Following Kagan’s Paper Trail

Meet the gatekeeping Presidential Records Act

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.

Whatever that accommodation is, Nelson says that unsatisfied public requesters—the press, for example—would have little luck getting more than “what the interested parties agree will be provided to the Senate” out via the FOIA process, barring the event that someone was willing, and saw it worthwhile, to litigate the matter.

But to take a step back from the legal landscape, the White House would inevitably face withering criticism from elements of the press and Kagan opponents if significant portions of Kagan’s work is withheld on one ground or another. Even the Bush administration, which drew much ire from historians and archivists for an early executive order that significantly limited the power of the Presidential Records Act to bring historical records to light, conceded that the law installed a “presumption of disclosure” when it came to Roberts’s records.

Whatever procedural wrangling awaits the documents, if the Roberts experience at the Reagan library five years ago is any indication, a lot of work lies ahead of the archivists in Little Rock.

“It was approximately 80,000 pages with him,” says Mike Duggan, supervisory archivist at the Reagan library.

Every one had to be checked to verify that releasing the information was permissible under the Freedom of Information Act’s withholding restrictions, and under a now Obama-repealed Bush era executive order that required the Archives to give ex-presidents and their representatives a right to review the documents and make constitutionally based executive privilege claims before release. For purposes of this review, and to help with making copies—one to be shipped to the White House for transfer to the Senate, and one for public access at the Archives’ Washington headquarters—the Reagan archivists were bolstered by detailees from other presidential libraries and the NARA general counsel’s office. Members of the team were later given a special citation for exemplary service under “extraordinary time constraints” by the Archives’ director.

“I was working sixteen hour days the whole time,” Duggan says, warning that Kagan’s records included an additional burden: she worked after the introduction of e-mail to the White House. “That could virtually double the pages you’re looking at.”

Robert’s nomination came on July 19, 2005, and it wasn’t until just after Labor Day that Duggan and the Reagan Library were ready to make the documents available. While it’s possible the Clinton Library got a head start by keeping an eye on Kagan’s ascent through Supreme Court short lists, if, e-mail notwithstanding, the two nominees have a similar amount of records, that timeline suggests they might not all be available until early July, the month before Kagan’s hearings and confirmation vote are expected.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.