Holder Refuses to Provide Testimony on Kagan’s Involvement in Obamacare

by TERRANCE JEFFREY June 13, 2012

Attorney General Eric Holder has refused to provide written testimony to the Senate Judiciary Committee in response to "questions for the record" submitted to him by Sen. Jeff Sessions (R.-Ala.) that focus on Supreme Court Justice Elena Kagan's involvement in the Patient Protection and Affordable Care Act--AKA Obamacare--while she was President Barack Obama's solicitor general.

Question: "Are you aware of any instances during Justice Kagan's tenure as Solicitor General of the United States in which information related to the Patient Protection and Affordable Care Act and/or litigation related thereto was relayed or provided to her?"

Question: "When did your staff begin ‘removing' Solicitor General Kagan from meetings in this matter? On what basis did you take this action? In what other matters was such action taken?"

Question: "Did you ever have a conversation with Justice Kagan regarding her recusal from matters before the Supreme Court related to the Patient Protection and Affordable Care Act? If so, please describe the circumstances and substance of those conversations."

These are three of the eight questions that Sessions submitted to Holder on Nov. 15, 2011 to be included as part of the official record of Holder's testimony in an oversight hearing that the Senate Judiciary Committee held on Nov. 8, 2011. Sessions is a senior member of the committee.

Holder did not provide the committee with a formal response to Session's questions until June 7, 2012-seven months after Sessions submitted them.

When he finally did officially respond, Holder did not answer any of the questions.

Instead, in responding to each, he simply referred the Judiciary Committee to a letter Assistant Attorney General Ronald Weich had sent to Sessions on Feb. 24.  This letter, in turn, responded to a letter Sessions had sent to Holder on Jan. 31 noting that Holder had not yet answered the questions that Session had submitted in November.

Weich's February letter informed Sessions directly that the Justice Department would decline to answer his questions to Holder about Kagan's involvement in Obamacare.

Back in March 2010, on the same day that President Obama signed his health care law, Florida and Virginia sued the administration challenging the law in federal court. At that time, Elena Kagan was Obama's solicitor general, and her job was to defend his administration's position in federal court disputes.

Obama did not nominate Kagan to the Supreme Court until May 10, 2010--seven weeks after he had signed the health care law and Florida and Virginia had filed their suits against it. Kagan did not recuse herself from her duties as solicitor general until after Obama nominated her to the court.

On two occasions last year-March 15 and Nov. 9 (the day after Holder appeared in the Senate Judiciary Committee)-the Department of Justice released internal department emails in response to a Freedom of Information Act request that CNSNews.com had originally filed on May 25, 2010--a month before Elena Kagan's Supreme Court confirmation hearings. That FOIA had sought documents and records connecting Kagan to Obamacare, litigation arising from Obamacare, and discussion of when she should recuse herself from a case as solicitor general because they might later come before her if she were confirmed to a federal court.

DOJ did not release any of the emails in question until after the Media Research Center, the parent organization of CNSNews.com, filed a lawsuit in November 2010, seeking DOJ's compliance with the FOIA request.

The first set of emails released on March 15, 2011, showed, among other things, that on Jan. 8, 2010, Kagan had personally assigned her top deputy to handle the expected litigation against Obamacare.

That was four months before Obama nominated Kagan to the court.

Assistant Attorney General Weich's Feb. 24, 2012 letter to Sen. Session informing him that DOJ would not answer his written questions to Holder pointed to a similar request for information about Kagan's involvement in Obamacare that House Judiciary Chairman Lamar Smith (R.-Texas) had first sent to Holder in a July 6, 2011 letter.

Weich indicated that the Justice Department not only was declining to respond to the questions Sessions had submitted as a member of the Senate Judiciary Committee but also that it was declining to provide Smith with the information he had requested as chairman of the House Judiciary Committee.

Weich noted that the Justice Department had released documents relating to Kagan and Obamacare in response to FOIA requests (filed by CNSNews.com and Judicial Watch) and that it would not release any further information.

"During the past year, the Justice Department has responded to several requests from House Judiciary Committee Chairman Lamar Smith for documents and other information relating to Justice Kagan's activities while she served as Solicitor General, with particular reference to the Patient Protection and Affordable Care Act," Weich wrote Sessions.

"The Department has disclosed documents relating to that topic in response to requests pursuant to the Freedom of Information Act; we have offered copies of those documents to the House Judiciary Committee and would be pleased to provide them to you as well if you wish," Weich wrote. "Beyond that, we have serious concerns about a congressional inquiry regarding this matter. Enclosed are copies of our letters to Chairman Smith on this subject."

Weich told Sessions the topic of Kagan's involvement in Obamacare would have been appropriately explored during her Supreme Court confirmation process.

In fact, during that confirmation process, Sessions and other Republicans on the Senate Judiciary Committee did ask Kagan a series of written questions about her involvement in Obamacare.

When they asked Kagan whether she had ever been present at a meeting where Florida's lawsuit against Obamacare was discussed, she said: "I attended at least one meeting where the existence of the litigation was briefly mentioned, but none where any substantive discussion of the litigation occurred."

When they asked her whether she had ever been asked her "opinion regarding the merits of or the underlying legal issues" in Florida's lawsuit against Obamacare, she said: "No."

When they asked more generally whether she had ever been asked her opinion "regarding any other legal issue that may arise" from Obamcare, she said: "No."

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