Told To Testify
By Peter Baker
Chief U.S. District Judge Norma Holloway Johnson, who has sided with independent counsel Kenneth W. Starr in several recent decisions related to his investigation of Clinton, ruled that Secret Service personnel are obligated as law enforcement officers to turn over evidence in a criminal probe and refused to create a special "protective function privilege" that would exempt them.
Clinton said the decision would have serious ramifications and chided Starr for being "so insensitive" to security considerations by seeking the testimony. "At least, it will have a chilling effect, perhaps, on the conversations presidents have and the work they do and the way they do it," Clinton said.
The Justice Department, in representing the service, has argued vigorously that if presidents fear their private conversations might one day be disclosed, they would keep agents at a distance and thus give an opportunity to would-be assassins. While acknowledging that Secret Service concerns about maintaining proximity "are legitimate," Johnson scoffed at the notion that a chief executive would put himself in danger.
"When 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," Johnson wrote in her 10-page opinion. ". . . The President has a very strong interest in protecting his own physical safety."
Johnson's decision followed several others in recent weeks in which she has backed Starr's efforts to force reluctant witnesses to testify, including her ruling rejecting Clinton's claim of executive privilege to prevent senior White House aides from being questioned. Clinton appealed that decision, but the case has been sent back to Johnson because he also asked her to reconsider.
In seeking the Secret Service testimony, Starr has suggested in court papers that officers may have witnessed events directly bearing on whether Clinton had a sexual relationship with Lewinsky and then tried to cover it up illegally. And in ordering them to testify, Johnson became the first federal judge to decide whether there is a legal foundation for the traditional code of silence between a president and his protectors.
But Johnson likely will not have the final say in the matter. Secret Service Director Lewis C. Merletti privately has vowed to appeal all the way to the Supreme Court if necessary, warning bluntly that a defeat will lead to a presidential assassination. Agency spokesman Arnette F. Heintze Jr. would not say yesterday whether an appeal was planned, but said, "We are concerned that the court did not fully appreciate the impact its decision could have on the safety of the president and other people we protect."
Starr could summon Secret Service personnel to the grand jury during an appeal, although the agency could then seek a temporary stay from the U.S. Court of Appeals for the D.C. Circuit.
While prosecutors have been interested in talking with a half-dozen or more agents, Starr during negotiations narrowed his list of potential grand jury witnesses to a pair of uniformed officers, Gary Byrne and Brian Henderson, as well as the Secret Service chief counsel, John Kelleher, who debriefed them.
In her ruling, Johnson noted that no federal law or court case has ever recognized the "protective privilege" claimed by the Secret Service and said Congress, "unlike this court, is free to create one." Ominous predictions were overstated, she added, pointing to several "tell-all books" written by or with the help of former agents, including last year's "The Dark Side of Camelot" by Seymour M. Hersh, detailing John F. Kennedy's sexual escapades.
"There is no indication that those published accounts have caused Presidents to push Secret Service agents away because information about their private lives might become public," Johnson wrote.
Clinton, however, said yesterday "there's a serious possibility that that could occur," citing his predecessor, Republican George Bush, who wrote a letter endorsing the Secret Service's concerns. In his first comments on the issue, Clinton said after an unrelated Rose Garden ceremony there has been no established legal privilege before because "no one ever thought that anyone would ever abuse the responsibility the Secret Service has to the president."
White House press secretary Michael McCurry said later that the decision could change how Clinton interacts with his agents. As an example, McCurry suggested Clinton in the future might ask agents to step away while he talks with his national security adviser about a telephone talk with the Pakistani prime minister.
Clinton and his aides have said they played no part in the administration's legal battle to block testimony by Secret Service personnel. However, the president last week rebuffed a request by Starr to waive any confidentiality and direct officers to testify.
C. Boyden Gray, who was White House counsel under Bush, said Johnson probably struck a legitimate balance, noting that her order is limited to specific witnesses and the specific questions they declined to answer in March.
"It sounds about right," Gray said. "An absolute privilege is too sweeping because then the Secret Service would become a shield for misbehavior. . . . [But] it doesn't sound like she's authorizing a fishing expedition to ask anything they want."
Staff writers Susan Schmidt and Bill Miller contributed to this report.
© Copyright 1998 The Washington Post Company