Oh my: Documents reveal that Kagan may have helped craft legal defense of ObamaCare

posted at 9:17 pm on May 18, 2011 by Allahpundit

She won’t recuse herself, needless to say. Defending their signature domestic “achievement” when it’s under mortal threat from a constitutional challenge is much, much more important to the left than observing ethical rules. Which is why, of course, they’ve been hassling Clarence Thomas about a supposed conflict of interest in his own right vis-a-vis ObamaCare. They know Kagan is compromised, so they’re setting up a “tu quoque” rejoinder for when, not if, the GOP takes up this point in earnest.

I wonder if they know how compromised she is.

On March 21, 2010, Katyal urged Kagan to attend a health care litigation meeting that was evidently 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.”

In another email exchange that took place on January 8, 2010, 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.”

However, following the May 10, 2010, announcement that President Obama would nominate Kagan to the U.S. Supreme Court, Katyal position changed significantly as he began to suggest that Kagan had been “walled off” from Obamacare discussions…

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

March 21, 2010 was the day ObamaCare passed the House and, for all intents and purposes, became law. It’s hard to believe Kagan, as solicitor general, wouldn’t have showed up for a legal strategy session held that day, let alone at any point over the previous six months as the bill was working its way through Congress. But here’s the excuse they’re going to offer the public:

On May 17, 2010, for example, Tracy Schmaler, a Department of Justice spokesperson wrote to Katyal, “Has Elena been involved in any of that to the extent SG office was consulted … ?”

“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,” was Katyal’s response. He then forwarded the correspondence to Kagan, saying “This is what I told Tracy about Health Care.”

Kagan’s response: “This needs to be coordinated. Tracy you should not say anything about this before talking to me.”

Other email chains between Kagan, White House lawyers and Vice President Joe Biden’s then-Chief of Staff Ronald Klain show a coordinated effort on how to respond to questions about the health-care law that may have arisen in the confirmation hearings.

Just so we’re straight on the timeline here: On March 21, the day ObamaCare was passed, Katyal is inviting Kagan to strategy sessions about the new law. On April 9, John Paul Stevens resigns and speculation erupts about Kagan succeeding him. On May 17, Katyal is suddenly telling people that Kagan’s never been involved in anything — even though she is, in fact, the solicitor general of the United States and even though he explicitly invited her to a meeting about the law less than two months earlier — and Kagan is warning people via e-mail to make sure everyone has their story straight on what she knew by “coordinating.” Is that about right? I want to make sure we’re all square on this nonsense for when the mandate challenge finally reaches the Court and we’re told by her office that everything is magically copacetic.


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Comment pages: 1 2 3

Great information on Kagan. Page one quality, back when there used to be a ‘Page One’

The funny part is to rewind and watch Kagan being presented to the public during the npmination. The life story, the drama, the emotions.

Rewind the confirmation hearings, and examine both the questions and the answers in the context of the information presented here

Context is everything and the stink on this one is overwhelming

entagor on May 19, 2011 at 12:59 PM

Yeah, I guess your side wouldn’t know anything about whining for months/years on end and claiming a SCOTUS decision/two-term presidency is illegitimate.

Esthier on May 19, 2011 at 11:52 AM

Wham.

Good Lt on May 19, 2011 at 1:13 PM

What about the other SCOTUS justices? Can’t some of them “counsel” her that she needs to recuse herself? They have a vested interest in the integrity of the highest court in the country.

Kim Priestap on May 19, 2011 at 1:41 PM

I thought Kagen had said during confirmation that she was to recuse herself from anything to do with Obamacare because she was in on the deal from the beginning?

jaimo on May 19, 2011 at 1:50 PM

crr6

Hey sister, any response to my posting?

Chip on May 19, 2011 at 2:00 PM

I thought Kagen had said during confirmation that she was to recuse herself from anything to do with Obamacare because she was in on the deal from the beginning?

jaimo on May 19, 2011 at 1:50 PM

Please understand, I’m not disagreeing with you, but it would be cool if someone could find the transcript of when she said that..

Of course, they Left will quibble over the meaning of in.

Chip on May 19, 2011 at 2:03 PM

Kagan refuses to recuse herself.

Congress impeach her.

maverick muse on May 19, 2011 at 3:17 PM

Needless to say, that won’t stop you from whining about this for months on end. Oh, and of course you’ll claim that any SCOTUS decision upholding the mandate is illegitimate.

crr6 on May 19, 2011 at 10:35 AM

If ANY court in the land were to force citizens to purchase health insurance, it would be unconst.
All unconst. ruling are illegitimate.
But you are a for equality over property rights kinda gal. So I do not expect you to see these things.

Badger40 on May 19, 2011 at 6:27 PM

Of course, they Left will quibble over the meaning of in.

Chip on May 19, 2011 at 2:03 PM

The little bit that’s out on this would cinch it for me. And it doesn’t matter who they should recuse themselves.
Kagan obviously had something to do with this.
As big as this is, even the notion she ahd something to do with it she should recuse herself to prevent any more ripping apart of this country.

Badger40 on May 19, 2011 at 6:30 PM

And it doesn’t matter who they are, they should recuse themselves.

Badger40 on May 19, 2011 at 6:30 PM

Badger40 on May 19, 2011 at 6:31 PM

crr6

Hey sister, any response to my posting?

Chip on May 19, 2011 at 2:00 PM

Good luck with that.

Del Dolemonte on May 19, 2011 at 6:48 PM

LOL. I love you Chip.

crr6 on May 19, 2011 at 11:31 AM

Lame.

Needless to say, that won’t stop you from whining about this for months on end. Oh, and of course you’ll claim that any SCOTUS decision upholding the mandate is illegitimate.

crr6 on May 19, 2011 at 10:35 AM

Yeah, I guess your side wouldn’t know anything about whining for months/years on end and claiming a SCOTUS decision/two-term presidency is illegitimate.

Esthier on May 19, 2011 at 11:52 AM

Crr you could learn something from Esthier

CWforFreedom on May 19, 2011 at 7:12 PM

since when is lying to Congress not an impeachable offense? Answer, when the Progressive Liberal Socialists still have control of Congress

mathewsjw on May 20, 2011 at 1:00 AM

JUST-IN…Kagan recuses herself…3…2…1…wait..what? Not going to happen…

SPGuy on May 20, 2011 at 12:31 PM

Haul ‘er up on perjury charges.

jeroboam on May 21, 2011 at 1:52 PM

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