(CNSNews.com) - Sen. Jeff Sessions of Alabama, a senior Republican on the Senate Judiciary Committee, is demanding that Attorney General Eric Holder provide the committee with written testimony related to Supreme Court Justice Elena Kagan’s possible involvement in President Barack Obama’s health-care legislation or litigation that was filed against that legislation during the time she was solicitor general.
A federal law, 28 USC 455, says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”
During Kagan’s 2010 confirmation process, Sen. Sessions and other Judiciary Committee Republicans asked Kagan two questions in writing about whether she had ever been asked or had ever offered her views “regarding the underlying legal or constitutional issues related to any proposed health care legislation” or “potential litigation resulting from such legislation?” Kagan’s response to both questions was: “No.”
Sessions’ call for Holder’s written testimony follows up not only on Holder’s appearance at a Judiciary Committee oversight hearing last week but also on sets of internal DOJ emails regarding Kagan and the health care and recusal issues that the Justice Department released on March 15 and Nov. 9 in response to lawsuits filed by the Media Research Center, the parent organization of CNSNews.com, and Judicial Watch. The lawsuits were based on Freedom of Information Act requests that CNSNews.com and Judicial Watch had filed with DOJ.
CNSNews.com initially filed its FOIA request on May 25, 2010, before then-Solicitor General Elena Kagan’s June 2010 Supreme Court confirmation hearings in the Judiciary Committee.
Sessions' call for Holder’s written testimony also follows up on a request that House Judiciary Chairman Lamar Smith of Texas sent on July 6 to Holder requesting that the Justice Department provide the committee with the documents and witness interviews the committee needed to “properly understand any involvement by Justice Kagan in matters relating to health-care legislation or litigation while she was Solicitor General.”
In the letter to Holder making this request, Smith cited the written questions that Sen. Sessions and the Senate Judiciary Committee Republicans had asked Kagan during her confirmation process and said that the emails DOJ had subsequently released in response to FOIA requests raised questions about Kagan’s answers to those questions.
“During her Senate confirmation,” Smith wrote Holder in that letter, “then-Solicitor General Kagan answered ‘no’ when questioned whether she had ever been ‘asked about [her] opinion’ or ‘offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation.’ Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial.”
In an Oct. 27 letter, Assistant Attorney General Ronald Weich informed Smith that the Justice Department was not going to comply with the House Judiciary Committee’s request for Kagan-related documents and witness interviews. On Oct. 28, Smith responded directly to Attorney General Holder, asking him to either comply with the request by Nov. 4 or assert what legal privilege DOJ was invoking in refusing to comply. The Nov. 4 deadline came and went and DOJ did not respond to Chairman Smith.
At last week's hearing in the Senate Judiciary Committee, Sen. Mike Lee of Utah asked Holder directly whether he was going to respond to the House Judiciary Committee’s request.
"I'm not familiar with that request. I'd have to look at it," Holder testified. "I'm just not familiar with the request that has been made or what materials have been sought in that regard."
Holder also volunteered in response to Lee’s questioning that he remembered Kagan being "physically" removed from the room on occasions when health care come up in discussions at the Justice Department.
"Well, I can tell you that certainly one of the things that we did while she was solicitor general was to physically--physically, literall--move her out of the room whenever a conversation came up about the health-care reform legislation," Holder testified. "I can remember specific instances in my conference room where, when we were going to discuss that topic, we asked Elena, Justice Kagan, to leave and she did."
Among the emails that DOJ released to CNSNews.com and Judicial Watch are a Jan. 8, 2010 email chain in which then-Solicitor General Elena Kagan assigned her top deputy, Neal Katyal, to handle the anticipated legal challenges to Obamacare, which had passed the Senate two weeks before. (See page 3 of this PDF.) That was four months before President Barack Obama nominated Kagan to the Supreme Court and she recused herself as solicitor general. In the meantime, Obamacare was enacted and lawsuits were filed against it. Katyal--the lawyer who Kagan had originally assigned to the issue--eventually argued the cases in multiple appeals courts.
In other Jan. 8, 2010 emails to an individual in the associate attorney general's office, Katyal indicated his own desire to "crush" legal challenges to the health care law (see page 56 of this PDF), and said: "Elena would definitely like OSG [Office of Solicitor General] to be involved in this set of issues. I will handle this myself, along with an Assistant from my office [name redacted] and we will bring Elena in as needed." (See page 57 of this PDF.)
The emails released last week include an exchange between Kagan and Harvard Law Prof. Lawrence Tribe, who was working for the Justice Department in 2010. The exchange took place on March 21 of that year, the day the Patient Protection and Affordable Care Act passed the House of Representatives. The exchange shows Kagan expressing apparent enthusiasm for the imminent passage of the legislation that she would now judge as a Supreme Court justice were she not to recuse herself from the case.
“I hear they have the votes, Larry!!” Kagan wrote. “Simply amazing.”
“I am deeply disturbed by these developments and believe that the Justice Department should have provided these documents to the Senate Judiciary Committee during Justice Kagan’s confirmation hearing,” Sessions told Holder in the request for written testimony. “The Department’s failure to provide this information to Congress and to comply with FOIA requests, as well as your apparent inattention to these matters, is unacceptable. I have set forth the substance of the aforementioned emails below. Please review them and provide answers to the questions that follow.”
Sessions submitted his questions to Holder on Tuesday as part of the Senate Judiciary Committee’s standard process in which members of the panel have a week after a hearing to submit additional questions for the record to the witnesses.
In submitting his written questions to Holder, Sessions specifically cited a number of the internal DOJ emails that DOJ has released as a result of the CNSNews.com and Judicial Watch FOIA lawsuits.
These include the Jan. 8, 2010 exchange in which Kagan assigned her deputy to handle the expected health care litigation for her office, which was responsible for defending the administration’s position in federal court disputes.
Sessions also points to email chains—including one that DOJ released March 15 and another that DOJ released last week—dating to the week before the passage of Obamacare in the House that deal with the possibility that the then-Democrat-controlled chamber might use a procedure called “deem and pass” to push the Senate version of the health care bill through the House without actually voting on it.
The Landmark Legal Foundation, headed by Mark Levin, was then very publicly preparing to file a complaint in federal court if the House in fact used that maneuver. Also, former U.S. Appeals Court Judge Michael McConnell had written an op-ed piece in the Wall Street Journal arguing that "deem and pass" was unconstitutional.
In one of these email chains, written on March 16 (five days before the House voted on Obamacare), carried the subject line: 'Health care q." In it, then-Solicitor General Kagan asked David Barron, who then headed DOJ’s Office of Legal Counsel, whether he had seen McConnell’s piece in the Wall Street Journal. He emails back: “YES—HE IS GETTING THIS GOING.”
On March 18, 2010 (three days before Obamacare passed the House), in an email chain under the subject line "Health Care," Kagan’s top deputy, Katyal, copied Kagan on an email to Associate Attorney General Tom Perrelli. (See page 5 of this PDF.) In this email, Katyal discusses the Landmark Legal Foundation's draft complaint. Noting that the complaint was evidently written to be filed before the president actually signed health-care legislation pushed through via “deem and pass,” Katyal said: “As such, we could be in court very very soon. In light of this, for what it is worth, my advice (I haven’t discussed this with Elena, but I’m cc’ing her here) is that we start assembling a resonse [here a block of text is redacted].”
Sessions put seven specific questions to Holder that he wants Holder to answer for the committee in written testimony as a continuation of last week's oversight hearing. The questions revolve around Holder’s awareness of Kagan’s involvement in any discussion or treatment of the health-care legislation or litigation challenging it. (To see all the questions Sessions has put to Holder click here.)
One question asks: “When did your staff begin 'removing' Solicitor General Kagan from meetings on this matter? On what basis did you take this action? In what other matters did you take this action?”