By Peter Baker
A panel of federal appeals judges reacted skeptically yesterday to a Secret Service plea to prevent its officers from testifying in the Monica S. Lewinsky investigation, firing tough questions about why they should invent a new right of confidentiality for the president's protectors.
The three judges picked apart the Secret Service argument, using phrases like "particularly odd" and "so bizarre" to describe the agency's proposed "protective function privilege." The exchange was so vigorous that the lawyer representing the Secret Service never had a chance to open his rebuttal before questions flew his way.
The tenor of questions asked during oral arguments is an uncertain barometer of how judges may rule. But the dubious tone yesterday reinforced the uphill legal road facing the Secret Service as it tries to resist independent counsel Kenneth W. Starr's subpoenas after already losing at the District Court level.
The hearing came as redacted briefs were unsealed by the U.S. Court of Appeals for the D.C. Circuit in a parallel fight between Starr and Clinton over whether attorney-client privilege can be invoked to shield White House lawyers from testifying. Among the papers released was a brief filed by Attorney General Janet Reno opposing the White House in the dispute and agreeing with a lower court that the attorney-client privilege must be balanced against the needs of prosecutors.
Contrary to Clinton, Reno said White House lawyers have an obligation to cooperate with grand juries operating under the control of special prosecutors if their information can be shown to be "essential to the justice of the case," quoting the U.S. v. Nixon executive privilege decision.
As the lawyers argued in person and in writing, a central figure in the proceedings slipped out of town. Lewinsky, the former White House intern whose alleged affair with Clinton is at the heart of the investigation, flew to Los Angeles to spend at least a week with her father.
Lewinsky's departure was seen by some as a sign that her lawyers are not close to a deal with Starr to win her immunity from prosecution in exchange for testifying. But some close to her camp noted that she can confer with her legal team by telephone and return to Washington quickly if necessary. By staying on the West Coast through the Independence Day holiday, Lewinsky will miss the grand jury debut of the onetime friend whose secret tape recordings prompted the investigation, Linda R. Tripp, who has been summoned to testify Tuesday.
In the same federal courthouse yesterday, the main focus was on the implications of compelling Secret Service personnel to reveal what they see and hear when they are guarding the president; in this case whether they have any knowledge that Clinton and Lewinsky had a sexual relationship despite their sworn denials.
Representing the Secret Service, deputy assistant attorney general Stephen W. Preston told the judges that forcing officers to testify would destroy a vital bond of trust and prompt presidents to keep their guards at a distance, endangering their safety. "We're talking about the life of the president, this and future presidents," Preston said.
But U.S. Appeals Court Judges Stephen F. Williams, Douglas H. Ginsburg and A. Raymond Randolph appeared unpersuaded, demanding that Preston justify and defend the scope of such a privilege. Randolph, in particular, seemed dubious, at one point cutting in when Preston noted the long tradition of silence by agents.
"That's also true of White House secretaries, isn't it?" Randolph asked. "A White House secretary doesn't go out and tell everything that happens in the Oval Office. Does that mean there ought to be a privilege? A White House secretary should have a privilege?"
At another point, he asked what would happen if a White House steward overheard two Secret Service agents talking about actions by the president, a twist on a much-speculated scenario in the Lewinsky case.
"It's not too hypothetical, is it?" Randolph noted wryly.
The Secret Service, through the Justice Department, is appealing a decision by Chief U.S. District Judge Norma Holloway Johnson ordering uniformed officers Gary Byrne and Brian Henderson and agency chief counsel John J. Kelleher to testify. The appeals court expedited the case after the Supreme Court refused Starr's request to hear it on a special emergency basis. The judges, all Republican appointees, could issue a decision within weeks, although their ruling is almost certain to be appealed to the high court.
The unprecedented fight over the role of the Secret Service has split not only branches of government but also the nation's most exclusive club. Former president George Bush has sided with the Secret Service while predecessors Gerald R. Ford and Jimmy Carter have said that officers should testify in criminal cases.
"If we're going to go by presidents," Ginsburg noted, "it's 2 to 1."
All three judges zeroed in on the notion that the secretary of the treasury would be the official to invoke any protective privilege, rather than the president. They noted that such a framework meant that a former president could be exposed if an unfriendly administration takes over and waives the privilege.
"The privilege won't do any good if it's not permanent," Ginsburg told the Justice lawyer. "What you're asking for is so bizarre. ... "
Starr argued his side personally yesterday and, while Ginsburg asked him some skeptical questions as well, the former judge had an easier time from the bench where he once sat. "This privilege has grown full-blown from the head of Zeus in the middle of litigation," Starr complained.
In the attorney-client privilege fight, another set of oral arguments will be held Monday. The briefs unsealed yesterday largely rehashed arguments made before Johnson, although Reno's position had gone largely unnoticed.
Starr argued that White House lawyers enjoy no attorney-client privilege because they are paid by the taxpayers, relying on a case he won last year before the 8th U.S. Circuit Court of Appeals. Clinton, through attorney W. Neil Eggleston, contended that White House lawyers have the same absolute privilege as their private counterparts.
Reno took a middle-ground position, much as Johnson did. The attorney general wrote that White House lawyers should have an absolute privilege against subpoenas from outside parties, such as civil litigants, but that it should be "qualified" when dealing with an independent counsel's criminal investigation. Still, Reno suggested Johnson should have placed more emphasis on Clinton's interest in confidentiality when applying the balancing test.
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