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White House Letter on
'Protective Function Privilege'
Wednesday, May 20, 1998

The following is the text of a May 11 letter from White House counsel Charles F.C. Ruff to independent counsel Kenneth W. Starr. It was released by the White House on May 19.

Dear Mr. Starr:

This is in response to your letter of April 28, 1998, concerning the so-called "protective function privilege."

As you know, neither the President nor the White House Counsel has been involved in any way in the decision to assert the privilege or in the ensuing litigation. Whether it is important to the effective functioning of the Secret Service to restrict the extent to which its agents are required to provide information to the Office of Independent Counsel is a matter that the Service is uniquely qualified to determine. Whether there is a legal basis for the assertion of the protective function privilege is for the Department of Justice to determine. And whether such a privilege should be recognized as a matter of law is for the courts to determine.

The President and all who serve him understand that the protection of the incumbent of the Office is critically important to the preservation of our democracy. The President relies on the experience and expertise of the Secret Service to guide him and to establish rules and procedures designed to ensure his security -- not for his benefit alone, but for the benefit of the institution of the presidency and the country. You now ask that President Clinton "waive" a privilege that you believe does not exist. Although the privilege is not his to assert or to waive, surely you must recognize that, if a particular incumbent were to urge the ad hoc waiver of a privilege that the Secret Service and the Justice Department believe important to the presidency, by that action he would undercut any force the privilege may have. Indeed, what would be the real meaning of any privilege if, whenever it was asserted, a prosecutor urged that it be waived just that one time because it was interfering with his investigation?

I assume, based on your treatment of our earlier correspondence, that you will find a strategic moment to release your demand and my response in order to bring pressure to bear on the President. There's little I can do to prevent your taking that step. I will simply say this: I will not advise the President to override the judgement of those whose mission it is to protect him and all future presidents. Whether the Secret Service believes it is consistent or inconsistent with that mission to permit its agents to testify, we will abide by that judgement.


Charles F.C. Ruff
Counsel to the President

© Copyright 1998 The Washington Post Company

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