Justice Department Resists Releasing Records That Could Shed Light on Whether Justice Kagan Needs to Recuse Herself from Health Care Case

By Terence P. Jeffrey | February 14, 2011 | 6:38 PM EST

President Obama introduces Solicitor General Elena Kagan as his nominee for the U.S. Supreme Court in the East Room of the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)

(CNSNews.com) - The U.S. Justice Department is contesting in federal court a Freedom of Information Act request filed by CNSNews.com that seeks department records that could shed light on the question of whether Supreme Court Justice Elena Kagan needs to recuse herself from legal challenges to the health-care reform law President Barack Obama signed last March.

The case—the Media Research Center v. the U.S. Justice Department—arises from a complaint the Media Research Center filed on Nov. 23, 2010 against the Justice Department in the U.S. District Court for the District of Columbia. The complaint asked the court to direct the Justice Department to comply with a FOIA request that CNSNews.com had initially submitted to the Office of the Solicitor General on May 25, 2010. CNSNews.com is a division of the Media Research Center.

The CNSNews.com FOIA asked for three categories of records. These included records of any meetings or communications Kagan might have participated in as solicitor general that involved President Obama’s health-care reform plan, records of any meetings or communications Kagan might have participated in in which legal challenges to the health-care legislation signed by President Obama were discussed, and records of any meetings or communications Kagan might have participated in in which there was discussion of whether Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that case might later come before her were she confirmed to a seat on a federal court.

On Dec. 30, the Justice Department filed an answer to the MRC’s complaint, asking the court to dismiss the complaint, but not citing any specific exemption in the Freedom of Information Act that would justify such a dismissal.

The Justice Department now has until March 1 to present the court with a brief asking for summary judgment in its favor.

Federal law mandates that a Supreme Court justice must recuse herself from a case if she previously expressed an opinion about its merits while in government service.

At the time that President Obama signed his health-care reform law, Kagan was serving as President Obama’s solicitor general and President Obama had not yet nominated her to the Supreme Court.

Kagan’s job as solicitor general was to defend the administration’s position in federal court cases. On March 23, 2010, the day Obama signed his health-care reform law—and seven weeks before Obama would nominate Kagan to the Supreme Court--Florida and Virginia filed suit against the law in federal court challenging its constitutionality. Also on that day, 12 states joined Florida in its suit against the law.

Kagan was Obama’s solicitor general at a time when Obama’s most significant legislative accomplishment was being constitutionally challenged in a federal court system at whose pinnacle she now sits--on the very panel that must ultimately settle the challenges.

In a questionnaire that she filled out for the Senate Judiciary Committee prior to her confirmation hearings, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455, a federal law governing the recusal of federal judges, including Supreme Court justices.

“If confirmed, I would recuse in all matters for which I was counsel of record,” Kagan told the committee in the questionnaire. “I would also look to the letter and spirit of the Code of Conduct for United States Judges (although it is not formally binding on members of the Supreme Court of the United States), the Ethics Reform Act of 1989, 28 U.S.C. 455, and any other relevant prescriptions. I would also consult with my colleagues in any case where recusal might be advisable.”

The text of 28 U.S.C. 455 states: “(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: … (3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

The law goes on to define a “proceeding” to include the “pretrial, trial, appellate review, or other stages of litigation.”

Prof. Ronald Rotunda of the Chapman University School of Law, a legal ethics expert, told the Senate Judiciary Committee during Kagan’s confirmation hearings that 28 U.S.C. 455 requires Kagan to recuse herself from any case that she so much as expressed a verbal opinion about when serving as solicitor general.

“The statute does not limit disqualification to cases where General Kagan’s name is on the brief, nor does the statute require that she express her opinion ‘in writing,” Rotunda said in written testimony.

“In short, Solicitor General Kagan should disqualify herself in all instances where [she] participated as counsel, ‘adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy,’” Rotunda said. “Her disqualification does not limit itself to cases where she is counsel of record.”

“In all of these circumstances, it does not matter if her advice was oral or written, because the statute does not draw that distinction,” Rotunda testified.

Rotunda concluded that Kagan would need to search her records to determine the cases on which she had given advice that would trigger the statutory recusal mandate of 28 U.S.C. 455.

“It is not necessary that she be listed as ‘of counsel’ on the brief or be counsel of record,” Rotunda testified. “The fact that she gave advice about the proceeding is all that is necessary to require her to disqualify herself. The Solicitor General will have to search her records and make sure that she disqualifies herself in such circumstances.

“Similarly, if the Administration has asked her advice (and she has given it) on the constitutionality of proposed legislation in connection with contemplated litigation so that it can be said that she has expressed an opinion concerning the merits of a particular case in controversy, she should disqualify herself if that case ever comes to the Supreme Court,” Rotunda told the committee.

Rotunda also addressed circumstances under which the law would require Kagan to recuse herself from a case specifically involving President Obama’s health-care legislation.

“We do not know if the Department of Justice (e.g. the Office of Legal Counsel), or the White House, asked her advice on how to structure health care legislation in order to prepare for particular litigation, or if she has ‘expressed an opinion concerning the merits’ of the litigation that various states have recently filed,” Rotunda testified. “If she has, she must disqualify herself if that case goes to the Supreme Court.”

In his oral testimony before the Judiciary Committee on July 1, 2010, Rotunda pointed out that Congress had enacted 28 U.S.C. 455 in the 1970s in response to an instance in which then-Associate Justice William Rehnquist had failed to recuse himself from a case he had expressed his opinion about while he serving in the Nixon Justice Department.

“It's been 40 years since a solicitor general has been nominated to the Supreme Court, since the late, great Thurgood Marshall, the grandson of a slave,” Rotunda told the committee. “Since then, among other things, the law has changed. There's now a special law dealing in such situations … that is, 28 USCA, Section 455(b)(3). Basically, it provides that if … the justice has served in government employment and in such capacity participated--I'm paraphrasing now--as an adviser concerning the proceeding, or expressed an opinion concerning the merits of the particular case or controversy, she must disqualify herself.

“That's augmented by Section 455(a) that says you should disqualify yourself if the impartiality might reasonably be questioned,” Rotunda testified.

“And the Senate was, I think, pretty serious about this law, and the House, because they provide in Section 455(e) that the parties cannot waive this particular disqualification; the justice must disqualify herself,” said Rotunda.

“Congress enacted the law in response to a case called Laird v. Tatum in 1972,” Rotunda explained to the committee. “The respondents in Laird moved to disqualify the new justice, Rehnquist, because he had testified on a particular legal issue relating to this case when he was at the Justice Department and expressed a statement about the merits of a case. He wasn't a lawyer on the brief, he wasn't even in the Solicitor General's Office; he was Office of Legal Counsel.

“And Justice Rehnquist, in his opinion, acknowledged that, ‘They're correct in stating that during the course of my testimony and in other occasions I expressed an understanding of the law that was established by the cited cases, that was contrary to the position that the respondents took,’ but he refused to disqualify himself,” said Rotunda. “And under the law at the time, I think that was correct."

Rehnquist’s decision not to recuse himself sparked a reaction in Congress which enacted new legislation specifically governing recusal by Supreme Court justices who had expressed an opinion about a case while in previous government service.

“So people were upset with that, and so they changed the law,” said Rotunda. “Now they have this much broader language: If he participated not simply as counsel, but as an adviser--whether his opinions are public or private, whether they're oral or written--if he's expressed an opinion concerning the merits of a particular case or controversy, he must disqualify himself.”

CNSNews.com’s May 25 Freedom of Information Act request to the Office of the Solicitor General (OSG) asked for three categories of records:

--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which the administration’s health-care reform plan was a topic.”
--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which legal challenges to the health-care reform bill signed by President Barack Obama was a topic.”
--“Any communication to or from Solicitor General Elena Kagan and any record or notation of any meeting attended personally or electronically by Solicitor General Elena Kagan in which the question of whether Solicitor General Elena Kagan ought to recuse herself from involvement in any particular case in her role as solicitor general due to the prospect that it might later come before her were she to be confirmed to a seat on a federal court was discussed.”

The OSG sent an initial response by U.S. mail dated June 22, 2010. This response was signed by OSG Executive Officer Valerie Hall and it asserted that a provision in the Freedom of Information Act exempted the OSG from complying with CNSNews.com’s request.

“We have determined,” said the letter, “that any documents you seek are exempt from disclosure for the following reason: 5 U.S.C. 552 (b)(5): Information consists of inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”

On June 25, 2010, OSG Executive Officer Hall sent a second letter to CNSNews.com—this one by email—stating that the June 22 letter “was sent in error” and that the OSG was not claiming it was exempt under the law from complying with CNSNews.com’s FOIA request.

“Previously, a letter dated June 22, 2010 was sent to you over my signature in response to your May 25, 2010 request, stating that the records you seek are exempt under 5 U.S.C. 552 (b)(2),” said the new letter. “That letter was sent in error.”

[In fact, the initial June 22 letter from the OSG had not claimed an exemption under section (b)(2) of the law, but (b)(5). Section (b)(2) exempts matters that are “related solely to the internal personnel rules and practices of an agency.”]

The June 25 letter from the OSG retracting its June 22 letter said that the OSG would “promptly process” CNSNews.com’s request as soon as CNSNews.com provided the OSG with some clarifications on the records requested.

“It is unclear from your request what you mean by the phrase, ‘the administration’s health-care reform plan,’ in your request for the first category of records,” said the OSG’s June 25 letter. “We would appreciate clarification of this phrase so that we can conduct an appropriate search.

“Additionally,” said the June 25 letter, “it is unclear from your request whether the third category of records, like the other two, focuses on health-care, and whether the particular cases referred to in that third category thus are cases concerning the health-care legislation. We would appreciate clarification of the scope of your request on this point.”

That same day, CNSNews.com responded to the OSG clarifying that the term “the administration’s health-care reform plan” in the FOIA request meant “then-pending legislative health-care proposals” and that the words “any particular case” in the third category of CNSNews.com’s FOIA request meant in fact “any particular case” and not just health-care-related cases.

After receiving CNSNews.com’s letter clarifying the terms in the FOIA request, the OSG did not seek any further clarification of the terms of the request.

The June 22-25 exchange of letters between the OSG and CNSNews.com concerning CNSNews.com’s FOIA request for documents relevant to whether Supreme Court nominee Kagan would need to recuse herself from cases involving the health-care law signed by President Obama came in the week immediately before Kagan appeared in the Senate Judiciary Committee for her confirmation hearing as a Supreme Court nominee.

During Kagan’s oral testimony before the committee on June 29, 2010, Chairman Patrick Leahy (D.-Vt.) asked her when she would recuse herself from Supreme Court cases.  In response to Leahy, Kagan did not cite 28 U.S.C. 455, as she had in her written questionnaire, but presented a standard for recusal that could be interpreted as being more lenient than the mandate in 28 U.S.C. 455.

“What principles are you going to use to make recusal decisions, if you can do it just briefly?” Leahy asked Kagan. “But then tell us some of the cases where you anticipate you are going to have to recuse?”

“I think certainly, as I said in that questionnaire answer, that I would recuse myself from any case in which I've been counsel of record at any stage of the proceedings, in which I've signed any kind of brief,” said Kagan.

“And I think that there are probably about 10 cases,” she said. “I haven't counted them up particularly, but I think that there are probably about 10 cases that are on the dockets next year in which that's true, in which I've been counsel of record on a petition for certiorari or some other kind of pleading. So that's a flat rule,” said Kagan.

“In addition to that, I said to you on the questionnaire that I would recuse myself in any case in which I'd played any kind of substantial role in the process,” said Kagan. “I think that that would include--I'm going to be a little bit hesitant about this, because one of the things I would want to do is talk to my colleagues up there and make sure that this is what they think is appropriate, too--but I think that that would include any case in which I've officially formally approved something.”

Responding to Kagan, Leahy himself alluded to Justice Rehnquist’s failure to recuse himself from the 1972 Laird v. Tatum case, which, as Prof. Rotunda testified, inspired Congress to enact 28 U.S.C. 455 mandating that justices recuse themselves from any case in which they had so much as expressed an opinion while in previous government service.

“I was really shocked by former Chief Justice Rehnquist's position on a later case,” Leahy told Kagan. “I thought that was almost an open-and-shut question for recusal. The reason I mention it, the Supreme Court also has to have the respect of the American people. And certainly people can expect the Supreme Court to rule on some case where they may or may not agree with them, but so long as they have respect for the court, then they'll understand that.”

On July 13, two weeks after Kagan’s testimony in the Judiciary Committee, the Republicans on committee sent her a letter asking her 13 questions focusing on whether she should recuse herself from legal challenges to President Obama’s health-care law.

The first seven questions directly asked about any possible involvement she might have had in the administration’s planning or response to the lawsuit that Florida had brought against the health-care law. The next two questions inquired whether she had ever been “asked about” or “offered” her opinion about “the underlying legal and constitutional issues related to any proposed health care legislation,” including the law President Obama signed, “or the underlying legal and constitutional issues related to potential litigation resulting from such legislation.”

Questions 10 and 11 asked her if, depending on her answers to the previous questions, she would recuse herself from a case involving the health care law, and if not why not. And questions 12 and 13 asked her when exactly she stopped “performing her responsibilities” as solicitor general and what duties she was performing at that time as solicitor general.

Kagan provided the Judiciary Committee with written responses to the Republicans’ questions.

To the questions of whether she had ever been asked or had ever offered her opinion about the underlying legal or constitutional issues related to any proposed health care legislation or potential litigation arising from such legislation, she flatly answered: “No.”

When asked whether she had ever attended a meeting in which Florida’s lawsuit against the health-care law had been discussed, she did say she had attend “at least one” meeting where the lawsuit’s “existence” had been broached.

“I attended at least on meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred,” she said.

She also said in her responses to the Republicans that the Justice Department had filed documents in Florida’s legal challenge to the health-care law while she was serving as solicitor general, but that she had had nothing to do with them.

“Yes,” she said to the question of whether Justice had filed documents in the case. “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.”

In response to the Republicans’ question of whether she would recuse herself from cases related to the health-care law, Kagan once again avoided specifically mentioning the standard mandated in 28 U.S.C. 455, but at least suggested that by the standard she intended to use she need not recuse herself from Florida’s challenge to the health-care law.

“My questionnaire, my confirmation hearing testimony and my response to your first question for the record addressed how I would approach recusal issues,” Kagan said. “First, I would recuse myself from any case in which I served as counsel of record. Second, I would recuse myself from any case in which I played a substantial role. This category includes cases in which I approved or denied a rccommendation for action in the lower courts and cases in which I reviewed a draft pleading or participated in formulating the government’s litigating position. Third, in all other circumstances I would consider recusal on a case-by-case basis. In Florida v. U.S. Department of Health and Human Services, I neither served as counsel of record nor played any substantial role, as defined above. Therefore, I would consider on a case-by-case basis, carefully considering any arguments made for recusal and consulting with my colleagues, and, if appropriate, with experts on judicial ethics.”

In her responses to the committee Republicans, Kagan said she had first learned that President Obama was considering her for a potential Supreme Court vacancy on March 5, 2010, but that she had continued to handle her duties as solicitor general in the “normal way” until May 10 when the president actually nominated her to the Court. That means Kagan acted in the “normal way” as solicitor general for seven weeks after Florida and Virginia filed their suits against the health-care law on March 23.

“I ceased performing the litigation responsibilities of the Solicitor General position on or just after May 10, 2010, the date of my nomination to be Associate Justice on the Supreme Court,” Kagan said. “I informed the Supreme Court on May 17, 2010 that Neal Katyal, the Principal Deputy Solicitor General, would serve as Acting Solicitor General in all filings from the date of my nomination. Mr. Katyal also assumed responsibility for acting upon all appeal and other litigation recommendations at this time. I have continued to handle some routine administrative matters.

“Between March 5, 2010, when I was informed that the President wished to consider me for a possible Supreme Court vacancy, and May 10, 2010, when I was nominated, I handled the work within the Solicitor General’s Office in the normal way,” said Kagan, “that is, I served as counsel for record on all filings in the Supreme Court and acted upon all appeal and other litigation recommendations. During this period, however, I scaled down my participation in more general departmental matters (which was not extensive to begin with).”

Kagan, however, did say she attended the attorney general’s morning meetings until sometime in April—after the Florida and Virginia cases had been filed.

“I ceased attending the Attorney General’s morning meetings sometime in early-to-mid April,” she said in her written response to the Republicans.

The complaint the MRC filed in U.S. District Court asked the court to order the Justice Department to make available the documents CNSNews.com had asked for in its FOIA request. In its initial answer asking that the court dismiss the MRC’s complaint, the Justice Department admitted “that documents responsive to plaintiff’s request are in defendants’ possession,” but did not specify the nature of those documents or to which element of CNSNews.com’s FOIA request they were responsive.