By Susan Schmidt and Peter Baker
Starr directly challenged the president to waive the never-before-claimed "protective function privilege" asserted by the Secret Service to block testimony by its officers about any sexual relationship between Clinton and Lewinsky. But the White House, which has insisted it had nothing to do with the Secret Service dispute, said Clinton would not do so.
"Although the privilege is not his to assert or to waive, surely you must recognize that . . . [a waiver] would undercut any force the privilege may have," White House counsel Charles F.C. Ruff wrote Starr in a May 11 letter released yesterday. "Indeed, what would be the real meaning of any privilege if, whenever it was asserted, a prosecutor urged that it be waived just that one time because it was interfering with his investigation?"
Starr's request and Clinton's rebuff came to light yesterday as a federal court unsealed hundreds of pages of legal documents that chronicle months of closed-door battling between prosecutors and the administration over Secret Service testimony.
The Ruff letter, released separately by the White House, set the stage for a dramatic open hearing three days later before Chief U.S. District Court Judge Norma Holloway Johnson, who has not yet ruled. While some of the factual matters were redacted, the papers released yesterday were among the first significant briefs made public in the four-month-old Lewinsky investigation.
In the filings, Starr disclosed that his prosecutors tried to depose Secret Service uniformed officers Brian Henderson and Gary Byrne, but the two refused to answer some questions. The officers and Secret Service chief counsel John Kelleher, who conferred with them and was also questioned by Starr, cited the need to preserve confidentiality to protect the president's safety in refusing to testify.
The three have been subpoenaed to testify about "their observations, communications and perceptions of matters that involve Monica Lewinsky and the president," said Starr, who argued that their testimony could help determine whether Clinton lied under oath when he denied in the now-dismissed Paula Jones lawsuit that he ever had sex with Lewinsky and urged her to lie as well.
Byrne, who normally worked weekend duty outside the Oval Office, at one point reportedly expressed concerns to then-deputy White House chief of staff Evelyn S. Lieberman about Lewinsky's visits to the West Wing. The following day Lewinsky was transferred to the Pentagon.
"Since the beginning of this investigation, the office of the independent counsel has received -- and continues to receive -- numerous and credible reports that employees of the Secret Service have evidence relevant to this investigation," Starr wrote.
But, in a vivid illustration of the cryptic nature of the redactions, Starr went on to argue: "Specifically, the [independent counsel] is in possession of information that Secret Service personnel may have observed evidence of [REDACTED]."
In his April 28 request that Clinton waive any Secret Service privilege, Starr complained that his office had bent over backward to negotiate a solution that would allow prosecutors to gather evidence while recognizing the service's concerns. He said he has "severely limited" the number of Secret Service employees he has sought to question -- at "great sacrifice" to his investigation.
Clinton repeatedly has asserted that he is cooperating with Starr's investigation, but he has declined several recent requests from prosecutors. In addition to not intervening in the Secret Service dispute, the president has refused to urge former business partner Susan McDougal to testify before a grand jury about Whitewater matters and he has so far declined private requests from Starr to provide his own testimony in the Lewinsky matter.
Starr tried to depose Byrne, Henderson and Kelleher in March, but all refused to answer unspecified questions. Kelleher contended his communications with the officers were protected by attorney-client privilege, and the officers asserted that the legally untested Secret Service "protective" privilege could not be waived by individual agents and officers.
Starr wrote that the proposed Secret Service privilege is "completely unprecedented in American law" and that no court has ever recognized the assertion of attorney-client privilege by a government lawyer subpoenaed to testify in a criminal investigation.
In a brief filed on behalf of the Secret Service, the Justice Department raised the specter of a presidential assassination, arguing that chief executives will impose a dangerous distance between themselves and the agents who guard them if they fear their private conversations could be revealed.
"The 'important interests' promoted by the protective function privilege are nothing less than the security of a nation that is placed in peril when a president is assassinated," the Justice brief said.
In his own 26-page declaration, Secret Service Director Lewis C. Merletti said Starr's actions already had prompted an unidentified foreign government to notify him that its leader might not accept Secret Service protection when visiting the United States for fear of having his privacy violated. Merletti added that he has resisted Starr at his own initiative and has "not been directed by the president of the United States or anyone at the White House."
As the papers were released at the courthouse, the grand jury investigating the Lewinsky matter continued to hear testimony. John L. Hilley, the former White House legislative affairs director, testified yesterday but declined to speak to reporters afterward. Hilley ran the department where Lewinsky worked for five months before being transferred to the Pentagon.
Staff writer Bill Miller and researcher Ben White contributed to this report.
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