Judicial Watch Sues Obama Justice Department for Records Related to Justice Kagan’s Role in Obamacare Discussions While Serving as Solicitor General

As High Court Prepares to Hear Oral Arguments in Obamacare Litigation, Judicial Watch Seeks Kagan’s Solicitor General Calendars, Agenda and Phone Logs

(Washington, DC) – Judicial Watch, the organization that investigates and fights government corruption, announced today that it filed a lawsuit against the Obama Department of Justice (DOJ) seeking access to records related to U.S. Supreme Court Associate Justice Elena Kagan’s role in Obamacare discussions while she served as President Obama’s Solicitor General (Judicial Watch v. U.S. Department of Justice (No. 1:12 –cv-00277)).

Previous documents uncovered by Judicial Watch have raised concerns about whether Justice Kagan should recuse herself from considering the Obamacare litigation when it goes before the High Court in March 2012.

Pursuant to its original Freedom of Information Act (FOIA) request submitted to the DOJ’s Office of Information Policy and the Office of Solicitor General on December 7, 2011, Judicial Watch seeks access to the following information to help to determine if Justice Kagan and her top deputies participated in Obamacare meetings and phone calls:

All calendars, schedules, phone logs and agenda for each of the following individuals: (1) Elena Kagan; (2) Neal Katyal; (3) Edwin Kneedler; (4) Malcolm Stewart; and (5) Michael Dreeben.

Neal Katyal, Edwin Kneedler, Malcolm Stewart and Michael Dreeben all served as Deputy Solicitors General under Kagan. The time frame for this request is September 1, 2009, through August 31, 2010.

The Obama administration was required by law to respond to the FOIA request by January 25, 2012.  However, to date, the Obama administration has neither released any records, nor provided an explanation as to why records should be withheld, nor given a date when a response to Judicial Watch’s FOIA request will be forthcoming.

Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues. The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the DOJ.

Emails previously obtained by Judicial Watch suggest Kagan and staff from her Solicitor General’s office may have participated in discussions pertaining to the legal defense of Obamacare. Other records show then-Solicitor General Kagan commenting excitedly on the passage of Obamacare.  (Judicial Watch obtained the documents pursuant to a FOIA lawsuit filed on February 24, 2011. This lawsuit had been consolidated with a similar FOIA lawsuit first filed against the DOJ by the Media Research Center.)

Responding to inquiries from Congress for records detailing Justice Kagan’s role in Obamacare discussions, Attorney General Eric Holder said in December 2011 that he has “separation of powers concerns” about releasing them, according to Politico.

“This is no time for the Obama administration to stonewall and obfuscate. We hope the court will force the Obama administration to respond to our request in a manner consistent with federal law,” said Judicial Watch President Tom Fitton. “The American people deserve to know how deeply involved Elena Kagan and her top deputies were in shaping the Obama administration’s legal defense of Obamacare.  The integrity of the courts requires a full airing of those facts before she participates in ruling on a matter she may have helped prepare for litigation.  There is more information at the Justice Department but clearly Eric Holder intends to run out the clock.”

On February 13, 2012, Judicial Watch filed an amicus curiae brief with the United States Supreme Court challenging the constitutionality of Obamacare, specifically the “individual mandate.” The Supreme Court has scheduled oral arguments for the Obamacare case on March 26, 27, and 28, 2012.