Judge Blocks Release of Recusal-Related Emails Kagan Sent WH—Says They're ‘Personal’

Terence P. Jeffrey | October 14, 2011 | 5:10pm EDT
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Then-Solicitor General Elena Kagan and President Barack Obama in the White House on May 10, 2010, the day Obama nominated Kagan to the U.S. Supreme Court. (AP Photo/Susan Walsh)

(CNSNews.com) - U.S. District Judge Ellen Segal Huvelle, a Clinton appointee, has ruled that the Justice Department does not need to release emails Solicitor General Elena Kagan sent from her DOJ email account to people in the White House—in which she discussed her recusal decisions as solicitor general—because the emails were “used for a purely personal objective.”

CNSNews.com and Judicial Watch were seeking public release of the emails through lawsuits filed under the Freedom of Information Act.

The “purely personal objective” cited by the judge was Kagan’s goal of being confirmed to the United States Supreme Court.

At issue is whether Kagan must recuse herself as a Supreme Court Justice when the cases challenging the constitutionality of Obamacare reach the court.

Kagan was the Obama administration’s solicitor general—charged with defending the administration’s positions in federal court cases--at the time President Obama’s health-care plan was enacted and when Virginia and Florida filed lawsuits against that health-care plan in federal court.

Internal DOJ emails that CNSNews.com did obtain via FOIA revealed that in January 2010 Kagan had personally assigned her then-top deputy, Neal Katyal, to handle the anticipated lawsuits against Obama’s health-care plan. The emails also showed that Katyal at that time believed Kagan “definitely” wanted her office involved in the administration’s defense against those legal challenges.

Katyal later signed Justice Department briefs countering lawsuits filed against Obamacare and argued some of the cases in federal court.

Under federal law—28 U.S.C. 455—any “justice, judge or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned.” The law further states that 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.”

On May 25, 2010, CNSNews.com filed a FOIA request with the Justice Department asking for any communications to or from then-Solicitor General Kagan, or records of any meeting she personally or electronically attended, that involved any of three things: 1) discussion of pending health-care legislation, 2) any legal challenge to the health-care bill signed by President Obama, and 3) any discussion of the question of whether 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 confirmed to a seat on a federal court.

When the Justice Department failed to respond to CNSNews.com’s FOIA request by late November 2010, the Media Research Center (MRC), of which CNSNews.com is a division, filed suit against the department in federal court.

In a subsquent search of Kagan’s email files pursuant to CNSNews.com's FOIA request, the Justice Department found 8 documents that represented a chain of emails that had gone back and forth between Kagan and officials at the White House on May 17, 2010—a week after Obama had nominated Kagan to the Supreme Court.

In addition to Kagan herself, parties to the email chain included, among others, White House Counsel Robert Bauer; Ronald Klain, Vice President Joe Biden’s chief of staff; and Joshua Earnest, a White House spokesman.

“These documents consist of an email exchange between Kagan, in her capacity as a nominee to the United States Supreme Court, and staff members of the Executive Office of the President,” the Justice Department said in a “Vaughn Index” it submitted to the federal court listing documents it was declining to release in response to CNSNews.com’s FOIA.

“The email exchange concerns drafting and revising a proposed answer Kagan might give to a possible question she might be asked, during the Senate confirmation process, about recusal decisions as Solicitor General,” the Justice Department told the court. “A review of the hearing record of Ms. Kagan’s confirmation by the U.S. Senate reveals that the question at issue in this email exchange was never asked or answered.”

The Justice Department argued that it did not have to release these emails because they were not “agency documents” but “personal” ones.

“The emails at issue here do not concern the ‘official duties’ of the OSG, but rather concern then-Solicitor General Kagan’s nomination to fill a seat on  the United States Supreme Court,” the Justice Department told the court.

“Further,” the Justice Department said, “contrary to plaintiff MRC’s suggestion, emails SG Kagan sent or received concerning her nomination were not ‘created by the OSG’ but rather sent or received by SG Kagan in her personal capacity as a nominee to the Supreme Court rather as opposed to her official capacity as Solicitor General.”

Judge Huvelle agreed with the Justice Department that Solicitor General Kagan’s emails to the White House “about recusal decisions as Solicitor General”—as DOJ had described the emails—were indeed personal and not governmental.

“However,” Judge Huvelle wrote in an opinion issued Thursday, “S.G. Kagan’s correspondence was not relied upon by the OSG in carrying out its business, but rather was used for a purely personal objective … As such, the relevant factors compel the conclusion that the withheld documents were personal, not attributable to the agency, and therefore were not ‘agency records.’”

Judge Huvelle also declined to require the Justice Department to unredact a portion of a Jan. 13, 2010 email exchange between a Justice Department lawyer—whose name is redacted from the email in question—and Neal Katyal, who at that time was Solicitor General Kagan’s chief deputy, and whom Kagan had assigned the week before to handle the issue of anticipated legal challenges to the president’s health care bill.

The email, sent by the unnamed lawyer to Katyal, described a meeting that took place that day among Justice Department lawyers to begin planning DOJ’s response to legal challenges to the as-yet-unenacted Obamacare law.

The subject line on the email says: “RE: Health Care Defense.”

The email begins: “I attended the meeting today—Tom P [Associate Attorney General Thomas J. Perelli] led it, and there were some folks from Civil, OLC, and Antitrust. The basic plan is to do some anticipatory thinking about claims that will be asserted and how we will defend against them. It turns out that Civil has already started this, and hopes to produce some model briefs or memos. The big areas of possible litigation are—”

Here the email that was released to CNSNews.com in response to its FOIA request is redacted with black ink blocking about two lines of text.

When the redaction ends, the email continues as follows: “The expectation is that a bill could pass and be signed by mid-February, so we could be in litigation soon after. There is the possibility of both well-financed, sophisticated challenges, as well as numerous pro se and frivolous claims.

“Ian G. [Deputy Assistant Attorney General Ian Gershengorn of the Civil Division] and [Assistant Attorney General for the Civil Division] Tony West will make a recommendation to Tom on how to structure the process going forward, i.e., should there be weekly meetings, etc.,” the email continued. “I spoke to Ian afterwards and told him we would like to be involved and to please keep us in the loop.

“Please let me know if you have any questions or want to discuss,” the email concluded.

The Justice Department argued that the redacted section of this email should remain redacted because of the attorney work-product privilege. Judicial Watch, whose own lawsuit against DOJ seeking the further release of documents had been joined with the MRCs, argued that this privilege should not apply because at the time the email was written the health-care law itself had not yet been enacted let alone challenged in court.

Judge Huvelle rejected this argument, saying that the Justice Department lawyers who were involved in this email--at least one of whom worked under Kagan's supervision in the Office of Solicitor General—were, in effect, already involved in developing the legal defense for the health care law.

“JW’s argument fails as a matter of law. A specific claim is not in fact essential for an agency to properly invoke the attorney work-product privilege,” the judge wrote. “Rather, when government attorneys act as ‘legal advisers’ to an agency considering litigation that may arise from [sic] challenge to a government program, a specific claim is not required to justify the assertion of this privilege.”

“In such a situation, the privilege may be invoked if the agency documents were prepared ‘because of the prospect of litigation’ and by attorneys who ‘subjective[ly] belie[ved] that litigation was a real possibility, and that belief [was] objectively reasonable.’”

“In this case, DOJ has explained—and the unredacted material makes clear—that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge. … This is precisely the type of communication that is protected by the attorney-client work-product privilege.”

While this argument protects the Justice Department from unredacting the email in question, it may raise a renewed question about whether Justice Kagan needs to recuse herself from the Obamacare lawsuits. It is now stated in a federal court opinion that while Kagan was solicitor general, an email communication to which her top deputy was party is protected by the attorney work-product privilege because it “discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge.”

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