When John Roberts was nominated to the Supreme Court in 2005, journalists touched down at the Ronald Regan Presidential Library in Simi Valley to get a look at legal opinions that Roberts produced as an associate White House counsel from 1982 to 1986.
The same thing is happening today, with reporters in Little Rock combing through what documents are so far available from Elena Kagan’s 1995 to 1999 work in the White House counsel’s office, and as deputy director of the White House Domestic Policy Council.
And what’s available so far—and partially posted on the Clinton Library’s website—is only a slim portion of her White House output.
The disposition of records created by White House staffers, including lawyers like Kagan and Roberts, is governed by the Presidential Records Act, a post-Watergate bill designed to ensure that documents produced by outgoing presidents and their staffs would be routinely captured and eventually made public by the National Archives and Records Administration, without the headaches that Nixon caused on his way out of office.
The PRA dictates that virtually all White House records, save those that would impinge on limited categories like privacy rights or national security, be open to the public twelve years after the end of the administration that produced them. The end goal of the archival process is to make all the documents available for public inspection, but along the way, researchers usually have to file Freedom of Information Act requests to dislodge records of interest and highlight them for processing.
Clinton’s term ended less than a dozen years ago, meaning that, per his rights under the act he reserved while still in office, he can stanch the release of some categories of records that FOIA requesters might seek, including “confidential communications requesting or submitting advice, between the President and his advisers, or between such advisers.”
Obviously, a great deal of records related to Kagan’s service would fall into this category.
But in 2002, two years after leaving the White House, Clinton sent the National Archives a letter instructing them to “ease” the advice exemption under certain circumstances, dictating that the exemptions should be interpreted as “narrowly as possible,” and encouraging archives staffers to consult with Bruce Lindsey, the administrator of his foundation and his representative, on questions they might have about how to apply his instructions. But Clinton didn’t abdicate completely—the same letter asks the Archives to continue to consider withholding confidential communications regarding “a sensitive policy, personal, or political matter” or “legal issues and advice.”
What does all this mean for Kagan’s records?
“As someone in the office of the White House counsel, her job is to give advice. So a great deal would fall within the statutory exemption and then it would be a judgment call to see if it falls within the easing letter’s categories,” says Scott Nelson, a lawyer with Public Citizen and an expert on the act. “If I were the Archives, I’m not sure I would feel comfortable deciding what would be eligible for release without guidance from Lindsey.”
Just how that letter will be applied is something of an open question. (Neither Clinton’s staff nor the Archives provided comment before publication.) But there are indications that the Archives has been comfortable releasing a wide range of materials under their understanding of the former president’s instructions. The Clinton Library has put documents from one of Kagan’s bosses’ files—readied for release long before her nomination—on its Web site. The documents include advice on abortion, campaign finance law, and other areas of policy that some would undoubtedly see as “sensitive.”
But these restrictions could be somewhat besides the point: under the PRA, congressional committees have access to past presidential records via a separate section of the act, which removes the provisions allowing presidents less than twelve years out of office to withhold some categories of information. Ron Klain, a White House lawyer involved in the Kagan rollout, has said that the administration plans to “reach an accommodation with the Clinton Library on” any requests for records from the Senate Judiciary committee.