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Elena Kagan

Documents obtained from the federal government under a Freedom of Information Act lawsuit suggest that Elena Kagan, now a Supreme Court justice but then in the office of the U.S. Solicitor General, may have participated in strategy sessions to defend the controversial signature health-care law by President Obama.

The revelations come from Judicial Watch, the Washington government watchdog that identifies and prosecutes government misbehavior.

The organization obtained, under a federal court action, access to emails regarding input Kagan had into Obamacare, including her comments on any lawsuits while she was U.S. solicitor general.

Judicial Watch said that they suggest she participated in discussions about the law and its potential court cases.

For example, a Jan. 8, 2010, email from current Acting Solicitor General Neal Katyal to Brian Hauck, senior counsel to Associate Attorney General Thomas Perrelli, indicated Kagan was on the inside of the strategy sessions from the beginning.

The email said:

Brian, Elena would definitely like OSG (Office of Solicitor General) to be involved in his set of issues … we will bring in Elena as needed.


Elena Kagan

The organization explained that the “set” of issues referred to another email regarding the assembly of a team of experts to determine “how to defend against the … health care proposals that are pending.”

Then on March 21, 2010, Katyal urged Kagan to go to a health-care litigation meeting that appears to have been organized by the Obama White House.

“This is the first I’ve heard of this. I think you should go, no? I will, regardless, but feel like this is litigation of singular importance,” the note said.

Kagan’s response to Katyal’s suggestion indicated she did not want to put it in writing: “What’s your phone number?” she wrote.

“Any reasonable person would read these documents and come to the same conclusion: Elena Kagan helped coordinate the Obama administration’s defense of Obamacare,” said Judicial Watch President Tom Fitton.

“And as long as the Justice Department continues to withhold key documents, the American people won’t know for sure whether her involvement would warrant her recusal from any Obamacare litigation that comes before the high court.”

WND reported when Judicial Watch took the legal action seeking the records.

The complaint alleged, “Before being appointed to the U.S. Supreme Court, Justice Elena Kagan served as the U.S. Solicitor General. It has been reported that, while serving as U.S. Solicitor General, Justice Kagan may have participated in discussions about the Act, including the drafting of the new law and legal challenges to the new law.

“She has publicly acknowledged that she ‘attended at least one meeting where the existence of litigation’ was mentioned,” the complaint stated.

The organization filed a request for the information last June, but Eric Holder’s Justice Department ignored the request, Judicial Watch said.

The documents that were released reveal that Katyal’s Department of Justice colleague Brian Hauck asked Katyal about putting together a group to discuss challenges to Obamacare.

“Could you figure out the right person or people for that?” Hauck asked. “Absolutely right on. Let’s crush them,” Katyal responded. “I’ll speak with Elena and designate someone.”

But Judicial Watch noted that after May 10, 2010, when Obama said he would nominate Kagan to the Supreme Court, the terms of the notes changed dramatically.

The notes reveal an exchange involving Kagan, Katyal and Tracy Schmaler of the Department of Justice:

Schmaler 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.”

But Judicial Watch noted that Kagan did not recuse herself from the Supreme Court decision last month not to “fast-track” for review the lawsuit by Virginia over Obamacare.

The organization also pointed out that the DOJ Vaughn index, a privilege log that describes records that are being withheld, “provides further evidence of Kagan’s involvement in Obamacare-related discussions.”

Judicial Watch reports that, for example, Kagan was included in an email chain in March 2010 in which the following subject was discussed: “on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit.”

Another email chain was titled, “Health Care litigation meeting,” and Kagan is both author and recipient in the chain.

Judicial Watch also said the index cites a series of email exchanges in May between Kagan and Obama White House lawyers and staff regarding Kagan’s “draft answer” to possible questions about recusal.

The 4th U.S. Circuit Court of Appeals already has heard arguments on the constitutionality of Obamacare, and an appeals court in the south is expected to hear arguments soon on a lawsuit from several dozen states in which a district judge ruled the scheme unconstitutional.

It is expected that it is only a matter of time before it reaches the U.S. Supreme Court.

Already, Sen. Orrin Hatch, R-Utah, has suggested Kagan recuse herself if and when the law reaches the Supreme Court.

Fitton earlier told reporters that Americans deserve a straight answer to a simple question: “What role did Elena Kagan play in Obamacare discussions while she was at the Justice Department?”

It’s not the only issue on which Kagan’s impartiality has been challenged. Lawyers challenging Obama’s eligibility to be president also sought her recusal because she owes her lifetime appointment to the Supreme Court to the defendant in the case, Obama.

She apparently refused, as there was no notation in the Supreme Court record that she did not participate, as typically would be the case.


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