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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


Tom Fitton's Judicial Watch Weekly Update

Obama Court Controversy

May 20, 2011

From the Desk of Judicial Watch President Tom Fitton:

Documents Raise Questions about Kagan’s Role in Obamacare Defense

If Obamacare reaches the U.S. Supreme Court, which it surely will, one key question may determine whether or not the president’s socialist healthcare takeover will remain the law of the land: Will Supreme Court Justice Elena Kagan recuse herself from the case?

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.

But documents obtained by Judicial Watch as result of a Freedom of Information Act (FOIA) lawsuit suggest that Kagan helped coordinate the Obama administration’s legal strategy to defend Obamacare.

(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 DOJ 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’s 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.”

So let’s sum up. Kagan instructs her office “to be involved” in crafting the Obama administration’s defense of health care reform legislation, which is certainly consistent with her former responsibilities as Solicitor General. As documented in the emails and Vaughn index, she was constantly kept apprised of ongoing litigation strategy discussions. As recently as March 2010, Kagan’s top deputy urged her to attend a high level briefing on Obamacare litigation, without a hint that it might be inappropriate.

Then the president nominates Kagan to the Supreme Court in May 2010, and all of the sudden she knows nothing about the Obama administration’s legal strategy for defending Obamacare? Moreover, Kagan scolds a Justice Department spokesperson for not clearing all sound bites over the matter through her personally.

So what does the law say about these kinds of judicial conflicts of interest? What is the standard for recusal? 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 this conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare. And as long as the DOJ 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.

Bombshells Aplenty in Ensign Ethics Committee Report

Former Senator John Ensign (R-NV) (and “Top Ten Most Wanted Corrupt Washington Politician” alumnus) may have thought he could avoid embarrassment and accountability by quitting the Senate last month. But not so fast. Last week the Senate Select Committee on Ethics released a report on its investigation of Ensign, deemed “the most extensive ethics investigation of a senator in nearly two decades.” The report suggests that Ensign violated various criminal laws and makes clear that, if hadn’t he resigned, he would have been expelled for his misconduct:

Based on the record in this matter, the Special Counsel respectfully submits that there is substantial credible evidence that provides substantial cause to conclude that Senator Ensign violated Senate Rules and federal civil and criminal laws, and engaged in improper conduct reflecting upon the Senate, thus betraying the public trust and bringing discredit to the Senate.

The investigation lasted 22 months and included 72 witness interviews and over half-a-million documents. Washington super lawyer Carol Elder Bruce, who was hired earlier this year to serve as special counsel in the ethics investigation, wrote the final report.

Ensign has already admitted to having an affair with Cindy Hampton, the wife of his former staffer Doug Hampton. And the ethics report lays out Ensign’s “obsessive” pursuit of Hampton in some detail. “He wouldn’t take no for an answer,” Cindy Hampton reportedly told investigators. And even after being caught in the act on several occasions by both their spouses, the report noted, Ensign would not relent.

In fact, at one point, Ensign allegedly received a call from a friend and “spiritual advisor” outside his hotel room where he was “visiting” with Ms. Hampton: “I know exactly where you are. I know exactly what you’re doing. Put your pants on and go home,” the friend said according to the report.

The report details how Ensign abused his office and violated the law to not only cover up his affair, but to keep it going. Ensign’s behavior, as alleged in this report, was simply reprehensible.

Ensign allegedly “aided and abetted” his former staffer, Doug Hampton, to violate a federal lobbying ban. Senate rules require a one-year “cooling off” period for former Senate staffers, during which they are prohibited from lobbying former colleagues. But soon after Hampton left Ensign’s office, his former boss “pressured” constituents and contributors to give Hampton a lucrative lobbying job, according to the report, “even though he had no public policy experience or value as a lobbyist other than access to the Senator and his office.”

For example, when a prominent Nevada constituent declined to hire Mr. Hampton, Senator Ensign instructed John Lopez, his Chief of Staff, to “jack him up to high heaven” and inform the constituent that he was “cut off” from Senator Ensign and could not contact him any longer.

Ensign then used his influence to help Hampton sign clients and allegedly advocated for these clients’ interests directly with federal agencies, the report said. Investigators counted at least 30 improper contacts between Hampton and Ensign.

Ensign’s efforts to secure a lobbying job and assist his lobbying efforts would be hush payment number one.

Hush payment number two reportedly came in the form of $96,000 in cash payments to the Hamptons to keep them quiet about the affair. Ensign’s parents actually issued the payments. They were just “gifts” Ensign’s parents claimed, but the Special Counsel wasn’t buying it.

Ensign also allegedly destroyed emails and other evidence during the course of the investigation, the report concluded.

The Special Counsel’s findings were so serious as to “warrant the consideration of the sanction of expulsion.”

Now, you may recall that the Obama Justice Department told Ensign’s lawyer late last year that it would not file criminal charges against Ensign, while the Federal Election Commission (FEC) also dismissed a related ethics complaint, even though FEC counsel recommended an investigation be opened. But the Special Counsel is recommending they reconsider:

The Special Counsel respectfully submits that the Committee should refer…the matters outlined herein to the Department of Justice for further investigation and consideration of whether criminal prosecution of Senator Ensign is warranted for aiding and abetting a violation of [federal law], conspiring to violate that [law], for making false statements, for obstruction of justice, and for violations of federal campaign laws.

The Special Counsel further submits that the Committee should also refer of this matter to the FEC to review its prior findings regarding Senator Ensign and his campaign and determine whether further investigation of potential violations of federal campaign laws is appropriate.

It looks as if the ethics investigators uncovered evidence that the DOJ did not have when it made its initial determination to not prosecute Ensign (though it did indict Hampton several weeks ago). And it seems clear that the FEC’s initial determination were based, in part, on false testimony.

I would guess that Ensign will soon face some criminal charges.

Disturbingly, the Ensign report also describes peculiar actions by Senator Tom Coburn (R-OK). He rightly tried to stop his friend Ensign’s affair. But he was also allegedly involved in trying to negotiate payments to the Hamptons. Coburn still has an ethics complaint pending against him over his role in the Ensign matter. After reading the report, you might agree that Senator Coburn is not out of the woods yet.

The Senate Ethics Committee is normally a place where allegations of misconduct by U.S. Senators are buried. I sure hope this strong report and action portend a new day at that committee.

JW Sues Defense Department for bin Laden Photos

As I told you a couple of weeks ago, when news broke that Osama bin Laden was dead, Judicial Watch immediately began pursuing photos of the deceased terrorist by filing a Freedom of Information Act (FOIA) request. Here is what we’re after: “all photographs and/or video recordings of Osama (Usama) bin Laden taken during and/or after the U.S. military operation in Pakistan on or about May 1, 2011.”

We filed this FOIA request with the Department of Defense (DOD) on May 3. Under FOIA, the DOD has 20 business days, legally, to respond. However, rather than follow the law, the DOD told us that it would “be unable to make a release determination on your request within the 20-day statutory time period.” And so, we now have filed a FOIA lawsuit. We held a press conference in our offices in Washington, DC, and you can see the announcement by clicking here. (Judicial Watch filed an identical FOIA request with the Central Intelligence Agency [CIA] on May 4. The CIA has yet to acknowledge or respond to the request.)

The American people have a right to know, by law, basic information about the killing of Osama bin Laden. This information will not only be an essential part of the historical record of this age of terror, the photos are sure to bolster the morale of our troops and warn the enemy of the tough justice America can bring to its enemies.

Incredibly, the Obama administration told us that it has no plans to comply with FOIA law, so we have no choice but to go to court. President Obama has said he doesn’t want to release the photos because he doesn’t want to appear to be “spiking the football.” But this is not a lawful basis for withholding government documents. This historic lawsuit should remind the Obama administration that it is not above the law.

So stay tuned.

Until next week…

Tom Fitton

Judicial Watch is a non-partisan, educational foundation organized under Section 501(c)(3) of the Internal Revenue code. Judicial Watch is dedicated to fighting government and judicial corruption and promoting a return to ethics and morality in our nation’s public life. To make a tax-deductible contribution in support of our efforts, click here.

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