Judge suggests 'discovery' in Obamacare fight

A federal judge is suggesting the possibility of legal discovery – the process of demanding information and evidence – in a lawsuit over a committee that advised Barack Obama while the new taxes in Obamacare were being written.

An order issued by U.S. District Judge Richard W. Roberts in a case brought by Freedom Watch over federal rules requiring details about White House advisory groups requires that the government "file by August 13, 2012, as status report addressing whether it proposes to provide further evidentiary support for its supplemental memorandum or to confer with Freedom Watch regarding discovery."

The case against the president was brought by Freedom Watch over the Obama Health Reform De Facto Advisory Committee and whether the White House complied with the Federal Advisory Committee Act in consulting with lobbying groups and industry interests in creating the Obamacare plan of taxes.

The judge said some claims over the compliance were dismissed as moot as the advisory group no longer met once Obamacare's taxes were adopted by Congress. But he said remaining is the claim for minutes of the committee's past meetings.

"The parties were ordered to show cause why the government's supplemental memorandum should not be treated as a motion for summary judgment on that claim. The government has responded that its supplemental memorandum should be so treated," the judge wrote in a new memorandum order.

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"Freedom Watch has responded that the supplemental memorandum, and the attached declaration of Kimberly Harris, 'omits crucial information solely within the control of the defendants' and that Freedom Watch is entitled to discovery before facing summary judgment," he wrote.

The judge said Freedom Watch's argument that the information about the committee's past meetings is sparse "had merit."

"The declaration does not present any reasonably full list of the names of the participants, but only identifies a few examples of attendees and then refers to a website that does not purport to present any comprehensive record of the discussions," the judge wrote.

"More significantly, the declaration fails to provide enough details to permit an assessment of whether the individuals who participated in the health care reform discussions were asked to render collective advice or produce any other type of collaborative work product."

"The record as it stands therefore is insufficient to support summary judgment," he said.

Then he ordered the White House to report whether it will provide the necessary information, or whether he will have to open a discovery phase in the case, during which Freedom Watch could gain access to large quantities of information about the workings of the White House in its development of the Obamacare tax program.

Attorney Larry Klayman of Freedom Watch has alleged that Obama's multiple meetings with representatives of Planned Parenthood and other organizations constituted a federal advisory committee. He contends that refusing to release details about the meetings violates the Federal Advisory Committee Act.

Klayman said the order will have Obama reveal under oath the specifics of his "secret meetings with health care lobbyists" … or "submit to discovery depositions and document production."

"The judge's order is courageous, particularly since he was appointed to the federal bench by Democrat President Bill Clinton, showing that some integrity still remains on the federal bench despite the politics of Obamacare and our comprised and partisan judicial system in general," he said.

"Now that the Supreme Court has upheld the constitutionality of Obamacare and Congress is considering repealing or amending it, Judge Robert's decision is crucial for the American people to know what went on behind closed doors, including any lobbyist commitments to pay campaign contributions to the Obama reelection campaign, in order to fully understand and remedy Obamacare, which many feel will seriously harm the economy if put into effect as is during these times of deep economic crisis," Klayman said.

It was last August when Roberts ruled that part of the case could advance, determining that Klayman "has alleged sufficiently … that the committee here was an advisory committee under the FACA."

He noted at that time that Freedom Watch "may be entitled to mandamus review against the president, and dismissing the complaint [as the White House wanted] on separation of powers grounds would be premature."

Klayman has suggested Obama sought comment from specific groups, "namely pharmaceutical companies, AARP, Planned Parenthood, U.S. Chamber of Commerce and other private lobbyists who 'regularly attended and fully participated in non-public meetings of the OHRDFAC.'"

Klayman has argued that Congress' intent in establishing FACA was to "keep Congress and the public informed," but the White House was telling those with questions to "simply trust."

"This goes specifically against Congress' intent in establishing FACA," Klayman observed.

Previously the White House refused to give up information about negotiations with various groups over Obamacare, saying Obama has a "privilege" to keep such communications concealed.

Klayman, who founded Judicial Watch and, more recently, Freedom Watch, is in U.S. District Court in Washington, D.C., contending the president's conduct falls within the scope of the act that "requires the president to come clean on why he has caved in to the pharmaceutical industry, preventing the importation of prescription drugs that would lower prices for consumers, why he has become the lackey of Planned Parenthood in championing government financed abortions, and why the AMA (American Medical Association) and AARP (American Association of Retired Persons) are now his great friends."

Klayman, the only lawyer ever to have obtained a court ruling that a U.S. president committed a crime, has pursued cases against the Clintons, former Vice President Dick Cheney, Venezuelan President Hugo Chavez and Iranian President Mahmoud Ahmadinejad.

He built a reputation that inspired writers for the NBC drama series "The West Wing" to create a character, "Harry Klaypool," based on his work.