The old paradigm: Supreme Court nominees being “extra forthcoming” when it comes to disclosures “in the absence of any judicial record” on the nominee’s part.
The new paradigm: Executive privilege, baby!
Jonathan Strong reports for The Daily Caller that the White House may block some Clinton-era memos from Elena Kagan, and others might get dumped on the Senate Judiciary Committee the day before the confirmation hearings start:
In a carefully worded letter to top Judiciary Committee Republican Sen. Jeff Sessions, the Obama administration says it might withhold some of the memos Supreme Court nominee Elena Kagan wrote when she served in the Clinton White House.
The letter says Obama “does not intend” to assert executive privilege to block the release of the documents but neither does it foreclose the possibility. It says Obama is consulting with a representative of President Clinton to determine which documents to block.
“President Obama does not intend to assert executive privilege over any of the documents requested by the [Judiciary] Committee,” the June 1 letter from White House counsel Bob Bauer says. “Of course, President Clinton also has an interest in these records, and his representative is reviewing them now.”
That has piqued Sen. Jeff Sessions’ curiosity. Why has the White House put Bill Clinton in the loop at all? He’s no longer the executive; the decision on executive privilege lies solely with the current President. In fact, as Strong notes, Obama’s own executive order from last year made that explicitly clear. Does the Obama administration intend to allow George W. Bush the same latitude in future cases, say, on reviews of war policy?
It’s not the only part of the explanation that has the ranking Republican scratching his head, either:
Bauer’s letter says there are two reasons: First, the documents might be requested under the Freedom of Information Act (FOIA) by the general public and, second, to prevent “classified national security information or personal privacy information” from being released, just like in the cases of the nominations of Justices John Roberts and Sonia Sotomayor.
Republicans say the first rationale – regarding FOIA requests — is bizarre because, as the letter says, the Judiciary Committee’s request is privileged, unlike a FOIA request. In other words, while Clinton can block the release of documents requested under FOIA, he can’t block documents requested by the committee, so the relevance of FOIA is a mystery.
Bauer’s letter says Clinton’s review of the documents “will not prevent the Archives from producing these documents to the Committee in advance of June 28” – the day of Kagan’s first hearing before the Judiciary Committee.
Republicans say that Bauer’s language means Obama could release hundreds of thousands of pages of documents as late as June 27, the day before the hearing but still “in advance” of it.
If the White House executes some massive document dump on June 27th, there will be no time to review Kagan’s work in the Clinton administration before the confirmation hearing starts. That’s not the act of an administration that supports transparency and professional review. It’s the act of an administration that thinks it has something to hide.