"Brian," Katyal wrote, "Elena would definitely like OSG to be involved in this set of issues. I will handle this myself, along with an Assistant from my office, (here the name of the assistant is redacted) and we will bring Elena in as needed."
Katyal went on to say: "I will be out of the office from Jan. 12-15 though, so if we could do it the following week, it'd be ideal."
Hauck responded: "Great. We may end up having to go ahead with the meeting without you ..."
DOJ did hold the meeting without Katyal. But someone -- apparently from Kagan's office -- reported on the meeting to Katyal via email. This person's name has been redacted.
"I attended the meeting today," the unnamed person emailed Katyal. "Tom P(erreli) led it, and there were folks from Civil, OLC (Office of Legal Counsel) and Antitrust. The basic plan is to do some anticipatory thinking about claims that will be asserted and how we will defend against them. It turns out that Civil has already started this, and hopes to produce some model briefs or memos. The big areas of possible litigation are --"
Here heavy black ink covers more than two lines redacted from the email.
After the redaction, the email says: "The expectation is that a bill could pass and be signed by mid-February, so we could be in litigation soon after."
Further down, the email says: "I spoke to Ian (Gershengorn, the deputy assistant attorney general in the civil division) afterwards and told him we would like to be involved and to please keep us in the loop."
Five minutes later, Katyal emailed back: "Great. I appreciate it. I want to make sure that our office is heavily involved even in the dct (District Court). Also one random q -- (here the text is redacted again)."
Judicial Watch also filed a FOIA with DOJ seeking Kagan-related documents. Like Media Research Center, Judicial Watch also sued seeking to make DOJ comply. The court joined the two cases.
DOJ argued it could redact the lines it removed from the email the unnamed DOJ official sent to Kagan's deputy describing the January 2010 meeting planning the defense of Obamacare because they were covered by attorney work-product privilege. Judicial Watch argued DOJ could not do this because Obamacare had not been enacted then, let alone challenged.
Judge Huvelle let the redaction stand -- accepting the conclusion that in January 2010 people working under Kagan's supervision were working as "advisers" on the anticipated Obamacare litigation.
"Rather, when government attorneys act as 'legal advisers' to an agency considering litigation that may arise from challenge to a government program, a specific claim is not required to justify assertion of this privilege," Huvelle wrote in an opinion blocking the release of any further Kagan-related documents as a result of the FOIA requests.
"In this case," she said, "DOJ has explained -- and the unredacted material makes clear -- that the emails, including the redacted material, discussed legal defense of the forthcoming health care legislation in response to an anticipated court challenge."
Five months before Obama nominated Kagan to the Court, Kagan assigned her top deputy to do work that made him a "legal adviser" on the anticipated Obamacare cases. That deputy went on to argue some of those cases in federal court.
Can Kagan's impartiality in these cases be reasonable questioned? It would be unreasonable not to.
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