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Kenneth W. Starr
(AP file photo)

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_ Justice Department Says Secret Service Covered by Privilege (Feb. 21)

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Justice Dept. to Fight Starr On Secret Service Testimony

By Roberto Suro
Washington Post Staff Writer
Wednesday, April 15, 1998; Page A07

The Justice Department has decided to fight efforts by independent counsel Kenneth W. Starr to compel testimony from Secret Service officers who protect President Clinton, setting the stage for another long court battle in the Monica S. Lewinsky investigation.

Breaking off weeks of negotiations over whether he could gain access to Secret Service personnel, Starr filed a sealed motion Friday seeking a court order to require their grand jury testimony. Now, top Justice Department officials -- at the behest of the Treasury Department, which oversees the Secret Service -- are drawing up papers countering Starr's motion on the grounds that a unique legal privilege should shield the relationship between Secret Service officers and those they protect, administration officials said.

Since early in his investigation of whether Clinton had a sexual relationship with Lewinsky and tried to cover it up, Starr has wanted to determine whether Secret Service officers saw Clinton with the former White House intern or heard about their encounters from others at the White House.

But as a result of the Justice Department's decision to fight the independent counsel, Starr is unlikely to know whether any Secret Service officers have direct knowledge of the Clinton-Lewinsky relationship by the time he makes his report to the House of Representatives on the Lewinsky matter. Starr's goal is to complete that report by the end of next month.

In addition, Starr, who already is fighting the president over claims of executive privilege for White House aides, will have to devote resources to a second major procedural battle. Meanwhile, the Justice Department finds itself in a position it has sought to avoid since Attorney General Janet Reno approved Starr's Lewinsky investigation in January: appearing to shield Clinton from the independent counsel's probe.

Clinton could face another drawn-out legal battle in the Paula Jones civil lawsuit. Jones has scheduled a news conference for Thursday in Dallas, where advisers expect her to announce that she will appeal the dismissal of her sexual harassment lawsuit to the 8th U.S. Circuit Court of Appeals. A decision to pursue her claim after the suit was thrown out by a federal judge would ensure that Clinton will continue to be confronted by the matter, possibly through the end of his presidency.

Her lawyers have told Jones that an appeal could take a year or two, particularly if the case ends up at the Supreme Court, which has already heard the matter once. Even if they win a reversal, a trial may not occur until after Clinton leaves office in January 2001.

In Starr's investigation, the independent counsel and the Justice Department, which acts as a lawyer for the Treasury, have been engaged in talks over potential testimony by Secret Service officers since late January. But while both sides characterized the negotiations as friendly throughout, the discussions came to an abrupt end last week.

Persuaded by the Treasury Department's position, Justice Department officials have argued that the special relationship between presidents and the Secret Service would be forever harmed if members of the protective detail were obliged to testify about what they observed while on duty.

The national interest in preserving a relationship of total trust is so great, the Justice Department claimed, that a special privilege should shield the Secret Service from the intrusion of a criminal investigation.

The Justice Department claimed that the privilege would cover any information gained while on protective duty and that it would apply to both the Secret Service's plainclothes agents and uniformed officers. No such privilege has ever been asserted before, and officials at the Justice Department said that the concept faces uncertain prospects if it is tested in court.

Starr has argued that as sworn law enforcement officers, Secret Service personnel have an obligation to assist a criminal investigation -- even if the president is a potential target of the probe.

Already, several Secret Service agents and officers have made claims of privilege in refusing to answer some questions raised during depositions or interviews with Starr's prosecutors, Justice Department officials said.

The most sensitive questions involve inquiries about what officers observed while on protective duty and queries related to the means and methods used by Secret Service protective units.

In recent weeks, Justice officials and Starr's office were seeking to find a compromise in which questions could be tailored narrowly enough to avoid violating the privilege that Treasury wanted to assert.

Starr effectively ended the negotiations Friday by filing a sealed motion with U.S. District Judge Norma Holloway Johnson asking to force the Secret Service personnel to answer the questions they had claimed were covered by privilege. The Wall Street Journal first reported the Starr motion yesterday.

Meanwhile, Starr is considering whether to ask the Justice Department's former top internal watchdog to investigate whether one of his chief Whitewater witnesses, David Hale, received money from conservative activists working to uncover scandalous material on Clinton, officials said.

Starr has had talks with Michael E. Shaheen Jr., former counsel at Justice's Office of Professional Responsibility, about conducting the Hale investigation. The Justice Department referred the matter to Starr last week but advised him that he had a possible conflict of interest because of his own ties to conservative philanthropist Richard Mellon Scaife, the source of the alleged payments to Hale.

Staff writer Peter Baker contributed to this report.

© Copyright 1998 The Washington Post Company

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