By George Lardner Jr. and Bill Miller
Clashing with government lawyers at an extraordinary public hearing in U.S. District Court, Starr said he recognized the Secret Service's duty to protect the president against assassination, but he said it is above all "a law enforcement agency" with an obligation to provide evidence needed in probes such as his. He said "there is no authority -- none, zero" for the sweeping privilege it is seeking.
Speaking for the Secret Service, Justice Department lawyer Gary G. Grindler said the danger was nothing less than assassination and it is essential for the Secret Service to stay close to the president at all times. If the president thinks the Secret Service agents can be forced to report what they see and hear, "the risk is that he will push those agents away," Grindler said.
Chief U.S. District Judge Norma Holloway Johnson seemed unimpressed, telling Grindler she did not see how the Secret Service's ability to protect the president would be undermined by simply asking agents to testify in Starr's investigation.
"I've read the papers," Johnson said of the still-secret pleadings concerning Starr's attempts to compel the testimony of three Secret Service employees. "I don't see it in there."
Starr has sought to question a half-dozen or more Secret Service officers in his investigation of allegations stemming from President Clinton's relationship with former White House aide Monica S. Lewinsky. Although one retired officer has testified, and the Secret Service has provided records and responded to inquiries about some procedures, it has blocked current agents and officers from testifying about what they saw and heard while guarding the president.
Starr acknowledged yesterday that the Secret Service and its director, Lewis C. Merletti, have provided "a considerable amount of information." But Starr added, "We believe the testimony of certain Secret Service personnel, whom we will not identify consistent with the court's admonition, is highly relevant to the questions of whether one or more persons may have engaged in criminal activity, including perjury, obstruction of justice and intimidation of witnesses."
Grindler argued that the privilege the Secret Service wants to establish is "narrow" but one that is "necessary to preserve" the president's "trust and confidence." He said the federal rules of evidence give the judge authority to recognize a new privilege. Under the government's theory, it would be an "absolute" privilege unlike many others where competing interests would be weighed.
"What is at stake here is the ability of the Secret Service to ensure the physical safety not just of this president, but also of future presidents," Grindler maintained.
Starr said the proper forum for such talk is Congress, not the courts. He said the asserted privilege is much broader than the government suggests and would cover all sorts of "communications, observations and hearsay statements." The only exception would be situations in which a Secret Service agent or officer witnessed the commission of a felony or what he or she had reasonable grounds to believe at the time was a felony.
Starr denounced the proposal as "rigid, absolutist and extreme" and posed two hypotheticals to make his point. For instance, he said, under the privilege the government was now arguing, if an agent had seen President Richard M. Nixon erase a tape recorded in the Oval Office without the agent's knowing until later that it had been subpoenaed, he would not be able to testify about it.
And if an agent had spotted someone handing Vice President Spiro Agnew a manila envelope, he would not be able to testify about that "because he didn't know at the time of the observation" that the envelope was stuffed with cash.
"While we have great respect for the members of the Secret Service and the vital nature of its work," Starr said, "we believe the court should not accept the invitation to make entirely new law." He said that federal law already obliges executive branch employees to report any information relating to violations of the federal criminal code and that this rule should stand unless Congress decides to exempt the Secret Service.
Fearful that an adverse ruling will have a devastating effect, Merletti has told other government officials that if necessary, he will press for appeals all the way to the Supreme Court and, if unsuccessful there, will carry his pleas to Congress.
Grindler harkened back in his presentation to the assassinations of President Abraham Lincoln in an unguarded theater box and of President William McKinley, who was killed after an agent assigned to protect him "was pushed away" for another dignitary. The Justice lawyer said recent real-life episodes -- plane and helicopter landings on White House grounds, bullet holes from automatic weapons fire and an aborted plot to hijack a huge airliner and crash-dive it into the White House -- made it clear that "the White House itself is a place where assassinations can take place."
Starr, however, said both the president and vice president have an obligation, imposed by Congress, to accept Secret Service protection. He suggested that the cure to any difficulties lies in educating presidents in the proposition that "they will have their confidences protected" so long as those confidences "don't relate to a grand jury investigation."
"We're not interested" in family matters, Starr said. "We're interested in evidence of crimes."
Former president George Bush has sided with Merletti on the issue, saying he would "not have felt comfortable having [agents] close in" if he thought "they would be compelled to testify as to what they had seen or heard, no matter what the subject."
Former vice president Dan Quayle, however, said yesterday in a letter to Attorney General Janet Reno that "the privilege being asserted . . . diminishes the presidency."
One flight up from Johnson's courtroom, Clinton's personal secretary, Betty Currie, appeared before Starr's grand jury for the fourth time. As she left after spending the entire day there, her lawyer, Lawrence Wechsler, told reporters she was "answering all the questions that are asked of her as best as she is able." But he said she expects to be called back again.
Starr was hoping to continue a recent string of victories before Johnson. She earlier rejected White House claims that senior aides were shielded from testifying before Starr's grand jury because of executive privilege, and turned down Lewinsky's claim that she had an immunity deal with Starr.
The hearing marked only the second time in the past four months that Johnson has opened her courtroom for public arguments concerning the Lewinsky matter. She permitted the public to attend a hearing concerning subpoenas Starr issued covering Lewinsky's purchases at bookstores.
Johnson gave no indication yesterday of when she might issue a ruling on the Secret Service matter.
Staff researcher Nathan Abse contributed to this report.
© Copyright 1998 The Washington Post Company