Second Set of Questions for Acting Solicitor General Neal Katyal

By Terence P. Jeffrey | April 26, 2011 | 1:55 PM EDT

Acting Solicitor General Neal Katyal (Wikimedia Commons photo)

( - On April 14, sent a second set of questions to Acting Solicitor General Neal Katyal. These questions followed up on questions had sent Katyal on March 25.

Rather than answer those initial questions, the Justice Department responded via email through Deputy Director of Public Affairs Tracy Schmaler. She sent a short statement that 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 that email that the Justice Department could not comment on some of’s questions “due to the ongoing litigation.” followed up by asking Schmaler if this 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.” then followed up with the set of question below, which were sent by email to Katyal and carbon copied to Schmaler.

Schmaler responded by email to to these questions by refering back to the statement (quoted above) that she had sent in response to the March 25 questions. She also clarified that her prior statement that the Justice Department could not respond to’s questions to Katyal because of “ongoing litigation” referred to the litigation over’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.

“[T]he litigation I was referencing--it’s the ongoing FOIA litigation ….not the ACA litigation,” said Schmaler.

Questions from for Acting Solicitor General Neal Katyal, April 14, 2011:

1) On March 28 (see emails below), Tracy Schmaler informed me that she would provide no further answers to the questions I sent to you on March 25 (beyond the short statement she had sent me earlier on March 28) because the subject of my questions was a ‘matter of ongoing litigation.’ Is it your view that you cannot answer the questions I sent you on March 25 because of the litigation you are currently working on that involves the health-care legislation the U.S. Senate passed on Dec. 24, 2009?

2) At any time when Elena Kagan was solicitor general did you and she ever discuss, or did you ever witness her discuss with someone else, 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?

 3) Did she ever verbally express to you, or in your presence express to someone else, an opinion about whether the administration should win or lose any court challenge made against the health-care legislation that was passed by the Senate on Dec. 24, 2009 and later signed into law by President Obama?

4) If the answer to question 2 or 3 is yes, could you please explain the nature and context of what then-Solicitor General Kagan said?