New documents produced by a national judicial watchdog group show pro-abortion Supreme Court Justice Elana Kagan may have helped the Obama administration craft its legal defense of the Obamacare law. The documents are providing another argument among conservatives who are demanding that Kagan recuse herself when the lawsuits challenging Obamacare reach the high court next year.
Judicial Watch announced yesterday that it has obtained documents suggesting Kagan helped coordinate the Obama administration’s legal defense of Obamacare while she served as Solicitor General, prior to the Senate confirming her for the nation’s highest court.
Kagan has said she was not involved in Department of Justice (DOJ) preparations for legal challenges to Obamacare and she did not recuse herself from the High Court decision in April 2011 not to “fast-track” for Supreme Court review Virginia’s lawsuit challenging the law that presents abortion-funding and rationing concerns for pro-life advocates.
Judicial Watch obtained documents via a Freedom of Information Act (FOIA) lawsuit filed on February 24 that has been combined with a FOIA lawsuit filed by the Media Research Center, a conservative media watchdog group. The lawsuits are now both before the U.S. District Court for the District of Columbia and the new documents come from the MRC litigation.
Judicial Watch indicates that, 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.”]
The group also notes: 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.”
The judicial watchdog indicates that, following Obama’s naming of Kagan as his Supreme Court selection, the tenor of the email exchanges changed. 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.”
“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.
The conservative web site Hot Air agrees with the analysis.
“March 21, 2010 was the day ObamaCare passed the House and, for all intents and purposes, became law. It’s hard to believe Kagan, as solicitor general, wouldn’t have showed up for a legal strategy session held that day, let alone at any point over the previous six months as the bill was working its way through Congress,” it says.
“Just so we’re straight on the timeline here: On March 21, the day ObamaCare was passed, Katyal is inviting Kagan to strategy sessions about the new law. On April 9, John Paul Stevens resigns and speculation erupts about Kagan succeeding him. On May 17, Katyal is suddenly telling people that Kagan’s never been involved in anything — even though she is, in fact, the solicitor general of the United States and even though he explicitly invited her to a meeting about the law less than two months earlier — and Kagan is warning people via e-mail to make sure everyone has their story straight on what she knew by “coordinating,” it continues.