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Terry Jeffrey's Conflict-of-Interest Conflict

The editor-in-chief has been pushing for Elena Kagan to recuse herself from Supreme Court deliberation over health care reform -- while being silent about a bigger problem with a conservative justice.

By Terry Krepel
Posted 11/22/2011

Over the past several months, as part of his increasingly agitated anti-Obama crusade, editor in chief Terry Jeffrey has been trying to force Supreme Court Justice Elena Kagan to recuse herself from ruling on challenges to President Obama's health care reform law because she might have worked on the issue while serving as Obama's solicitor general.

Not only hasn't Jeffrey been very successful so far at proving its case, he has completely ignored an arguably bigger conflict of interest on the issue involving a different Supreme Court justice.

In a March 29 article, Jeffrey claimed that emails CNS obtained through a Freedom of Information Act request "raise questions" about whether Kagan participated in Jeffrey conceded that the emails do not show that Kagan "express[ed] an 'opinion concerning the merits' of the lawsuits filed against the health care law, an act that would trigger one of the recusal standards" under federal law. Indeed, all the emails demonstrate is that Kagan appointed a deputy to handle the expected legal challenges to the law.

Jeffrey gave it another shot in a June 3 article, trying to reframe things by baselessly asserting that "When Kagan assigned [then-assistant Neal] Katyal to handle the expected litigation challenging President Obama’s health-care law she was a legal partisan in the matter." Jeffrey offered no new evidence to back up this claim, just a reinterpretation of the FOIA emails. Nevertheless, Jeffrey repeated that contention in his June 8 column, adding that she had previously recused herself from a case involving Harvard Law School, where she previously served as dean: "Will Kagan now apply a similarly scrupulous standard in deciding whether to sit in judgment of the lawsuits filed against the health care law signed by President Obama while she was Obama's solicitor general?"

In a July 6 article, Jeffrey breathlessly announced that the House Judiciary Committee was launching an investigation into Kagan's purported involvement in health care reform. That turned out to be not quite true, and Jeffrey had to walk it back. An editor's note at the top of the article reads:

As originally posted, this story used the word “investigation” in three places to describe what the House Judiciary Committee was initiating with Chairman Lamar Smith’s letter to the attorney general which is cited in this report. In those three places, the word “investigation” has been changed to “inquiry.” The committee requested a correction of the story, saying Smith’s letter asking for four categories of documents from the Justice Department as well as “witness interviews” is a “request for additional information” and not the beginning of a “formal investigation.” “The Committee has contacted the Justice Department for additional information, but we have not launched a formal investigation at this time,” a Judiciary Committee aide told in an emailed statement.

Two days later, Jeffrey devoted a separate article to an expansion of the editor's note.

Jeffrey gave another shot at the Kagan-should-recuse bandwagon in his Oct. 19 column, which concludes with his tired claim that Kagan appointing a deputy to handle health care reform means she's somehow biased:

Five months before Obama nominated Kagan to the Court, Kagan assigned her top deputy to do work that made him a "legal adviser" on the anticipated Obamacare cases. That deputy went on to argue some of those cases in federal court.

Can Kagan's impartiality in these cases be reasonable [sic] questioned? It would be unreasonable not to.

A few months later, Jeffrey was still at it. An Oct. 14 article detailed CNS' latest attempt to obtain internal documents from Kagan's tenure as solicitor general in an attempt to demonstrate that Kagan played some role in defending the Obama administration's position on health care reform. Again, all Jeffrey can come up with is that Kagan named a deputy to handle the issue, and that efforts were made to wall off Kagan from handling the case in anticipation of a Supreme Court nomination -- as if walling Kagan off from taking part in deliberations somehow meant that she had.

This time around, a judge ruled that CNS and the right-wing group Judicial Watch could not obtain emails Kagan "sent from her DOJ email account to people in the White House—in which she discussed her recusal decisions as solicitor general—because the emails were 'used for a purely personal objective.'"

Jeffrey just couldn't stop flogging the same old failed argument. Let's just skip to the summary of Jeffrey's Oct. 19 column:

Five months before Obama nominated Kagan to the Court, Kagan assigned her top deputy to do work that made him a "legal adviser" on the anticipated Obamacare cases. That deputy went on to argue some of those cases in federal court.

Can Kagan's impartiality in these cases be reasonable [sic] questioned? It would be unreasonable not to.

In a Nov. 10 CNS article, Jeffrey made a big deal out of a email Kagan -- then solicitor general -- sent to law professor Laurence Tribe upon the passage of health care reform in 2010, “I hear they have the votes, Larry!! Simply amazing.” Jeffrey tries to portray this as a reason to recuse, even as Jeffrey's email Q-and-A with Tribe asking about his correspondence with Kagan makes it clear Kagan expressed no opinion on the constitutionality of the health care law.

This was accompanied by another article in which Jeffrey noted that the Department of Justice is " refusing to comply with a request from the House Judiciary Committee to provide the committee with documents and witness interviews" regarding a separate action by House Republicans trying to get Kagan to recuse.

Jeffrey even did a video interview with the Virginia state legislator who sponsored a bill to prohibit the state from enforcing the health care reform law's individual mandate, who claimed that Kagan should recuse herself.

While Jeffrey was obsessing over Kagan, another conflict-of-interest issue was brewing. Justice Clarence Thomas' wife, Ginni, is a right-wing activist who founded Liberty Central, a group that has attacked health care reform. An article on the Liberty Central website originally credited to Ginni Thomas, then changed to a different byline and ultimately removed, attacked health care reform as unconstitutional.

Further, Thomas failed to report his wife's income on financial disclosure forms, despite the fact that she earned hundreds of thousands of dollars over the last several years working for right-wing groups like Liberty Central and the Heritage Foundation. Thomas has since filed amended forms that list his wife's income.

Curiously, neither Jeffrey nor anyone else at CNS has ever mentioned this apparent conflict-of-interest issue regarding Thomas and his wife's activism -- let alone his failure to disclose his wife's income -- even though it's at least as significant as the issue regarding Kagan.

Even though Thomas' impartiality can be reasonably questioned, Jeffrey has apparently decided that it would be unreasonable to actually do that questioning.

After all, Jeffrey has touted Thomas as "the court's true originalist," and Thomas can presumed to be relied on to render a decision on the case that Jeffrey will agree with -- that parts, if not all, of health care reform is unconstitutional. Jeffrey, obviously, doesn't want to do anything to jeopardize that by reporting inconvenient facts.

Jeffrey, it seems, is simply protecting an ideological soul mate until he can figure out how to plausibly explain it away. But the fact that he has remained silent for so long on Thomas suggests that no such defense exists.

Such refusal to report all relevant facts -- which runs counter to CNS' claim in its mission statement that it "endeavors to fairly present all legitimate sides of a story" -- makes CNS a partisan talking-points machine, not a "news" organization. But you knew that already.

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