Alright...time to put this Elena Kagan recusal issue to rest.
I was doing some research in an effort to better understand the details behind why the GOP wants Justice Kagan to recuse herself from the upcoming Supreme Court health care case and came across the (chain of)
emails (w/attachments)
House Rep. Lamar Smith requested via the FOIA (which he also has access to since the emails are linked to the linked Washington Post article). I'll cut right to the chase...
Page 8 of email chain (Re: Health care litigation meeting) - Illustrates the chain of communications where Thomas J. Perrelli communicates to Katyal Neal his request to assemble a health care policy team to prepare for litigation (presumably for the SC fight they knew was coming). Katyal Neal then emails Elena Kagan hinting that he believed she should attend the meeting. Kagan then emails Neal back asking for his phone number. The email next in the chain (presumably) blacks out Neal's phone number.
Pages 13, 44 and 63 of email chain (Re: HCR Litigation) - Tracy Schmaler asked Katyal Neal directly if Kagan was involved with the SG's office on HCR (health care reform) litigation. Neal's reply - NO.
Page 51 of email chain (Re: Recusals (Not Urgent)) - Kagan answers question concerning "time intervals" (presumably of when she received certain cases and/or information closely linked to health care issues) that in Neal's opinion may get called into question and require her to recuse herself from any future cases.
Page 60 of email chain (Re: CVSGs) - Kagan chaired meeting for both sides, but emails clearly state she was not involved in neither the Virginia Commonwealth ligitation nor the Providence Hospital case.
Page 62 of email chain (Re: Elena's name on briefs, oops, appeals rec) - Kagan's cases turned over to Katyal Neal as Acting SG.
Where USC Title 28, para. 455 is concerned:
Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy
Based on the emails, it doesn't appear that Kagan received draft copies of material relevant to the HCR defense strategy, but she did receive draft copies of letters on litigation pertaining to the Senate drug bill mentioned, as well as a copy of the Virginia Commonwealth's appeal. I don't think those items of themselves would be enough to force her to recuse herself, however, unless it can be shown that she discussed at great length and in great detail legal defense strategy on HCR after the VC appeal went forward, I can't see any reason for her to recuse herself based on the emails provided. (Of course, I'm not an attorney...)
So, there you have it, folks. From what I could tell, her legal team worked extremely hard to keep her informed of legal issues as a matter of routine as SG but not involved in legal issues pertaining to HCR matters. The only sticking point might be her chairing both sides of a legal review, but that's about it.
Enjoy.
