A blast from Elena Kagan’s past

Byron York reports on an obscure but potentially embarrassing controversy involving Elena Kagan’s days in the Clinton administration:

In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon. The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality (CEQ) tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents — a leak that Forest Service officials believed endangered the lives of their agents on the ground.
Kagan, at the time an associate White House counsel, had no role in leaking the feds’ plans to the radicals, but House Committee on Natural Resources investigators concluded she shirked her responsibility by not searching for the source of the leak or pushing for punishment of the leaker.
“Nothing was ever done by Elena Kagan to learn the details about the leaks, or to identify the leaker and ensure that proper punishment occurred,” the committee’s 1999 report concluded. In fact, investigators found evidence suggesting that Kagan, in internal White House discussions, defended the alleged leaker.

(emphasis added) The suspected leaker was a senior CEQ official Dinah Bear who had wide contacts in the environmental community. Bear wrote in an email that “Elena went out of her way to go to bat for yours truly, which was quite decent of her.” When congressional investigators asked the White House for Kagan’s notes of her discussions with Dinah Bear, the White House refused to provide them.
It’s quite likely that during her confirmation hearings, Kagan will be asked about the Warner Creek incident. It’s quite unlikely that the matter will hurt Kagan’s chances of being confirmed. But depending on the facts and how she answers questions about the matter, Kagan may come off looking bad. That, in turn, would make President Obama look bad.
The public would probably look askance at a nominee who disses the U.S. military and goes “to bat” for leakers who undermine U.S. law enforcement officials.

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