JW Sues Justice Department for More Kagan Docs

In about a month, the U.S. Supreme Court will hear oral arguments in the Obamacare lawsuit, and we still do not have all of the answers regarding the continuing questions about Supreme Court Justice Elena Kagan’s role in crafting the Obamacare defense while she was serving as Obama’s Solicitor General.

And that’s why Judicial Watch keeps fighting to get to the truth.

This week we filed a lawsuit against the Obama Department of Justice (DOJ) seeking more Kagan/Obamacare records. Previous documents uncovered by Judicial Watch have raised concerns about whether Justice Kagan should recuse herself from considering the Obamacare litigation when it goes before the High Court next month.

What we’re after now is any information about Obamacare meetings and phone calls involving then-Solicitor General Kagan or her top deputies.

And so, pursuant to our original Freedom of Information Act (FOIA) request submitted to the DOJ’s Office of Information Policy and the Office of Solicitor General on December 7, 2011, we’re looking for the following records:


All calendars, schedules, phone logs and agenda for each of the following individuals: (1) Elena Kagan; (2) Neal Katyal; (3) Edwin Kneedler; (4) Malcolm Stewart; and (5) Michael Dreeben.

(Neal Katyal, Edwin Kneedler, Malcolm Stewart and Michael Dreeben all served as Deputy Solicitors General under Kagan. The time frame for our request is September 1, 2009, through August 31, 2010.)

Per usual, we had to resort to a lawsuit because the DOJ continues to drag its feet. The DOJ was required by law to respond to the FOIA request by January 25, 2012. However, to date, the Obama administration has neither released any records, nor provided an explanation as to why records should be withheld, nor given a date when a response to Judicial Watch’s FOIA request will be forthcoming.

The “should she or shouldn’t she” debate over Kagan’s recusal has gained steam because there appears to be an issue between what Kagan has said regarding her role in Obamacare discussions and what the documentary record shows.

Justice Kagan has said that she was not “substantially” involved in the DOJ discussions regarding Obamacare’s constitutional or litigation issues. The White House, despite repeated inquiries, has refused to confirm to Judicial Watch that Justice Kagan was “walled off” from Obamacare defense discussions while at the DOJ.

However, emails previously obtained by Judicial Watch suggest Kagan and her Solicitor General’s office participated in key discussions pertaining to the legal defense of Obamacare. For example, according to a January 18, 2012, 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."]

Another set of documents we forced out show then-Solicitor General Kagan commenting excitedly on the passage of Obamacare. The records include the following message from Kagan in a March 21, 2010, email to then-Senior Counselor for Access to Justice Laurence Tribe: “I hear they have the votes Larry!! Simply amazing…” Judicial Watch obtained the documents pursuant to a FOIA lawsuit filed on February 24, 2011. This lawsuit had been consolidated with a similar FOIA lawsuit first filed against the DOJ by the Media Research Center.

Responding to inquiries from Congress for records detailing Justice Kagan’s role in Obamacare discussions, Attorney General Eric Holder said in December 2011 that he has “separation of powers concerns” about releasing them, according to Politico.

Translation: Eric Holder intends to run out the clock in violation of the law.

But this is no time for the Obama administration to stonewall and obfuscate. And we hope the court will force the Obama administration to respond to our request in a manner consistent with federal law. The American people deserve to know how deeply involved Elena Kagan and her top deputies were in shaping the Obama administration’s legal defense of Obamacare. The integrity of the courts requires a full airing of those facts before Justice Kagan participates in the historic Obamacare constitutional challenges.

By the way, as I detailed to you last week, on February 13, 2012, Judicial Watch filed an amicus curiae brief with the United States Supreme Court challenging the constitutionality of Obamacare, specifically the “individual mandate,” so we’re involved in this critical debate on a number of fronts.

As I say, the Supreme Court has scheduled oral arguments for the Obamacare case on March 26, 27, and 28, 2012, so time is of the essence.


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