By Roberto Suro and Peter Baker
The department, which is representing the Secret Service in its fight with independent counsel Kenneth W. Starr, plans to file a notice today asking the U.S. Court of Appeals for the D.C. Circuit to set aside the ruling issued last week by a three-judge panel and hear the case "en banc," or as a full court, according to the officials, who spoke on condition of anonymity.
In pursuing an appeal, the department set aside concerns of administration officials who favored dropping the court battle and seeking legislation establishing a privilege of confidentiality for the president's protectors in the future. Treasury Secretary Robert E. Rubin, who oversees the Secret Service, prevailed by arguing that the fears of presidential assassination raised by the agency were legitimate law enforcement concerns that deserved exhaustive appeal.
Starr declined to respond yesterday. "We don't have any comment at this time," said spokesman Charles G. Bakaly III.
Starr wants to ask three Secret Service employees what they know about Clinton's ties to Lewinsky as part of his investigation into whether the president lied under oath when he denied having sex with the former White House intern and whether he encouraged her to do the same.
The dispute carries weighty implications not only for Starr's probe but for the future of the Secret Service, which finds itself in the unprecedented position of balancing its duties as a law enforcement agency during a grand jury investigation with its mission to guard the president's life at any cost.
Because the agents who guard the president have unrivaled access to Clinton, they could be powerful witnesses who could help clear up what, if anything, happened with Lewinsky. But the Secret Service argues that violating its traditional code of silence would destroy presidents' trust in their protectors, prompting them to push agents away and open themselves up to danger.
By asking the appeals court to hear the case again instead of going directly to the Supreme Court, the administration is adding one more judicial layer before what some see as the eventual showdown. But it may not mean any significant delay. If the appeals court acts on an expedited schedule, as the three-judge panel did, it could hear the dispute and rule before the Supreme Court returns from recess in October.
Even so, it is not at all sure that the appeals court would take the case again. Six of the 11 active judges must vote to hear the matter en banc and such hearings are rarely granted. Of the 732 cases resolved by the D.C. Circuit Court in the year that ended Sept. 30, the judges heard just two as a full court.
The Secret Service argument had been rejected by Chief U.S. District Court Judge Norma Holloway Johnson before it was turned down by the panel of three appellate judges, and there is no certainty inside the administration that the full court would be more sympathetic. Rubin was told during a meeting Thursday with Attorney General Janel Reno that Justice lawyers have calculated that the odds weigh against them, according to officials.
Given that, several key officials at both Justice and Treasury, including strong allies of the Secret Service, had concluded that it was time to go to Congress to draft a law creating the "protective function privilege" that the courts have refused to recognize.
The appellate judges had suggested just such a course. "We leave to the Congress the question whether a protective function privilege is appropriate in order to ensure the safety of the President and, if so, what the contours of that privilege should be," they wrote in their opinion last week.
Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah), a strong supporter of Starr, said during a television interview Sunday that he would "do everything I can to cooperate with the Secret Service" and hold hearings next year to craft a "split-the-baby" compromise bill.
"I would look for a legislative remedy," Hatch said. "It may not be everything that the Secret Service would want, because I think they themselves would admit there's no way that Secret Service people should not have to testify when crimes are being committed. . . . On the other hand, we have to balance that with the protection and the right to protect the president."
Future legislation would not affect the Lewinsky probe, however, and dropping the court fight would have allowed Starr to bring Secret Service personnel before the grand jury immediately. Starr has sought the testimony of uniformed officers Brian Henderson and Gary Byrne and of the agency's chief counsel, John J. Kelleher, who debriefed them.
Despite the gloomy prospects in court, Rubin stood firmly with Secret Service Lewis C. Merletti, who has waged an impassioned and relentless six-month fight both inside and outside the administration to prevent Starr from forcing agency personnel to disclose what they saw and heard while guarding Clinton.
Reno and Solicitor General Seth P. Waxman deferred to Rubin, who in essence is their client as the official who invokes the "privilege" as defined by the Secret Service. Having argued that nothing short of the life of the president is at stake, Justice officials concluded it would be difficult to back down at this point. While no longer-term plans have been formalized, some officials believe they effectively are now committed to going to the Supreme Court if the appeals court rebuffs them again.
© Copyright 1998 The Washington Post Company