Justice Department emails obtained through Freedom of Information Act petitions show that then-Solicitor General Elena Kagan was brought into the loop as Justice Department prepared 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.
28 U.S. Code Section 455 stipulates that a 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.”
Kagan's top deputy in the Office of Solicitor General was Neal Katyal. In an e-mail response to Kagan, Katyal had wrote:
“Fyi, 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.”Speaking to CNS News, Mark Levin responded:
“I served in the Justice Department, including as chief of staff to Attorney General Edwin Meese. 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? 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.”