By Peter Baker and Susan Schmidt
Secret Service Director Lewis C. Merletti said during recent meetings with independent counsel Kenneth W. Starr and officials from the Justice and Treasury Departments that an assassination would be inevitable because future presidents would keep agents at a distance out of fear their privacy would be breached, the sources said.
The issue of whether Secret Service agents are protected from questioning by a never-before-asserted "protective privilege" will be aired in open court this morning for the first time, even as a person close to the situation said President Clinton has filed a sealed notice that he will appeal last week's decision dismissing his claims of executive privilege and attorney-client privilege.
In opting to press forward with that case, the president disregarded the concerns of some political advisers who considered an appeal a losing battle that would only prolong unwelcome comparisons to Richard M. Nixon and his executive privilege fight during Watergate.
Clinton may still surrender on executive privilege and ask an appeals court only to overrule the decision regarding attorney-client privilege, a tactic considered less politically risky by his strategists. His brief notice of appeal did not indicate which portion of the order will be challenged.
While that issue remains shrouded in court-ordered secrecy, today's hearing on the Secret Service dispute will expose to public scrutiny an intense behind-the-scenes debate about the duties of the agents who guard the president.
Merletti's blunt and sensational prediction in their private talks did not persuade Starr, who plans to personally present arguments in this morning's U.S. District Court hearing that agents should be ordered to disclose what they know about Clinton's relationship with Lewinsky because their testimony is critical to his investigation. But the director's plea won over Justice officials, who will ask Chief U.S. District Judge Norma Holloway Johnson today to find that a privilege found in neither statute nor legal precedent should shield agents from subpoenas.
Starr has sought to question a half dozen or more Secret Service officers as he tries to determine whether Clinton lied under oath in the now-dismissed Paula Jones case about whether he had a sexual relationship with Lewinsky and urged her to do the same. A retired officer has already testified that the president and the onetime White House intern spent at least 40 minutes together in the Oval Office in 1995 and other officers still on the job may have critical recollections about other meetings.
The Secret Service has blocked current agents and officers from answering such questions. While they have provided records and responded to inquiries about some procedures, agency officials have drawn the line at revealing details of what they saw and heard while guarding the president.
The Secret Service has been constrained from explaining its stance publicly because of the court seal. Contacted last night, spokesman Arnette F. Heintze Jr. said, "While it is not prudent to discuss the issues before the court, the principles under which we operate date back to 1901. The same principles have been applied to the protection of our presidents and world leaders for generations."
In an effort to head off today's courtroom confrontation, Merletti, a 24-year veteran of the service who served on the protective details of Ronald Reagan, George Bush and Clinton before taking over the top job last year, waged an impassioned, backdoor campaign to persuade the independent counsel to back off.
During private meetings, sources said, Merletti told officials from Starr's office and the Treasury and Justice departments that trust and proximity to a president are crucial to protecting him. If a president asks an agent to stand a few feet away to allow him to talk without being overheard, Merletti reportedly said, it could keep the agent from being close enough to stop a bullet.
To make that case, the service ran through the history of assassination attempts, showing instances where they succeeded or failed, possibly depending on how close agents were to an intended victim. Sources said they produced rare photographs of John F. Kennedy's fateful 1963 motorcade through Dallas, where agents were not standing on running boards on the back of his exposed automobile when shots rang out because the president several days before had ordered them not to.
By contrast, service officials displayed pictures showing agents standing right next to Ronald Reagan during the 1981 assassination attempt, enabling them to push him immediately into a car and evacuate him before he was hit by more than a single bullet.
In its court papers, the service has agreed its agents have an obligation to report any criminal activity they may witness, even by the president, but makes a distinction at discussing events that, by themselves, are not illegal.
To Starr and his deputies, however, the agents are law enforcement officers duty-bound to cooperate with any criminal investigation. Some legal experts also suggested that the Secret Service position could be seen as inconsistent because it does not seek blanket protection. If testifying about a president's actions would diminish trust and endanger his life, they said, then it would do so whether or not it involved criminal activity.
The Secret Service argument also could be undercut by the fact that several officers already have given sworn grand jury testimony in a separate Starr investigation into the July 1993 suicide of White House deputy counsel Vincent W. Foster Jr.
Prosecutors have questioned Secret Service officers who were on duty in the West Wing after Foster's death to try to learn who entered his office and whether any of his papers were tampered with or removed. The independent counsel was asked by the Justice Department to look into document-handling in Foster's office after the disclosure by the White House, five months after his death, that he had been working on Whitewater tax matters for the Clintons.
Secret Service officer Henry O'Neill, who was on duty the night of Foster's death, is one of those known to have been questioned by prosecutors. He was also quizzed publicly by the Senate Whitewater committee, disclosing that he saw a top aide to Hillary Rodham Clinton carry a stack of file folders out of the White House counsel suite that night.
Some independent legal experts believe the Secret Service faces an uphill battle in winning a new privilege, especially given that Judge Johnson last week rejected Clinton's claims of confidentiality under the long-established doctrines of executive and attorney-client privilege.
Clinton's case on those privileges is thought to be weak enough that some of his top political advisers argued he should forsake an appeal rather than drag out a fight they fear could cement a public impression that he has something to hide.
"If there is a judgment that the chances of appeal are very slight -- and I believe that is a judgment many people have -- then I think they need to be cautious about making an appeal," said former White House special counsel Lanny J. Davis. "Rather than losing an appeal, pragmatically it may be better to just go ahead and answer the questions."
Another person in the Clinton camp asked, "Do you really want to have another bad decision come out in the fall before the [congressional] election? What's the advantage of that? As a political judgment, I would say let's just get done with the thing. Right now, the Democrats and the president have the upper hand. You might as well deal from strength."
But those advisers were shut out of the debate as Clinton's lawyers kept the talks closed to all but an extremely small circle of tight-lipped attorneys. Even senior White House officials such as Rahm Emanuel, Paul Begala and Douglas B. Sosnik were locked out of meetings on the subject and greeted with stony silence when they asked questions. White House counsel Charles F.C. Ruff favored an appeal, according to insiders, and Clinton has given great deference to Ruff's judgment throughout the Lewinsky investigation.
One option may be to drop any appeal of executive privilege and ask only that the portion of the ruling related to attorney-client privilege be overturned. From a political vantage point, some Clinton advisers believe the public would be more forgiving of that, because it does not carry the same Nixonian overtones. And from a legal point of view, they think the federal appeals court for the D.C. Circuit may look more favorably on the attorney privilege.
The Clinton White House lost a battle to Starr over attorney-client privilege in the 8th U.S. Circuit Court of Appeals, which covers Arkansas. In that case, Starr wanted access to Whitewater-related notes taken by a White House lawyer of conversations with Hillary Clinton. The 8th Circuit ruled that she could not claim confidentiality with government-paid lawyers on nonofficial matters.
If Clinton continues to pursue the executive privilege claim, observers expect Starr to seek expedited review to bypass the appeals court and take the issue directly to the Supreme Court, which already is hearing a separate dispute involving Starr and attorney-client privilege on June 8.
Staff writer George Lardner Jr. contributed to this report.
© Copyright 1998 The Washington Post Company