Today, the Clinton Presidential Library will release thousands of pages of emails written by Elena Kagan during her service at the White House, completing a document dump the Obama administration swears is unprecedented for a Supreme Court nominee. Former President Clinton waived executive privilege on memos bearing his own writing, giving the Judiciary Committee members dealing with Kagan’s nomination hearings what the White House says is a clear view of her work style.
The National Archives and Records Administration, a nonpartisan group run by civil servants, will release all 70,000 emails this afternoon. The committee has already received nearly 90,000 pages of documents that include Kagan’s writings on topics ranging from Don’t Ask, Don’t Tell to adoption policy.
Republicans will likely continue to complain about redacted documents, but the White House provided totals that suggest the committee members have more access to Kagan’s records than they do with the average nomination. The most comparable nominee was John Roberts, who worked in the Reagan White House. In his case, the archives reviewed 61,939 pages and released 58,563 of them. Archivists reviewed 90,529 Kagan documents produced during her service from 1995 to 1999 and released 89,786 of them.
“More information has been made available to the public and the committee than has ever happened before,” a White House lawyer told TPMDC in an interview.
The White House lawyer told us that Clinton was “very willing” to release documents that he could easily have kept private. “At least half or two-thirds of the documents could have been restricted from public access on [privilege] grounds,” the lawyer said.
The lawyer said it “would have been very easy” for the administration to claim the same executive privilege that was used to restrict similar documents in previous nomination cycles. The documents in question with Kagan are memo exchanges with the president, some even bearing Clinton’s handwriting, “asking questions of his most senior advisers.”
Career NARA staffers selected documents for the release that could be withheld and presented them to Clinton for review. “Every opportunity that he had to waive executive privilege, he waived it. I don’t know that we held anything back,” a Clinton spokesman told me.
But the GOP will nonetheless make transparency an issue.
“I am also concerned that so many of the documents already provided are being hidden from public view,” Judiciary ranking member Sen. Jeff Sessions (R-AL) said after the first batch was released. The Republicans are specifically concerned about the documents withheld from the public (about 2,000) but that are available to Senators. Most of those pertain to decisions related to Clinton White House appointments.
Republicans also have said the release is not giving them ample time to do a “meaningful” review. Staffers will need to work around the clock to get through today’s final batch in time for the June 28 hearings.
In keeping with this argument, the GOP will say during the hearings that the advice Kagan gave Clinton is being shielded from the public. The White House disagrees, pointing to the tally. There are 743 pages of documents fully or partially redacted due to containing personal information such as clearance forms, papers containing medical information or papers that raise other privacy concerns by listing Social Security number or address.
According to the White House, 4.4% of the Roberts documents were withheld in full from Judiciary members, and just 0.5% of Kagan’s documents were withheld in full.
An administration official said the documents being withheld are “much much much much less” than those kept private in 2005 during the Roberts confirmation hearings.
While NARA is not run by partisans, Bruce Lindsey worked in the Clinton White House as deputy counsel. He was primarily responsible for reviewing the Kagan documents. An administration official said Republicans who say Clinton operatives are keeping files secret are full of it; they suggest that “the opposite is true” since the former president gave the go-ahead for their release.
The emails are the last documents to be released because the paper documents were easier to get out quickly. The administration also argues the previous batches of memos are “much more substantive” and provide more insight into Kagan’s background than emails with “interoffice banter.”
The White House declined to reveal if the president had reviewed the documents while going through his selection process.
Here’s a little refresher about the process, which came up during the 2008 Democratic presidential primary.
