If the Obama administration expected Elena Kagan to slip quietly into her seat on the Supreme Court thanks to a cipher of a track record, at least one issue has managed to get through decryption. While serving in the Clinton administration, Kagan either refused or neglected to track down a leak that endangered enforcement personnel from the Forest Service during a standoff with a radical environmental group in Oregon in 1996. Byron York has the details:
In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon. The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents — a leak that Forest Service officials believed endangered the lives of their agents on the ground.
Kagan, at the time an associate White House counsel, had no role in leaking the feds’ plans to the radicals, but House Committee on Natural Resources investigators concluded she shirked her responsibility by not searching for the source of the leak or pushing for punishment of the leaker.
“Nothing was ever done by Elena Kagan to learn the details about the leaks, or to identify the leaker and ensure that proper punishment occurred,” the committee’s 1999 report concluded. In fact, investigators found evidence suggesting that Kagan, in internal White House discussions, defended the alleged leaker.
First, the use of the term “eco-terrorist” is probably too strong. While the group commandeered a road and refused to move for months, no violence ever actually took place. The Forest Service believed at least one of the activists were armed, but in the end they cleared the road and the protest came to a quiet end. Furthermore, after Ruby Ridge and Waco, the Clinton administration had good reason to be reluctant to engage in a high-profile attack on political protesters.
That does not excuse the Clinton administration from pursuing the leaker, nor give a reason to ignore the law. Had the activist group been armed, the leaks would have put law-enforcement personnel at greater risk. The blockade of the forest road was illegal, and the executive branch exists to enforce the law. Whoever leaked to the activists not only put the lives of officers at risk, he or she also undermined the entire reason for having an executive branch.
This goes to competence and honesty. If Kagan failed to pursue the leaker out of incompetence, that’s bad enough. If she actively refused to enforce the law, that’s worse — especially for a Supreme Court nominee.