Conservatives falsely claim Kagan compared NRA to Klan

Conservative media have falsely claimed that in hand-written notes Elena Kagan took as a Clinton administration official in 1996, she compared the National Rifle Association to the Ku Klux Klan. In fact, Kagan wasn't comparing the NRA to the Klan; rather, she was reportedly taking notes that reflected a Justice Department attorney's assessment of whether proposed legislation would shield volunteers for either of those two groups from lawsuits. Indeed, the supposedly controversial language in Kagan's notes reportedly echoed the language of a memo that attorney had sent to Kagan.

Conservatives falsely accuse Kagan of comparing NRA to Klan

NRO: “Kagan apparently tied the NRA to the KKK.” From a June 18 National Review Online blog post headlined “Did Kagan Compare the NRA with the KKK?” :

National Review has learned that in 1996, Kagan apparently tied the NRA to the KKK -- yes, the KKK -- while debating the Clinton administration's position on a bill.


Two documents discovered at the William J. Clinton Presidential Library and obtained by National Review suggest that Kagan was involved in these discussions. One does not contain her name, but the handwriting appears to be hers. (You can see an example of Kagan's handwriting here.) It has the name of administration colleague Fran Allegra at the top, and lists two “Bad guy orgs” that might be covered -- the NRA and the KKK.


Is Kagan so hostile to gun rights that she would compare the top gun-rights organization in the United States with a viciously racist hate group? It sure looks that way. We look forward to her explanation.

Fox: “Kagan Compares NRA to KKK?” From the front page of Fox Nation, which linked to a June 18 Fox Nation post:

Kagan didn't compare the NRA to the Klan

REALITY: Kagan's hand-written notes reportedly reflected the language of another attorney's assessment. Kagan wasn't indicating that the NRA was comparable to the Klan. Rather, according to the White House, Kagan was simply echoing the language of another attorney's memo when, in hand-written notes about a conversation with that attorney, she listed the NRA under “bad guy orgs.” Both Kagan's notes and the memo they are reportedly based on indicate that the NRA and the Klan would not have been covered by legislation that would have shielded volunteers for non-profits from lawsuits.

Kagan was taking notes about effects of legislation to protect volunteers for nonprofits from lawsuits. The documents in question related to legislation that would have protected volunteers for nonprofit organizations from lawsuits. The Washington Post's Greg Sargent wrote:

One of the docs in question is a handwritten note Kagan, then in the White House counsel's office, took while discussing the act on the phone with a Department of Justice attorney. In it, she listed what she called two “bad guy orgs,” the “NRA” and the “KKK.”


Here's the White House version of events. At the time, two separate things were going on simultaneously. First, Clinton officials were concerned that the proposal would make it tougher for victims of gun violence to pursue liability claims. Officials viewed the bill as a major giveaway to the gun industry and the NRA. As part of analyzing the impact in this area, Clinton lawyers looked at how it would benefit the NRA.

In a second, separate development, Democratic members of Congress were worried that the act could protect the KKK and other hate groups from liability. Senator Patrick Leahy branded it the “KKK protection act.” That prompted Clinton lawyers to analyze how it would impact such groups -- the KKK included.

CNN: White House says Kagan was simply “writing down notes” about another lawyer's memo. CNN's Ed Henry reported on June 18 that the White House is “trying to make the point that this is not Elena Kagan herself calling them bad guys or lumping them together with a racist group like the KKK” and that in her notes, Kagan was simply repeating the language of the memo and the broader public “debate at the time.” Henry explained:

[W]hat they're saying is, it's important to note that Elena Kagan did not write the original memo suggesting perhaps that the KKK and NRA would be lumped together and would be known as “bad guys.” Instead, she was on phone, talking about this memo and writing down notes about it. Now, obviously we weren't there in 1996. We don't know all the details, but what the White House is insisting is that she did not lump the KKK and the NRA together originally. She was repeating the debate at the time.

A June 18 article reported that the White House explained that Kagan's notes simply “track[ed]” another lawyer's memo and that the White House said that “the organizations discussed reflect the public debate over the legislation at that time” :

“Kagan's notes from a conversation with DOJ Attorney Fran Allegra track an earlier memo Allegra sent to her outlining which organizations would be shielded under volunteer and nonprofit liability legislation,” said White House spokesman Ben LaBolt. “Allegra's memo notes that neither the KKK nor the NRA would be shielded from liability under the bill, after Democrats in Congress and others raised concerns that the provision swept too broadly. It's simply not credible to suggest that these jotted down notes represent anything but preliminary research on legal questions about what organizations would be covered under the legislation, and the organizations discussed reflect the public debate over the legislation at that time.”

“Bad guy” language in Kagan's notes echoes language from memo she was reportedly discussing. Indeed, the memo Kagan was reportedly discussing was written on March 27, 1996, by then-Justice Department lawyer Fran Allegra. It suggested that the NRA and the Klan would likely not receive protection under the act and said, "[W]e probably need to be careful about suggesting that 'bad' organizations will qualify for the provision in the bill as it would suggest that we are allowing 'bad' organization to qualify for tax-exempt status." In the notes she took the same day, reportedly while discussing Allegra's memo, Kagan similarly wrote, “Bad guy orgs -- not NRA ... not KKK” -- presumably summarizing Allegra's analysis that the NRA and KKK would not be protected by the legislation.

Sargent: "[T]here's no evidence of any comparison." Nowhere in Kagan's notes did she “compare” or “tie” the NRA to the Klan. As Sargent explained:

There's nothing in the docs that draws an explicit comparison between the NRA and the KKK. The White House will argue that it's incidental that they happened to be listed next to each other -- they were only two of many groups that lawyers were examining in order to determine how they'd be impacted by the law.

It's perhaps unfortunate for the White House that she happened to list the two names side by side. But there's no evidence of any comparison, aside from the fact that they appeared next to each other on two pieces of paper amid a lengthy and wide-ranging analysis.