What Did Kagan Tell Her Deputy About Winning the Health-Care Case? DOJ Won’t Say

April 26, 2011 - 1:35 PM

Elena Kagan

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) - To an ordinary American it might seem like an obvious question with an obvious answer.

When Solicitor General Elena Kagan--whose job was to defend the administration’s position in federal court cases--assigned her top deputy to handle the anticipated legal challenges to the health-care bill that President Barack Obama was pushing through Congress in 2010 did she indicate to that deputy that the administration should defeat those challenges?

Common sense might say: Of course.

But if the common sense answer were in fact the true answer, then the plain sense of the law governing recusals by Supreme Court justices would seem to require Kagan to recuse herself from judging the legal challenges to President Obama’s health-care law.

In the questionnaire she filled out for the Senate Judiciary Committee during her confirmation process, Kagan said she would abide by the “letter and spirit” of 28 U.S.C. 455 in determining whether she needed to recuse herself from any case as a Supreme Court justice.

This law says that any “justice … shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.”  It further says any justice “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.”

If Kagan indicated to the subordinate she assigned to handle the health care case that the administration should win it, might it not then be reasonable to question her “impartiality” when that case comes before her on the Supreme Court?

If Kagan discussed the “merits” of the health care case with the subordinate she assigned to it, would it not be in keeping with the “letter” of the law--not to mention with its spirit--for her to recuse herself?

But Kagan told the Senate Judiciary Committee, in writing, that she never was asked and never offered her views on the underlying legal or constitutional issues related to any proposed health care legislation--including the health-care reform law signed by President Obama--and that she never was asked nor offered her views on the underlying legal or constitutional issues related to potential litigation resulting from any proposed health care legislation.

The Justice Department will not respond to similar questions CNSNews.com has posed to Acting Solicitor General Neal Katyal--citing as its reason for not answering ongoing litigation over a CNSNews.com Freedom of Information Act (FOIA) request that seeks records relevant to whether Kagan ought to rescuse herself from the health-care case.

On Jan. 8, 2010, then-Solicitor General Kagan personally assigned Katyal, then the principal deputy solicitor general, to be the person in the Office of the Solicitor General (OSG) to handle the expected legal challenges to the health care bill. That same day Katyal had indicated in an email to DOJ colleague Brian Hauck—who worked in the associate attorney general’s office—that he hoped they would “crush” the legal challenges to the health-care bill.

Katyal also wrote Hauck that day that “Elena would definitely like OSG to be involved in this set of issues” regarding the expected health-care litigation and that Katyal would “bring in Elena as needed.”

Katyal has now signed legal briefs representing the Obama administration in the lawsuits brought against Obama’s health-care law by Florida and Virginia.

Among the questions CNSNews.com has put to Katyal that the Justice Department will not answer are:

--“Did you personally speak at any time that day [when Kagan assigned him to handle the expected legal challenges to the health-care bill] 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?”

--“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?”

--“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?”

--“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?”

--“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?”

--“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?”

--“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?”

--“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?”

The bases for these questions are facts revealed in a series of internal Justice Department emails the department released last month to CNSNews.com in partial response to the FOIA request CNSNews.com had filed in May 2010.

On Dec. 24, 2009, the Senate passed the health-care bill that President Obama later signed. A week later, the New York Times published an article reporting that Florida Attorney General Bill McCollum was considering a lawsuit to challenge the bill if it became law and that there were “nearly a dozen other states who have also threatened to sue over the mandate.”

Neal Katyal

Acting Solicitor General Neal Katyal (Wikimedia Commons photo)

On Jan. 8, 2010, Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, emailed Neal Katyal, principal deputy solicitor general, to tell him that Perrelli wanted “to put together a group to get thinking about how to defend against the inevitable challenges to the health care proposals that are pending.”  On receiving that email, Katyal immediately emailed back to Hauck, saying: “Absolutely right on. Let’s crush them. I’ll speak to [Solicitor General] Elena [Kagan] and designate someone.”

Katyal, who was Kagan’s top subordinate, then forwarded Hauck’s email to Kagan and said, “I am happy to do this if you are ok with it.” He also offered his colleague Deputy Solicitor General Ed Kneedler as a possible candidate for handling the health-care issue, or the two of them together.

Kagan instantly assigned Katyal. “You should do it,” she said by return email.

That email exchange took place at about 11:00 am on a workday. About two hours later, shortly after 1:00 pm, Katyal emailed again to Hauck in the associate attorney general’s office ostensibly to inform him of his boss, Elena Kagan’s, determinations.

“Brian,” Katyal wrote, “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 [name redacted] and will bring in Elena as needed.”

At this time, Kagan’s job as solicitor general was to represent the administration’s position in federal court. Her boss, President Barack Obama, had just seen his signature legislation, the health-care bill, squeak through the Senate. States were already threatening law suits to stop it. Kagan, according to the questionnaire she filled out for the Senate Judiciary Committee, would not be informed by the White House until March 5, 2010 that the president wanted to consider her for a possible Supreme Court vacancy.

On March 23, the day President Obama signed the health-care law, Florida and Virginia filed suit against it in federal court. Supreme Court Justice John Paul Stevens, whom Kagan would eventually replace, did not announce his retirement, or formally inform President Obama of it, until more than two weeks later on April 9, 2010. And Obama did not inform Kagan he wanted to nominate her to replace Stevens until May 9, 2010, publicly making the announcement of her nomination the next day.

On Jan. 8, when Kagan assigned her deputy Katyal to handle the expected lawsuits against the health-care bill, she was fully engaged as Obama’s full-time solicitor general--and she would not recuse herself from her duties as solicitor general for another four months. When Katyal emailed back to his colleague Hauck in the associate attorney general’s office that January day that “Elena would definitely like OSG to be involved in this set of issues,” and that he would be bringing “in Elena as needed,” there was no reason for Kagan not to be involved in the issue.

There also was no apparent reason on that day that Obama’s solicitor general and her top deputy--expecting lawsuits against the health-care bill--should not have felt free to discuss the legal and constitutional issues those lawsuits would raise.

But Kagan informed the Judiciary Committee that she never discussed these issues with anyone.

There should have been no apparent reason for Kagan not to expect—and want—the subordinate she assigned to handle the expected legal challenges to President Obama’s health-care bill to work aggressively to defeat those challenges.

But the law says Kagan cannot sit in judgment of a case on the Supreme Court if her “impartiality might be reasonably questioned”—or, if, as a government employee, she ever expressed her opinion on its “merits.”

In July 2010, during her confirmation process, Republican members of the Senate Judiciary Committee asked Kagan in a letter: “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?”

They also 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 answer to both questions was: “No.”

When CNSNews.com initially sent a series of questions to Acting Solicitor General Neal Katyal on March 25 asking him about his conversation and contacts with then-Solicitor General Kagan about the health-care issue, the Justice Department responded with a brief emailed 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,” said Tracy Schmaler, deputy director of the Justice Department’s Office of Public Affairs.

When CNSNews.com followed up with an email asking if that was “the totality” of what the Justice Department wanted to say in response to the questions submitted by CNSNews.com, Schmaler responded: “Yes—given the subject is matter of ongoing litigation.”

(See the full set of questions CNSNews.com sent to Katyal on March 25 here.)

On April 14, CNSNews.com sent a follow-up set of question to Katyal, with a carbon copy going to Schmaler. CNSNews.com asked Katyal if it was his view that he could not answer the questions CNSNews.com had sent him 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?”

CNSNews.com then asked Katyal three additional questions based on two of the questions that the Judiciary Committee Republicans had asked Kagan—and to which she answered, “No.”

CNSNews.com asked: “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?”

CNSNews.com asked: “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?”

And CNSNews.com asked:  “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?”

(See the full set of questions CNSNews.com sent to Katyal on April 14 here.)

DOJ Deputy Public Affairs Director Schmaler responded to the questions emailed to her and Katyal on April 14. Rather than actually answer the questions, she referred CNSNews.com back to the statement DOJ had issued in response to CNSnews.com’s initial questions: “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the small number of documents that were released reflect that.”

Schmaler also clarified that the Justice Department was not declining to answer CNSNews.com’s questions to Acting Solicitor General Katyal because of the health-care litigation itself, but because of the ongoing litigation—brought by the Media Research Center (CNSNews.com’s parent organization)—over the Justice Department’s compliance with CNSNews.com’s Freedom of Information Act request.

“[T]he litigation I was referencing [in response to previous set of questions sent by CNSNews.com]– it’s the ongoing FOIA litigation ….not the ACA litigation,” wrote Schmaler.

On Nov. 23, 2010, the MRC filed a complaint 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’s FOIA request sought 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.

The Justice Department initially asked the court to dismiss the MRC’s complaint. Then on March 15, the Justice Department released 66 pages of documents to CNSNews.com. These documents were primarily internal Justice Department emails. The MRC is seeking the release of additional records responsive to its FOIA request and the case is ongoing in the U.S. District Court for the District of Columbia