Byron York forwards GOP's “politically motivated,” “highly speculative” decade-old smear against Kagan

Byron York promoted claims made against Elena Kagan in a 1999 report issued by a House Resources Committee task force composed of two discredited Republican members. However, the task force was criticized by Democrats for “failing to meet even minimum standards of objectivity,” and even Ed Whelan has said the allegations are “highly speculative.”

York's smear: “Questions surround Kagan's handling of White House eco-terrorist controversy”

York forwards Republicans' allegations that Kagan supposedly “defended” someone who allegedly leaked information to protesters in 1996. In a May 12 Washington Examiner article, York reported on allegations made by a task force composed of two House Republicans in 1999 that as associate White House counsel, Kagan supposedly defended a White House staff member who allegedly leaked information to logging protesters in the Warner Creek area of Oregon. York further wrote:

What role did Kagan play in all of this? First of all, House investigators discovered that she knew about the Warner Creek matter as it was happening. They obtained notes from a July 12, 1996 White House meeting, which Kagan attended, at which the controversy was discussed in detail, including fears that the protesters were armed and the standoff might end in violence. (The administration was particularly sensitive to such matters after violent ends to standoffs in Ruby Ridge, Idaho and Waco, Texas.)

At the same time, around July 1996, Kagan and other administration officials learned of the leaks to the protesters and of suspicions that Dinah Bear was the leaker. But nothing happened. “None of these officials did anything with this information,” the report says. “None contacted law enforcement officials running the operation, or the Forest Service to inform them about the leaks, or to ensure the matter was investigated.”

Kagan, the report says, went even further. Investigators found an email from Bear to another official of the CEQ in which Bear wrote, “Elena went out of her way to go to bat for yours truly, which was quite decent of her.” When House investigators asked the White House for Kagan's notes of her discussions with Dinah Bear, the White House refused to provide them. A White House lawyer told House investigators that the documents were “subject to claims of attorney-client, work product, deliberative process, and presidential communications privilege, which are subsumed, for these purposes, under the rubric of 'executive privilege.' ”

York also quoted an anonymous “House source with knowledge of the issue” asserting that "[i]t's just unconscionable that a senior White House attorney knew about this leak and knew that credible allegations had been made to the identify the leaker, and she sat on that."

Even Ed Whelan said the allegations were “highly speculative”

Kagan critic Ed Whelan: "[T]he allegations of wrongdoing by Kagan ... strike me as highly speculative." In an April 7 National Review Online post, Ed Whelan, a conservative critic of Kagan wrote:

There's a wild card in the Supreme Court nomination and confirmation process for any candidate who has served in the executive branch -- namely, whether the anticipated disclosure of memos and e-mails relating to the candidate's executive-branch service would jeopardize the candidate's nomination in the first place, or, alternatively, whether the actual disclosure of such records would complicate the candidate's confirmation.

I hope to address this matter more comprehensively later. For now, let me offer as one illustration of the wild card Elena Kagan's alleged role in the Warner Creek matter.

Let me state at the outset that the allegations of wrongdoing by Kagan that I'm going to summarize at a high level of generality strike me as highly speculative. But it's precisely because their merits rest in part on executive-branch documents that were withheld on grounds of executive privilege that they nicely illustrate the wild-card factor I'm discussing.

GOP's report apparently didn't even spell Kagan's name correctly. Whelan writes that the “the task force report misspells her name as 'Kagen.' ”

Partisan task force criticized as “politically motivated”

Task force was formed by Republican committee chairman Don Young and had only Republican members. Environment and Energy Daily reported on March 15, 1999, that the task force was “appointed by House Resources Committee Chairman Don Young (R-Alaska) to look into how the administration handled a year-long protest over an Oregon timber sale.” The report (accessed via Nexis) stated that the two members of the task force were then-Rep. Jim Gibbons (R-NV) and then-Rep. Chris Cannon (R-UT).

Miller: Republican investigation “fails to meet even minimum standards of objectivity.” The Eugene Register-Guard (Oregon) reported on September 27, 1998, shortly after Young created the task force, that Rep. George Miller (D-CA) said the task force investigation “has not been authorized by a vote of the panel” and said “the yearlong investigation is politically motivated, unfair and violates various procedural rules of the committee.” The report quoted Miller as stating, “The one-sided, partisan investigation that has been undertaken to this point fails to meet even minimum standards of objectivity and fair play.” Indeed, York himself acknowledged, “Back in 1999, when the report was written, House Democrats, then in the minority, called the investigation a partisan exercise and refused to participate.”

Democrats criticized task force for “issuing subpoenas for information without holding committee votes,” among other things. Environment and Energy Daily reported that Miller criticized the task force “for prolonging a matter the committee already had spent more than a year investigating, excluding Democrats from the reasoning behind holding more hearings, and issuing subpoenas for information without holding committee votes” and that Miller refused to “legitimize” its actions by appointing a Democratic member to it:

A task force appointed by House Resources Committee Chairman Don Young (R-Alaska) to look into how the administration handled a year-long protest over an Oregon timber sale conducted closed-door hearings last Wednesday and Thursday, and placed a gag order on witnesses.

Rep. Jim Gibbons (R-Nev.), who is acting as chairman of the task force, and the task force's other member, Rep. Chris Cannon (R-Utah), voted to close the meeting to the public because of the “sensitive nature of law enforcement activities” that they planned to discuss. They also said they would hear from witnesses separately and directed them not to discuss their testimony with each other.


Committee ranking Democrat George Miller (Calif.) has criticized the creation of the task force for prolonging a matter the committee already had spent more than a year investigating, excluding Democrats from the reasoning behind holding more hearings, and issuing subpoenas for information without holding committee votes, he said.

Miller wrote Young on March 4 saying he would not “legitimize” the proceedings by appointing a Democratic member to the task force.

“We consider it an absolute waste of time,” Rep. Peter DeFazio (D-Ore.), in whose district the protest took place, said after the task force went into executive session. “They are acting as though this is a grand jury,” he said of the task force's security measures. “If the Forest Service is found to have made any mistakes, that should be conducted in public,” DeFazio said.

Then-White House spokesman: “This report was not balanced in any way.” The Oregonian reported on October 13, 1999 (accessed from Nexis):

Democrats on the House committee viewed the investigation as highly partisan and declined to participate. The White House also repudiates the report.

“We're not aware of any credible evidence that anyone in the White House leaked information about law enforcement matters,” said Barry Toiv, a White House spokesman. “This report was not balanced in any way.”

Task force reportedly didn't even ask to question Kagan

Spokesman: "[T]his partisan Republican-only task force never even asked to question her." The Washington Times reported on October 14, 1999, that White House spokesman Barry Toiv said of the allegations against Kagan: "[H]er participation in this issue was so above reproach that this partisan Republican-only task force never even asked to question her during their inquiry. It's obvious that they are raising her name now only because she has been nominated to the federal bench. Professor Kagen [sic] is a superb scholar and will make an excellent federal judge."

Republicans did not raise Warner Creek matter during Kagan's solicitor general confirmation

If Republicans actually believed the 1999 task force report was evidence that Kagan somehow acted improperly, they presumably would have raised the issue during her confirmation for solicitor general in 2009. But at no point during Kagan's February 10, 2009, Senate hearing, the written questions following the hearing, or the March 19, 2009, floor debate on her nomination did any senator -- Republican or Democratic -- address Warner Creek. York explained this by stating, “Few Republicans even knew about the story, and besides, Kagan was up for a job in which she would serve at the pleasure of the president -- not a lifetime appointment like a seat on the Court of Appeals.”

Task force member Cannon is a discredited conspiracy theorist

Cannon participated in failed attempt to prove Bill Ayers wrote Obama's autobiography. According to The Sunday Times, on the advice of Cannon, his brother-in-law Robert Fox offered $10,000 to Oxford professor Peter Millican to use a computer software program to prove that Obama's autobiography, Dreams From My Father, was actually written by William Ayers. After Millican's initial results indicated that the charge was “very implausible,” and Millican demanded that “the results had to be made public, even if no link to Ayers was proved, interest waned.” The Times wrote:

Fox and Cannon each suggested to The Sunday Times that the other had taken the initiative.

Cannon said that he merely recommended computer testing of the books. He doubted whether Obama wrote his autobiography, adding: “If Ayers was the author, that would be interesting.”

Fox said he had hoped that Cannon would raise the $10,000 to run a computer test. “It was Congressman Cannon who initially pointed me in that direction and, from our conversation, I thought he might be able to find someone [to raise the $10,000].”


Millican took a preliminary look and found the charges “very implausible” . A deal was agreed for more detailed research but when Millican said the results had to be made public, even if no link to Ayers was proved, interest waned.

Millican said: “I thought it was extremely unlikely that we would get a positive result. It is the sort of thing where people make claims after seeing a few crude similarities and go overboard on them.” He said Fox gave him the impression that Cannon had got “cold feet about it being seen to be funded by the Republicans” .

Task force chair Gibbons linked to numerous ethics scandals

Gibbons was accused of sexually assaulting a woman. In 2006, Gibbons was accused of sexually assaulting a woman in a Las Vegas parking lot. Criminal charges were never filed, but a civil suit is pending.

Gibbons reportedly helped secure no-bid contract for company which then hired his wife's firm. In March 2007, The Wall Street Journal reported:

The wife of Nevada Gov. Jim Gibbons was hired as a consultant to a defense contractor at the same time that her husband, who was then a member of Congress, helped the company get funding for a no-bid federal contract.

Dawn Gibbons got about $35,000 in consulting fees in 2004 from Sierra Nevada Corp., of Sparks, Nev., the company said. Mr. Gibbons, a five-term Republican who served on the armed services and intelligence committees, sought funding that year for Sierra Nevada for a $4 million contract to develop a helicopter radar-landing system.

Gibbons accepted an illegal corporate donation. The Federal Election Commission (FEC) admonished Gibbons in 2007 for accepting an illegal corporate contribution and ordered him to return the money to the donor, Cal Neva Resort. The FEC declined to pursue allegations that Gibbons had accepted four additional corporate donations.

Task force appointed by Don Young, who has been plagued by ethics scandals

Young had ties to former lobbyist Jack Abramoff. Young has numerous ties to former lobbyist Jack Abramoff, who in 2006 pleaded guilty to fraud, tax evasion, and conspiracy to bribe public officials." Roll Call reported in January 2006 that Young “sought to intervene with a federal agency in September 2002 on behalf of American Indian clients of lobbyist Jack Abramoff as part of Abramoff's effort to gain control of the Old Post Office Pavilion in downtown Washington, D.C.” Roll Call stated that this was part of Young's “extensive history of acting on behalf of Abramoff's lobbying clients” and reported of ties between the two:

His leadership political action committee, the Midnight Sun PAC, received $7,000 from two of Abramoff's tribal clients, the Aqua Caliente of California and Mississippi Choctaws, on Oct. 17, 2002, just five weeks after he wrote to Perry.

All together, the Midnight Sun PAC received $12,000 from Abramoff's tribal clients during the 2001-02 election cycle.

In addition, one of the Alaska Republican's former aides, Duane Gibson, went to work for Abramoff at Greenberg Traurig several months before Young intervened with the GSA on the Old Post Office site.

Going back to 1997, Young, then chairman of the House Resources Committee, authored legislation to hold a plebiscite in Puerto Rico over the island's political future. At the time, Abramoff was also lobbying in favor of a Puerto Rican plebiscite.

Young also repeatedly acted to aid the government of the Commonwealth of the Northern Mariana Islands, a group of Pacific Ocean islands controlled by the United States. The CNMI government paid Abramoff $8 million to lobby on its behalf.

Young refused to hold hearings on the conditions for CNMI garment-industry workers despite complaints over their treatment, and he also blocked a proposal by House Democrats to boost the minimum wage on the islands. Young visited the CNMI in 1999 along with a number of Resource Committee members.

While Young received considerable financial backing from Abramoff clients, the former lobbyist never donated directly to Young's re-election campaigns or his leadership PAC. All together, Abramoff's tribal clients gave $20,000 to Young.

In 2000, the firm Preston Gates Ellis Rouvelas & Meeds, then Abramoff's employer, held a tribute to Young during the Republican convention in Philadelphia.

Young also used Abramoff's skybox at the MCI Center in D.C. for two fundraisers, events he did not report to the Federal Election Commission until after the Abramoff scandal broke.

Young is reportedly under investigation regarding gifts he received from Alaska oil company head. In 2007, The Wall Street Journal reported that Young was under criminal investigation to determine whether he “accepted bribes, illegal gratuities or unreported gifts from VECO Corp.,” an Alaska oil services company. The Anchorage Daily News reported in October 2009 that Bill Allen, the former chief of VECO, in a confession to the FBI, wrote that he and his deputy at VECO had from 1993 to 2006 " 'provided things of value to United States Representative A,' a reference to Young." The Daily News reported that Young “didn't report receiving any gifts on the personal financial disclosure form he filed with the House of Representatives for that year. From 1995 until last year, Young reported no gifts on his disclosure forms.”

Young stepped down from his leadership position on the House Resources Committee due to ethics allegations. In December 2008, Young stepped down from his leadership position on the House Resources Committee reportedly at the insistence of his GOP colleagues due to his ongoing ethics allegations. According to the Anchorage Daily News:

The move was forced by Republican leaders, who are determining this week who will assume leadership roles on House committees when Congress begins its new term next year.

Young told his Republican colleagues in a caucus meeting that it was a difficult decision to step aside as the top Republican on a committee with a crucial mission for Alaska that he had been a member of for the past 36 years. But he also told them he was “confident that the cloud that hangs over me will eventually clear as I know I have done nothing wrong.”