Court Lets Stand Rulings on Secret Service, Lawyers' Testimony
Washington Post Staff Writer
Tuesday, November 10, 1998; Page A04
Closing out an important legal chapter generated by the Monica S. Lewinsky investigation, the Supreme Court yesterday rebuffed the Clinton administration's claim that the president's security detail should be shielded from testifying about his private behavior and that his conversations with government lawyers should remain confidential.
The justices left in place a pair of lower court decisions that said agents' observations are not covered by a "protective function privilege" and the president's talks with White House lawyers are not bound by the traditional attorney-client secrecy. By 7 to 2 votes, the justices decided not to hear the cases, with only Justices Ruth Bader Ginsburg and Stephen G. Breyer, both Clinton appointees, arguing that the court should take up the administration's appeals.
Yesterday's order culminates a series of shutouts for the White House. The Supreme Court was the administration's last chance to reverse what is now a full record of decisions spurning arguments that top aides and Secret Service agents should be shielded from revealing private conversations to a grand jury.
Although the practical consequences for independent counsel Kenneth W. Starr's investigation into the sexual relationship between Clinton and Lewinsky are minimal at this point, yesterday's court action has potentially far-reaching consequences for the institution of the presidency.
For this and future White House occupants, the justices' decision not to take the cases means that a president's private activities remain vulnerable to exposure in grand jury and other criminal proceedings.
Yesterday's orders put to rest the argument -- advanced by the Clinton administration -- that if bodyguards could be forced to testify, it could encourage a president to keep his distance from them. It also ends debate over the notion that at the time a president most needs advice, when he may be facing impeachment, he should be able to turn to his staff lawyers without fear of eventual disclosure.
The justices in the majority offered no comment, as is the practice when the court spurns an appeal.
In his forcefully worded dissent, Breyer emphasized that the risk of assassination could increase for a president who pushes away his bodyguards in pursuit of privacy. "[O]ne could reasonably believe that the law should take special account of the obvious fact that serious physical harm to the president is a national calamity -- by recognizing a special government privilege where needed to help avert that calamity," he wrote.
In making his case, Breyer included a chart of presidential assaults, the weapon used, and whether the plot succeeded or was foiled.
"The terrible truth, as we all know, is that assassins have killed four American presidents and wounded one other," Breyer wrote. "Nine presidents have been the subject of assassination attempts, including attempts that have taken place while the president was in the White House itself."
Ginsburg said in a one-paragraph dissenting statement that she believed the question of whether to establish a "protective function privilege" to be a grave one that ought to be answered by the nation's highest court.
In a similar vein, Breyer and Ginsburg had encouraged the court to take up the issue of whether government lawyers are cloaked by the traditional confidentiality given conversations between a private attorney and his client. In warning against the dangers of allowing a president's closest legal advisers to be questioned, the two justices said the president "may very well choose the cautious course, holding back information from government counsel, perhaps hiring outside lawyers instead."
Starr had sought the testimony of both Secret Service employees and White House lawyers while he was investigating whether Lewinsky, a former White House intern, had a sexual relationship with Clinton and whether the president or his close aides urged her to lie about it.
Starr said Secret Service agents may have seen evidence of wrongdoing while they were stationed at the White House. But the Secret Service tried to block the agents from testifying by asserting a new "protective function privilege." Lower federal courts rejected it, saying there was no historical basis for the claim and, in the words of the D.C. Circuit, "there is a general duty to give what testimony one is capable of giving." That court, in Rubin v. United States, rebuffed arguments that the president's life would be at risk if his bodyguards were forced to testify and ordered the subpoenaed agents to appear before the grand jury.
Separately, Starr had sought testimony from White House deputy counsel Bruce R. Lindsey, one of Clinton's closest confidants. Prosecutors wanted to question him about his conversations with Clinton and about his debriefing of other witnesses in the Lewinsky case.
The D.C. Circuit said White House attorneys have a duty to respond to grand jury questions that seek information about whether a federal crime was committed. The appeals court highlighted "the public interest in honest government and in exposing wrongdoing by government officials." That decision was in sync with the only other related appeals court dispute. The 8th Circuit had rejected a privilege for government attorneys in a case involving lawyers' conversations with first lady Hillary Rodham Clinton.
White House counsel Charles F.C. Ruff said yesterday the administration was disappointed with the ruling in the attorney-client case, known as Office of the President v. Office of Independent Counsel: "We continue to believe that the attorney-client privilege should protect conversations between government officials and government attorneys. The American people benefit from decisions made by government officials, including the president, on the basis of full and frank information and discussion."
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