Eric Holder's New Problem - Elena Kagan Nomination

Supreme Court Justice Elena Kagan was the Solicitor General before she was nominated. As such, there was enough likelihood that she was involved in the defense of Obamacare after the bill's passage. If, in fact, Kagan was consulted or otherwise participated in discussions about a legal defense of the bill, it would be more than sufficient grounds for her to recuse herself from the case, which SCOTUS will be taking up this spring.

During his November 8th testimony in front of the Senate Judiciary Committee, Attorney General Eric Holder was asked about this very issue by Senator Mike Lee (R-UT). If Holder is to be believed - his Fast and Furious testimony notwithstanding - Kagan was asked to physically leave a room whenever the topic of Obamacare was addressed. Remember, this is the same Eric Holder who lied under oath about when he first heard of Fast and Furious and the American people should be expected to believe the absurd notion that Obama's Solicitor General - Kagan - was asked to leave any meeting when the subject turned to defending Obamacare?!

Via CNS News:

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.

Click HERE to watch the brief exchange between Lee and Holder. Complicating Holder's position relative to what Kagan knew are e-mails obtained by Judicial Watch through FOIA requests. They would seem to indicate that even if the absurd notion that she was asked to leave meetings that turned to Obamacare, she apparently was dialed in via communications with colleagues through e-mail.

Here is a clip from Day 3 of Kagan's confirmation hearings back in 2010. Fast forward to the 4:45 mark to watch Senator Tom Coburn ask Kagan if she had ever been asked to present her opinion on the merits of the health care bill. Note her response. She said, no. Demands that Kagan should recuse herself from the Obamacare case could be the least of the administration's problems. If it can be proven that Kagan had been asked to present her opinion on the merits of Obamacare, it could constitute perjury.