As Clinton counsel, Kagan supported his right to privacy

WASHINGTON — As a young lawyer in the Clinton White House, Supreme Court nominee Elena Kagan argued in favor of confidentiality for President Clinton in the early stages of the Whitewater probe and the Paula Jones sexual-harassment suit, arguing for a legal shield that would protect the privacy of meetings between the president and his lawyers.

On Friday, the Clinton Presidential Library in Arkansas released 42,000 more pages of files that touch on Kagan's work as a White House lawyer. They included several memos from Kagan in 1995 arguing that the attorney-client privilege protects the president and his lawyers. Last week, the library released about 46,000 pages of files involving her work as a domestic-policy adviser.

However, former President Clinton, invoking a similar argument to the one that Kagan made on his behalf 15 years ago, blocked public release of about 1,350 pages, said Gary Stern, counsel for the National Archives. They involve either "confidential communications" between the president and his aides or files whose release would amount to an "unwarranted invasion of personal privacy."

These confidential files will be given to the Senate Judiciary Committee, but won't be discussed in public.

A White House aide said Clinton could have withheld all the files involving "sensitive litigation. But in the interest of transparency, he had decided to make Kagan's work on these matters available to the senators on the committee." The former president has control over his White House files under the Presidential Records Act.

"I am concerned that so many of the documents are being hidden from the public," said Alabama Sen. Jeff Sessions, the ranking Republican on the committee.

More than 10,000 pages of Kagan's e-mails are to be released next week.

The files turned over Friday hint at how the Whitewater investigation and the Paula Jones case came to consume the time of Clinton's aides. In 1995, after Republicans took control of the Senate, the Banking Committee began a probe of Whitewater and whether the Clintons had acted improperly in their dealings with a failed Arkansas savings bank.

The committee's lawyers, led by Michael Chertoff, demanded the notes of a White House lawyer who met with Clinton's private lawyer at the Williams & Connolly law firm to discuss Whitewater. The order touched off a legal dispute: Did the attorney-client privilege protect the confidentiality of all of the president's lawyers?

Kagan argued for "the general proposition that conversations between a president's White House counsel and his private counsel can, at least in some circumstances, be privileged."

But the White House eventually agreed to a deal in which the notes were disclosed.

Kagan also worked with other lawyers on Clinton's appeal in the Jones case. His legal team argued that the president could not be forced to answer to a private civil suit while he was in office.

That claim failed when the Supreme Court in 1997 said the president had no legal shield from suits involving alleged private wrongdoing. That decision led to Clinton being questioned under oath, which in turn revealed his secret affair with a White House intern.

In other memos, Kagan appears to have embraced a relatively robust view of religious freedom. In a 1996 memo, she recommended the Clinton administration involve itself in an appeal to the Supreme Court of a suit challenging the Religious Freedom Restoration Act.

Kagan criticized an opinion of the California Supreme Court that rejected a claim by a landlord who argued that a state law requiring her to rent apartments to unmarried couples violated her religion. Kagan argued she had a valid case, calling the court's reasoning in the case "quite outrageous."