional in a consolidated lawsuit that involved 26 states challenging the law due to the requirement that all Americans must purchase health insurance.The AP reported in “Sen. Hatch: Kagan Should Sit Out Health Care Case” that while serving in her previous capacity as U.S. Solicitor General, Justice Kagan may have been involved in discussions related to Obamacare, including the anticipated legal challenges to the law. Justice Kagan has already admitted she “attended at least one meeting where the existence of the litigation” was mentioned. Senator Orrin Hatch, noting the conflict of interest, has called upon Justice Kagan to recuse herself when the law ultimately reaches the nation’s High Court.Judicial Watch filed its original FOIA request on June 18, 2010. The DOJ acknowledged receipt of the request on July 8, 2010. However, to date, the DOJ has failed to release any documents or demonstrate why documents must be withheld. The DOJ has not indicated when responsive documents may be forthcoming.“U.S. Supreme Court rulings on Obamacare may be some of the most important in the nation’s history. With so much at stake, this is no time for gamesmanship and secrecy by the Obama Justice Department. This is a simple question and the American people deserve a straight answer: What role did Elena Kagan play in Obamacare discussions while she was at the Justice Department? The Justice Department’s silence is deafening,” stated Judicial Watch President Tom Fitton. “Leftists are running a coordinated campaign to pressure Justice Thomas to recuse himself from any Obamacare cases. That there are no facts warranting such a recusal is no bar to the left-wing effort to politicize the High Court to protect Obamacare. So it is ironic that the only set of facts that might warrant a recusal in the matter relates to Justice Kagan and is being unlawfully withheld by the Obama administration that appointed her.”

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