Solicitor General Email FOIA Shows White House Stunt Fail

In all the government shutdown, nuclear meltdown and Libya war of choice news dominating the media landscape the last couple of weeks, a completely juicy little tidbit was pried out of the Obama Administration by a right wing news outfit – and almost nobody picked up on it.

CNSNews, the cyber division of the Brent Bozell run right wing Media Research Center, has scored a bit of a coup with the acquisition of a set of FOIA documents from the Solicitor General’s office partially detailing the unusual grooming of Elana Kagan to ascend to the Supreme Court. The 66 pages of documents are fascinating and offer a unique and rare glimpse into the backstage machinations in the SG Office. The FOIA CNSNews issued was targeted almost solely at the great whale the Ahab like conservative right are pursuing, the Affordable Healthcare Act they unaffectionately refer to as “ObamaCare”.

Here is the thing, why would the Administration agree to turn over the emails? They are almost surely protected within the ambit of deliberative privilege exemption commonly recognized for the Executive Branch. Indeed, the first time CNSNews requested the records, the request was flatly rejected, back on June 22, 2010. But, the Administration, on its own, reconsidered, sought slight clarification and, finally, on March 15 of this year, delivered the FOIA records to CNSNews. The response letter from the Solicitor General’s office facially states that they would have been well within their rights to so withhold, but “it would be appropriate to release significant portions of such records requested as a matter of agency discretion”.

Uh huh. Experts in such matters were shocked. Kannon Shanmugam, a veteran of the SG’s office now with Williams & Connolly, stated (subscription may be required):

…the documents represent “an unusual if not unprecedented” look at the office’s operations. “It raises concerns about chilling lawyers in the office in the conduct of their work, and gives an incentive not to put things down in emails.

Indeed that would be seemingly very sound analysis. So, why did the Obama Administration give up the goods? For that, a quick look at what the emails depict, and what the FOIA asked for is necessary. As the FOIA search terms and parameters indicate, CNSNews was looking for instances of Elana Kagan’s involvement in the legal debate, legal crafting and preparation for future litigation regarding the Affordable Healthcare Act. Why? Obviously, the conservative right is girding for the coming battle in the Supreme Court on the ACA that will be determinative in light of the complete split in lower courts so far. That is why the right wanted the material.

Why, however, did the Obama Administration take the extraordinary step of waiving executive deliberative privilege and give it to them?? Ah, that is where the “stunt” part of this story comes into play. Again from the NLJ:

The documents, mainly in the form of printouts of internal email chains, show that now-Acting Solicitor General Neal Katyal – not Kagan herself — was the point person within the office on discussions of the new health care reform law and how to defend it in court.


Kagan was nominated to the high court on May 10, 2010, but as early as March 21, the emails show that Kagan sought to keep herself out of the discussions of the health care law, possibly to avoid having to recuse when a challenge to the law came before the Supreme Court. During her Senate confirmation hearing last summer, Kagan said she had attended one meeting where the Florida lawsuit challenging the law was discussed, but was never asked to give her opinion on the merits of the case. Kagan also said White House Counsel Bob Bauer told her on March 5 that she was under consideration to fill a possible high court vacancy.

Kagan was selectively, and almost completely, walled off from the entire consideration by the Administration of the ACA and how it would be legally defended in the future. Because it had already been determined she would be installed on the Supreme court and they wanted to keep her from having to recuse herself when it came time for her and her fellow Justices to rule on the constitutionality and legality of the ACA and its components.

And now that Kagan is on SCOTUS and the specter of the ACA going there looms, the White House wanted to send a message to the conservative right, and a congress that may be getting weak in the knees, that they have the votes at the Supreme Court and ACA is going nowhere. Setting the tone for Obama and the Democratic House and Senate members to be able to have confidence to run on their big healthcare piece de resistance. Also, don’t rule out the possibility the White House is doing this in response to the pressure on Justice Clarence Thomas to recuse because of the apparent conflict for his wife, Ginny. The right is still pissed John Roberts had to recuse himself in Hamdan after he was first elevated and they’re also pissed Thomas is going to be pressured to recuse on healthcare. The White House is trying to ward off the coming attack on Kagan.

There was only one problem with their glorious horses head in the conservative wingnut bed – the White House apparently never disclosed the same documents to the Senate Judiciary Committee when they were requested during consideration of Kagan’s nomination. From everybody;s good old friend Joe diGenova, again in the NLJ article:

,,,”why they were not turned over to the Senate Judiciary Committee” when, during its confirmation hearing on Kagan, it wanted to know her involvement in the legal deliberations over health care reform. “Clearly, they were purposely not turned over. That now becomes as important a question as her involvement itself,” said diGenova, who has filed an FOIA request for even more related documents, including from the White House, on behalf of the conservative Judicial Crisis Network.

Oooops. Yes, if that is indeed the case as it appears, then diGenova actually has a pretty good point. If this is as it looks, it is a fail that makes the Keystone Kops look competent. What a way to step out of the gate for reelection.

  1. MadDog says:

    That first email chain of January 8, 2010, on page 3 pretty much is the smoking gun that Kagan deliberately sought to recuse herself from ACA involvement.

    Though the NLJ report states: “Kagan also said White House Counsel Bob Bauer told her on March 5 that she was under consideration to fill a possible high court vacancy.”, I wouldn’t bet against Kagan having had more than an inkling about moving up to SCOTUS prior to that “official” March 5 notification.

    • MadDog says:

      From page 46, a June 15, 2010 email from Neal Katyal to Elena Kagan:


      Also AG just told me that he expects a big story coming out shortly about whether you are recused in health care litigation. I went over the timeing and that you have been walled off from Day One…

      • MadDog says:

        And from page 48, Elena Kagan forwards a FYI copy of that previous email to “someone”. I’m guessing that “someone” hangs out over at the White House.

        Perhaps Bob Bauer – White House Counsel?

    • earlofhuntingdon says:

      Rumor has it that was discussed when she was originally appointed as Solicitor General. She was already dean of the HLS. Being appointed SG wasn’t a step up, but appointment to the Supremes would have been. It was also her lifelong dream.

      • MadDog says:

        That’s the rumor I was thinking of as well. Taking the SG job was merely to be a placeholder position until a spot opened up on SCOTUS.

        • bmaz says:

          Well. I think solicitor general is a hell of a step up from the functionary dean of a law school, even one like Harvard. Especially for a woman that had never seen the inside of a courtroom in anger before and whose job at HLS was to keep the trains running on time and raise money for the endowment. So, dunno if I buy that part of the argument. However, it shows what a cynical ruse appointing Kagan as SG was, and it shows where the ethics and principles of Obama and his White House were and, more importantly, were not. They were willing to appoint Kagan and suggest and sanction her complete abdication of duty on the supposed most important issue of their term in the White House, a shitty asinine wealth transfer to the biggest ripoff health carriers and providers in the country. Because she would soon be their gal on the Supreme bench.

          They demonstrated no similar concern over defining constitutional issues of our and all time, such as the continued existence of the Writ of Habeas Corpus, warrantless wiretapping, indefinite detention and, maybe, executive extrajudicial execution of citizens without due process (although this issue could possibly have not been raised yet).

          • MadDog says:

            Well. I think solicitor general is a hell of a step up from the functionary dean of a law school, even one like Harvard. Especially for a woman that had never seen the inside of a courtroom in anger before and whose job at HLS was to keep the trains running on time and raise money for the endowment. So, dunno if I buy that part of the argument…

            I agree, but I think they used the SG position as not only a placeholder, but also as a resume-booster for someone, as you say, whose previous experience was mostly as a glad-hander and not as a working stiff in the legal profession.

          • earlofhuntingdon says:

            I think dean of HLS is among the top preferments the law has to offer. Katyal wasn’t dean at Georgetown, “merely” a professor and he was what, No. 2 at the SG’s office?

            I would regard Kagan’s appointment as SG to be a lateral move. And that assumes the intent was for her to stay there and be a top performing SG. As we discussed during her nomination to the Supremes, she didn’t have the required trial and appellate background to be SG, just as she didn’t have the breadth of experience to be a top choice as a Supreme Court justice. Rumors from day one were that her SG slot was “practice” for an appointment to the Supremes. That leads to your cynicism argument, which I agree with.

            Grooming staff for bigger and better things is an essential tool of leadership. It’s how things get done well, and how institutions survive, thrive and prosper for generations. The methodology here is what’s so broken it hurts. It’s also frustrating. The Goopers groom relentlessly, from high school, to college, to special preferments in business, think tanks and public office. The Dems play at it like it’s an illegal crap game on 42nd Street that they might have to walk away from at the first rap of a night stick.

            • bmaz says:

              I do not oppose responsible grooming of talent. She should have been appointed to a District Court or Court of Appeals position though, not handed the keys to the office of the top courtroom advocate for the whole US government. But most importantly, they should not have done so if the looming specter of her next position would prevent her from actually performing the duties of the job. And I further think it demonstrates what a scummy little craven ladder climber Elana Kagan was. I find it disgusting.

              • earlofhuntingdon says:

                I agree. But the scummy and craven part would apply to those who chose her for the task, not just her.

                • greenwarrior says:

                  There’s clearly enough scummy and craven to go around. And to lead to Kelly’s loathier.

              • liberaldem says:

                Well said, bmaz. I think Kagan is just another amoral, ambitious careerist who would walk over her own family to get the prize.

  2. MadDog says:

    As to Joe diGenova’s heartburn, I’m just guessing here that it is exactly the “absence of ACA involvement” on Kagan’s part that the White House sees as a defense against making these documents available to the Senate Judiciary Committee during Kagan’s SCOTUS confirmation process.

    Or to turn the argument around on its face, if Kagan had been involved with ACA, only then would the Administration have felt some obligation to respond to the Senate Judiciary Committee’s request on the topic.

  3. PeasantParty says:

    Bmaz! ZOOM!

    You scooped!

    You are correct about making the Keystone Cops look competent. Obama has become Musolini before our very eyes.

    My opinion: On this issue I hope the repugs win. HCR bill was nothing but a giveaway and increases the costs for all of us peasants.

  4. earlofhuntingdon says:

    It’s a bit like Rizzo bragging about his “kill” authorizations to reporters, but refusing to say a word to the courts when under oath and pursuant to the penalties of perjury.

    Disclosure should be based on the public’s right to know, not the political machinations of the current incumbent in the White House. I hope the waiver made clear it was not the basis for precedent; these disclosures seem to be foursquare deliberative and therefore protected.

  5. scribe says:

    No wonder they fought so hard to keep Scott Bloch out of jail.

    Not that Republicans would do the same for them.

    For a bunch of supposedly smart people with great credentials – “better” than mine and mine are pretty good – they are exhibiting some exceptional stupidity.

  6. BeachPopulist says:

    What I find disgusting is that, unless I am misinformed, Kagan doesn’t have to recuse herself from anything. She may feel compelled to do so for the sake of appearance (or for the convenience of avoiding having to go on record) but as I understand it, each SCOTUS justice decides purely for themselves if he/she should recuse themself, and if they don’t there is no law requiring them to do so, and no court that their decision can be appealed to.

    Wasn’t that the case when Scalia refused to recuse himself from the case involving his hunting buddy, Shooter?

    • earlofhuntingdon says:

      As a Supreme Court Justice, Ms. Kagan has sole control over what cases she recuses herself from and why. A curious and, I would argue, purely self-serving exemption from the rules that apply to all other federal judges.

      As a nominee to the federal bench, however, her disclosure of previous work could have been used by her opponents to justify their campaigns and their votes against her.

    • beowulf says:

      Unlike any other professional or personal relationship, having worked for the United States of America does not create a conflict of interest (and Scalia’s point there was no conflict arising from his relationship with VP Cheney is a sound one) The issue is only whether she was involved with a particular case while with the Executive Branch.

      • earlofhuntingdon says:

        The generality that having worked for the United States does not create a conflict of interest is glittering. More correct is the observation that a real or apparent conflict – both objectionable in a judicial or other public officer – is dependent on what matters and for whom and in whose interest an official previously worked.

        Mr. Scalia’s opinion that he need not recuse himself from hearing a case involving the energy policy orchestrated in secret by a former CEO of a major oil industry company – then a sitting vice president who was still receiving millions in deferred compensation from that prior employment – with whom he had a close relationship is remarkably self-serving. And not at all correct. That would not be the standard applied to a district court or appellate judge.

  7. orionATL says:

    i don’t understand what all the fuss here is about.

    were i prez, or white house or solicitor general staff,

    i would do the sme thing – keep kagan away away from health care (with which
    she herself no doubt would be in complete agreement).

    i don’t see error, problem, or scandel here in the instance of kegan;

    i don’t see error, problem, or scandel in the release of docs (in response to an foia request) for purposes of complyimg or of applying political pressure.

    what am i missing that political/legal sophisticates understand so clearly?

    • earlofhuntingdon says:

      Because the segregation of Kagan from important issues her office should be litigating in the federal courts amounts to her not doing her job, or doing her job while pretending to recuse herself from it.

      It amounts to her being a placeholder, while unnamed deputies do her work for her, which generates tremendous inefficiency and lack of respect for the process and the work product.

      It amounts to her not receiving the training and experience she was meant to profit from by virtue of her appointment as SG, which means she didn’t pick up all the additional skills her post was meant to give her and which would buttress her middling qualifications for an appointment to the Supreme Court. (Yes, overall, her academic and professional legal success – virtually all of it academic – was stellar. In the rarefied atmosphere of appointments to the senior federal bench, frankly, that’s a given.)

      I think the shorthand for that is “smoke and mirrors”.

    • emptywheel says:

      A couple of things. First, note that Kagan basically took herself off this before she was appointed to SCOTUS or even before Justice Stevens retired (which was in April). Sure, the govt may have known, but even if so it’s a testament to the whole kabuki here. At another level, though, consider some of the other implications of this (which I think bmaz will return to). The Admin made a choice to wall Kagan off of this. But that was a choice: the implication is they chose not to wall Kagan off of other issues, issues on which she’s recused already.

      So the Admin is gaming which issues they want to have a 9th vote (a 5th vote) for on SCOTUS or not. At some point, that equates to the Executive Branch gaming a way to influence how many votes can be cast on which issues in an entirely different branch of govt.

      • Gitcheegumee says:

        Kagan’s work as a top government lawyer would affect tobacco case …Jun 14, 2010 … Kagan’s work as a top government lawyer would affect tobacco case if she joins Supreme Court WASHINGTON – It’s a simple matter of math: ……/kagans-work-as-a-top-government-lawyer-would- affect-tobacco-case-if-she-joins-supreme-court/ – Cached

        Analysis: Tobacco case ends : SCOTUSblogJun 28, 2010 … 30 Days of Stevens · Kagan Confirmation Issue Briefs · McDonald v. … While turning aside the tobacco case, the Court on Monday did add six – Cached – Similar

        NOTE: I don’t know if any here recall this, but it reaped billion$$$ for the government, after Kagan’s appointment. The second link is extremely informative. There are several links to this in the search engine here,also.

  8. textynn says:

    Wall Street ordered the legislation on health care. Wall Street AKA the Central banks and the Fed Reserve, the US’s heavily subsidized Royalty running the world (and profiting from both sides of every war). They put in their person, Kagan, and her vote is a given.

    As far the right wing losers willing to sell their souls, their votes are a given, as well.

    I’ll tell you what vote isn’t a given. Im not voting for any of these self serving elite royals that care nothing about the people who they exploit and who they live off of.

    Third party is the only choice that actually is a choice. Im so done with Obama. I see that the World Royalty wants him and they will fix it. But just maybe a REVOLUTION might bring the power back to the people.

    some background about Wall street and their control of the health care legislation. second half of this video