Former President Clinton’s staff reviewing Kagan files to check for confidentiality concerns

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Clinton representative reviewing Kagan documents

WASHINGTON — The White House may have to negotiate with former President Bill Clinton and a Senate committee to resolve potential confidentiality concerns about releasing files from Supreme Court nominee Elena Kagan’s past, a top official told a senator Tuesday.

White House Counsel Bob Bauer said a Clinton aide is reviewing Kagan’s files from her stint in his administration to see whether any of the 160,000-page trove of records held at the Clinton presidential library should be kept secret.

If Clinton decides there’s material there that should be kept confidential, Bauer told Sen. Jeff Sessions in a letter, the White House would work with his staff to “reach a mutually satisfactory accommodation” with the Senate Judiciary Committee.

Bauer was responding to a letter from Sessions, the top Judiciary Republican, who has expressed doubt that the documents could be produced in time to allow senators to peruse them in advance of the committee’s June 28 confirmation hearing date.

A document disclosure flap could turn Kagan’s so-far smooth path to confirmation into a bumpier — or at least slower — one, angering Sessions and other Republicans who have complained that they have little documentation of how the 50-year-old former Harvard Law School dean views key legal questions.

Kagan, President Barack Obama’s choice to succeed retiring Justice John Paul Stevens, has never been a judge and has little courtroom experience, so there’s little public record of what her judicial style might be. So members of both parties want to plumb files from her stint as a White House counsel and domestic policy adviser for clues.

Sessions and Sen. Patrick Leahy, D-Vt., the Judiciary chairman, requested the release of the Clinton-era documents two weeks ago, just before Leahy set the late-June hearing date.

David S. Ferriero, the nation’s archivist, told the pair last week that his staff would begin releasing portions of the files by June 4.

In his letter Tuesday, Bauer said Obama does not intend to block the release of any of the documents, but noted that Clinton “also has an interest in these records.”

Clinton has refused to say whether he plans to claim executive privilege or otherwise place limits on public access to the files.

Sessions has said he doesn’t believe both Obama’s team and Clinton’s could sign off on the release of the papers quickly enough to give senators a fair chance to look at them. He has warned he would ask for a delay in the start of Kagan’s hearings if the documents were slow to emerge.

Bauer told Sessions that the White House’s review of the records wouldn’t blow the deadline.

“I assure you that any such review of these records will not prevent the archives from producing these documents to the committee in advance of June 28,” Bauer wrote.

Republicans have no say on the timing of the hearings and are well short of the votes they would need to defeat Kagan’s confirmation. But committee rules allow them to draw out a nominee’s confirmation process, and some conservative activists are agitating for just such a showdown.

In a memo Tuesday, Curt Levey of the conservative Committee for Justice wrote that Republicans should consider trying to prolong the hearings, delay a panel vote to confirm Kagan, or block a vote in the full Senate through a filibuster.

“Since (Leahy) has so far refused to consider the possibility of delaying the hearings, a train wreck would seem to be all but inevitable unless GOP senators make it clear that they are willing to use the procedures available to them to ensure that Kagan is not confirmed without a complete release and adequate review of her record,” Levey wrote.