Kagan Busted: Must Recuse Herself or Face Impeachment

With each batch of documents exposed by new Freedom of Information requests, the case for Supreme Court Justice Elena Kagan's recusal -- or perhaps even impeachment -- becomes more clear.

Internal Justice Department email communications made just days before the House of Representatives passed the Patient Protection and Affordable Care Act show that then-Solicitor General Elena Kagan was brought into the loop as DOJ began preparing to respond to an anticipated legal complaint that Mark Levin and the Landmark Legal Foundation were planning to file against the act if the House used a procedural rule to “deem” the bill passed even if members never directly voted on it.

In another internal DOJ email communication that same week, Kagan alerted the chief of DOJ’s Office of Legal Counsel to the constitutional argument that a former U.S. Appeals Court judge was making against the use of this rule.

During her confirmation process four months later, Kagan asserted in writing that she had neither been asked her opinion nor offered any view or comments regarding "the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to [PPACA], or the underlying legal or constitutional issues related to potential litigation resulting from such legislation".

Kagan answered both questions: "No."

And the emails appear to prove that she lied under oath.

A federal law—28 U.S.C 455—says that a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned” or if he “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

Even more troubling is the fact that the Holder Justice Department is redacting documents and even withholding critical evidence of Kagan's relationship with the defense of Obamacare.

Solicitor General Elena Kagan’s email to acting Office of Legal Counsel Chief David Barron carried this subject line: “Health care q” ... The text said: “Did you seee [sic] michael mcConnell piece in the wsj?”

Barron emailed back to Kagan: ‘YES—HE IS GETTING IT GOING.”

...[On] March 18, 2010, Katyal extended [another Obamacare] email chain by responding to Perrelli and carbon copying the messages to his own boss, Elena Kagan. This new email was all about the Levin-Landmark Legal Foundation draft complaint against the prospective health-care law. It noted some of Katyal’s initial analysis of the anticipated constitutional challenge.

The subject line was now: “RE: Health Care." ... “Tom, I was just looking at the draft complaint by Landmark Legal Foundation,” Katyal wrote to Perrelli and Kagan. “It is clearly written to be filed when the House approves the reconciliation bill and before the President signs it. See paras 15-17.”

...What was in the redacted text of this DOJ email?

In a document that the Justice Department provided to the federal court in response to the MRC-Judicial Watch FOIA suit, DOJ gave this general description of the material that had been redacted here: “The redacted information contains a Department of Justice (DOJ) attorney’s thoughts, before the Patient Protection and Affordable Care Act was passed, on what categories of legal arguments may arise and should be prepared in the anticipated lawsuit referenced in the email exchange.”

Another email chain that DOJ has released to CNSNews.com as a result of the FOIA lawsuit was sent by Katyal to Kagan on June 15, 2010. That was thirteen day before Kagan appeared in the Senate Judiciary Committee for her Supreme Court confirmation hearings. Approximately an entire page—apparently the text of another person's email that Katyal was forwarding to Kagan--has been redacted from this email chain.

The subject line on Katyal's email to Kagan is: “Fw: connecting you two” Here, Katyal describes for Kagan a conversation he had about her with Attorney General Eric Holder... “Fyi,” Katyal writes Kagan. ““Also AG just told me that he expects a big story out shortly about whether you are recused in health care litigation. I went over the timing and that you have been walled off from Day One.”

But was Kagan “walled off” from health-care litigation on March 16, 2010, the day she sent an email to acting OLC chief David Barron, alerting him to Michael McConnell’s op-ed challenging the Slaughter Rule?

Was she “walled off” on March 18, 2010, when Katyal carbon-copied her on an email outlining his preliminary analysis of the draft Levin-Landmark Legal Foundation complaint against Obamacare?

...Barron responded to CNSNews.com’s questions via email. “I do not have a comment,” he said... [and] Katyal did not respond to any of the emails or the voice mail message [sent by CNS].

...The Justice Deparment has thus far refused to comply with the Judiciary Committee’s request.

...In a statement to CNSNews.com, Mark Levin asked “where is the evidence” that Kagan was in fact “walled off” from health-care matters when she was solicitor general... “I served in the Justice Department, including as chief of staff to Attorney General Edwin Meese,” Levin told CNSNews.com. “It simply is not credible to argue that Kagan, as the top litigator at Justice and for the nation, would not have been informed about and commented on the legal strategies involving the most important constitutional and policy issue not only in the Obama administration, but in several decades of American history.

“If she had been ‘walled off’ from the matter, where is the evidence for that?” said Levin. “Who was the gatekeeper? In fact, the emails demonstrate that her subordinates were ensuring that she was kept informed about events and potential legal issues, including Landmark's draft complaint, which was prepared to challenge the Slaughter rule and then-Speaker Pelosi's attempt (albeit abandoned) to bypass the Constitution's law-making requirements. At a minimum, it does not appear that Kagan was forthright during her confirmation testimony about the extent to which she was kept apprised of Obamacare.”

It is clear that Kagan was directly involved with Obamacare.

Should she not recuse herself, she should face an impeachment trial.

As should Eric Holder.

There has never been an administration as lawless as this one, and I'm including the Nixon and Harding presidencies in my analysis.