New Documents Reveal Kagan Role in Religious Freedom Case, Clinton Scandals, Abortion Debate

Jun 11, 2010 6:08pm

ABC News' Ariane de Vogue and Ann H. Sloan report:  We got a glimpse of Elena Kagan’s view on religious freedom today in one of the thousands of documents released from her time as a young lawyer in the Clinton administration.

At issue was a landlady in California who claimed that complying with a state anti-discrimination law violated her religion. The woman did not want to rent her apartment to unmarried couples. A lower court plurality ruled against the landlady, finding that the law did not "substantially burden" her religion because she could have earned a living in another way then by leasing her apartments.

Kagan found such reasoning to be “outrageous” and wrote “it is almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state.”

Kagan also helped to draft an executive order that was meant to clarify the extent to which the law allows religious expression in the federal workplace.

The documents are the latest installment of the nearly 160,000 papers the Clinton Presidential library plans to release from the years Kagan spent working in the Clinton administration.

Some of the documents show Kagan's role as the Clinton administration struggled with the Whitewater and Paula Jones cases.

Kagan updated her bosses on the status of the litigation as the Clinton administration sought to delay the progress of the Paula Jones sexual harassment lawsuit, and she forwarded a copy of  an amicus brief by the solicitor general in support of the president’s position and writes, “It’s really pretty good.”

She helped draft the administration’s talking points on a subpoena issued by the Special Senate Whitewater Committee regarding meetings between the President’s private attorneys and his senior White House legal advisors. The subpoena “invades the relationship between the President and his private counsel” the talking points say.
 
Many of the documents regarding the Jones case and the Whitewater controversy have been redacted.

“President Clinton could have claimed attorney-client and executive privilege over all documents concerning these sensitive litigation matters,” an administration source said on background, “but in the interest of transparency he has decided to make Kagan’s work on these matters available to Senators on the Committee and their Chief Counsels as they consider her nomination."

The source said that Kagan’s work focused on providing legal advice to the policy and legislative staff.

 “She was not one of the lawyers in the office who focused on litigation matters.  Kagan’s work on Whitewater and Paula Jones involved reviewing legal pleadings, assisting in response to document requests, and offering legal research on short-term projects,” the source said.

The documents show again the extensive work Kagan did behind the scenes to articulate the President’s position on the controversy surrounding Partial Birth Abortion. Several documents reflect exchanges between Kagan and other administration officials over what kind of exception to the health of the mother President Clinton believed should be a part of any legislation banning the procedure.

In one document, Kagan says she plans to “send the DNC and Re-Elect the President” a “revamped set of talking points” on partial birth abortion. Jack Quinn, the White House Counsel at the time, wrote Kagan a note saying she couldn’t send the talking points “just to the DNC/Campaign”.

Kagan wrote back to Quinn, “Of course you’re right. I will make sure the talking points get more general use or aren’t  done at all.”

Senator Jeff Sessions, R-Ala., the leading republican on the Senate Judiciary Committee, released a statement today expressing frustration with the slow pace of the release of documents.

“With just over two weeks until the hearing,” he said. “We are still waiting on nearly 70,000 pages of documents containing Ms. Kagan’s email records from her time in the Clinton White House.”

- Ariane de Vogue and Ann H. Sloan

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