CNS News

By Terence P. Jeffrey

(CNSNews.com) - On Sunday, March 21, 2010, the day the House of Representatives passed President Barack Obama’s Patient Protection and Affordable Care Act, then-Solicitor General Elena Kagan and famed Supreme Court litigator and Harvard Law Prof. Laurence Tribe, who was then serving in the Justice Department, had an email exchange in which they discussed the pending health-care vote, according to documents the Department of Justice released late Wednesday to the Media Research Center, CNSNews.com's parent organization, and to Judicial Watch.

“I hear they have the votes, Larry!! Simply amazing,” Kagan said to Tribe in one of the emails.

The Justice Department released a new batch of emails on Wednesday evening as its latest response to Freedom of Information Act requests filed by CNSNews.com and Judicial Watch. Both organizations filed federal lawsuits against DOJ after the department did not initially respond to the requests. CNSNews.com originally filed its FOIA request on May 25, 2010--before Elena Kagan's June 2010 Supreme Court confirmation hearings.

The March 2010 email exchange between Kagan and Tribe raises new questions about whether Kagan must recuse herself from judging cases involving the health-care law that Obama signed--and which became the target of legal challenges--while Kagan was serving as Obama's solicitor general and was responsible for defending his administration’s positions in court disputes.

According to 28 USC 455, a Supreme Court justice must recuse from “any proceeding in which his impartiality might reasonably be questioned.” The law also says a justice must recuse anytime he has “expressed an opinion concerning the merits of the particular case in controversy” while he “served in governmental employment.”

In response to questions from CNSNews.com, Prof. Tribe said on Thursday that other than the references in his email exchange with Kagan on March 21, 2010, he never had any communications with Elena Kagan while she was solicitor general relating to pending or enacted health-care legislation or actual or anticipated health-care related litigation. Tribe also said he sees no reason to believe 28 USC 455 would require Kagan’s recusal from cases involving PPACA.

The March 21, 2010 email exchange between Kagan and Tribe was started by Tribe who addressed an email to Kagan at her Justice Department email account. Tribe also copied this message to another individual, whose name has been redacted from the version of the document DOJ released to the MRC.

The subject line on Tribe’s email reads: “fingers and toes crossed today!”—an apparent reference to the unusual Sunday vote on the health-care bill that would occur later that day in the House. In the email, Tribe reminded Kagan of a dinner meeting they had to postpone and suggested they reschedule it.

Kagan responded to the message in a return email that is addressed solely to Tribe. The subject line on this Kagan-to-Tribe email is: “Re: fingers and toes crossed today!”

Kagan punctuated the first sentence of this email to Tribe with two exclamation marks: “I hear they have the votes, Larry!! Simply amazing.”

She then proposed they reschedule their dinner meeting sometime after March 31: “Let’s go wherever you want: I think you mentioned a place in the Mandarin, which would be great. Give me any dates you want after March 31.” Kagan then mentions another person (whose name is redacted) who “expressed an interest in joining as well.”

Tribe responded by return email, carbon copying an individual or individuals whose names have been redacted by the Justice Department. This message was sent at 5:06 p.m.

“So health care is basically done!” Tribe wrote to Kagan in this message. “Remarkable. And with the Stupak group accepting the magic of what amounts to a signing statement on steroids!”

The “Stupak group” is a reference to then-Rep. Bart Stupak (D-Mich.), who led a group of House Democrats who had indicated they would not vote for the Patient Protection and Affordable Care Act if it permitted federal funds to pay for abortions.  Stupak and his allies decided to vote for the bill, even though no additional language would be added to it prohibiting abortion funding, after President Obama agreed to sign an executive order the administration said would prevent federal funding from going to abortions.

Tribe’s email then goes on to discuss the proposed dinner. “Re dinner, I now remember the place you’d suggested back in December: Founding Farmers. I still like the name and don’t recall why I’d thought the place in the Mandarin would be worth trying. So how about our going to Founding Farmers with you and [name redacted]?”

The next email, marked as sent at 11:00 p.m. (23:00:58) is from someone whose name is redacted. This person says he or she “would be available on April 7 or 13.”

At 11:04 p.m., Elena Kagan sends an email to herself Tribe, an assistant at the Justice Department and someone whose name is redacted. “I can do April 12,” she said.

That same day—March 21, 2010—as PPACA was passing the House, Kagan had a separate email exchange with her top deputy Neal Katyal.

This email chain started At 6:11 p.m., when associate Attorney General Tom Perrelli sent a message to a group of DOJ lawyers, including Katyal, notifying them that there was going to be a meeting the next day to plan for the litigation expected to challenge PPACA. DOJ released this email to the Media Research Center earlier this year, after MRC sued seeking to force DOJ to comply with CNSNews.com's FOIA request seeking documents related to Kagan and the issue of recusal and related to health-care legislation and litigation.

The subject line on Perrelli’s 6:11 p.m email was: “Health care litigation meeting.”

“It sounds like we can meet with some of the health care policy team tomorrow at 4 to help us prepare for litigation,” Perelli wrote in this email. “It has to be over there. Can folks send me the waves info (full name, SSN, DOB) of everyone that should attend as soon as possible? WH wants it tonight, if possible. I know we won’t get everyone’s in tonight.

“Also,” Perrelli continued, “we need to think about the key issues/question for the agenda. [Language redacted] tops my list, but I know there are others.”

At 6:18, Katyal forwarded this email to Kagan. “This is the first I’ve heard of this,” Katyal told Kagan. “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.”

One minute later—at 6:19 p.m.—Kagan responded to Katyal: “What’s your phone number?”

Three minutes after that, Katyal sent Kagan his phone number and the email chain ended.

On Thursday, Nov. 10, 2011, CNSNews.com sent Prof. Larry Tribe the PDF the Justice Department had provided to the Media Research Center with the email exchange that Tribe had had with Kagan when they were both serving in the Justice Department on March 21, 2010.

CNSNews.com asked Tribe five questions, which he answered in writing. Here are CNSNews.com’s questions with Prof. Tribe’s responses:

CNSNews.com: “Did you ever verbally mention or discuss pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with Elena Kagan when she was solicitor general or does this March 21, 2010 email exchange represent the entirety of your communications to her on those matters during her tenure in that office?”

Tribe: “No. I never ‘mention[ed] or discuss[ed] pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with Elena Kagan when she was solicitor general,’ and ‘this March 21, 2010 email exchange represent[s] the entirety of [my] communications to her on those matters during her tenure in that office.’”

CNSNews.com: “Did she ever verbally mention or discuss pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with you when she was solicitor general or does this March 21, 2010 email exchange represent the entirety of her communications to you on those matters during her tenure in that office?”

Tribe: “No. Elena Kagan never ‘mention[ed] or discuss[ed] pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with [me] when she was solicitor general,’ and ‘this March 21, 2010 email exchange represent[s] the entirety of her communications to [me] on those matters during her tenure in that office.’”

CNSNews.com: “If you did verbally mention or discuss pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with Elena Kagan when she was solicitor general, what specifically did you say and what specifically did she say?”

Tribe: “Not applicable. We had no other exchanges on those matters, and the emails in question focused on a dinner engagement we were trying to set up.”

CNSNews.com: “If she did verbally mention or discuss pending or enacted health-care legislation, or actual or anticipated health-care related litigation, with you when she was solicitor general, what specifically did she say and what specifically did you say?”

Tribe: “Not applicable. See answer to Question 3.”

CNSNews.com: “Do you believe any of the provisions of 28 USC 455 require Justice Elena Kagan to recuse herself from cases involving the Patient Protection and Affordable Care Act?”

Tribe: “No. I do not have any reason to believe that any of the provisions of 28 USC 455 require Justice Elena Kagan to recuse herself from cases involving the Patient Protection and Affordable Care Act.”

On July 13, 2010, during her confirmation process, the Republicans on the Senate Judiciary Committee sent Kagan a letter asking her a series of questions probing her possible involvement in health care legislation or litigation during her time as solicitor general. The senators asked: “Have you ever been asked about your opinion regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

The sentors also asked Kagan: “Have you ever offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation, including but not limited to Pub. L. No. 111-148, or the underlying legal or constitutional issues related to potential litigation resulting from such legislation?”

Kagan’s written response to both questions was: “No.”

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