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Just days before the Supreme Court’s announcement, JW released three new documents that shed light on Justice Kagan and Obamacare while she served as solicitor general. - Judicial Watch
Last week, I predicted that these new emails were bound to raise additional questions about whether Justice Kagan ought to participate in High Court deliberations on Obamacare. Certainly, if these documents were known at the time of her confirmation, there may have been quite a different Senate debate. More specifically, we had asked for these documents around June 19, 2010 – even before her Senate confirmation hearings.
Scandalously, the DOJ withheld these documents from not only the American people, but the very U.S. Senate considering her nomination. This goes beyond the issue of whether Justice Kagan should recuse herself, it goes to whether the DOJ intentionally withheld material information from Congress and violated FOIA law to ease then-Solicitor General Kagan’s path to confirmation...
Previous emails obtained by Judicial Watch document new information about Kagan’s and her Solicitor General’s office involvement in key discussions pertaining to the legal defense of Obamacare.
For example, according to an email from former Deputy Solicitor General Neal Katyal to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan wanted her office to defend Obamacare from the very beginning:
Subject: Re: Health Care Defense:
Brian, Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues…we will bring in Elena as needed. [The “set of issues” refers to another email calling for assembling a group to figure out “how to defend against the…health care proposals that are pending.”]
This is just one of many illuminating emails.
Documents Raise Questions about Supreme Court Justice Kagan’s Role in Obamacare Defense as Solicitor General = Judicial Watch
Kagan Directs Staff to “Be Involved” in Crafting Defense of Obamacare; Scolds Justice Colleague on the Issue of Her Participation: “This Needs to be Coordinated…You Should not Say Anything about This before Talking to Me.”
...documents included the following May 17, 2010, exchange between Kagan, Katyal and Tracy Schmaler, a DOJ spokesperson:
Shmaler to Katyal, Subject HCR [Health Care Reform] litigation: “Has Elena been involved in any of that to the extent SG ]Solicitor General’s] office was consulted?...
Katyal to Schmaler: “No she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.”
Katyal (forwarded to Kagan): “This is what I told Tracy about Health Care.”
Kagan to Schmaler: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”
Included among the documents is a Vaughn index, a privilege log which describes records that are being withheld in whole or in part by the Justice Department. The index provides further evidence of Kagan’s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17–18, 2010) in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.” The subject of the email was “Health Care.” Another email chain on March 21, 2010, entitled “Health care litigation meeting,” references an “internal government meeting regarding the expected litigation.” Kagan is both author and recipient in the chain.
The index also references a series of email exchanges on May 17, 2010, between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to potential questions about recusal during the Supreme Court confirmation process. The White House officials involved include: Susan Davies, Associate White House Counsel; Daniel Meltzer, then-Principal Deputy White House Counsel; Cynthia Hogan, Counsel to the Vice President; and Ronald Klain, then-Chief of Staff for Vice President Biden. The DOJ is refusing to produce this draft answer.
