Justice accused of withholding records on Kagan's role in healthcare defense

The Justice Department withheld records about Supreme Court Justice Elena Kagan’s role in healthcare reform, House Judiciary Committee Chairman Lamar Smith (R-Texas) said Tuesday.

Smith pressed Attorney General Eric Holder to provide documents and witnesses about Kagan’s time as solicitor general and her role in preparing to defend President Obama’s healthcare reform law in court. Republicans have clamored for Kagan to recuse herself when the Supreme Court takes up a case challenging the law.

Smith said in a letter to Holder that the Justice Department has refused to comply with his requests for documents and interviews about Kagan’s involvement. But the department later publicly released emails that his inquiry covered, Smith said.

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“The public has a right to know both the full extent of Justice Kagan’s involvement with this legislation while she was Solicitor General, as well as her previously stated views and opinions about the legislation while she was serving as Solicitor General,” Smith wrote.

Emails show that Kagan’s office mounted an early and aggressive effort to prepare for legal challenges to the individual insurance mandate, but the records released so far do not contradict Kagan’s statement that she was not directly involved in the planning. 

Although Kagan had not been formally approached about a position on the Supreme Court when her department began working on its healthcare defense, she had been on the short list for an earlier appointment.

The Justice Department has, however, released an email in which Kagan told a Justice Department colleague it was “amazing” that Democrats appeared to have the votes to pass healthcare reform.

The Supreme Court is expected to hear oral arguments about the healthcare law in March, with a ruling on the law’s constitutionality possible in June.