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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

JW Causes Supreme Court Furor

November 18, 2011

Judicial Watch President Tom FittonFrom the Desk of Judicial Watch President Tom Fitton:

Game Changer? JW Releases New Kagan Emails as Obamacare Heads to Supreme Court

From the moment Barack Obama signed his socialist healthcare overhaul into law, it was destined to wind up in the United States Supreme Court. And as we learned on Monday, that day will soon come. According to The Associated Press:

The Supreme Court said Monday it will hear arguments next March over President Barack Obama’s health care overhaul — a case that could shake the political landscape as voters are deciding if Obama deserves another term.

This decision to hear arguments in the spring sets up an election-year showdown over the White House’s main domestic policy achievement. And it allows plenty of time for a decision in late June, just over four months before Election Day.

Demonstrating the importance of this legal battle, the High Court announced it will hear a remarkable five and a half hours of oral argument, an extremely rare allotment of time in the Court’s modern era. (The last time that happened, the AP notes, was during arguments involving McCain-Feingold, key parts of which were ultimately ruled unconstitutional in 2003.) Supreme Court scrutiny will focus on, among other issues, the central component of Obamacare, the so-called “individual mandate,” which forces American citizens to purchase healthcare or face a stiff financial penalty. The Supreme Court will also consider whether all of Obamacare could be thrown out if any part of it is ruled unconstitutional. You can review the Court’s orders yourself here.

So now that the High Court has officially agreed to consider Obamacare, one question central to the fate of the law may no longer be theoretical: Will Supreme Court Justice Elena Kagan recuse herself?

Just days before the Supreme Court’s announcement, JW released three new documents that shed light on Justice Kagan and Obamacare while she served as solicitor general. (We got the documents pursuant to a Freedom of Information Act (FOIA) lawsuit filed on February 24, 2011. Our lawsuit had been consolidated with a similar FOIA lawsuit first filed against the Department of Justice (DOJ) by the Media Research Center. The DOJ sent them over to us with no explanation as to why they turned up 18 months after we first asked for them!)

Justice Kagan evidently did not recuse herself in April 2011 from the High Court decision not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging Obamacare. She has said she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues.

The new documents do show her commenting excitedly on the legislation’s passage. I think you’ll find them extraordinary. Check out a few of the highlights:

  • An October 13, 2009, exchange between Kagan and former Deputy Solicitor General Neal Katyal. Katyal informs Kagan, “We just got Snowe on health care,” referring to Senator Olympia Snowe (R-ME). (The bulk of the email exchange reflects a discussion about Kagan, and also provides instructions regarding a hiring decision within the agency, although the nature of the position is unclear. When Katyal asks if Kagan wants to handle the hire via email or in person meeting, Kagan responds, “In person. I’ll call a meeting when I return.”)
  • A March 21, 2010, email from Kagan to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing…” Tribe responds, “So healthcare is basically done! Remarkable.”
  • A March 16, 2010, email from Kagan to David Barron, then-acting head of the Justice Department’s Office of Legal Counsel, asked if he had seen an article by Michael McConnell published in the Wall Street Journal that discussed a strategy by Democrats to “‘deem’ ObamaCare into Law without voting.” “Did you seee [sic] Michael McConnell’s piece in the wsj?” Kagan writes in an email with the subject line “Health care q.” “YES, HE IS GETTING THIS GOING,” replied Barron.

Last week, I predicted that these new emails were bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. More specifically, we had asked for these documents around June 19, 2010 – even before her Senate confirmation hearings. Scandalously, the DOJ withheld these documents from not only the American people, but the very U.S. Senate considering her nomination. This goes beyond the issue of whether Justice Kagan should recuse herself, it goes to whether the DOJ intentionally withheld material information from Congress and violated FOIA law to ease then-Solicitor General Kagan’s path to confirmation.


And this is what Senator Jeff Sessions (R-AL) seemed to be wondering when he pressed Attorney General Eric Holder for answers regarding why these documents were not turned over to the Senate Judiciary Committee during Kagan’s confirmation hearing:

“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,” Sessions wrote to Holder in a series of questions for the record. “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.”

(Sen. Sessions was ranking member on the Senate Judiciary Committee during the Kagan confirmation process.)

Incidentally, the Obama DOJ dumped these documents just before the Veterans’ Day holiday weekend, hoping they would go unnoticed. This slow-walking of documents out of the Obama DOJ is yet one more scandal and makes one wonder what other information they are sitting on.

Previous emails obtained by Judicial Watch document new information about Kagan’s and her Solicitor General’s office involvement in key discussions pertaining to the legal defense of Obamacare.

For example, according to an email from former Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan wanted her office 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.”]

This is just one of many illuminating emails. You can read more here.

As a result of all our work (and the work of our friends at the Media Research Center), many have begun to call on Justice Kagan to recuse herself. The Judicial Crisis Network issued a white paper making the case for recusal and presidential candidates Herman Cain and Newt Gingrich have called on Justice Kagan to recuse herself.

At the least, further investigation is warranted. Following Judicial Watch’s lead, the House Judiciary Committee began an investigation but it has met resistance from the corrupt Holder DOJ. Meanwhile, your Judicial Watch will continue its investigation and aims to follow its success by breaking down the stone wall at DOJ on the Kagan controversy.

More Solyndra Lies from Obama Administration?

In September, Solyndra, the poster child for Barack Obama’s green energy boondoggle projects, filed for bankruptcy, leaving 1,100 workers without jobs and American taxpayers on the hook for a half-a-billion dollars because of an Obama administration stimulus loan guarantee.

The Obama White House would have us all believe that Solyndra was just an unfortunate “investment.” But as we are learning, Solyndra is simply another case study in Obama administration corruption.

We previously learned that Obama White House officials rushed the Solyndra loan through the approval process to make a media splash at a press event: “The Obama White House tried to rush federal reviewers for a decision on a nearly half-billion-dollar loan to the solar-panel manufacturer Solyndra so Vice President Biden could announce the approval at a September 2009 groundbreaking for the company’s factory,” The Washington Post reported.

We also know that Tulsa billionaire and Obama fundraiser George Kaiser is Solyndra’s top financial backer. (Kaiser reportedly raised between $50,000 and $100,000 for Obama’s 2008 presidential campaign.) Now, the White House assured the American people that this is all merely a remarkable coincidence, that Kaiser never discussed Solyndra with White House officials.

Not so, said The Washington Post this week:

A major donor to President Barack Obama discussed with White House officials a solar energy company that received a half-billion dollar federal loan and later went bankrupt, newly released emails show.

The emails released by a House committee appear to contradict repeated assurances by the Obama administration that the donor, George Kaiser, never talked about Solyndra Inc. with the White House.

Apparently, Kaiser discussed Solyndra during a White House meeting as recently as last year. (He was a frequent visitor to the White House in 2009 and 2010, the Post reports.) Kaiser wanted yet another “emergency loan” from the Obama administration to keep the struggling Solyndra afloat. The administration refused, so Kaiser pumped in his own cash and struck a deal to step ahead of taxpayers in the repayment scheme.

The Obama White House is now parsing words in Clintonian fashion, saying that Kaiser may have discussed one loan but not the other.

But the emergence of emails proving Kaiser discussed Solyndra with White House officials, despite repeated denials, was not the only recent embarrassing news for the Obama White House. There’s also evidence of extortion by the Obama Department of Energy.

Again, The Washington Post is on top of the story:

The Obama administration, which gave the solar company Solyndra a half-billion-dollar loan to help create jobs, asked the company to delay announcing it would lay off workers until after the hotly contested November 2010 midterm elections that imperiled Democratic control of Congress, newly released e-mails show.

The announcement could have been politically damaging because President Obama and others in the administration had held up Solyndra as a poster child of its clean-energy initiative, saying the company’s new factory, built with the help of stimulus money, could create 1,000 jobs. Six months before the midterm elections, Obama visited Solyndra’s California plant to praise its success, even though outside auditors had questioned whether the operation might collapse in debt.

One Solyndra investment advisor noted in an email that the Obama administration was “pushing hard” to delay the announcement until after the November 2, 2010, elections. Solyndra apparently complied, announcing the layoffs on November 3. The email traffic suggests that Solyndra feared it would be cut off from government money if they did not play ball with Obama’s political calendar. The emails show that senior White House officials may have been involved in this lawlessness, including then-“climate czar” Carol Browner and Biden’s chief of staff.

Energy Secretary Steven Chu testified before a House Energy and Commerce Committee panel on Thursday, and we got exactly what one would expect from an Obama administration official under fire: deny, deny, deny. According to The Associated Press, Chu didn’t budge one bit:

An unapologetic Energy Secretary Steven Chu defended a half-billion-dollar federal loan to a solar-panel manufacturer that went belly up, even as he told a House committee Thursday he was unaware of dozens of key details that led to the debacle over Solyndra Inc.

Under hours of hostile questioning from Republicans on the House Energy and Commerce Committee, Chu declined several opportunities to say he was sorry, but acknowledged that in hindsight the deal was “extremely unfortunate” and “regrettable.”

Regarding whether or not politics played a role in any aspect of the Solyndra deal, Chu said, “I want to be clear: Over the course of Solyndra’s loan guarantee, I did not make any decision based on political considerations.”

Given what we now know, this is difficult, if not impossible, to believe.

The emails covered by The Washington Post (and kudos to the Post for some outstanding reporting on this scandal) were released in connection with congressional investigations into Solyndra. And while we appreciate congressional attention to this serious matter, we believe an independent investigation, free of politics, is necessary. Moreover, as we’ve seen recently, Judicial Watch is often successful in uncovering documents denied to Congress. (See Kagan story above.) And that’s why we’ve launched a comprehensive investigation of our own.

We’ve submitted Freedom of Information Act (FOIA) requests to the Department of Energy (DOE), the Office of Management and Budget (OMB), the Treasury Department and the General Accounting Office (GAO) for records related to the loan guarantee, interagency communication regarding the loan and communications with Solyndra’s private financiers. Some of these FOIAs will likely be ripe for lawsuits soon.

Despite the Obama administration’s stonewalling, our investigators have already uncovered some incriminating information (which you can read here in my September 16, 2011, edition of the Weekly Update). Expect more to come.

Even though President Obama and his out-of-his-depth Energy Secretary don’t see any problem, I suspect many Americans see Solyndra as the epitome of corrupt socialism. To quote George Will: “The administration’s central activity — the political allocation of wealth and opportunity — is not merely susceptible to corruption, it is corruption.”

JW Joins Other Government Watchdog Groups in Calling for Super Committee Transparency

The clock is ticking. The Joint Committee on Deficit Reduction, the bipartisan “Super Committee” comprised of 12 House and 12 Senate Members, must deliver budget cut recommendations totaling $1.2 trillion by next Wednesday, November 23.

This Super Committee was established as part of the deal last summer to raise the debt ceiling and keep the government functioning, such as it is. The Super Committee must agree to the cuts before Thanksgiving and then Congress must vote on them by December 23 or automatic cuts to defense and domestic spending will trigger.

The last word is that Republicans and Democrats are deadlocked as the deadline approaches. (In fact, it was reported last week that Democrats stormed out of the talks after Republicans refused to hike taxes.) No surprises there. But regardless of how the Super Committee comes down regarding what to cut and what not to cut, on November 16, JW signed a letter along with other “good government” groups (most quite far to the left of us!) to make one key recommendation: Post the budget cuts online for 72 hours before voting:

We, the undersigned, urge the Joint Committee on Deficit Reduction to post its recommendations for cutting the deficit online 72 hours before the committee vote. We have been concerned about the secrecy surrounding the Super Committee from the very start, and have urged transparency measures that have largely been ignored by the committee.

But as the time draws near for the committee to determine how to cut at least $1.2 trillion from the federal budget, the public needs to have the option to see for themselves which programs will be cut, which will be spared, and why. In addition, your colleagues, fellow members of Congress who have not been privy to the private negotiations of the Super Committee, should have the opportunity to digest and weigh in on proposed changes before it is too late for the bill to be modified.

Elected officials and the voters they represent are entitled to the opportunity to read the bill before you vote. This is not an unreasonable demand. There has been legislation introduced that would require the Super Committee’s recommendations to be made available, online, for 72 hours prior to a committee vote, and House Speaker Boehner updated House Rules for the 112th Congress to include a rule requiring bills to be publicly available for three calendar days prior to consideration.

As a member of the Super Committee you are in a unique place of power, and you can make a difference by making a stand for transparency. We ask you to take that stand, now, and pledge to post your recommendations for cutting the deficit online 72 hours before you vote.

So far, all we know about these deliberations over these budget “cuts”/tax increases – which will impact every single American citizen – is what the committee members choose to divulge in their spin rooms, interviews and press conferences. That’s not good enough. The American people don’t want spin and posturing. They want the details and time enough to evaluate them so they can make their voices heard. Without timely transparency, the voters and their representatives in Congress become irrelevant.

The “Super Committee” is simply no way to run a republic.

Until next week…

Tom Fitton (signature)
Tom Fitton


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