Judiciary Committee Should Subpoena DOJ if Needed for Kagan-Related Documents and Interviews, Says Rep. Fleming

By Terence P. Jeffrey | July 19, 2011 | 1:36 PM EDT

Rep. John Fleming (R.-La.) (Congressional photo)

(CNSNews.com) - Rep. John Fleming (R.-La.), who led a group of 49 House members in sending a June 24 letter to the House Judiciary Committee calling on it “to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General,” says he will urge the committee to issue subpoenas if the Justice Department does not respond appropriately in providing the information and interviews the committee has requested regarding the matter.

“I’m sure we’ll want to wait and see how the DOJ responds,” Fleming told CNSNews.com in a July 6 video interview. “If they do not respond appropriately we would then urge the Judiciary Committee to move forward with a vote to actually subpoena witnesses and the rest of the information that’s not being provided.”

Fleming and 48 other House members asked the committee to look into the matter because it is relevant to the question of whether Kagan should recuse herself from federal court cases filed against the health care law that President Barack Obama signed while Kagan was serving as his solicitor general and was responsible for defending the administration’s position in court disputes.

“As you know, Section 455 of Title 28 of the United States Code establishes unambiguous conditions in which federal judges must recuse themselves from proceedings in which their impartiality might reasonably questioned,” Fleming and the 48 other lawmakers wrote to House Judiciary Chairman Lamar Smith (R.-Texas) and Ranking Member John Conyers (D.-Mich.) in a June 24 letter.

“According to the law,” the congressmen wrote, “a justice should recuse themselves in cases ‘where 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 a particular case in controversy.’” (Italics are in original.)

House Judiciary Chairman Lamar Smith (R.-Texas) responded to the letter from 49 members by sending a letter of his own on July 6 to Attorney General Eric Holder. Smith’s letter requested that Holder provide the committee with four categories of documents and “witness interviews” with two Justice Department officials so that the committee could “properly understand U.S. Supreme Court Associate Justice Elena Kagan’s involvement in health care legislation or litigation while serving as United States solicitor general.” Smith asked Holder to respond by July 29.

A Judiciary Committee aide previously told CNSNews.com in an emailed statement that the committee’s request for Kagan-related documents and witness interviews from the Justice Department is not a “formal investigation.”

“The Committee has contacted the Justice Department for additional information, but we have not launched a formal investigation at this time,” the aide’s statement said.

Both Smith’s letter to Holder and the letter from the 49 congressmen to Smith pointed to documents related to Kagan and the health-care issue that the Justice Department had released under the Freedom of Information Act.

Those documents were released in response to a FOIA request initially made by CNSNews.com on May 25, 2010. In November 2010, the Media Research Center, the parent organization of CNSNews.com, filed suit against the Justice Department in the U.S. District Court for the District of Columbia, asking the court to make the department comply with the CNSNews.com FOIA request. On March 15, 2011, the Justice Department released 66 pages of internal department emails in partial response to CNSNews.com’s request. The MRC, joined by Judicial Watch, is currently asking the court to require the Justice Department to release additional documents.

The 49 congressmen who signed the letter to the Judiciary Committee calling for it “to promptly investigate the extent to which U.S. Supreme Court Justice Elena Kagan was involved in preparing a legal defense of the Patient Protection and Affordable Care Act (PPACA) during her tenure as Solicitor General,” said in their letter that they believed the documents already released under the FOIA request indicate Kagan should recuse herself under the terms of 28 U.S.C. 455.

“Even from the limited number of DOJ emails released to date through a Freedom of Information Act (FOIA) lawsuit, it is evident that Justice Kagan was involved in PPACA defense activities to a degree that warrants her disqualification from related proceedings as specified by Section 455,” the congressmen wrote.

A Judiciary Committee aide has told CNSnews.com that Chairman Smith is withhlding judgment on whether Kagan should recuse herself from the health-care cases.

When Fleming was asked by CNSNews.com if believed the committee should "definitely" subpoena the information it has requested from the Justice Department if the department was not forthcoming with the information, Fleming said, “Absolutely.”

“Yes, if it’s not given voluntarily. Absolutely,” said Fleming. “Because there is a significant amount of cost and involvement of the many states and citizens in the healthcare bill that passed and now is law—PPACA--and a lot of people are going to be put at a lot of inconvenience, at a lot of cost, if we don’t resolve this issue of whether or not its constitutional to require citizens to purchase a good or service. And, so, it’s only fair that someone who may have been an advocate for that law should not sit in a position of justice and try to weigh both sides.”

Fleming said he believed that if the Judiciary Committee did need to move forward with subpoenas to get the information and interviews it has requested from the Justice Department, the majority of House Republicans would support the move.

“Of course I can’t speak for each and every individual, but I would say that the majority would [support it] and I would not be surprised if all did,” he said.

Under House Rules, each committee sets its own rules for issuing subpoenas. Usually, it is done by a majority vote of the panel issuing the subpoena.

CNSNews.com asked the Judiciary Committee this week if the Justice Department had indicated yet whether it would comply with Chairman Smith’s request and provide the four categories of documents and the witness interviews Smith requested in the his July 6 letter. The committee declined to respond.

In 1999, after it was reported that serial killer Angel Maturino Resendiz (who would eventually be executed in 2006) had been caught and released by the Border Patrol before committing some of his murders, the House Judiciary Subcommittee on Immigration approved a subpoena of then-Attorney General Janet Reno. The subpoena, according to a 1999 Associated Press report, called for department records relating to inadmissible and deportable criminal aliens who had been caught and released by the Immigration and Naturalization Service only to commit further crimes inside the United States. Rep. Lamar Smith chaired the subcommittee that approved the subpoena by a 6-1 vote, according to the AP.

 "The attorney general failed to respond in a timely or responsive manner," Smith was quoted by the AP as saying at that time.

The subpoena was signed by Rep. Henry Hyde (R.-Ill.), who was then chairman of the full Judiciary Committee.