First Set of Questions to Acting Solicitor General Neal Katyal

April 26, 2011 - 1:51 PM

Neal Katyal

Acting Solicitor General Neal Katyal (Wikimedia Commons photo)

(CNSNews.com)- On March 25, 2010, CNSNew.com sent the questions below to Acting Solicitor General Neal Katyal.

These questions were based on a set of internal Justice Department emails that the department had released to CNSNews.com on March 15 after the Media Research Center (CNSNews.com’s parent organization) had filed a complaint against the Justice Department in federal court. The complaint asked the court to make the Justice Department comply with a Freedom of Information Act request initially filed by CNSNews.com on May 25, 2010. The federal court case over the FOIA request is ongoing.

Katyal did not answer the questions from CNSNews.com. Instead, Justice Department Deputy Public Affairs Director Tracy Schmaler responded with an emailed statement.  It said: “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.” Schmaler also said in the email that the Justice Department could not comment on some of CNSNews.com’s questions “due to the ongoing litigation.”

CNSNews.com followed up by asking Schmaler if that was the “totality” of what the Justice Department wanted to say in response to the questions.

She said via email: “Yes--given the subject is matter of ongoing litigation.”

Later, Schmaler would explain that this statement referred to the litigation over CNSNews.com’s FOIA request seeking documents relevant to whether Supreme Court Justice Elena Kagan should recuse herself from the health-care cases and not to the litigation over the health-care legislation itself--in which Katyal is now representing the administration.

CNSNews.com’s Questions for Acting Solicitor General Neal Katyal, March 25, 2011:

1. On Jan. 8, 2010, after receiving an email at 10:54 AM from Brian Hauck of the Associate Attorney General’s office informing you that Associate Attorney General Thomas J. Perrelli wanted to put together a group to plan “how to defend against inevitable challenges to the health care proposals that are pending,” you quickly emailed Hauck back saying, “Absolutely right on. Let’s crush them. I’ll speak to Elena and designate someone.” You then forwarded Hauck’s email to then-Solicitor General Elena Kagan saying, “I am happy to do this if you are ok with it. Otherwise [Deputy Solicitor General] Ed [Kneedler] would be the natural person. Or both of us.” Solicitor General Kagan responded by email a few minutes later and assigned you to the job. “You should do it,” she said. Two hours later, at 1:05 PM, you emailed back to Hauck and said: “Brian, Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, [Redacted (b)(6)] and will bring Elena in as needed.”

a)      Did you personally speak at any time that day 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?

b)      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?

c)      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?

d)      Did you follow through on your statement in the email to Brian Hauck and “bring Elena in as needed” in planning the administration’s treatment of the “set of issues” involved the administration’s defense against the inevitable challenges to the health care proposals?

e)      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?

f)        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?

g)      Did Solicitor General Kagan ever communicate to you a desire on her part for the administration to fail in its defense against challenges to the health-care proposals?

h)      Did you at any time communicate to your colleagues or subordinates in the Solicitor General’s office, or persons elsewhere in the administration, about what Solicitor General Kagan wanted them to do, or would like to see happen, in regard to legal challenges to the health-care proposals?

i)        If you ever communicated to subordinates or colleagues in the Solicitor General’s office, or to persons elsewhere in the administration, about what Solicitor General Kagan would like to see happen in regard to legal challenges to the health-care proposals, did you make any notes or records of those communications?

2. On the evening of Sunday, March 21, 2010, the same day the U.S. House of Representatives passed the Patient Protection and Affordable Care Act, Associate Attorney General Thomas J. Perrelli sent you and other Justice Department officials an email inviting you to a “[h]ealth care litigation meeting” to be held the following day at the White House. You forwarded Perrelli’s email to Solicitor General Kagan and said: “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.” Solicitor General Kagan responded a minute later, asking: “What’s your phone number?” A few minutes later, you emailed her your phone number.

a)      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?

b)      Did you make any notes or tell anybody else about the substance of your conversation with Solicitor General Kagan that night?

3. On May 12, 2010, two days after the president nominated Solicitor General Kagan to the Supreme Court, you sent an email to Deputy Solicitors General Edwin Kneedler, Malcolm Stewart, Michael Dreeben and a person whose name is redacted from the FOIA release informing them that Kagan would not be participating in “new cases.” You then said: “There is a small universe of cases in which Elena has substantially participated already (this includes CVSGs where she chaired meetings, etc.). 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.”

a)  Why did you tell the deputy solicitors general to “exclude matters in which you have had short conversations with her”?

b)  Given that (1) Solicitor General Kagan informed the Senate Judiciary Committee in her questionnaire (answer 13c) that she would “look to the letter and spirit” of “28 U.S.C. 455” in deciding whether she needed to recuse herself from a case on the Supreme Court, and (2) that 25 USC 455 calls for a Supreme Court justice to recuse “[w]hen he has served in governmental employment and in such capacity … expressed an opinion concerning the merits of the particular case in controversy,” have you or any one else in your office to your knowledge ever asked the deputy solicitors general who served with Solicitor General Kagan to put together a comprehensive list of cases in which they did converse with Kagan about the merits regardless of the duration of the conversation?

c)  If anyone at the Office of Solicitor General has ever put together a list of the cases about which Solicitor General Kagan ever held even a short conversation about the merits with someone in the office, what are the cases on that list?

4. On May 17, 2010 at 1:03 PM, Justice Department Office of Public Affairs Deputy Director Tracy Schmaler sent you an email with the subject line: “HCR litigation.” Schmaler asked you: “Has Elena been involved in any of that to the extent SG office was consulted? Know you’ve been point but expect I’ll get this q.” A minute later, you responded: “No, she never has been involved in any of it. I’ve run it for the Office, and have never discussed the issues with her one bit.” After another minute, at 1:05 PM, you sent Schmaler another email, saying: “Hcr is health care reform, right. If so, then my previous answer stands.” Six minutes later, at 1:11 PM, Schmaler emailed you back: “Yes – thanks.” About 8 minutes after that, you forwarded your and Schmaler’s initial email exchange to Solicitor General Kagan, saying: “This is what I told Tracy about health care.” About a minute later, at 1:20 PM, Kagan responded to you and Schmaler, saying: “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.” Four minutes later, at 1:24 PM, you responded to Kagan: “Got it. 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.” A little over an hour after that, Schmaler responded to you and Kagan (in response to Kagan’s email saying that the response to the question of her involvement in health care reform “needs to be coordinated”) and said: “Sure—no one has asked yet … Just expecting it.”

a)      If Solicitor General Kagan had “never been involved” in the health care litigation and you had “never discussed the issues with her one bit,” why did Schmaler need to hold off responding to any press inquiries until the response had been “coordinated” as per Kagan’s request?

b)      Following up on these emails, how did you, Kagan and Schmaler coordinate the response to press inquiries about whether Kagan ever had any involvement in the health care litigation?

5. On June 15, 2010, you sent an email to then-Solicitor General Elena Kagan that said: “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 and that you have been walled off from Day One.”

a)      What exactly is the date of the “Day One” referred to here when Solicitor General Kagan was “walled off” from health-care litigation?

b)      What was the last date on which you and Kagan discussed the anticipated “inevitable” challenges to the health care proposal or actual litigation against the health care law?

c)      Given (1) that on Jan. 8, 2010 the Office of Solicitor General became involved in planning the administration’s defense against the “inevitable” challenges to the health care proposals and (2) that on Jan. 13, 2010 you sent an email under the subject line “Health Care Defense” to a person whose name has been redacted from the FOIA release saying that “I want to make sure our office is heavily involved even in the dct [District Court],” and that (3) Kagan did not recuse herself as solicitor general until after the president nominated her to the Supreme Court on May 10, 2010, why was it necessary that Kagan be “walled off from Day One” from health-care litigation?

d)      Who informed you that Solicitor General Kagan was to be “walled off” from health-care litigation?

e)      When did this person inform you that Kagan was to be “walled off” from health-care litigation?

f)        Did this person inform you verbally or in writing that Kagan was to be “walled off” from health-care litigation?

g)      What reason did this person give you for walling off Kagan from health-care litigation?

h)      On the date that Kagan was “walled off” from health-care litigation was she also “walled off” from other litigation. If so, what were those other cases?

6. In her questionnaire for the Senate Judiciary Committee (answer 13b), Solicitor General Elena Kagan said she had recused herself in her role as solicitor general from two cases—Murray v. Geithner and Balintulo v. Daimler—“because of the participation of a Harvard Law School clinic in the case.” Before becoming solicitor general, of course, Kagan had served as dean of Harvard Law School.

a)      Did you approve of Solicitor General Kagan recusing herself from these two cases because Harvard Law School, where she had formerly served as dean, was involved in the cases?

b)      Did Solicitor General Kagan discuss these recusals with you? If so, what did she say?

c)      Does the OSG have notes and records relating to Solicitor General Kagan’s decision to recuse herself from these two cases because of the participation of a Harvard Law School clinic?

7. Since Solicitor General Elena Kagan personally assigned you to be the Office of Solicitor General’s point person in planning the administration’s defense against legal challenges to the health care proposals, and since at the time she assigned you to that task you indicated you wanted to “crush” those challenges, and since you have now personally signed the brief submitted by the administration asking the U.S. Courts of Appeals for the 4th Circuit to reverse the opinion of a U.S. District Court in Virginia holding the health-care law signed by President Obama unconstitutional and also the brief submitted to the U.S. Court of Appeals for the 11th Circuit asking that court to expedite its review of a U.S. District Court in Florida’s decision holding the health-care law unconstitutional, should Justice Elena Kagan now recuse herself from these health-care cases based on the provision in 28 U.S.C. 455 which says “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned”?