By Susan Schmidt
Independent counsel Kenneth W. Starr asked the Supreme Court yesterday to decide on a rare emergency basis whether to compel testimony not only from President Clinton's White House lawyers but also from the Secret Service officers who protect him.
The Monica S. Lewinsky investigation presents "a grave set of circumstances" that the nation needs resolved quickly, Starr said in urging the court to take the extraordinary step of bypassing the appeals court in two privilege disputes.
On Clinton's claim of attorney-client privilege, Starr bluntly told the court that the president's effort to block testimony by government lawyers in a criminal investigation of himself is, except for President Richard M. Nixon's Watergate battle, "without parallel" in American history.
In a separate filing aimed at gaining the high court's intervention on the Secret Service's assertion of a new legal privilege, Starr wrote that "only this court has the moral authority and public credibility to issue a final ruling on what the Secret Service plainly believes is a sensitive, life-or-death issue." Secret Service Director Lewis C. Merletti has argued that compelling their testimony would endanger the president's life while Starr called the Secret Service evidence "some of the most important testimony" in his investigation.
Starr is seeking to short-circuit months of potential appeals court delays in resolving both privilege claims. His filings came a day after Clinton's decision to abandon his appeal on the politically charged claim of executive privilege while continuing the fight to shield White House lawyers.
Chief U.S. District Judge Norma Holloway Johnson ruled in Starr's favor on both matters last month.
"More months of protracted litigation are inimical to the nation's well-being," Starr wrote. "The facts are needed and they are needed now."
The investigation, Starr told the court, "is, after all, a grave set of circumstances. . . . The nation has a compelling interest that this criminal investigation of the President of the United States conclude as quickly as possible -- that indictments be brought, possible reports for impeachment proceedings issued, and non-prosecution decisions announced. This court's immediate review would powerfully serve that vital goal."
Starr's pointed language yesterday aimed to persuade the high court to make an exception to its normal practices, even though it has in the past accepted only a handful of cases that bypassed the appeals court, dealing with such pressing matters as a nationwide mining strike, the seizure of Iranian assets during the hostage crisis and Watergate.
The White House declined to comment on the Secret Service move, trying as it has all along to keep at arm's length from the issue. But Clinton aides again criticized Starr for seeking the expedited review on attorney-client privilege, calling it an unwarranted departure from standard procedure.
"Mr. Starr himself has said, 'In court there are a lot of rules and you better play by them.' That's exactly what we're doing in going to the court of appeals," said White House spokesman James E. Kennedy.
"Mr. Starr is trying to end-run the rules and leapfrog the legal process," said Kennedy, who called the court filing "a vehicle for rhetoric in the place of legal substance."
The independent counsel is investigating whether Clinton lied under oath about a sexual relationship with Lewinsky, a former White House intern, and whether he and others urged Lewinsky to lie about it in connection with the now-dismissed Paula Jones sexual harassment lawsuit.
Starr's filing said that his office "continues to receive . . . numerous and credible reports" that "Secret Service personnel may have observed evidence of possible crimes while stationed in and around the White House complex." Starr said Secret Service officers may have seen or heard things about an affair between Clinton and Lewinsky that constitute evidence of criminal activity only in hindsight -- that is, after Clinton's sworn statement in the Jones case that he did not have a sexual relationship with Lewinsky.
Prosecutors deposed officers Gary Byrne and Brian Henderson in March. One claimed the protective function privilege in response to 10 questions; the other to nine. A Secret Service lawyer with whom they conferred, John Kelleher, asserted the privilege in response to "four distinct questions," said Starr's court papers.
No such "protective function privilege" has ever been recognized by a court, but the Secret Service argues that it is needed because a president will push agents and officers away -- and place himself in danger of assasination -- if he believes they could one day be required to testify about embarrassing or illegal activities they witnessed.
Some legal experts said yesterday the high court was unlikely to take up the Secret Service privilege case without an appeals court review. Douglas Kmiec, a Notre Dame law professor, said justices usually have before them a well-developed record from lower courts in any dispute.
On "a case of such national importance," Kmiec said, "I think the court would want more, not less."
"I think the court would be disinclined to take this case as I would assume it is disinclined to take the attorney-client case," Kmiec said.
Last year the White House itself unsuccessfully petitioned the Supreme Court to consider the attorney-client issue after losing a battle with Starr in the 8th U.S. Circuit Court of Appeals over Whitewater notes taken by White House lawyers in discussions with Hillary Rodham Clinton.
Starr yesterday asked the Supreme Court to affirm that the principle in that case applies to the current criminal investigation of Clinton, in that the president cannot claim confidentiality in conferring with White House lawyers about private matters concerning his criminal defense.
While White House deputy counsel Bruce R. Lindsey, Clinton's closest confidant, is the only aide directly involved in the attorney-client privilege fight, the Clinton camp is worried that Starr will seek to question the entire senior staff in the White House counsel's office if he is allowed to compel Lindsey's testimony.
In a previously undisclosed brief before the district court, the Justice Department supported the White House in aspects of both its executive privilege and attorney-client privilege argument. On the question of a secrecy claim for government lawyers, Justice disagreed with the 8th Circuit ruling last year, saying that "it impairs the ability of the President and the heads of federal agencies to obtain frank, fully informed, and confidential legal advice." Justice also signaled its interest yesterday in filing a brief on that question before the Supreme Court.
Staff writers Peter Baker and Joan Biskupic contributed to this report.
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