Fight over Kagan documents heats up

Sen. Jeff Sessions (Ala.), ranking Republican on the Senate Judiciary Committee, has asked the Department of Defense for all records related to its efforts to recruit at Harvard Law School while Kagan served as dean.

Sessions criticized Kagan in a floor speech last week for barring military recruiters after she became dean in 2003

“She gave big law firms full access to recruit bright young associates, but obstructed the access of the military as it tried to recruit bright young JAG officers to support and represent our soldiers as they risked their lives for our country,” said Sessions. “It was an unjustifiable decision,” he said.

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Sessions, who wants the Pentagon to turn over all documents from communications with Harvard about military recruiters’ access to the campus and its facilities, plans to make Kagan’s interactions with the military a focus of the Judiciary Committee's confirmation hearings, which begin June 28.

The extent to which he is able to make Kagan’s controversial decision an issue may depend on the amount of detail he can bring to light.

“In order to allow the committee sufficient time to review these records in advance of the hearing, I ask that they be produced on or before June 11,” Sessions wrote Wednesday to Jeh Charles Johnson, general counsel at the Defense Department.

Sessions has also called for access to documents related to Kagan’s service as a domestic policy advisor in the Clinton administration and as solicitor general under President Barack Obama.

Sessions has noted that Democrats filibustered the nomination of Miguel Estrada, a nominee to the U.S. Court of Appeals for the District of Columbia, because the George W. Bush administration refused to turn over papers from the solicitor general’s office.

White House counsel Bob Bauer informed Sessions in a letter Tuesday that the Obama administration would not block the release of documents from the Clinton archive.

“President Obama does not intend to assert executive privilege over any of the documents requested by the committee,” Bauer wrote.

Bauer, however, wrote that former President Bill Clinton may have “confidentiality interests” in the documents that need to be protected.

Bauer argued that is why it is necessary for a representative appointed by Clinton to review the files.

But Senate Republicans are not happy with Bauer’s legally-nuanced phrasing.

They argue that Obama has not waived executive privilege but merely announced the intention of doing so, giving him flexibility to invoke the privilege at a later time depending on case-by-case determination.

Republicans also argue that Obama could override Clinton’s claims to confidentiality because of an executive order he signed in 2009 giving him power to waive privilege for documents from previous administrations.

“The Bauer letter, instead of alleviating concerns, aggravates concerns by indicating that neither President Clinton nor President Obama has waived executive privilege,” said a GOP aide.

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