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Starr's Supreme Court Petition on
Secret Service Testimony

Washingtonpost.com
Wednesday, June 3, 1998

The following is the full text of independent counsel Kenneth W. Starr's June 2 petition to the Supreme Court seeking an expedited hearing on whether Secret Service personnel can be compelled to testify before a grand jury. For more information, see the Post story.

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1997

UNITED STATES OF AMERICA, PETITIONER
v.
ROBERT E. RUBIN, SECRETARY OF THE TREASURY,
and LEWIS C, MERLETTI, DIRECTOR OF THE UNITED STATES
SECRET SERVICE, RESPONDENTS

PETITION FOR A WRIT OF CERTIORARI BEFORE JUDGMENT
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

The United States of America, by Kenneth W. Starr, Independent Counsel, see 28 U.S.C. § 594(a)(9), petitions for a writ of certiorari before judgment to the United States Court of Appeals for the District of Columbia Circuit. See Sup. Ct. R. 11; 28 U.S.C. §§ 1254(1), 2101(e).

OPINIONS BELOW

The district court's opinion and order entered May 22, 1998, granting the United States' motion to compel two Secret Service uniformed officers and a Secret Service attorney to testify with respect to the questions as to which they have asserted the proposed "protective function privilege" (Pet. App. 1A, 11A) , is not yet officially reported. The district court's order of June 1, 1998, [REDACTED], (Pet. App. 12A), is also not yet officially reported,

JURISDICTION

The order of the district court regarding the proposed "protective function privilege" was entered on May 22, 1998, in In re Grand Jury Proceedings (D.D.C. Misc. No. 98-148 (NHJ)). On June 1, 1998, the district court disposed of the remaining issue before it and entered a final judgment. Pet. App. 12A; see Catlin v. United States, 324 U.S. 229, 233-34 (1945). That same day, the United States Secret Service noticed its appeal from the district court's ruling, and the certified record from the district court was docketed in the United States Court of Appeals for the District of Columbia Circuit (No. 93-3069). The jurisdiction of this Court to review the instant case, which is now pending in the court of appeals, see Gay v. Ruff, 292 U.S. 25, 30 (1934), is invoked under 28 U.S. C. §§ 1254 (1) and 2101 (e).

STATUTE AND RULE INVOLVED

The relevant portions of 28 U.S.C. § 535(b) and Fed. R. Evid. 501 are reproduced in the appendix.

STATEMENT

1. The district court granted a motion filed by the United States, represented by the office of the Independent Counsel ("OIC"), see 28 U.S.C. § 594 (a)(9), seeking to compel the testimony of two officers of the Secret Service's Uniformed Division and a Secret Service attorney before a federal grand jury Sitting in the District Of Columbia. The grand jury is investigating

   


to the maximum extent authorized by the Independent Counsel Reauthorization Act of 1994 whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law other than a Class S or Class C misdemeanor or infraction in dealing with witnesses, potential witnesses, attorneys, or others concerning the civil case Jones v. Clinton.

In re Madison Guaranty Savings & Loan Association (D.C. Cir. Spec. Div. Jan. 16, 1998) (Pet. App. 38A-39A).

Monica Lewinsky is a former White House intern and employee of the White House's Office of Legislative Affairs. In December 1997, Ms. Lewinsky was placed on a list of witnesses to be called by Paula Jones in the Jones v. Clinton litigation and was served with a subpoena requiring her to testify at a deposition in that case. On January 7, 1998, Ms. Lewinsky executed an affidavit representing under penalty of perjury that she had not had a sexual relationship with President Clinton.

This Office subsequently received allegations (i) that Ms. Lewinsky had in fact had a sexual relationship with President Clinton; (ii) that a friend of the President had advised Ms. Lewinsky on how to respond to her subpoena in the Jones case, found an attorney to represent her, and helped her find a new job; and (iii) that Ms. Lewinsky had tried to persuade Linda Tripp, a witness in the Jones suit, to commit perjury in connection with that case. On January 15, 1998, the OIC presented evidence relating to these allegations to officials of the Department of Justice. On the next day, the Attorney General petitioned the Special Division, on an expedited basis, to expand the OIC's jurisdiction.

In response to the Attorney General's request, the Special Division conferred jurisdiction on the OIC to investigate "whether Monica Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law. . . ." On January 17, 1998, President Clinton was deposed in connection with the Jones case, and was asked a number of specific questions about his relationship with Monica Lewinsky.

2. The Special Division's jurisdictional grant authorizes the Independent Counsel to investigate whether federal crimes may have been committed by Monica Lewinsky "or others" in connection with the Jones litigation, Pet. App. 38A. From the beginning of its inquiry into this matter, the OIC has received -- and continues to receive -- numerous and credible reports that Secret Service personnel have evidence relevant to its investigation. Specifically, the OIC is in possession of information that Secret Service personnel may have observed evidence of possible crimes while stationed in and around the White House complex.

3. On January 27, 1998, representatives of the OIC met with representatives of the Secret Service to discuss the issue of testimony by Secret Service employees. Throughout the ensuing negotiations, the Secret Service maintained that testimony by Secret Service personnel about their observations while in close proximity to the President would undermine a practice of confidentiality traditionally maintained within that organization, and that disclosure of those observations would potentially lead future Presidents to distance themselves from Secret Service personnel. For its part, the OIC represented that, to the extent consistent with its statutory obligation to investigate and prosecute criminal conduct falling within its jurisdiction, it would attempt to accommodate the Secret Service's concerns. The OIC also represented that it would refrain from asking questions that would reveal protective techniques or procedures of the Secret Service.

In subsequent correspondence between the Secret Service and the OIC, the Secret Service asserted that some testimony by its personnel would be covered by a "protective function privilege." This privilege, the Secret Service maintained, would shield from grand jury scrutiny (i) observations of conduct, (ii) overheard statements, and (iii) observations of individuals made by Secret Service employees while performing a protective function in proximity to the President. The asserted privilege also would extend to hearsay communications of privileged information. Such a privilege, the Secret Service contended, cannot be waived by individual Secret Service officers or agents, because it is owned and controlled by the United States. On the Secret Service's view, the privilege need not be invoked by the President, but can instead be interposed by the Secretary of the Treasury.

The Secret service also insisted that its proposed "protective function privilege" be regarded as absolute, with two exceptions. First, the privilege could theoretically be overridden by "compelling circumstances, such as overriding national security concerns," which do not exist here. Second, the privilege would not extend to situations where an agent or officer observes conduct or hears statements that are, at the time, sufficient to provide reasonable grounds to conclude that a felony has been, is being, or will be committed. In contrast, observations or statements that a Secret Service employee only later realizes constitute direct evidence of a felony are within the claimed privilege, and therefore forever unavailable to a federal grand jury on the Secret Service's view.

4. In an effort to alleviate the Secret Service's concerns and to create a record for any necessary litigation, the OIC agreed to receive testimony from Secret Service personnel through depositions at its offices rather than before the grand jury. On March 13, 1998, the OIC deposed two officers of the Secret Service's Uniformed Division, one of whom asserted the proposed "protective function privilege" in response to ten distinct questions, and the other of whom asserted the privilege in response to nine. On March 23, 1998, the OIC also deposed a Secret Service attorney, who asserted the "protective function privilege" in response to four distinct questions. This third witness also asserted the governmental attorney-client privilege and work product protection in response to a number of questions,

   


5. On April 10, 1998, the United States moved to compel these three witnesses to testify regarding the matters as to which they had previously invoked the proposed "protective function privilege" and, with regard to the third witness, governmental attorney-client privilege and work product protection. The United States subsequently withdrew the portions of its motion to compel that related to the third witness's assertions of governmental work product protection.

6. The district court conducted an open hearing on the United States' motion on May 14, 1998. In an opinion and order entered May 22, 1998, Chief Judge Norma Holloway Johnson granted the motions to compel with respect to the questions as to which the three witnesses had invoked the "protective function privilege."

Chief Judge Johnson began her analysis by describing the nature of the privilege that the Secret Service had asserted. Consistent with the OIC's representation in its negotiations with the Secret Service, the court observed that "[n]one of the questions at issue relate to the protective techniques or procedures of the Secret Service." Pet. App. 1A. [REDACTED].

Turning to the decisions of this Court that govern the creation of proposed new privileges, the district court held that Fed. R. Evid. 501 and this Court's precedents require courts to consider "1) whether the asserted privilege is historically rooted in federal law; 2) whether any states have recognized the privilege; and 3) public policy interests." Pet. App. 2A (citations omitted). After describing the traditional reluctance of the federal courts to create new evidentiary privileges, Judge Johnson briefly summarized this Court's recent decisions regarding the subject, noting that new privileges are far more frequently rejected than recognized.

The trial court next considered the history of the proposed "protective function in federal law. Recognizing that no court has ever adopted the privilege, and finding no constitutional, statutory, or common-law basis for it, the district court proceeded to analyze the two federal statutes relevant to the issue: 18 U.S.C. § 3056(a) and 28 U.S.C. 535(b). Section 3056(a), the court observed, requires the President and Vice President to accept the protection of the Secret Service, but does not create an evidentiary privilege for its employees. Section 535(b), in turn, imposes an affirmative duty on Executive Branch personnel to report "any information" regarding criminal activity by government officers and employees to the appropriate supervisory authority (normally, the Attorney General). The district court's analysis of this latter statute in particular led it to conclude that "a protective function privilege would contradict the goal of section 535(b), which is to have executive branch employees report criminal activity by government officials." Pet. App. 4A.

Chief Judge Johnson also considered the implications of this Court's recognition of the patient-psychotherapist privilege in Jaffee v. Redmond, 518 U.S. 1 (1996), taking account of the fact that "unlike the protective function privilege, the patient-psychotherapist privilege had some federal history." Pet. App. 5A. In contrast, the court noted that the Secret Service has never attempted to assert the "protective function privilege" on any of the various occasions in which its employees have testified in the past. Accordingly, "the Secret Service's own history, the lack of any constitutional or statutory support for the claimed privilege, and the federal case law regarding newly asserted privileges under Rule 501 all weigh against recognizing the privilege." Pet. App. 6A.

Turning to the history of the proposed privilege in state law, Judge Johnson observed that "[n]o state has ever recognized a protective function privilege or its equivalent," and that this "absence of any state support for the privilege not only militates against recognizing [it], but also distinguishes it significantly from the patient-psychotherapist privilege recognized in Jaffee." Pet. App. 6A. The fact that no state has ever adopted a "protective function privilege" for its governor, the court reasoned, indicates that the "reason and experience" that Fed. R. Evid. 501 requires for the creation of a new privilege are lacking. Id. at 7A.

The district court also examined the public policy justifications for the "protective function privilege" advanced by the Secret Service, including its argument that if testimony were compelled from its employees, "current and future Presidents would inevitably distance themselves from Secret Service personnel, thereby endangering the life of the Chief Executive." Pet. App. 7A. In conjunction with this, the court acknowledged the uncontested fact that "[t1he physical safety of the President of the United States is clearly of paramount national importance.

After carefully weighing the Secret Service's policy and fact-based arguments, however, the district court rejected them. "While the concerns of the Secret Service are legitimate, the Court is not convinced that compelling Secret Service personnel to testify before a grand jury regarding evidence of a crime would place Presidents in peril." Pet. App. 7A-SA. The basis for this conclusion was the district court's refusal to credit "the suggestion that the possibility that agents could be compelled to testify before a grand jury will lead a President to 'push away' his protectors," and its concomitant finding that "[w]hen people act within the law, they do not ordinarily push away those they trust or rely upon for fear that their actions will be reported to a grand jury." Id. at 8A. Moreover, the court reasoned, it is by no means clear that a President "would push Secret Service protection away if he were acting legally or even if he were engaged in personally embarrassing acts," because such actions "are extremely unlikely to become the subject of a grand jury investigation." Id. In short, "[t]he claim of the Secret Service that 'any Presidential action -- no matter how intrinsically innocent -- could later be deemed relevant to a criminal investigation' is simply not plausible." Id. (citation omitted).

Finally, the trial court noted that previous published accounts of candid and highly embarrassing observations of Presidents have not ostensibly caused them to push their protectors away. Presidents have a "very strong interest" in protecting their own physical safety, the court found, and the Secret Service's educational process with regard to incoming Chief Executives will continue to instruct them of "the vital importance of close proximity" and the corresponding danger of ft any ill-advised "pushing away." Pet. App. 9A.

7. Following its decision in In re Grand Jury Proceedings Misc. Nos. 98-095, 98-096, and 96-097 (D.D.C. May 4, 1998), the district court in its May 22 order also [REDACTED].

8. On June 1, 1998, the district court entered an order [REDACTED]. Pet. App. 12A. On the same day, the Secret Service filed a notice of appeal in the district court. The United States now seeks certiorari before judgment.

REASONS FOR GRANTING THE WRIT

1. The claims of privilege in this case, while novel, are of paramount importance to the country, The Director of the Secret Service has submitted a sworn declaration in which he asserts that compelled testimony by Secret Service personnel will result in a "grave" and "unacceptable" risk to the President (and future Chief Executives), and the President has publicly stated that he concurs in the Director's assessment. Both the OIC and Chief Judge Johnson have disputed this contention, but all readily agree that the physical safety of the President is a matter of urgent national and public concern. The Director has specifically claimed that

    compelling Secret Service employees to divulge either communications overheard or actions observed as a result of protective duties would impose a permanent and devastating impact upon the Secret Service's ability to provide protection to any of our protectees. Indeed, I firmly believe that allowing this testimony to go forward will compromise the entire protective fabric enveloping a President, whether at the White House Complex or on the road. . . .

    I further believe that the inevitable result (of compelled testimony) would be that a current or future protectee would seek to reposition Secret Service protective employees in order to ensure privacy and confidentiality or attempt, under some circumstances, to refuse protection entirely, a particularly problematic issue with regard to a President.

Pet. App. 31A-33A.

In the face of the Director's statements, the district court squarely rejected the suggestion that "compelling Secret Service personnel to testify before a grand jury regarding evidence of a crime [will] place Presidents in peril." Pet. App. 7A-8A. The OIC similarly doubts the existence of any causal link between grand jury testimony by sworn law enforcement officers and the "pushing away" that the Secret Service claims will inevitably result. But the Director believes that the President's life is now in jeopardy, and will remain so until a "protective function privilege" is definitely recognized by either Congress or the courts. In our view, only this Court has the moral authority and public credibility to issue a final ruling on what the Secret Service plainly believes is a sensitive, life-or-death issue.

2. We are keenly aware that this Court's scarce resources are not best applied to the resolution of straightforward legal issues, no matter how important the factual circumstances in which they arise. That being said, as with the other claims of privilege employed to prevent the grand jury from obtaining relevant evidence, it is strongly in the Nation's interest that this case be resolved expeditiously so that the grand jury's inquiry can be completed at the earliest practicable date. This is, after all, a grave set of circumstances -- a specific jurisdictional mandate requested by the Attorney General of the United States implicating the President of the United States. It remains true that, as the President himself observed earlier this year, the American people are entitled to more rather than less, sooner rather than later. We respectfully submit that the Nation has a compelling in resolving a criminal investigation of the President as quickly as possible, and that this Court's immediate review would serve that goal.

   


3. The OIC has reason to believe that the "privileged" observations that the Secret Service is currently withholding from the grand jury would constitute important evidence in the OIC's evaluation of what federal crimes have been committed and by whom. As acknowledged in our Reply Brief submitted today in No. 97-1924, the President of the United States is under investigation. But the Secret Service, through its claim of "protective function privilege," has interposed itself between the grand jury and some of the most important evidence that it seeks. Numerous Secret Service employees -- in addition to the three witnesses at issue here -- appear to have putatively privileged information that is relevant to the United States' investigation.

The fact that Secret Service personnel have evidence highly relevant to an ongoing criminal investigation of the President (and others) is itself sufficient to bring the dispute to the level of "imperative public importance" required by this Court's Rule 11. If the ruling below were to proceed through the court of appeals, important portions of this investigation would be substantially delayed. The need for expeditious resolution of the dispute over the proposed "protective function privilege" has been widely acknowledged, including by the Secret Service. In that regard, Secret Service Director Lewis C. Merletti has publicly indicated his intent to press for ultimate review by this Court. See, e.g., John M. Broder & Stephen Labaton, Shaped by a Painful Past, Secret Service Director Fights Required Testimony, N.Y. Times, May 30, 1998, at A7.

4. This case presents a challenge by an agency of the Executive Branch to the ability of a federal grand jury to obtain relevant evidence of possible criminal activity by Executive Branch officials. In cases presenting issues of similar import, this Court has granted writs of certiorari before final judgment in the court of appeals "because of the public importance of the issues presented and the need for their prompt resolution." United States v. Nixon, 418 U.S. 683, 687 (1974); see, e.g., Mistretta v. United States, 488 U.S. 361, 371 (1989); National Org. for Women, Inc. v. Idaho 459 U.S. 809, 809 (1982); Dames & Moore v. Regan, 453 U.S. 654, 667 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584 (1952); United States v. United Mine Workers, 330 U.S. 258, 269 (1947); Carter v. Carter Coal Co., 298 U.S. 236 (1936); Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); Railroad Retirement Bd. v. Alton R. Co., 295 U.S. 330 (1935); Norman v. Baltimore & Ohio R. Co., 294 U.S. 240 (1935); see also Sup. Ct. R. 11. We respectfully submit that far-ranging attempts by Executive Branch officers to block a federal grand jury from obtaining evidence that may incriminate their superiors present an issue of the sort of "imperative public importance" that Sup. Ct. R. 11 contemplates.

5. This case also involves a dispute over the scope of the federal courts' authority to create federal common law privileges. The Secret Service (recognizing the implications of United States v. Nixon for any new privilege that falls under the rubric of executive privilege) has chosen to argue that its proposed absolute "protective function privilege" should be created as a matter of federal common law. But Congress has preempted any such weaving of federal common law in this context through 28 U.S.C. § 535(b), which directs Executive Branch employees to "expeditiously report []" "any information" they may have that relates to criminal activity by government officials. Section 535(b) governs this case, much as it governs the principal issues in the other dispute in which the OIC has petitioned for certiorari before judgment, United States v. Clinton, No. 97-1924. See United States v. Arthur Young & Co., 465 U.S. 805, 816-17 (1984); City of Milwaukee v. Illinois, 451 U.S. 304, 312-17 (1981).

6. Even apart from § 535(b), however, the Secret Service has failed to demonstrate the sort of "reason and experience" that are needed to support its argument that judicial recognition of the proposed "protective function privilege" is mandated. Outside of this litigation, the "protective function privilege" has never been recognized, cited, or even discussed by any state or federal court, nor has it ever been advocated, opposed, or even so much as alluded to by any learned commentator. That is, the legal "reason and experience" that Rule 501 and this Court's cases require is simply not present here. In short, the legal basis for the asserted privilege is tenuous in the extreme, yet this proposed new rule championed by the Department of Justice (and Supported by the President himself and officially invoked by the Secretary of the Treasury) is preventing the grand jury from the orderly conduct of its important work.

CONCLUSION

The petition for a writ of certiorari before judgment should be granted.

Respectfully submitted,

KENNETH W. STARR
Independent Counsel

MICHAEL L. TRAVERS
Associate independent Counsel

June 2,1998

© Copyright 1998 The Washington Post Company

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