Bench Memos

Re: JCN Memo on Kagan Recusal

Carrie, thanks for the excellent JCN memo on the issue of Justice Kagan’s from the Obamacare cases. I hadn’t been up to speed on this matter and have just taken the opportunity to examine the documents produced in response to your and Judicial Watch’s FOIA requests. Pardon me for repeating parts of your memo, but I’d just like to highlight a few points:

1. The documentary record clearly establishes that Elena Kagan, as Solicitor General, was personally involved, even if only to a limited degree (though without a complete record, it’s difficult to know how limited), in advising how to defend against challenges to Obamacare. Among other things:

– Kagan personally assigned her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” (The quote is from an e-mail query from the Associate Attorney General’s office.) [See page 1 of documents linked above.] Katyal then informed the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will handle the matter, and that “we will bring Elena in as needed.” [See page 20.]

– Katyal copied Kagan on his advice to Associate Attorney General Thomas Perrelli that DOJ “start assembling a response” to a draft complaint “so that we have it ready to go.” In context, it’s clear that he’s inviting her to state any disagreement that she might have. Her apparent non-response would therefore be taken by Katyal and Perrelli as expressing her agreement. [See page 3.]

– Katyal and Kagan consulted on whether he or she should attend a White House meeting “to help us prepare for litigation” (Perrelli’s phrase) on what Katyal referred to as “litigation of singular importance.” Katyal volunteered, “I think you should go, no?” [See page 5.]

2. As your memo notes, under 28 U.S.C. § 455(b)(3) a justice is required to recuse himself from a proceeding where the judge “has served in government employment and in such capacity participated as counsel [or] adviser … concerning the proceeding.” I haven’t researched the question myself, but the text of 455(b)(3), unlike (as you point out) the text of 18 U.S.C. § 207(a)(1), doesn’t state that recusal is triggered only if the participation was “substantial.” So, unless there’s case law to the contrary (and I gather from your memo that there isn’t), it would seem that any personal involvement “concerning the proceeding” would require recusal.

3. In an e-mail dated June 15, 2010—shortly after her nomination to the Court—Katyal informs Kagan that he told Attorney General Holder that “you have been walled off from Day One” from the litigation over Obamacare. [See page 17.] The documentary record (see point 1) clearly establishes that Katyal’s statement is not accurate. Someone who is “walled off” would not be assigning lawyers to the matter, would not be available to be brought in “as needed,” would not be copied on substantive legal advice, and would not be advised by Katyal to attend a key strategy meeting.

Nor, of course, is there any conceivable reason why Kagan would have been “walled off”; she certainly didn’t have a conflict at that time that prevented her from tending to her duties on Obamacare litigation.

In sum, I think that your memo makes a powerful case for Kagan’s recusal from the Obamacare litigation. But I’d of course be eager to hear the counterarguments from those who believe that Kagan may take part.

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