Newly released Kagan papers show a flair for the political

By Alec MacGillis
Washington Post Staff Writer
Saturday, June 12, 2010; A01

Elena Kagan arrived in the White House counsel's office in 1995 as a professor on leave with scant political experience. But according to documents released Friday, she quickly found herself immersed in the scandals and dust-ups of Bill Clinton's presidency: the Paula Jones case, Whitewater and a controversy over mishandled FBI files.

The 42,000 pages from the Clinton library -- the second of three batches to be released before the Supreme Court confirmation hearings that are to begin June 28 -- give the strongest evidence yet that Kagan would bring to the court far more experience than most recent justices in the political circus that often defines Washington. Previously released files from her tenure as a domestic policy adviser, from 1997 to 1999, reflected her involvement in issues such as abortion, gun control and welfare. The new documents show that even in her more junior role as a deputy White House counsel between 1995 and 1997, Kagan was taking part in dramas and debates that often were as political in nature as legal -- and that she was showing a relish for them.

Dozens of memos to and from Kagan reveal that she was enmeshed in strategizing to defend the president in the sexual harassment lawsuit filed by Jones, a former Arkansas state employee -- a White House effort that extended beyond normal administration duties.

Kagan routinely kept her boss, White House counsel Jack Quinn, and Clinton's private attorneys abreast on developments in the case, and the other lawyers sought out her thoughts.

Her advice often veered into politics. In one memo, she noted that a University of Chicago law professor helping on the case had suggested an amicus brief by members of Congress in support of Clinton. She discouraged the idea, warning that "if only Democrats joined, the brief would increase the partisan feel of the case" and that "getting such a brief might be difficult -- and our efforts to do so might become public."

On Whitewater, the long-running investigation into an Arkansas land deal involving the Clintons, Kagan took the lead in late 1995 in trying to round up legal experts willing to endorse the White House argument that attorney-client confidentiality rules protected Clinton's lawyers from divulging information.

"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 counsel and his private counsel can, in at least some circumstances, be privileged," she wrote her boss at the time, White House counsel Abner J. Mikva.

Notes show that she called a list of potential supporters, most of whom said they would be glad to sign an op-ed article if the White House drafted it. Soon the deed was done: Robert Lipshutz, White House counsel under President Jimmy Carter, wrote an op-ed piece with Kagan's help and shopped it to The Washington Post and the New York Times.

In June 1996, Kagan was drawn into the controversy over the White House's request of hundreds of security-clearance documents from the FBI, including those of officials from some Republican administration. She attended a meeting on proposed Republican measures to restrict use of FBI files and summarized it in a tartly written memo.

She wrote that the White House could "try to work with the Republicans before the committee vote, showing them that their amendments are absurd and persuading them to go for ours instead." Or, she said, it could "let the Republicans do what they want, attempt to embarrass them in public by highlighting the lunacy of their proposals, and taking our amendment out of the bag at the last minute as an alternative."

The William J. Clinton Presidential Library withheld about 1,800 pages from Friday's set of documents, asserting the need to protect personal privacy and confidential advice to the president. About three-quarters of those pages are available to the Senate Judiciary Committee.

The panel's top Republican, Sen. Jeff Sessions (Ala.), said the document release was inadequate, noting that the final batch, which will include Kagan's e-mails, is to arrive just before the hearings. Chairman Sen. Patrick J. Leahy (D-Vt.) responded that the library had released more documents than had been produced for the most recent GOP court nominees, John G. Roberts Jr. and Samuel A. Alito Jr.

The newly released documents show just how finely tuned Kagan's political antennae were, even on issues other than the administration controversies.

On the issue of states' rights, Kagan showed herself to be attuned to Republican sensitivities. When asked in 1996 for her advice on whether Clinton should revoke President Ronald Reagan's controversial executive order demanding that federal agencies avoid setting national standards and justify actions that impinge on states, she responded: "I'm leery of repealing the Federalism EO at this point. I'd rather think about how agencies can comply with the EO in as non-burdensome way as possible."

Kagan rarely expressed strong opinions. But in a discussion of religious rights, she described as "outrageous" a ruling by the California Supreme Court that a landlord must rent to an unmarried couple even though doing so would violate her religion, a ruling that challenged the federal Religious Freedom Restoration Act. The court's assertion that a state law barring such discrimination did not infringe on the landlady's religion was, Kagan wrote, akin to saying that she was "free to move to another state."

Kagan noted that an interfaith coalition was pressing the administration to ask the Supreme Court to overturn the decision, a tack she supported.

Kagan's political judgments came with a level of self-confidence notable for an aide in her mid-30s. In February 1996, she sent to Quinn a brief in the Jones case written by the solicitor general, and deemed it worthy: "It's really pretty good."

In June 1996, she wrote to her superiors questioning the decision by Walter Dellinger, then an assistant attorney general, to file a brief in a case about an English-only ballot initiative. She worried that "we would get whatever blame attaches to entering the case on that side, without the benefit of taking a principled stand on the issue."

She also proved adept at the internal politicking needed to secure an administrative assistant from the Defense Department. In her first year on the job, she updated Mikva on her "continuing efforts to get a secretary," telling him that the Defense general counsel she had spoken with had asked for a memo from Mikva "providing a 'rationale' for why DoD should provide us with a detailee."

She included a possible draft memo for Mikva to sign, and on Sept. 13, 1995, the request went out under his name: "If the Department [of Defense] could lend a person to this office, it would be greatly appreciated."

Less successful was Kagan's little-known attempt to become head of the Office of Legal Counsel in the Justice Department in 1996. She wrote to deputy chief of staff Harold Ickes that then-Sen. Joseph R. Biden Jr. (D-Del.) supported her bid, and several of those who have been effusive in praise for her Supreme Court nomination urged Clinton to choose her. Kagan was 36.

"I know quite a lot about all of the people being discussed, and I think Elena is the one who clearly stands out," wrote Harvard law professor Laurence Tribe.

Staff writers Robert Barnes, T.W. Farnam, Amy Goldstein, Carol D. Leonnig, Jerry Markon and R. Jeffrey Smith and staff researcher Julie Tate contributed to this report.

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