The law in question is 28 U.S.C. 455. It mandates that a justice "shall disqualify himself in any proceeding in which his impartiality might be reasonably questioned" or "(w)here he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceedings ..."
Here is why Kagan must recuse:
In December 2009, the Senate passed the Patient Protection and Affordable Care Act -- or "Obamacare." Its fate then moved to the House. Within days, states were threatening to challenge Obamacare in court if it were enacted.
Kagan was then President Obama's solicitor general. Her job was to defend his administration's positions in federal court disputes.
Anticipating the threatened lawsuits, Obama's Justice Department did not waste time.
CNSNews.com gained documentation of this from the limited number of documents DOJ did release as the result of a Freedom of Information Act request CNSNews.com filed on May 25, 2010. (DOJ initially stalled on releasing any documents in response to this FOIA. On Nov. 23, 2010, the Media Research Center, of which CNSNews.com is a division, sued DOJ over the mater. On March 15, 2011, DOJ released 65 pages of emails and withheld others.)
The released documents included a Jan. 8, 2010, email that Brian Hauck, senior counsel to Associate Attorney General Tom Perrelli, sent to Neal Katyal, Kagan's top deputy.
"Tom wants to put together a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending, and hoped that OSG (Office of Solicitor General Kagan) could participate," Hauck wrote. "Could you figure out the right person or people for that? More the merrier. He is hoping to meet next week if we can."
Three minutes after receiving this, Katyal responded enthusiastically. "Absolutely right on. Let's crush them," he wrote. "I'll speak with Elena and designate someone."
Thirty-eight seconds later, Katyal forwarded Hauck's email to Kagan, suggesting Kagan assign him to this case.
"I am happy to do this if you are okay with it," Katyal said to Kagan.
About three minutes later, Kagan personally assigned her top deputy to handle the Obamacare issue. "You should do it," she emailed Katyal.
More than two hours then passed. Then at 1:05 p.m., Katyal sent another email to Hauck indicating no ambiguity about what he understood to be Kagan's intentions.
"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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