As associate White House counsel in 1995, U.S. Supreme Court nominee Elena Kagan played a key role in building a public defense of President Bill Clinton’s claim of attorney-client privilege in a potential confrontation with Congress over a subpoena from the Senate committee investigating Whitewater, a failed Arkansas real estate venture. The committee sought notes from a meeting attended by a White House lawyer, personal lawyers for Clinton and the first lady, and senior officials.
Kagan reached out to a list of legal ethics superstars and former White House counsels to write op eds and answer press questions in support of Clinton’s position, according to the latest batch of documents released Friday from her 1995-1996 tenure as associate counsel. She provided them with a list of “talking points” on the White House’s position.
“Any help would be greatly appreciated,” Kagan wrote. “We need people who will support the general proposition—through op eds or other contacts with the press—that conversations between a President’s White House and his private counsel can, in a least some circumstances, be privileged (under the attorney-client privilege).”
In notations on correspondence with White House Counsel Lloyd Cutler and others, she said she had called “folks at Chicago” (probably a reference to the University of Chicago School of Law where she had taught); ethics scholar Stephen Gillers of New York University School of Law, and William Jeffress, then with Miller Cassidy Larroca & Lewin, among others. Cutler called on former White House counsels and attorneys general, such as A.B. Culvahouse and Griffin Bell, as well as Howard Baker.
Kagan also noted that Arthur Miller of Harvard Law School; Paul Rothstein of Georgetown University Law center, and Akhil Amar of Yale Law School and others agreed to make themselves available for comment on the privilege issue.
The roughly 40,000 pages released by the National Archives reveal little of Kagan’s personal opinions on the wide swath of issues that crossed her desk. In addition to the Whitewater investigation, she was involved in the administration’s initiatives such as
welfare reform, regulatory reform, domestic violence and civil justice reform. She also collected materials and reviewed legislation on medical malpractice and takings.
In 1996, Kagan did give her opinion on the U.S. Supreme Court ruling in Seminole Tribe v. Florida, a major stepping stone in the Rehnquist Court’s federalism revolution. In a memo to then White House Deputy Chief of Staff Harold Ickes, she said the decision had “broad significance,” adding with prescience:
“The decision will doubtless stand in the way of at least some citizen suits brought to enforce federal law (as it barred the Seminoles' own lawsuit). And the decision, especially when viewed together with the holding last year that Congress lacked authority to prohibit guns near schools, indicates a serious effort by a bare majority of the Court to reorient the balance of power between the federal government and the States. It is highly unlikely that this case will be the last one to pursue that states'-rights agenda.”
Anticipating that Senate Republicans will repeat their call for a delay in Kagan’s nomination hearing, Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said in a statement: “Any argument that the Committee does not have the materials necessary to evaluate this nomination is misguided and misplaced. All paper files related to Elena Kagan that were located by an extensive search at the Clinton Library have now been produced to the Committee. With more than two weeks before the start of the confirmation hearing, the Archives has completed its review and production of her White House files and there is more than enough time for Senators and their staff to review them.”
The archives released about 46,000 pages of Kagan documents a week ago, and another 80,000 are being reviewed for future release. Republican members of the Senate Judiciary Committee have called for a delay in the June 28 start of the hearings, saying they need more time to examine the documents.
Curt Levey, executive director of the conservative Committee for Justice, said in a statement, “Today’s installment of Clinton Library documents will likely exacerbate rather than assuage the concerns of Judiciary Committee members that they will not be able to conduct a thorough review of Elena Kagan’s record before her hearings begin June 28. Both the volume and content of today’s document dump falls short of what senators need and hoped for.”
A White House aide told The National Law Journal, “As a lawyer in the White House Counsel’s Office, Kagan’s work focused principally on providing legal advice to the policy and legislative staff. She was not one of the lawyers in the office who focused on litigation matters. Kagan’s work on the Whitewater case involved reviewing legal pleadings, assisting in response to document requests, and offering legal research on short-term projects.
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