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A recent release of documents under the Freedom of Information Act is shedding unusual light on the internal workings of the U.S. solicitor general’s office in 2010 before and after then-SG Elena Kagan’s nomination to the Supreme Court. 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. Released to CNSNews.com, a conservative-oriented news outlet, the emails also reveal how Kagan was walled off from discussions of the law — possibly because she already knew she might be nominated to the high court, where a challenge to the statute would ultimately be decided. The release has raised eyebrows among lawyers familiar with the long tradition of the solicitor general’s office resisting release of internal documents so as not to hamper deliberations on cases. Numerous redactions in the documents shield portions of the emails, including the names of associates in the SG’s office. But Kannon Shanmugam, a veteran of the SG’s office who is now an appellate partner at Williams & Connolly, said 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.” Joseph diGenova of diGenova & Toensing in D.C. said the documents also raise the question of “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. 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. So, on Sunday March 21, when Associate Attorney General Thomas Perrelli sent around an email inviting Justice Department lawyers to a meeting to discuss defense of the law, Katyal forwarded it to Kagan with a note: “I think you should go, no? I will, regardless, but feel like this is litigation of singular importance.” Kagan’s reply was, “What’s your phone number?” From that point on, Katyal was the lead person from the SG’s office on the issue — a role he continues to play today, even though a successor to Kagan has been nominated. Katyal, who at the time was principal deputy solicitor general, had earlier shown enthusiasm for the task. On Jan. 8, 2010, two weeks after the Senate approved the bill, Brian Hauck, counsel to Perrelli, floated the idea of meeting to discuss defending it. Three minutes later Katyal replied, “Absolutely right on. Let’s crush them. I’ll speak with Elena and delegate someone.” That afternoon, Katyal sent another note to Hauck, telling him, “Elena would definitely like OSG to be involved in this set of issues, I will handle this myself, along with an assistant from my office [redacted] and we will bring Elena in as needed.” The documents were released three weeks ago in response to a 2010 FOIA request from CNSNews.com, a news service of the Virginia-based Media Research Center, which calls it “an alternate news service” that fills gaps in coverage left by liberal media outlets. The Justice Department on June 22, 2010 rejected the news service’s FOIA request under the exemption that shields from disclosure “inter-agency or intra-agency memorandums or letters” under most circumstances. But three days later, the department sent CNSNews.com another letter stating that its earlier rejection letter was “sent in error.” It asked for clarification of the request, and then took until last month to search and process the material for disclosure. In a March 15 letter releasing the documents, Valerie Hall, executive officer of the solicitor general’s office, said they could have been withheld under the exemption cited earlier, but the department was releasing them anyway as “a matter of agency discretion.” CNSNews.com published a story on the documents March 29. According to the emails, President Barack Obama’s May 10 announcement of Kagan as his nominee to replace Justice John Paul Stevens touched off activity at the SG’s office aimed at determining how involved she was in the health care litigation as well as other cases that might eventually trigger her recusal. On May 13, Katyal sent a memo to Kagan that included reports from the office’s four deputy SGs, including himself, listing the cases in which “we feel that you have substantially participated.” The list includes most of the cases that in fact Kagan has recused in since becoming a justice last August 7. Longtime Deputy SG Edwin Kneedler reported to Katyal that he had “discussed with Elena several times” a pending case that had a “possible nexus” to the health care law. The case was Golden Gate Restaurant Association v. City and County of San Francisco. Kneedler also said of Kagan, “Especially now that health care has passed, she may not want to be involved in that brief.” The case asked whether the federal ERISA law governing pension plans pre-empted a San Francisco ordinance that required certain employers to provide health care coverage to employees. The high court had asked the government for its views on the issue raised by the case in October 2009. The government’s brief, filed May 28, 2010 under Katyal’s name, discussed the new health care law at some length, in the process of urging the Court not to grant review in the case. Katyal asserted that the law’s goal of providing broader health care coverage might reduce the need for programs like San Francisco’s, and that the law’s pre-emption provisions would also affect the San Francisco case. The Court denied review on June 28 last year. The Golden Gate case was not raised as an issue during Kagan’s confirmation hearing. In another exchange in May 2010 Tracy Schmaler, a Justice Department spokeswoman, emailed Katyal asking him whether Kagan had been involved or if Katyal had handled it all. “Know you’ve been point but expect I’ll get this q,” she wrote in email shorthand. Katyal’s reply: “No, she has never been involved in any of it. I’ve run it for the office, and have never discussed the issues with her one bit.” Katyal then forwarded that note to Kagan, who replied, “This needs to be coordinated. Tracy, you should not say anything about this before talking to me.” Schmaler’s reply: “Sure – no one has asked yet – Just expecting it.” In response to questions from Supreme Court Insider, Schmaler said today, “During her tenure, former Solicitor General Elena Kagan did not play any substantive role in litigation challenging healthcare reform legislation, and the small number of documents that were released reflect that.” Schmaler also said that the department’s “discretionary release” of the documents was in keeping with Attorney General Eric Holder’s 2009 guidelines favoring disclosure under FOIA and were warranted “after appropriate redactions were made.” Tony Mauro can be contacted at [email protected].

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