By Amy Goldstein and Roberto Suro
But Fox left without testifying as prosecutors negotiated with Treasury and Justice Department officials over the propriety of compelling the Secret Service to disclose what it knows about the president.
According to officials familiar with the negotiations, Attorney General Janet Reno may decide as early as today how to resolve the dispute that intensified since independent counsel Kenneth W. Starr this week subpoenaed Fox and a current officer in the Secret Service's uniformed division to shed light on allegations that Clinton had a sexual relationship with Lewinsky, then tried to cover it up.
Both Reno and Starr appear to favor a compromise that would allow the prosecutor to proceed with certain limits, according to the officials. Under this compromise, Starr could require some Secret Service agents and officers to testify, but they would be allowed to refrain from answering any question they believed would threaten their ability to protect the president.
The legal drama was playing out as Lewinsky flew across the country to comfort her mother, Marcia Lewis, who became emotionally distraught Wednesday during her second day of closed-door testimony before Starr's grand jury.
After a 10-day retreat at her father's home in Los Angeles, Lewinsky, 24, shook hands and smiled at police officers who accompanied her to the airport. She then boarded United Airlines Flight 60 for Dulles International Airport and sat in the front row of first class with her lawyer, William H. Ginsburg.
"Monica feels that her mother needs her more after yesterday," Ginsburg said by telephone before taking off. Lewis "looked 10 years older and drained. She looked like hell. It really upset Monica." Ginsburg said Lewinsky told him, "If this is normal prosecutorial conduct . . . then all Americans should take a hard look at our system because this is torture."
Starr's office, meanwhile, postponed Lewis's return appearance before the grand jury. In a separate action, a source close to the case said yesterday that Lewinsky's attorney has filed a motion to quash a Starr subpoena ordering her to appear before the grand jury. And in Little Rock, the judge overseeing the Paula Jones sexual harassment case that first turned up reports of a Clinton-Lewinsky affair began preparations for a May trial, including issuing questionnaires to as many as 400 potential jurors.
The question of Starr's access to the Secret Service gained new urgency this week when, sources said, the two subpoenas were issued to the current officer and to Fox, who has told The Washington Post that he observed Clinton and Lewinsky together in the Oval Office.
Fox's attorney, Michael T. Leibig, confirmed that his client had been subpoenaed to appear before the grand jury yesterday. Fox, a uniformed officer for 27 years until he retired a year ago, already has been interviewed by Starr's staff, according to his lawyer.
In the interview with The Post, Fox became the first person to say publicly that he saw Clinton spend time alone with Lewinsky. In Clinton's sworn deposition last month in the Jones case, the president said he did not recall ever being alone with the young woman, except perhaps for a few minutes, according to sources familiar with his testimony.
Fox said in the interview that one weekend day in late 1995 he was posted outside the Oval Office. Clinton was doing some paperwork, he said, when Lewinsky arrived with papers to deliver to the president. Fox said he opened the door to inform the president, that Clinton saw Lewinsky through the doorway behind Fox and that he motioned for Fox to usher her in.
Fox said they remained behind closed doors for at least 40 minutes, until his shift ended. Yesterday, his lawyer, Leibig, said that Clinton had indicated to Fox that Lewinsky would not simply drop off papers and leave but that she would be in his office for a while.
Leibig also said that Fox did not see other people in the office but left open the possibility that someone else might have entered or exited through other doors to the Oval Office while Lewinsky was inside. Fox told The Post that he did not know if a steward was on duty in the pantry adjacent to the Oval Office that day, but that no secretaries were working at the time.
White House officials and other Clinton allies have sought to dismiss Fox's account by suggesting that he could not have seen all four doors to the president's office and thus could not have known whether others arrived or whether Lewinsky left sooner than Fox thought.
Leibig said that his client was willing to testify before the grand jury, although he might refuse to answer certain questions that he considered "beyond the bounds." Leibig said that Fox did not consider the questions already posed by Starr's staff to be inappropriate. "Most of what he knows is not that controversial, in some ways," Leibig said.
Last night, Leibig said that Starr's staff had told his client that he would not be needed today to testify before the grand jury and "they'll let him know later if they want him to testify at all." Leibig said Fox planned to leave Washington, saying "he doesn't need to wait around."
Whether Fox testifies is a matter of great concern to Treasury and Justice Department officials, who say they fear his grand jury appearance would set a dangerous precedent that might impede the ability of the Secret Service to protect the nation's top officials and their families.
Despite its obvious interest in the outcome of the Secret Service legal tangle, the White House publicly took a hands-off position on the dispute. "We have deferred to the experts at Treasury and Treasury's consulting with Justice because it's obviously a constitutional issue," said deputy press secretary Joe Lockhart.
The dispute represents uncharted territory for legal experts on all sides. No law explicitly prohibits a prosecutor from requiring testimony from members of the Secret Service, current or retired. Under Secret Service rules, plainclothes agents and uniformed officers are prohibited from disclosing information that is classified or could jeopardize national security. But it is only by tradition that they refrain from discussing other aspects of their work.
In the negotiations with Starr, sources said, Treasury lawyers have taken a harder line than their Justice counterparts, contending that both plainclothes agents and uniformed officers, such as Fox, should be protected from prosecutors' reach.
Historically, the role of the Secret Service's 1,100 uniformed officers has been regarded as less significant to the protection of the president than that of the plainclothes agents in the White House security detail. Agents are directly responsible for the president's physical safety, while uniformed officers typically perform other functions, such as guarding the White House's buildings and grounds.
In the dispute with Starr's office, lawyers at the Treasury Department are pushing an expansive interpretation of the duties of uniformed officers, contending that they are an integral part of the "security envelope" protecting the president, officials said.
Fox poses a real test of Treasury's position, because he is willing to cooperate, already has retired, and -- according to his lawyer -- believes he can testify in a way that would not disclose sensitive details that would endanger the president's personal safety.
Officials at Justice, which has final say over the matter, are taking a view that differs in some respects from the Treasury stance. They believe that, if they tried to assert absolute privilege in an attempt to prevent all Secret Service testimony, they would face a prolonged battle in court with Starr -- one they are uncertain they would win.
For his part, Starr is eager to avoid such a battle because it would hinder his investigation, according to officials familiar with the talks.
Commenting briefly on the talks with Starr at her weekly news conference yesterday, Reno hinted at a possible compromise. "We're trying to review all of the issues; obvious among them is the security and the safety of the president of the United States," she said. "And we are trying to address it in a way that will address law enforcement issues, issues with respect to the president's security, and do it in a positive and constructive manner."
Starr's efforts to enlist the Secret Service in his probe have drawn criticism from several legal experts and organizations representing current and former Secret Service members. In general, they argue that the effectiveness of agents and officers would be undermined if the people they protect could not depend on their confidentiality.
"If we are going out and telling stories out of school, we have violated . . . trust," said Hamilton Brown, executive secretary of the Association of Former Agents of the U.S. Secret Service, which represents 1,400 retired plainclothes agents. "And when that trust is violated, our protectees will say, 'I'm not going to let you snuggle up to me.' And that puts the president in a tremendously precarious position."
Representatives of the Secret Service were critical of Fox's decision to speak publicly about what he saw. "Even though he's retired, it may have done potentially irreparable damage to that level of trust members of the Secret Service have to have in order to perform their function and complete their mission," said Andrew J. Mutchler, chairman of the legislative committee for the Fraternal Order of Police D.C. Lodge No. 1, which represents about a third of the agency's uniformed officers.
But not all law enforcement union officials were as disparaging. "They are there to protect the president, not to cover up for him," said Ronald Robertson, chairman of the FOP labor committee for the District's Metropolitan Police Department.
While the Secret Service debate raged, Lewinsky returned to Washington amid continuing uncertainty about the timing of her own grand jury appearance. Ginsburg said that he knew of no new date for Lewinsky to report to the grand jury after her scheduled appearance yesterday was postponed and that he has had "no substantive conversation" with Starr's office lately. He issued a barely veiled warning to Starr that prosecutors would find a far more cooperative witness if they give Lewinsky full immunity rather than force her to testify against her will under a grant of limited immunity.
"I've got to believe it doubles her resolve, not to resist but to be angry," Ginsburg said of his client after her mother's experience. "I am befuddled as to why the Office of the Independent Counsel isn't interested in making her happier, as opposed to angrier." He added that he always advises clients to tell the truth, "but I'll sure tell them how to say it. The prosecutors should recognize that."
It was unclear when Lewis's testimony would continue. Her attorney, Billy Martin, told reporters that the last few days had been "overwhelming and emotionally draining" for Lewis, only more so because she was separated from her daughter.
During the flight that brought Lewinsky back, "The plane was all abuzz about it," said a passenger, Marilyn Litvak, 57, of Los Angeles. "They were talking the whole time. A lot of them were saying, 'Let the president get on with his job.' "
Staff writers Toni Locy, Peter Baker, Susan Schmidt, Clay Chandler and Justin Blum contributed to this report.
© Copyright 1998 The Washington Post Company