By Terence P. Jeffrey
December 13, 2011
This week, CNSNews.com sent Kneedler via email a PDF file of the documents that DOJ had released as a result of CNSNews.com’s FOIA request. CNSNews.com asked Kneedler: “During the time that Elena Kagan was solicitor general, did you ever have any verbal or written communications with her about any connection between the Patient Protection and Affordable Care Act and the Golden Gate Restaurant Association case? If you did have such a communication or communications, when did it occur, what did you say and what did she say?”
CNSNews.com sent Kneedler this question via email on the afternoon of Dec. 12 and again on the afternoon Dec. 13. Also, on the afternoon of Dec. 12, CNSNews.com left a voice mail message for Kneedler about the question.
Kneedler has not responded.
CNSNews.com also sent former Acting Solicitor General Katyal a PDF file of the FOIA documents released by DOJ. On Dec. 12 and Dec. 13, CNSNews.com asked Katyal this question via email: “Do you have any reason now to doubt the accuracy of this May 13, 2010 memorandum in which you informed then-Solicitor General Kagan that she had ‘substantially participated’ in the Golden Gate case?”
Katyal has not responded.
CNSNews.com’s FOIA request, initially filed on May 25, 2010, asked for any communications involving Elena Kagan in which the administration’s health care reform plan was a topic, or legal challenges to the health-care law signed by President Obama was a topic, or “in which the question of whether Solicitor General Elena Kagan ought to recuse herself from any involvement in any particular case in her role as solicitor general due to the prospect that it might later come before her were she to be confirmed to a seat on the federal court was discussed.”
In preparing its response to this request, DOJ told the federal court it searched the files of Elena Kagan, Neal Katyal, and Kagan’s confidential assistant. DOJ did not search the files of Kagan’s other deputies, including Kneedler.
In its FOIA lawsuit on the matter, Judicial Watch (JW) challenged DOJ’s decision not to search the files of the other deputies for relevant documents.
In an opinion released on Oct. 13, U.S. District Judge Ellen Huvelle, a Clinton appointee, ruled in favor of DOJ on this issue. “JW argues that the search was not adequate because OSG determined to search the files and emails of SG Kagan, her confidential assistant, and then-Principal Deputy Solicitor General Katyal, but did not search the records of the other deputies in the OSG,” wrote Judge Huvelle.
“However,” the judge concluded, “this does not render the search inadequate where, as here, DOJ has demonstrated that its decision to search the files of these three individuals was reasonably calculated to uncover relevant documents.”
On July 6, House Judiciary Chairman Lamar Smith sent a letter to Attorney General Eric Holder asking Holder for DOJ documents and interviews—including one with Neal Katyal—so the committee could “properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was solicitor general.”
In this letter, Chairman Smith pointed to two other questions the Senate Judiciary Committee Republicans had asked Kagan in their letter probing the recusal issue.
“During her Senate confirmation, then-Solicitor General Kagan answered ‘no’ when questioned about whether she had ever been ‘asked about [her] opinion’ or ‘offered any views or comments regarding the underlying legal or constitutional issues related to any proposed health care legislation … or … potential litigation resulting from such legislation,’” Smith wrote. “Yet, documents released by the Department in response to recent Freedom of Information Act requests raise questions about that unequivocal denial.”
The Justice Department has refused to comply with the House Judiciary Committee’s request.
Testifying before the committee last week, Attorney General Holder could not cite a legal privilege to justify his department’s refusal to comply with this congressional oversight request.
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