A federal judge hearing a case alleging Barack Obama conspired with Planned Parenthood and other special interests in the development of his health-care bill says the plaintiffs may be able to seek evidence of a secret advisory panel handpicked by the president.
Obamacare now is before the U.S. Supreme Court on a challenge to its constitutionality, and a decision is expected within weeks.
The law also is targeted in the district court case.
“In general, summary judgment ‘is proper only after the plaintiff has been given adequate time for discovery,’” wrote U.S. District Judge Richard W. Roberts in his latest order in a case brought by Larry Klayman of Freedom Watch Inc.
Klayman noted that Freedom Watch has requested discovery to depose Kimberly Harris, a deputy assistant and deputy counsel to the president in the Office of the White House Counsel.
“The parties therefore will be ordered to show cause why the government’s supplemental memorandum should not be treated as a motion for summary judgment, and Freedom Watch will be permitted to justify its request for discovery,” the judge said.
Klayman has alleged that Obama’s multiple meetings with representatives of Planned Parenthood and other organizations constituted a federal advisory committee. He contends that refusing to release details about the meetings violates the Federal Advisory Committee Act.
It was last August when Roberts ruled that part of the case could advance, determining that Klayman “has alleged sufficiently … that the committee here was an advisory committee under the FACA.”
He noted at that time that Freedom Watch “may be entitled to mandamus review against the president, and dismissing the complaint [as the White House wanted] on separation of powers grounds would be premature.”
Later Klayman filed a motion for an order to show cause, alleging that the White House is flouting the court and its orders.
“In an attempt to circumvent the court’s order, defendant President Barack Obama’s supplemental memorandum on mootness effectively rebukes and thus ‘thumbs its nose’ at the court’s memorandum of opinion and order of Aug. 12, 2011,” the motion explains.
Klayman explained that the White House did not respond to questions about whether the special advisory committee still is meeting.
“Plaintiff had consistently and meritoriously maintained that such ongoing meetings and/or communications must still be taking place, since implementation of what has become known as ‘Obamacare’ involves thousands of regulations, and there is much at stake concerning such healthcare reform, particularly during this period leading up to the presidential elections in 2012,” Klayman argued.
He noted that the court agreed with his argument that “a de facto federal advisory committee could exist was properly pled.”
“The court [ordered] defendants to advise whether meetings and/or communications were still ongoing with nongovernmental persons and entities,” he wrote. “Despite defendants’ own acknowledgment of the court’s unequivocal order, defendants have opted to avoid compliance, seeking to side-step answering candidly and honestly. … Defendants have merely submitted the disingenuous, nonresponsive, and misleading sworn declaration of Kimberly D. Harris, deputy assistant and deputy counsel to the president in the office of the White House Counsel.
“In this sworn declaration, defendants to seek to sidestep perjury allegations they were forced to admit that such meetings and communications were, in fact, taking place in violation of the Federal Advisory Committee Act,” Klayman wrote.
Now, Roberts has filed the order outlining issues he thinks are in the case, including the fact that the government said the group has discontinued meeting and what he wants regarding the minutes of the meetings that were held.
Klayman, in response, said his organization, as the plaintiff, needs a deposition of Harris.
“As set forth in the complaint and plaintiff’s opposition to defendant’s motion to dismiss, there were widely reported accounts in credible news sources that the president had specific groups, namely pharmaceutical companies, AARP, Planned Parenthood, US. Chamber of Commerce and other private lobbyists who ‘regularly attended and fully participated in non-public meetings of the OHRDFAC,’” Klayman responded.
“In fact, defendants have admitted as much in the affidavit of Ms. Harris, where they confirmed these meetings in the past,” he continued. “And, the advisory committee is likely to continue to meet even if the Supreme Court rules the ‘Obamacare’ legislation unconstitutional, in whole or in part. It will obviously continue to meet in furtherance of new compliant legislation and rulemaking for the implementing government agencies.”
Klayman argued Harris omitted any reference to ongoing meetings, which would mean the action is not moot.
And, he argued, “even a group formed by private industry becomes an advisory committee if it is ‘utilized’ by the president or by one or more agencies of the government.”
“Defendant is holding onto the information and the facts and is attempting to dismiss this action by claiming that plaintiff should simply trust defendant. This goes specifically against Congress’ intent in establishing FACA to ‘keep Congress and the public informed of their activities.’”
Klayman cited earlier ramifications from a similar argument involving the proposed government-run health care plan promoted by then-first lady Hillary Clinton in the 1990s.
“In an earlier landmark lawsuit involving a healthcare advisory committee chaired by Hillary Clinton in the 1990s, the lower court granted summary judgment, accepting the affidavits of the Clinton administration without allowing discovery by the nonmovant. This ruling was overturned on appeal to the U.S. Court of Appeals for the District of Columbia Circuit, and when the discovery did finally go forth … it was learned that the Clinton administration had lied in its affidavits.”
Earlier in the new case, Harris admitted PlannedParenthood and the U.S. Chamber of Commerce, “along with many other individuals and entities, attended meetings at the White House, at times in groups, to express their views on health care reform.”
But then she explained “there was and is no such committee [so] there are no committee documents and no past, present or future committee meetings.”
Previously the White House refused to give up information about negotiations with various groups over Obamacare, saying Obama has a “privilege” to keep such communications concealed.
Among other arguments, a letter from Marcia Berman, a senior counsel at the U.S. Department of Justice, told Klayman, “Defendants object to the subpoena on the grounds that it seeks information that is protected by various recognized privileges, such as the deliberative process privilege and the presidential communications privilege.”
Klayman, who founded Judicial Watch and, more recently, Freedom Watch, is in U.S. District Court in Washington, D.C., contending the president’s conduct falls within the scope of the act that “requires the president to come clean on why he has caved in to the pharmaceutical industry, preventing the importation of prescription drugs that would lower prices for consumers, why he has become the lackey of Planned Parenthood in championing government financed abortions, and why the AMA (American Medical Association) and AARP (American Association of Retired Persons) are now his great friends.”
Klayman, the only lawyer ever to have obtained a court ruling that a U.S. president committed a crime, has pursued cases against the Clintons, former Vice President Dick Cheney, Venezuelan President Hugo Chavez and Iranian President Mahmoud Ahmadinejad.
He built a reputation that inspired writers for the NBC drama series “The West Wing” to create a character, “Harry Klaypool,” based on his work.
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