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Subpoenas Could Put Some Secret Service Agents in Unprecedented Presidential Bind

By Roberto Suro
Washington Post Staff Writer
Tuesday, January 27, 1998; Page A09

During Watergate, Secret Service officials testified before Congress about the Nixon White House's taping system. Just last year, four Secret Service agents who guarded President John F. Kennedy came forward with sensational tales about his sex life.

But never before have agents responsible for guarding the president been required to testify about "material facts" in a criminal probe about that president.

That barrier may soon be broken as Whitewater independent counsel Kenneth W. Starr seeks evidence that President Clinton engaged in sexual relations with former White House intern Monica S. Lewinsky in contradiction to his sworn testimony in the Paula Jones sexual harassment case. Sources said Starr's office wants to interview agents to ask if they personally observed Clinton and Lewinsky engaging in any "intimate acts" in the White House in the spring of 1996.

Anticipating that Starr will seek testimony and documents from the agents who protect Clinton, officials at the Secret Service and the Treasury Department, which oversees the service, were busy yesterday reviewing precedents to determine what position they would take in response to Starr's subpoenas.

Already, attorneys for Jones in the civil case against Clinton have subpoenaed the Secret Service and a federal judge is considering whether agents should be forced to testify, according to one source with knowledge of the case.

"There does not seem to be a clear precedent for the situation that appears to be developing now where agents may be called into a criminal proceeding to testify about the president's activities," said Ronald K. Noble, former assistant Treasury Secretary for enforcement.

Earlier in his Whitewater investigation, Starr called Secret Service agents to testify about records that showed who had access to a room in the White House where Hillary Rodham Clinton's billing records from her Arkansas law firm were discovered, according to sources familiar with the proceedings.

But legal experts said the current case would be markedly different because the agents could be asked to assist a prosecution aimed at showing that the president committed a crime while in office.

Since the agents are sworn law enforcement officers, it seems unlikely that the White House would be able to successfully assert legal privilege to block the subpoenas in this case, according to Noble and other experts.

Although the Secret Service has built a tradition of guarding the privacy of the people it protects almost as zealously as it guards their lives, "the relationship between the protector and the protected is not covered by a legal privilege like the ones that protect attorney-client or doctor-patient relationships," said Noble, now a law professor at Columbia University.

But such testimony is bound to prove controversial, even if it helps exonerate Clinton.

"This could harm, even destroy, the relationship of trust and confidentiality that is necessary for the Secret Service to carry out its mission," said Arnold Sagalyn, who was a senior Treasury Department official in the Kennedy and Johnson administrations.

"Politicians naturally chafe at the restrictions and intrusions that the Secret Service impose on them, and if a president or a presidential candidate is going to be thinking that anything these people see is going to appear in a book or in court testimony someday, the agents will be handicapped and the security risks will increase enormously," said Sagalyn.

The Secret Service officially echoed these sentiments after four former agents provided accounts of philandering by President Kennedy to author Seymour M. Hersh. Following the publication of Hersh's book, "The Dark Side of Camelot," last December, Secret Service Director Lewis C. Merletti sent a letter to 3,200 current and 500 former agents complaining that the revelations were "counterproductive to the mission of the Secret Service."

Merletti admonished the agents "to refrain from discussing any information or activity associated with our protectees regardless of its content or significance," and said that being a Secret Service agent involves "a confidence that should continue forever."

The delicate question of how to avoid revealing details about presidential security was raised most recently in 1992, when a House task force investigated allegations that the Reagan-Bush campaign cut a deal with Iran to delay the release of American hostages in order to influence the 1980 election. A key issue was whether George Bush, then candidate for vice president, made a secret trip to Paris to negotiate the supposed deal.

The Secret Service negotiated arrangements with the congressional task force to allow only the top counsel for Republicans and Democrats to see material that related to methods of protection. It was not even shared with all the Congressmen on the investigative panel, according to an official involved in the probe.

However, the task force was able to interview Secret Service agents and gain access to uncensored travel logs to determine what Bush was doing during the days in question. When he was alleged to have been in Paris meeting with an Iranian representative, the Secret Service logs and testimony showed him playing tennis at the Chevy Chase Club.

© Copyright 1998 The Washington Post Company

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