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Kagan argued for confidentiality in '90s Clinton cases

She said that a legal shield guarded the privacy of the president's meetings with his attorneys.

WASHINGTON - As a young lawyer in the Clinton White House, Supreme Court nominee Elena Kagan argued in favor of confidentiality for President Bill Clinton in the early stages of the Whitewater probe and the Paula Jones sexual-harassment suit, arguing for a legal shield that would protect the privacy of meetings between the president and his attorneys.

On Friday, the Clinton Presidential Library in Arkansas released an additional 42,000 pages of files that touch on Kagan's work as a White House lawyer. They included several memos from Kagan in 1995 arguing that the attorney-client privilege protected the president and his lawyers. Last week, the library released about 46,000 pages of files involving her work as a domestic-policy adviser.

However, former President Clinton, invoking a similar argument to the one that Kagan made on his behalf 15 years ago, has blocked public release of about 1,350 pages according to Gary Stern, counsel for the National Archives. They involve either "confidential communications" between the president and his aides or their release would amount to an "unwarranted invasion of personal privacy."

These confidential files will be given to the Senate Judiciary Committee, but they will not be discussed in public.

A White House aide said Clinton could have withheld all the files involving "sensitive litigation. But in the interest of transparency, he had decided to make Kagan's work on these matters available to the senators on the committee."

Sen. Jeff Sessions of Alabama, the ranking Republican on the committee, said: "I am concerned that so many of the documents are being hidden from the public."

None of Kagan's e-mail messages has been released yet. More than 10,000 pages of her e-mail are due to be released late next week.

The files released Friday hint at how the Whitewater investigation and the Paula Jones case came to consume the time of Clinton's aides. In 1995, after Republicans took control of the Senate, the Banking Committee began a probe of the Whitewater matter and whether the Clintons had acted improperly in their dealings with a failed Arkansas savings bank.

In an aggressive move, the panel's lawyers demanded the notes of a White House lawyer who met with Clinton's private lawyer at the Williams & Connolly law firm to discuss Whitewater. The order touched off a legal dispute: Did the attorney-client privilege protect the confidentiality of all of the president's lawyers?

Kagan argued for "the general proposition that conversations between a President's White House counsel and his private counsel can, at least in some circumstances, be privileged."

But the White House eventually agreed to a deal in which the notes were disclosed.

Kagan also worked with other lawyers on Clinton's appeal in the Paula Jones case. His legal team argued that the president cannot be forced to answer to a private civil suit while he was in office.

That claim failed when the Supreme Court in 1997 said that the president had no legal shield from suits involving alleged private wrongdoing. That decision led to the questioning of Clinton under oath, which in turn revealed his affair with a White House intern.