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Kagan documents reveal involvement in Whitewater negotiations

By Bill Mears, CNN Supreme Court Producer
A letter from Elena Kagan shows she reached out to Clinton supporters for newspaper opinion pieces.
A letter from Elena Kagan shows she reached out to Clinton supporters for newspaper opinion pieces.
  • Latest release includes more than 41,000 pages from Clinton Presidential Library
  • Documents show Kagan sought people to write newspaper pieces supporting Clinton
  • She was the lead attorney in failed effort to keep Clinton from testifying in Paula Jones matter
  • Republicans on Senate Judiciary Committee say they need more time to look over papers

Washington (CNN) -- Supreme Court nominee Elena Kagan was a key behind-the-scenes player during the investigation of the Whitewater controversy, while working as a top lawyer in the Clinton White House, documents released Friday show.

The latest batch of more than 41,000 pages was revealed Friday by the William J. Clinton Presidential Library. Kagan was a top lawyer in the White House counsel's office in 1995 and 1996.

The library said it was withholding several memos written by Kagan related to the broad Whitewater probe, citing presidential confidentiality.

A December 1995 letter from Kagan shows her privately reaching out to Clinton supporters to have them write opinion pieces favorable to the president, which would appear in newspapers nationwide.

She provides prominent Harvard Law School professor Arthur Miller with "some talking points summarizing the administration's position on subpoenas issued by the Senate Whitewater Committee. We are providing these to a number of people whom we hope will write opinion pieces supportive of that position."

The congressional panel was looking into allegations that Clinton -- while Arkansas governor -- was involved in illegal real estate deals, and abusing his office for political and financial gain. As a White House lawyer, Kagan was involved in handling Senate subpoenas of top Clinton officials, and formulating a legal response to requests for documents and testimony.

In another memo written by a private lawyer from Atlanta hired by Clinton, Kagan strongly supported the view that the president should not have to reveal private conversations related to Whitewater.

Robert Lipshutz -- who had been President Jimmy Carter's White House counsel -- told Clinton staffers "the right of confidentiality is ... a vital doctrine which allows presidents to get the broadest range of advice from those whom he consults."

"Bob -- Wonderful! Elena," wrote Kagan in the margins of the memo.

Republican senators on the Judiciary Committee have sought a delay in Kagan's confirmation hearings, scheduled for the week of June 28, saying the release now of this latest batch of documents gives them little time to learn about her views on hot-button social and legal issues.

Some 160,000 pages of documents are being reviewed from Kagan's four years in the Clinton White House, during which, in addition to being in the counsel's office, she also served as an adviser on the Domestic Policy Council from 1997 to 1999. Papers from that stint were released last week, and revealed a lawyer with a politically tuned, practical approach to issues like abortion, gun control and tobacco regulation.

The new memos also show Kagan was the lead lawyer in helping prepare a Supreme Court appeal over whether Clinton had to testify in another issue arising from the ever-expanding Whitewater probe from his Arkansas days. Paula Jones was a former Arkansas state worker who claimed Clinton sexually harassed her when he was governor. Later, as president, he asked the courts for temporary immunity from responding to Jones' lawsuit, until he left office.

But the Clinton Library said it was keeping private 500 pages of memos from Kagan to top officials, relating to the Jones lawsuit. Library officials said release of the material would violate executive privilege dealing with confidential advice offered by Kagan, acting as a lawyer to the president.

An administration official, who spoke on condition of anonymity to discuss internal deliberations on releasing sensitive documents, said the decision to withhold a small number of documents was "made by career archivists" solely to "protect personal privacy" and not shield anything substantive.

On the Paula Jones issue, the administration official asserted the documents show that Kagan was only "tangentially involved" in the case, putting together talking points and other small matters. "That was the extent of her involvement," said the official.

In one of the publicly released memos, Kagan noted in a June 26, 1996, memo that Clinton staffers had suggested having Democrats in Congress file an amicus brief with the court in support of the president.

"A problem with [the proposal] is that if only Democrats joined, the brief would increase the partisan feel of the case," she noted, showing her political acumen.

The high court unanimously ruled against Clinton, and he later testified about the allegations, and in the process admitted to an affair with a White House intern, Monica Lewinsky. That episode led to his impeachment and Senate trail for obstruction of justice.

On another pending Supreme Court appeal, dealing with religious discrimination, Kagan was outspoken about the Justice Department's reluctance to get involved in the dispute.

At issue was a California landlady who refused to rent to non-married couples, because of her faith-based beliefs against sex outside marriage. The state said that violated housing discrimination laws.

Kagan called a state court ruling against the woman "quite outrageous -- almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state." She strongly urged the Justice Department to get involved and support the woman's lawsuit.

"Given the importance of this issue to the president," Kagan noted, "I think there is an argument to be made for urging the [Supreme] Court to review and reverse the decision."

That case was Smith v. Fair Employment and Housing Commission.

A federal law passed in 1993 was designed to give individuals greater protection from state laws that would "substantially burden a person's free exercise" of their religion. Kagan, aware the issue would have voter resonance with the presidential election just weeks away, drafted an executive order that tried to carve a political middle ground. She noted natural "constraints" on some religious expression, but said "that within these constraints, there is substantial room for discussion of religious matters."

Kagan was nominated in May by President Barack Obama to succeed retiring Justice John Paul Stevens. Until she stepped down last month, Kagan was the administration's solicitor general, who argues federal government cases before the Supreme Court. She has no judicial experience, and conservative critics have been eagerly scanning her record in government service and academia for clues on what kind of justice she may turn out be, if confirmed by the Senate.

Another memo deals with an FBI raid on a Christian church in Louisiana in July 1996. Church members, including children, were detained and the group's financial assets were seized. No explanation was given, but church members believed it was because of the Christian education they were offering.

Kagan asked her bosses if she could contact the Justice Department to see "what this is all about, so we can sensibly respond to inquiries." Her Justice Department counterpart later got back to her, saying that he "can't talk about it," and that a search warrant was under seal.

"Merrick -- FYI I guess I should just read the newspapers!" to get any information about the raid, Kagan writes. "Merrick" is Merrick Garland, then the principal assistant attorney general, who later became a federal judge. He was one of four finalists interviewed by Obama for the Supreme Court nomination that went to Kagan.

The documents released by the Clinton Library are available online at