Chairman Smith: Attorney General Eric Holder appeared before the House Judiciary Committee last May and we appreciate his willingness to appear today to address many issues, including questions about his previous testimony.
While I am pleased to welcome back Attorney General Holder, I am disappointed in the Department's repeated refusal to cooperate with this Committee's oversight requests.
This lack of cooperation is evident in the Department's handling of inquiries related to the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF's) Operation Fast and Furious, and the death of Border Patrol Agent Brian Terry in December 2010.
Operation Fast and Furious intentionally allowed straw buyers for criminal organizations to purchase hundreds of guns so that the ATF could track them across the U.S.-Mexico border. But Fast and Furious had a fatal flaw. Once purchased, there was no attempt to follow the firearms. Instead, the guns were allowed to cross over into Mexico without any coordination with Mexican authorities or any attempt to track the firearms.
Tragically, two of the guns were found at the scene of the shooting death of Customs and Border Patrol Agent Brian Terry. And by the Department's own admission, hundreds of guns remain unaccounted for.
It's been a year since the death of Agent Terry. Yet, many questions remain as to how such a reckless and dangerous law enforcement program was allowed to operate under the Justice Department.
And inconsistent statements from Department officials about who knew what and when have only raised more concerns.
I am also disappointed in how the Department has responded to my oversight requests regarding Justice Kagan's involvement in health care legislation or related litigation while she served as United States Solicitor General.
Despite claims from Obama administration officials that then-Solicitor General Kagan was "walled off" from discussions regarding the President's health care law, recently released e-mails indicate there may be more to the story.
On March 21, 2010, an e-mail from the Deputy Solicitor General forwarded to Solicitor General Kagan contained information about a meeting at the White House on the health care law and asked: "I think you should go, no? I will regardless but feel this is litigation of singular importance." Solicitor General Kagan responded by asking him for his phone number.
We also know from the e-mails that she personally supported the legislation's passage. In a March 21, 2010, exchange with a Justice Department colleague discussing the health care legislation, Ms. Kagan exclaims, "I hear they have the votes, Larry!! Simply amazing."
These e-mails reveal inconsistencies with the administration's claims that then-Solicitor General Kagan was walled off from this issue.
To help clear up any confusion, I wrote the Justice Department to get additional documents and conduct staff interviews. It took nearly four months before the Department sent a one page response that denied my request.
The Department did not assert any legal privilege over the requested information but simply refused to comply with the request. That is not a sufficient answer.
Health care legislation was passed by the Senate on December 24, 2009. On January 8, 2010, Ms. Kagan told the Deputy Solicitor General that she "definitely would like the Office of the Solicitor General to be involved in" preparations to defend against challenges to the pending health care proposals.
Ms. Kagan found out she was being considered for a potential Supreme Court vacancy on March 5, 2010. So the issue is how involved was she in health care discussions between January 8 and March 5. Just as President Nixon had an eighteen and a half minute gap, does Ms. Kagan have a two month gap?
The Office of the Solicitor General is responsible for defending the positions of the federal government in litigation before the Supreme Court. So it was the duty of then Solicitor General Kagan to participate in meetings and discussions regarding the legal defense strategy for the President's health care proposal.
It would have been a surprising departure from her responsibilities for Solicitor General Kagan not to advise the Administration on the health care bill.
But if the Department continues to assert that she was "walled off from day one" from discussions, then they should be willing to provide Congress and the public with documentation to prove that statement.
The law clearly states that Justices must recuse themselves if they "participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case" while they worked in a government capacity.
The public has a right to know the extent of Justice Kagan's involvement with this legislation as well as any previously stated legal opinions about the legislation while she served as Solicitor General.
The NFL would not allow a team to officiate its own game. If Justice Kagan was part of the Administration's team that put the health care mandate into play, she should not officiate when it comes before the Supreme Court.
If the Department has nothing to hide, why not provide Congress with the requested information? The continued refusal to cooperate with legitimate oversight inquiries only heightens concerns that she might have a conflict of interest.
President Obama has promised an "open and transparent government." Unfortunately, we often see a closed and secretive Justice Department.