By Susan Schmidt
In rejecting the creation of a new legal privilege to shield the president's protectors, the court backed independent counsel Kenneth W. Starr's effort to secure testimony from Secret Service officers about what they may have seen or heard about an alleged affair between Lewinsky and President Clinton.
"While courts must listen with the utmost respect to the conclusions of those entrusted responsibility for safeguarding the President," said the unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, "we must also assure ourselves that those conclusions rest upon solid facts and a realistic appraisal of the danger rather than vague fears extrapolated beyond any foreseeable threat."
The appeals panel said the Secret Service had fallen short of proving the "heavy burden" needed to justify the creation of a new "protective function privilege." The judges -- Republican appointees Stephen F. Williams, Douglas H. Ginsburg and A. Raymond Randolph -- said it should be up to Congress to decide whether to create such a privilege and, if so, what shape it should take.
The Justice Department, which has argued on the Secret Service's behalf, said it is deciding whether to appeal. "We continue to be concerned that any action that could distance the Secret Service from the president increases the danger to his life and that of future presidents," Justice said in a joint statement with the Secret Service.
Since the early days of the Lewinsky investigation, Starr has been seeking the testimony of two uniformed officers and the Secret Service general counsel who conferred with them, but all three have been instructed by the Treasury Department to decline to answer questions relating to the president.
After winning in a lower court, Starr asked the Supreme Court to intervene in the Secret Service case on a rare emergency basis, but the court last month declined to do so, referring it instead to the appeals court as a priority matter. Another privilege dispute, concerning Clinton's assertion of attorney-client privilege to block testimony by White House aide Bruce R. Lindsey, is also pending before the appeals court.
Starr, battered by a series of legal setbacks, said he was gratified by the ruling. "It is fundamental in our country that all law enforcement officers cooperate fully in responding to requests for relevant information in a federal grand jury investigation," he said in a statement. "The court of appeals today affirmed that bedrock principle, emphasizing that the rule of law is not incompatible with the profound national interest in protecting the life of the president."
But the Supreme Court may still have the final word on the question. Secret Service Director Lewis C. Merletti has privately vowed to appeal all the way to the high court. The agency's other options include asking the appeals panel for a rehearing or seeking a hearing before the full D.C. Court of Appeals. Noting that the Supreme Court had ordered expedited treatment of the case, the appeals panel ordered that any new hearing request be filed within seven days, instead of the 45 normally allotted.
In upholding a decision by Chief U.S. District Court Judge Norma Holloway Johnson, the appeals panel said there was no "clear and convincing" need to create a new privilege. But the judges also said they were not persuaded by Starr's argument that there is no precedent for such a privilege, since "this appears to be the first effort in U.S. history to compel testimony by agents."
Arguing in Starr's favor, the judges said in the 11-page decision, is a federal statute that requires executive branch employees to promptly report any evidence of a crime by a government official to the attorney general.
The Secret Service argued that its proposed privilege should grant them an exception to the statute and also offered a compromise: Its officers should only be required to testify in a grand jury proceeding if they recognize a president's actions as criminal at the time they witness or hear about them.
But the court found the legal reasoning behind such an exception "strange," saying it "would prohibit testimony (and thus thwart the search for truth) even in cases where the evidence, viewed in the light of subsequent events, would supply a key element in the proof of a serious crime."
The Justice Department has argued that the secretary of the treasury, who has jurisdiction over the Secret Service, would be the holder of the protective function privilege, not the president himself. But the judges said that notion offers only a "weak incentive" for a president to keep his Secret Service protectors at bay, since the privilege could be waived by his treasury secretary or by a subsequent administration.
"If the person whose conduct is to be influenced knows that the privilege might be waived by someone else, the effect of the privilege in shaping his conduct is greatly diminished if not completely eliminated," said the panel.
© Copyright 1998 The Washington Post Company