Senate GOP Leaders To Holder: Your Kagan Testimony 'Belied By The Facts'
By Terence P. Jeffrey
November 19, 2011
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Eric Holder

Attorney General Eric Holder testifies in the Senate Judiciary Committee on Nov. 8, 2011. (AP Photo/J. Scott Applewhite)

(CNSNews.com) - Senate Republican leaders sent a letter to Attorney General Eric Holder on Friday expressing their view that testimony he gave in the Senate Judiciary Committee last week on the Justice Department's handling of then-Solicitor General Elena Kagan's involvement in litigation arising from the administration's health care legislation was "belied by the facts."

The senators also urged Holder to comply with requests that have been submitted to the Justice Department by Congress seeking information about Kagan's involvement in the matter and expressed their view that Kagan's activities as solicitor general may have triggered two different provisions of a federal law that governs when a Supreme Court justice must recuse from a case.

"Unfortunately, your Department has rejected all Congressional oversight requests for information about her role in the Obama Administration's defense of this law," said the letter to Holder, which was signed by Senate Minority Leader Mitch McConnell (R.-Ky.), Senate Minority Whip Jon Kyl (R.-Ariz.), Senate Judiciary Committee Ranking Member Charles Grassley (R.-Iowa) and Sen. Mike Lee (R.-Utah), who is a member of the Senate Judiciary Committee.

"You recently told the Senate, incredibly, that you were not even aware of Congressional requests on this topic, and that your Department handled her duties as relates to such matters in a way that is belied by the facts, namely that you physically removed her from all meetings discussing litigation," the senators told Holder.

[Watch a video clip of Holder's testimony here:]

Since last summer, the House Judiciary Committee, which has oversight of the Justice Department and federal courts, has been unsucessfully seeking Kagan-related documents and witness interviews from the Justice Department.

Sen. Lee questioned Holder about the House committee's requests in a Senate Judiciary Committee hearing on Nov. 8. On Tuesday, Sen. Jeff Sessions (R.-Ala.), a senior member of that Senate panel, demanded that Holder submit written testimony on the Kagan matter, following up on Holder's appearance in the committee--a standard practice in Senate oversight hearings.

In a July 6 letter to Holder, House Judiciary Chairman Lamar Smith (R.-Texas) had requested Kagan-related documents and witness interviews so that the committee could "properly understand any involvement by Justice Kagan in matters relating to health care legislation or litigation while she was Solicitor General."

At issue in the House Judiciary Committee's request was whether Kagan must recuse herself from Supreme Court cases involving the health-care legislation that President Obama signed when Kagan was Obama's solicitor general--responsible for defending his administration's position in federal court disputes--and whether Kagan had accurately answered written questions put to her by Senate Judiciary Committee Republicans during her confirmation process.

A federal law, 28 USC 455, requires that a Supreme Court justice must recuse himself in “any proceeding in which his impartiality might reasonably be questionedâ€