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Mukasey’s Misconceptions



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Former attorney general and district judge Michael Mukasey writes today in the Wall Street Journal that “upon even a cursory examination of the facts it is clear that neither justice [Thomas nor Kagan] should step aside” when the Supreme Court rules on the constitutionality of Obamacare.

Unfortunately, it appears that Judge Mukasey never got past his “cursory examination of the facts,” because his conclusions regarding Justice Kagan are based on both factual and legal errors.

First, it appears that Mukasey is basing his conclusions only on the e-mails most recently divulged by DOJ that show Kagan cheering the passage of Obamacare.  As I have stated before, these emails are not relevant to my analysis of her participation as counsel and are not the basis on which anyone is claiming she must be recused. 

Second, Mukasey assumes the Obamacare case was following the normal course en route to the solicitor general’s office and therefore that her office was not involved pre-appeal, which is a reasonable assumption. But thanks to e-mails that three FOIA requests and two lawsuits have wrested from DOJ’s “transparent” hands, we now know that the Obama administration was planning its defense of the law — with participation from the SG’s office personally approved by Kagan — months before the law was passed. Given those e-mails, we have the evidence Mukasey thought was missing — that Kagan “acted personally in her official capacity as solicitor general” in the case.

Mukasey also gets it wrong with respect to Kagan’s own statements about her involvement in the Obamacare defense.  He writes:

In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial.

While Justice Kagan did state during her confirmation hearings that she had never expressed her opinion on the merits of the constitutional challenges to the health-care law and that she never was “counsel of record,” she never stated that she had not served as counsel or adviser. In fact, she implicitly confirmed her involvement by stating only that she had not played a “substantial role.” The legal standard does not require substantial participation or serving as counsel of record. Any amount of personal participation is sufficient to trigger recusal under federal law.

I agree with Mukasey that we should credit Kagan’s statements absent evidence to the contrary. But we do have evidence that, at a minimum, shows her statements should not be read as broadly as Mukasey reads them. Kagan was clearly not “walled off” from this case, as her political deputy has claimed, because she was making decisions about her office’s involvement as early as January 2010, was staffing the case, and was being copied on planning e-mails containing privileged internal information. Calls for her recusal are not based on speculation about what discussions Kagan may have had off the record (given her demonstrated interest in avoiding a paper trail on this topic), but on actual e-mails that have been disclosed by DOJ.

Mukasey concluded that calls for Justice Thomas to recuse himself were “flimsy at best.” On this we can agree. But I hope he will not continue to comment on the topic of Kagan’s recusal before performing a more thorough review of the facts.



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