One of the problems with appointing prominent members of a presidential administration to the Supreme Court is the issue that if litigation connected with a piece of legislation or executive order that official had a hand in crafting should subsequently occur, he (or she) might find it necessary to recuse himself from participation in the case.
Recusal is not an optional choice. 28 U.S.C. Â§ 455 specifically states:
Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. …
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.
Supreme Court Associate Justice Elena Kagan has denied being involved in preparations for court defense of Obamacare while she was serving as Solicitor General, and declined to recuse herself from the Supreme Court decision of April 2011 refusing to â€œfast-trackâ€ for review Virginiaâ€™s lawsuit challenging Obamacare.
Judicial Watch sued under the Freedom of Information Act and has obtained documents suggesting that Justice Kagan may have a serious problem here.
According to a January 8, 2010, email from Neal Katyal, former Deputy Solicitor General (and current Acting Solicitor General) to Brian Hauck, Senior Counsel to Associate Attorney General Thomas Perrelli, Kagan was involved in the strategy 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 issuesâ€¦we will bring in Elena as needed. [The â€œset of issuesâ€ refers to another email calling for assembling a group to figure out â€œhow to defend against theâ€¦health care proposals that are pending.â€]
On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently organized by the Obama White House: â€œThis is the first Iâ€™ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.â€
In another email exchange that took place on January 8, 2010, Katyalâ€™s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare. â€œCould you figure out the right person or people for that?â€ Hauck asked. â€œAbsolutely right on. Letâ€™s crush them,â€ Katyal responded. â€œIâ€™ll speak with Elena and designate someone.â€
However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been â€œwalled offâ€ from Obamacare discussions.
For example, the 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: â€œHas Elena been involved in any of that to the extent SG [Solicitor Generalâ€™s] office was consulted?…
Katyal to Schmaler: â€œNo she has never been involved in any of it. Iâ€™ve run it for the office, and have never discussed the issues with her one bit.â€
Katyal (forwarded to Kagan): â€œThis is what I told Tracy about Health Care.â€
Kagan to Schmaler: â€œThis needs to be coordinated. Tracy you should not say anything about this before talking to me.â€
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 Kaganâ€™s involvement in Obamacare-related discussions.
For example, Kagan was included in an email chain (March 17â€“18, 2010) in which the following subject was discussed: â€œon what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.â€ The subject of the email was â€œHealth Care.â€ Another email chain on March 21, 2010, entitled â€œHealth care litigation meeting,â€ references an â€œinternal government meeting regarding the expected litigation.â€ 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 Kaganâ€™s â€œdraft answerâ€ 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.
Judicial Watch describes itself as conducting an ongoing investigation of the matter.
The documents obtained so far fail to produce absolute “smoking gun” proof that Kagan violated the law in failing to recuse herself, but all the evidence of collaboration over accounts is extremely suggestive.
Ace aptly observes:
Just a crazy question here — has anyone said “We’ve got to get our stories straight” when everyone involved was planning on telling the truth?
Are “coordinated” stories generally more credible than uncoordinated, unscripted ones? I guess the Obama White House thinks so.
It’s a hip, smart way to say “lying.”