EXCLUSIVE: Should Kagan Recuse from Health Cases? Internal DOJ Emails Raise Questions

March 29, 2011 - 11:08 AM

Elena Kagan

Applause for President Obama's Supreme Court nominee Elena Kagan at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

(CNSNews.com) - “Absolutely right on. Let’s crush them,” wrote Principal Deputy Solicitor General Neal Katyal. “I’ll speak to Elena and designate someone.”

The Elena here is then-Solicitor General Elena Kagan--now a justice on the U.S. Supreme Court.

Katyal was writing at 10:57 a.m. on Friday, Jan. 8, 2010. Two weeks before that, on Christmas Eve, the U.S. Senate had passed the Patient Protection and Affordable Care Act, the unprecedented bill promoted by President Barack Obama that mandated that individual Americans must buy health insurance.  Already—as reported in a Dec. 30, 2009 New York Times article--Florida Attorney General Bill McCollum was examining the possibility of a lawsuit to challenge the bill if it became law and, as the Times put it, there were “nearly a dozen other states who have also threatened to sue over the mandate.”

Katyal on the morning of January 8 was responding to an email—sent under the subject line “Health Care Defense”--that he had received from Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli.

“Hi Neal,” Hauck had written. “Tom wants me to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending, and hoped that OSG [Office of the Solicitor General] could participate. Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can.”

Neal Katyal

Acting Solicitor General Neal Katyal (Wikimedia Commons photo)

Less than a minute after writing back to Hauck indicating his desire to “crush” the “inevitable challenges” to the health-care bill, Katyal forwarded Hauck’s email to his boss, Solicitor General Elena Kagan. He politely nominated himself to be the OSG’s point man in dealing with the anticipated litigation.

“I am happy to do this if you are ok with it,” he told Kagan. “Otherwise [Deputy Solicitor General] Ed [Kneedler] would be the natural person. Or both of us.”

Someone familiar with Katyal’s stellar career as a passionate advocate of liberal legal causes might not have been surprised that when he first heard the Justice Department was putting together a team to plan the administration’s defense against legal challenges to the health care bill, he would instantly express to a colleague his desire to “crush” those challenges and to his boss his desire to be assigned to deal with them.

Katyal, whom President Obama named principal deputy solicitor general at age 39, had graduated from Yale Law School, clerked for Supreme Court Justice Stephen Breyer (a Clinton appointee), and worked in the deputy attorney general’s office in the Clinton Justice Department.

In 2000, he had served as co-counsel for Democratic presidential candidate Al Gore when Gore contested the Florida recount in the Supreme Court. In 2004, he took on the case of Salim Hamdan, Osama bin Laden’s driver. In the 2006 case of Hamdan v. Rumsfeld, he convinced the Supreme Court that the type of military commissions President Bush had set up for Hamdan and other alleged unlawful enemy combatants had not been appropriately authorized by Congress. (Congress later passed a new law authorizing the commissions and Hamdan was eventually convicted of providing material support to terrorism--although he was sentenced to only five and a half years.)

Hamdan v. Rumsfeld was decided 5-3—with 8 justices rather than 9--because Chief Justice John Roberts recused himself. Roberts had previously served on the appeals court panel that reviewed the Hamdan case and unanimously rejected Katyal’s arguments. The chief justice had apparently decided that people might reasonably question his impartiality if he ruled on the case again at the Supreme Court level.

After winning Hamdan, Katyal won the ACLU Foundation’s Roger Baldwin Award and Amnesty International’s Human Rights Defender Prize.

Thus it was a man who had already demonstrated formidable skill in advancing an unpopular liberal cause all the way through the Supreme Court who had emailed Solicitor General Kagan that morning in January 2010 to let her know he would be “happy” if she assigned him to the team planning the legal defense of the health-care bill.

Would Kagan take him up on it?

Two minutes and 23 seconds after Katyal emailed Kagan, she emailed back. “You should do it,” she said in a short, to-the-point message.

'Bring In Elena As Needed'

At 11:01 a.m., Jan. 8, 2010, it was settled. Katyal had the health-care assignment. But he did not send another return email to Hauck in the Associate Attorney General’s Office for another two hours. When he finally did send one at 1:05 p.m., it appeared to have a bit more information about how Kagan wanted OSG to handle the health-care issue than Kagan had written to Katyal in her brief 11:01 a.m. message.

“Brian, Elena would definitely like OSG to be involved in this set of issues,” Katyal told Hauck in his 1:05 p.m. email. “I will handle this myself, along with an Assistant from my office [name redacted] and will bring in Elena as needed.”

In February and March 2011, having followed through on the assignment Kagan first gave him in January 2010, Katyal signed documents that the U.S. Justice Department filed in two separate U.S. appeals courts countering the lawsuits brought by Virginia and Florida against the health-care bill that the Senate passed that Christmas Eve two years ago.

The Jan. 8, 2010 email chain cited above, along with others the Justice Department provided to CNSNews.com in response to a Freedom of Information Act request, raise questions about whether Supreme Court Justice Elena Kagan ought to recuse herself from the health-care cases officials from her former office will soon argue in her court.

In the questionnaire she filled out for the Senate Judiciary Committee before her confirmation hearing, Kagan explained her thinking on the recusal issue. Among other things, she said she would abide by the “letter and spirit” of 28 U.S.C. 455.

This law states that any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”

It also states that any justice, judge or magistrate “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.”

The Jan. 8, 2010 email exchanges between Katyal and Kagan took place four months before President Obama nominated Kagan to the Supreme Court on May 10, 2010— only after which she recused herself as solicitor general. They took place two months before March 5, 2010—when, according to Kagan’s questionnaire for the Senate Judiciary Committee, the White House first informed her that the president wanted to consider her for a potential Supreme Court vacancy.

In other words, at the time of the Jan. 8, 2010 email exchanges, Kagan was in full bore as solicitor general--a position responsible for defending the administration’s positions in federal court.

Did Kagan at any time as solicitor general express an “opinion concerning the merits” of the lawsuits filed against the health care law—an act that would trigger one of the recusal standards in 28 U.S.C. 455? In the text of the emails the Justice Department provided to CNSNews.com, Kagan does not do so.

Could her “impartiality” in the case be “reasonably questioned”?

What, if anything, did Kagan say to her principal deputy, Neal Katyal, on that workday after she assigned him to the group planning the Justice Department’s defense of the health care bill and before Katyal sent his email to Hauck saying: “Elena would definitely like OSG to be involved in this set of issues” and that he would bring her in “as needed.”

Via email, CNSNews.com asked Katyal that and many other questions. He forwarded the questions to Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs. In response to CNSNews.com’s questions, Schmaler provided this statement: “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”

During Kagan’s Senate confirmation process, Republicans on the Senate Judiciary Committee asked her a series of written questions probing the possibility that she might have been involved in the cases challenging the health care law or in discussing the underlying legal and constitutional issues arising from any proposed health care legislation.

Two of the senators’ questions took in the health care issue with a very broad sweep.

One asked Kagan: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Another asked: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to any potential litigation from such legislation?”

Kagan’s response to both questions was: “No.”

On the face of it, that means that between Jan. 8, 2010, when the Justice Department started planning to respond to legal challenges to the health care bill--and Kagan did not yet know she was going to be nominated to the Supreme Court--and May 10, 2010, when President Obama did nominate her to the Supreme Court and she recused herself as solicitor general, neither Katyal nor anyone else at the Justice Department “ever asked” Kagan her opinion, and she never “offered” her views, on the “underlying legal or constitutional issues related to potential litigation resulting” from the health care bill.

'To Make Sure Our Office Is Heavily Involved'

In the questions it submitted to now-Acting Solicitor General Neal Katyal, CNSNews.com asked: “Did you personally speak at any time that day [Jan. 8, 2010] to Solicitor General Kagan about what the Justice Department viewed as the inevitable challenges to the health-care proposal or the department’s need to plan to defend against them?”

CNSNews.com also asked: “If you did speak to Solicitor General Kagan that day about the inevitable challenges to the health care proposal or the Justice Department’s need to start planning the administration’s defense against them, what did you say to her and what did she say to you?”

And: “How did you know on that day that Solicitor General Kagan ‘definitely’ wanted her office involved in planning the administration’s treatment of the ‘set of issues’ involved in the inevitable challenges to the health-care proposal?”

And: “Did you ever in any way communicate to Solicitor General Kagan, as you did to Brian Hauck in your Jan. 8, 2010 email, your desire to ‘crush’ or otherwise defeat the challenges to the health-care proposal? If so, how did Solicitor General Kagan respond?”

CNSNews.com also asked: “Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to succeed in its defense against challenges to the health-care proposals?”

Again, to these questions and others, the Justice Department would only respond with Schmaler’s statement that “Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”

The week after the Jan. 8, 2010 email exchange--while Katyal was out of town--the Justice Department went ahead with its first meeting to plan its response to the anticipated health care litigation. That same day, a colleague (whose name has been redacted) sent Katyal an email summarizing the meeting.

“The basic plan is to do some anticipatory thinking about claims that will be asserted and how we will defend against them,” said the colleague. “It turns out that Civil has already started this, and hopes to produce some model briefs or memos. The big areas of possible litigation are [here the Justice Department has redacted about two lines of text]. The expectation is that a bill could pass and be signed by mid-February, so we could be in litigation soon after. There is a possibility of both well-financed sophisticated challenges, as well as numerous pro se and frivolous claims.”

In a return email, Kagan’s deputy Katyal wrote: “I want to make sure our office is heavily involved even in the dct [District Court].”

In early February , after the Democrat-controlled Virginia state Senate passed a bill making it illegal to force someone in Virginia to purchase a health insurance plan—a direct challenge to the insurance mandate in the pending federal health-care bill--Virginia Attorney Ken Cuccinelli appeared on Fox News with Neal Cavuto and indicated he would fight in court to defend Virginia’s law against the federal bill if it was enacted.

“I'm looking forward to that contest if they want to bring that fight,” Cuccinelli told Cavuto. “We will be on the side of defending the Constitution.”

About a month after that, on March 5, 2010, as Kagan reported in her Senate Judiciary Committee questionnaire, White House Counsel Bob Bauer and Deputy White House Counsel Susan Davies first informed her that President Obama “wished to consider” her “for a possible Supreme Court vacancy.”

With both Florida and Virginia threatening to sue over the health care legislation, what was going on with the Justice Department’s preparations to defend the pending health care bill in court?

On March 17, 2010, Katyal emailed Associate Attorney General Tom Perelli. “Tom, I recall you were going to set up a group to deal with the inevitable challenges to this legislation,” Katyal wrote. “Now that this is coming back, I wanted to circle back and see if you still are developing such a litigation group.”

A few minutes later, Perelli responded: “Neal—I tabled it when things looked bleak, but we should do it. I’ll get something together in the next week.”

'What's Your Phone Number?'

Four days later, on Sunday, March 21, 2010, the U.S. House of Representatives was moving to pass the health care bill that had passed the Senate back on Christmas Eve. At 6:11 that evening, Perelli emailed a number of senior Justice Department lawyers, including Katyal--but not Kagan. His subject line: “Health care litigation meeting.” It would be held at the White House the next day.

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” said Perelli. “It has to be over there.”

“Also,” said Perelli,” we need to think about the key issues/questions for the agenda.”

Katyal forwarded Perelli’s Sunday night email to Kagan 8 minutes after he received it.

“This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel this is litigation of singular importance.”

Although she had been informed more than two weeks before that the president was considering her for a Supreme Court nomination, Kagan was still solicitor general on March 21, 2010 and no Supreme Court Justice had announced he or she would be retiring. Would the solicitor general go to the White House planning meeting on health-care litigation? Would she give Katyal instructions for the meeting? Would she give him her thoughts on the “key issues/questions for the agenda” that Perelli wanted to discuss at the White House?

One minute after Katyal had forwarded Perelli’s email to Kagan, she emailed back. “What’s your phone number?” she asked

Katyal emailed Kagan his number--and that’s where that email chain ends.

“What did you and Solicitor General Kagan discuss that evening about the health-care litigation, the White House meeting about it, or related issues after you sent her your phone number?” CNSNews.com asked Katyal in its written questions. Like all of CNSNews.com questions, these were covered by the Justice Department’s blanket answer that “former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the documents that have been released reflect that.”

Two days after Katyal emailed Kagan his Sunday-night phone number, President Obama signed the health care bill into law. That same day, Virginia and Florida filed suit against it, claiming it was unconstitutional. Obama would not nominate Kagan to the Supreme Court for seven more weeks, and she would not recuse herself from her duties as solicitor general until then.

'I Attended At Least One Meeting'

During the confirmation process, in their written questions to Kagan, Senate Judiciary Republicans would ask her if she had ever attended any meeting where Florida’s lawsuit against the health-care law was discussed.

“I attended at least one meeting where the existence of the litigation was briefly mentioned,” she responded, “but none where any substantive discussion of the litigation occurred.” (No documentation of this meeting or meetings has been released by the Justice Department in response to CNSNew.com’s FOIA.)

The Judiciary Committee Republicans also asked Kagan if any documents had been filed in the Florida case while she was solicitor general.

“Yes,” said said. “I did not participate in Florida v. U.S. Department of Health and Human Services, so I do not have any firsthand knowledge of the filings in that case. A search of the federal district court’s docket entry shows that many documents were filed during my tenure as Solicitor General, including several by the Justice Department: a notice of appearance filed on April 20, 2010; a motion to extend time filed on May 25, 2010; a motion for leave to file excess pages filed on June 11, 2010; and a motion to dismiss filed on June 16, 2010.”

Justice John Paul Stevens announced on April 9, 2010 that he was retiring from the court. Over the next month, according to the Associated Press, President Obama interviewed four candidates to replace Stevens. These included U.S. District Judge Diane Wood, U.S. appeals court judges Merrick Garland and Sidney Thomas, and Kagan.

According to Kagan’s Judiciary Committee questionnaire, the president told her on May 9, 2010 that he wanted to nominate her to the court. The next day Obama announced the nomination.

'The Possible Nexus to the Health Care Bill'

The day after the announcement—and 49 days after Florida and Virginia had filed suit against the health care law--Katyal sent an email to deputy solicitors general Malcolm Stewart and Edwin Kneedler saying it was his belief that Kagan would from then on recuse herself from “new cases” as solicitor general.

“As I understand it,” Katyal wrote, “Elena is going to recuse from all new cases.” He wanted to know if there were any CVSGs [Calls for the Views of the Solicitor General from the Supreme Court on cases the court was being asked to take on appeal] that the deputies were working on that Kagan had not been involved in at all.

“Are there any CVSGs you have due by cutoff in which she has not participated at all (either in meetings, phone calls, discussions with you, etc.)?” asked Katyal. “She has participated in all of mine, what about yours.”

In responding , Deputy Solicitor General Edwin Kneedler mentioned a case—Golden Gate Restaurant Association v. the City and County of San Francisco—that involved a legal challenge to a municipal ordinance in San Francisco that mandated that employers spend money on health care for their employees. The restaurant association had sued to prevent enforcement of the law arguing that a provision in the federal Employee Retirement Income Security Act (ERISA) preempted “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan” and thus preempted San Francisco’s health-care mandate.

The restaurant association won at the district court level and the city won in the 9th Circuit appeals court. The restaurant association then asked the Supreme Court to take up the case.

On Oct. 5, 2009, the Supreme Court issued a “CVSG” to Solicitor General Kagan seeking her views on whether it should do so.

“The Golden Gate case presents special considerations because of the possible nexus to the Health Care bill,” Kneedler told Katyal in his May 11, 2010 email. “I think I did have some minimal discussion with her [Elena] about that case.”

The next morning, May 12, 2010, Katyal sent another email to Kneedler, Stewart and Deputy Solicitor General Michael Dreeben. Here Katyal said Kagan was definitely stepping aside from any “new cases” and asked the deputies for lists of the cases wher she had “substantially participated already.”

Katyal said Kagan might sign the briefs in those cases, and specifically told the deputies to “exclude” cases in which they had had a short conversation with Kagan. The lists they were compiling, he told them, was not about her potential recusals if she were confirmed to the Court.

“From now on, until the outcome of her pending confirmation hearing, Elena will not be participating in new cases,” Katyal wrote. “All opps, appeal recs, etc., will not have her name on them, and [redacted text] we should use my name as Acting SG.

“There is a small universe of cases in which Elena has substantially participated already (this includes CVSGs where she chaired meetings, etc.),” wrote Katyal. “As to those cases, she very well may sign the briefs. With this email, I’d ask each Deputy sometime today to send me a full list of cases that you think fall into that category. Exclude matters in which you have had short conversations with her. This isn’t a list regarding her recusals at the Supreme Court should she be confirmed; rather it is a list for her so that she knows what cases she might be signing briefs in.”

At 5:53 p.m. that day, Katyal sent another email to Deputy Solicitor General Kneedler. “I really need your list shortly,” Katyal said. “This is important.”

At 6:31 p.m., Kneedler emailed back his list. He again drew attention to the Golden Gate case, suggesting Kagan might “not want to be involved in” it.

“Golden Gate—I discussed it with Elena several times [text redacted],” wrote Kneedler. “Especially now that health care has passed, she may not want to be involved in that brief.”

In fact, among the emails released by the Justice Department, there is an exchange between Kneedler and Kagan referencing the Golden Gate case and the health-care bill. It is dated Monday, March 22, 2010—the day after the House of Representatives approved the health care bill and the day before President Obama signed it.

The email from Kneedler is addressed to Katyal, Kagan and fellow OSG deputies and carries the subject line: “RE: 2 week report.”

“Golden Gate: [name redacted] plans to turn to this after his argument. He has requested from DOL [Department of Labor] by early next week an insert for the brief identifying the provisions in the health care bill (as it will be reconciled) that are relevant to the preemption issue in this case,” wrote Kneedler.

“Thanks, Ed,” Kagan responded. “And is [text redacted] on Golden Gate?”

“I don’t think so. Let me check,” Kneedler responded.

In a May 13, 2010 memorandum from Katyal to Kagan—headlined “Current Cases You Have Worked On”—Katyal says: “The below contains a list of cases in which we feel that you have substantially participated. It is organized by Deputy. We have not done an exhaustive search, so this should not be used as the basis for deciding recusals should you be confirmed. It is simply a document that you may use to guide your decisions about which cases to participate pending your nomination.”

The Golden Gate case was listed in the memo under Kneedler’s section. “Golden Gate,” it said. “Ed discussed this with Elena several times [text redacted].”

Fifteen days later, on May 28, 2010, the OSG filed its brief with the Supreme Court in the Golden Gate case. Even though Kneedler said he had discussed the case “several times” with Kagan before she was nominated to the Supreme Court, Kagan did not go ahead and sign the brief. Instead, Katyal signed it as “Acting Solicitor General/Counsel of Record” and Kneedler signed it as deputy solicitor general.

The 26-page document made at least 11 references to the Patient Protection and Affordable Health Care Act—President Obama’s health care law. It argued that this new federal law would impact issues related to the San Francisco health-care law, including through new regulations that would issued by the Health and Human Services secretary, and that, therefore, the Supreme Court should not take it up at that time.

“As discussed above, the intervening enactment of comprehensive federal health care legislation has dramatically changed the landscape governing payment for health care, substantially reducing the importance of the question whether ERISA preempts state or local requirements and also giving rise to additional legal issues that have not been addressed by the federal Departments responsible for implementing the new legislation or by the courts,” the brief signed by Katyal and Kneedler concluded. “Accordingly, this Court’s review of the ERISA preemption issue is not warranted at this time.”

'This Needs to Be Coordinated'

A week later, at 1:03 p.m. on May 17, 2010, Justice Department Spokesperson Schmaler sent Katyal an email with the subject “HCR litigation.”

“Has Elena been involved in any of that to the extent SG office was consulted?” wrote Schmaler. “Know you have been point but expect I’ll get this q.”

One minute later, Katyal emailed back. “No, she never has been involved in any of it,” Katyal said. “I’ve run it for the Office, and have never discussed the issues with her one bit.”

After another minute, Katyal sent Schmaler another response, referencing the subject line of Schmaler’s original email. “Hcr is health care reform, right?” asked Katyal. “If so, then my previous answer stands.”

Six minutes later, at 1:11 p.m, Schmaler responded. “Yes – thanks,” she told Katyal.

About 8 minutes after that, Katyal sent Kagan the original email exchange between him and Schmaler in which Schmaler asked if Kagan had been involved in health-care legislation and Katyal responded said she had never “been involved in any of it.”

“This is what I told Tracy about health care,” Katyal told Kagan.

About a minute later, Kagan responded to both Katyal and Schmaler. “This needs to be coordinated,” Kagan wrote. “Tracy, you should not say anything about this before talking to me.”

Four minutes after that email, Katyal responded to Kagan but not Schmaler. “Got it,” he said. “I have been receiving a plethora of inquiries, from Tracy, Ali, Kravis, etc. about a whole variety of things like the below for several days now. Most of them aren’t that sensitive so I don’t pass them on to you. I am very happy to just stay out of this and have you field these inquiries if you’d like. Just let me know.”

About an hour after that, Schmaler sent both Katyal and Kagan a response to Kagan’s this-needs-to-be-coordinated email. “Sure – no one asked yet … Just expecting it,” Schmaler said,

A month passed. On June 15, 2010, two weeks before Kagan’s confirmation hearings, the email trail released by the Justice Department ends. On that day, Katyal sent Kagan a message describing a conversation he had had with the attorney general.

“FYI,” wrote Katyal. “Also AG just told me that he expects a big story coming out shortly about whether you are recused in health care litigation. I went over the timing that you have been walled off from Day One.”

When exactly was this “Day One” when Kagan was “walled off” from health care? That is another question the Justice Department did not answer beyond its blanket statement that she “did not play any substantive role in litigation challenging healthcare reform legislation.”

On Feb. 28, the Obama administration filed its brief in the U.S. Court of Appeals for the 4th Circuit in the case of Commonwealth of Virginia v. Sebelius. The brief asks the court to reverse the decision of a U.S. district judge in Virginia who ruled that the health-care law signed by President Obama is unconstitutional. Now-acting Solicitor General Neal Katyal--first assigned to this issue by Elena Kagan on Jan. 8, 2010--was the lead signer of the brief.

On March 8, the administration filed a motion asking the U.S. Court of Appeals of the 11th Circuit to expedite the administration's appeal of the ruling of a U.S. district judge in Florida who also ruled that the health-care law is unconstitutional. Katyal signed this document, too.

It remains an open question whether Justice Kagan will recuse herself from these cases, or sit in judgement of them, when they reach the Supreme Court.

Katyal has now served as acting solicitor general for ten months--since Kagan's nomination. But on Jan. 24, President Obama passed him over for the full-time job, nominating instead Deputy White House Counsel Donald Verrilli, Jr.