By Michael Grunwald
Senate Democrats yesterday proposed to create a "protective function privilege" for the Secret Service that would exempt officers from testifying in most circumstances about the political leaders they guard, the first legislative effort to resolve a legal battle that erupted during the Monica S. Lewinsky matter.
Tucked in a massive anti-crime package filed by Senate Minority Leader Thomas A. Daschle (D-S.D.) and Sen. Patrick J. Leahy (D-Vt.), the provision would require officers to testify about crimes committed within their sight or hearing. But it would have precluded most of the Secret Service testimony before independent counsel Kenneth W. Starr's grand jury, as the officers presumably had no reason to suspect President Clinton could be committing crimes when they were watching him.
Senate Judiciary Committee Chairman Orrin G. Hatch (R-Utah) has expressed sympathy for the notion of a protective privilege, but spokeswoman Jeanne Lopatto said Hatch would not support a privilege as broad as the one proposed by the Democrats. Leahy and Hatch have pledged to work together on the issue, but Lopatto said this proposal "may prove to be unworkable."
The Secret Service, represented by the Justice Department, waged a five-month legal battle to assert the new privilege during the Starr investigation, arguing that forcing officers to testify would destroy the bonds of trust they need to do their jobs, encouraging presidents to push their protectors away. But Starr won two court rulings for their testimony and, on July 17, Chief Justice William H. Rehnquist declined to stop it.
Starr has excoriated the Clinton administration for even attempting to assert a protective privilege, and the courts have upheld Starr's argument that no such privilege exists. The rulings have said it is up to Congress, not the courts, to create a new privilege.
The Democratic bill revives some of the agency's arguments. "If a protectee has reason to doubt the confidentiality of actions or conversations taken in sight or hearing of Secret Service personnel, the protectee may seek to push the protective envelope away or undermine it to the point at which it could no longer be fully effective," it says.
"I trust the Secret Service on this issue," Leahy said. "They are the experts with the mission of protecting the lives of the president and other high-level officials."
However, the Democratic bill would not provide the absolute privilege claimed by Secret Service Director Lewis C. Merletti. It would suspend the privilege "with respect to information that, at the time the information was acquired by Secret Service personnel, was sufficient to provide reasonable grounds to believe that a crime had been, was being, or would be committed."
Six current or former members of Clinton's Secret Service detail testified that Clinton spent time alone with Lewinsky, and more than 20 others appear in Starr's report to back up Lewinsky's accounts of when she visited the White House. But under the Leahy bill, they would not have been forced to testify about the encounters when she was alone with the president, because they would have had no way of knowing at the time they occurred that Clinton would later deny them under oath.
Secret Service spokesman Jim Mackin said the agency has not yet taken a position on the Democratic bill. "We're extremely grateful that the protective function privilege is being discussed," he said.
© Copyright 1998 The Washington Post Company