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Don't Expect Much from Kagan E-mails

Tevi Troy

The Obama administration has asked the National Archives to release 11,000 pages of Elena Kagan’s White House e-mails, and an additional 68,000 pages of e-mails she received while working there.

With the e-mails slated for release this summer, proponents and opponents alike are gearing up to jump on what revelations they may bring. “The five years she spent in the Clinton White House in both the counsel’s office and the domestic-policy staff,” Newsweek’s Eleanor Clift wrote, “are a treasure-trove for critics searching for something to bring down her nomination.”

Clift may be overstating it. I held the same job as Kagan—deputy director of the Domestic Policy Council—under President George W. Bush, and I feel comfortable saying that the release of these e-mails probably won’t reveal much.

It could, however, have a further chilling effect on White House e-mail discussion going forward—making the already-murky work of administration staffers even more opaque.

The DPC job was Kagan’s most senior White House position—she also served as an associate White House counsel—and those looking for any policy bias are likely to begin there.

But the DPC job is designed to make the White House policy process run fairly and efficiently. An administration makes thousands of policy decisions, almost all of which are difficult and time consuming. Time, however, is every president’s most valuable resource—and diminishes steadily from the moment of Inauguration.

Therefore, the policy councils need to tee up decisions to the appropriate levels, saving only the most difficult for the president. On issues requiring a presidential decision, the policy councils ensure that issues are ready for decision when they reach the president’s desk and do not need to come back for protracted discussions.

As a result, the heads of the policy councils are supposed to synthesize the views of the various administration players, informing the president and the chief of staff of the source and extent of disagreements. In doing so, policy councils seek to avoid “process fouls”—the unfair stifling of dissenting views—as well as putting their thumbs too firmly on the scale.

When my own DPC memos are released eventually, they will reveal summaries of the various perspectives rather than full-throated defenses of my own personal beliefs.

In addition, it is no surprise that Kagan’s received mail—68,000 pages—is so much more than the 11,000 pages of sent mail. Speaking from experience, this ratio of incoming to outgoing sounds about right, because the bombardment of e-mails, meetings and phone calls received usually left insufficient time to respond to everything.

In fact, as one already released non-Kagan e-mail has revealed, White House consultant Chris Edley complained in 1998 to other White House staffers that he was unable to get Kagan to engage on an issue involving an education policy rollout.

Edley seems to imply that Kagan’s cold shoulder was intentional. But the truth may very likely be that she simply did not have the time to address his concerns. The sheer scope and power of her job would have made her a target for far more supplications than she had time to address.

Alternatively, it is possible that she did not want to engage on any matter on which she either had no answer or knew that the answer would not be to Edley’s liking. This would be entirely in line with the picture of a cautious aide that some have drawn thus far.

There is an adage often repeated in the White House: “Never write anything in an e-mail that you don’t want to read in The Washington Post.” Staffers who heeded it were following the wisest course of action.

We shall soon see if Kagan herself did so as well. My bet, based on all that we have seen—or not seen—of her thus far, is that she did.

The coming flyspecking by the press and policy advocates of every e-mail jot, however, could make it far more likely that an even greater percentage of future staffer e-mails will begin and end with my favorite White House e-mail phrase: “Let’s discuss.”

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