Secret Service agents surround President Clinton. (AFP File Photo) Related Links Justice Dept. Says Judge Erred in Secret Service Ruling (Washington Post, June 18) Assassination Risk Cited in Brief to Block Queries (Washington Post, June 16) Secret Service Agents Told to Testify (Washington Post, May 23) Starr vs. Secret Service: Two Definitions of Duty (Washington Post, May 15) Legal Documents

By Peter Baker and Susan Schmidt
Washington Post Staff Writers
Saturday, June 20, 1998; Page A11

Independent counsel Kenneth W. Starr argued in a legal brief filed yesterday that predictions of a presidential assassination are overblown and cannot justify a court inventing a new right of confidentiality to prevent Secret Service officers from testifying in the Monica S. Lewinsky investigation.

Starr said he would be "deeply troubled" if testimony "posed any substantial risk to the life of this or any other President," but emphasized that no law or previous court ruling has ever recognized a special privilege relieving Secret Service of their duties as law enforcement officers to aid a criminal investigation.

"This country's history of threats on its leaders does not provide a legally sufficient justification for this (or any) Court to recognize a common-law 'protective function privilege,' " Starr said in his brief filed with the U.S. Court of Appeals for the D.C. Circuit. "There is no reasonable basis for the Secret Service's prediction that Presidential safety will be compromised by the testimony of its personnel."

Secret Service Director Lewis C. Merletti has refused to allow uniformed officers Gary Byrne and Brian Henderson or agency chief counsel John J. Kelleher to testify about what they know of Clinton's relationship with Lewinsky. Merletti has argued that presidents who fear for their privacy would push away their guards, unwittingly exposing themselves to danger.

But Chief U.S. District Judge Norma Holloway Johnson rejected that argument and the Secret Service, represented by the Justice Department, is appealing. Oral arguments are scheduled for next Friday.

In belittling the legal basis for a never-before-recognized privilege, Starr called the Justice arguments "logically incoherent and excessively broad." In discounting the predictions of presidential danger, Starr noted that "numerous officers and agents" have told stories for books and "we are not aware . . . that any of these published accounts has caused a President to distance himself from his protectors."

Four former U.S. attorneys general filed their own friend-of-the-court brief supporting Starr yesterday. Republican appointees Edwin Meese III, Dick Thornburgh and William P. Barr, along with Democratic appointee Griffin B. Bell, cited their experience in the nation's chief law enforcement job in dismissing the assassination warnings. "Such hyperbole has no place in a federal appellate brief," they said, adding that the rhetoric proves the agency's arguments "were extreme and untenable."

The former attorneys general noted in their brief that former president Gerald R. Ford agreed recently that Secret Service personnel have a duty to testify in criminal cases, taking a view contrary to that expressed by former president George Bush.

"On a criminal proceeding, I believe Secret Service agents have a responsibility to testify," said Ford, who escaped two attempts on his life while in office. "I do not think there is a comparable obligation to testify on a civil action. Now, it's got to be determined in this case whether it is a criminal proceeding, and if it is, then I happen to firmly believe that they should testify."