In a letter to U.S. Attorney General Eric Holder on Friday, GOP Sen. Lamar Smith noted that in rejecting the request for documents, the Justice Department "did not assert any legal privilege to support the decision but instead concluded it would be 'unseemly' to comply with my request." If the Justice Department does intend to assert a legal privilege, he added, he'd like to be informed of the basis for it by Friday.

    According to the rules for federal recusal, judges who previously served in other government positions, as Justice Kagan did, should bow out of cases if they served as "counsel, adviser, or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy," or if the judge's "impartiality might reasonably be questioned."

DOJ doesn't have a legal leg to stand on and they know it. They are stonewalling the request because there is little doubt that Kagan's activities as SG far exceeded the threshold for recusal.