By Peter Baker
The department capped a day of high legal drama by rushing papers to Chief Justice William H. Rehnquist after the full federal appeals court unanimously refused to consider the Secret Service's plea to shield its agents from testifying.
In its sole concession to the administration, the appeals court temporarily blocked testimony yesterday morning by the head of Clinton's security detail and several officers who spent an uncertain hour at the federal courthouse under orders from independent counsel Kenneth W. Starr to appear before the grand jury. But the reprieve will expire at midday today unless the Supreme Court intervenes.
The appellate decision was a resounding defeat for the administration, compounded by stinging criticism from the bench calling into question the role of the Justice Department. None of the nine appeals judges who considered the issue yesterday even voted to hear the department's case for creating a Secret Service "protective function privilege," and one judge deemed it a "constitutional absurdity."
"The Department of Justice has not made a sufficient showing that irreparable harm will result unless a stay and an order are issued, and it has not made a sufficient showing that it will ultimately prevail in establishing the privilege it alleges," the court said in its one-page order.
Judge Laurence H. Silberman, in a concurring opinion laced with scorn, denounced Attorney General Janet Reno for "acting as the President's counsel under the false guise of representing the United States" and concluded that "the President's agents literally and figuratively [have] 'declare[d] war' on the Independent Counsel."
Left in legal limbo at the end of a topsy-turvy day were Special Agent Larry L. Cockell, six uniformed officers and a former plainclothes agent who were subpoenaed by Starr this week to help him determine whether Clinton lied under oath when he denied having sex with Lewinsky and urged her to do the same.
Cockell, a 17-year veteran of the Secret Service who took over as head of the presidential protective division in February, was temporarily relieved of his duties yesterday because of the dispute and will not travel with Clinton to Arkansas this afternoon as scheduled. In his place, the agency assigned Brian Stafford, a former detail leader, to take over the president's security.
"He recognized that he couldn't give 100 percent, focusing on protecting the president, because of this distraction," said John T. Kotelly, the prominent Washington lawyer Cockell has hired to represent him.
Kotelly said the dispute has torn at his client. "He believes in maintaining the privacy of the president to the maximum extent possible and being compelled to testify goes against everything he's been trained to do," Kotelly said. "And so this is very difficult for him personally."
While refusing to say whether Cockell knows anything relevant to the Lewinsky investigation, Kotelly said the agent would testify fully if ordered. "He's a law enforcement official," the lawyer said. "He's not about to go with a contempt route or lie."
At the White House yesterday, Clinton made no statements on the matter and his chief spokesman denied during a testy briefing with reporters that the president was involved in the legal fight his appointees are waging with Starr. "It's not a political argument," said White House press secretary Michael McCurry. "It's an argument about what is necessary to protect the life of this president and future presidents, okay?"
Starr's office, which had no comment yesterday, precipitated the fast-paced confrontation this week in an effort to put an end to six months of delays in securing testimony from Clinton's protectors. While the Lewinsky grand jury typically meets only Tuesdays and Thursdays, Starr could try to take testimony as early as today anyway if the Supreme Court does not step in.
Yesterday began and ended in suspense. Never before has a Secret Service guard been forced to testify in a criminal investigation targeting the president agents are sworn to sacrifice their own lives to protect.
A few moments after 9 a.m., an expressionless Cockell entered the courthouse, flanked by Secret Service officers also subpoenaed to testify and joined by a battery of government and private attorneys. As Starr's deputies also gathered for the confrontation, an upstaged Linda R. Tripp appeared for what would turn out to be her sixth day of testimony about what Lewinsky confided in her.
While Cockell and his colleagues waited uncertainly outside the grand jury room, Justice lawyers appeared again before Chief U.S. District Judge Norma Holloway Johnson, who had refused the day before to stop the testimony. The lawyers then went to the U.S. Court of Appeals for the D.C. Circuit, where at 10:20 a.m. a three-judge panel ruled that Cockell and the officers would not have to testify until the full appeals court decided whether to hear the merits of the case.
As it turned out, that victory was short-lived. Within hours, the full court rejected the pending petition for an "en banc" hearing first filed by Justice on Tuesday, an extraordinary two-day turnaround for a decision that normally takes a week.
Two of the 11 active judges did not participate: David B. Sentelle, who sits on the special panel that oversees Starr and is required by law to recuse himself, and Merrick B. Garland, who was a top aide to Reno until Clinton appointed him to the bench last year. The judges who rebuffed the Justice Department included two Clinton appointees, two Jimmy Carter appointees and five Ronald Reagan and George Bush appointees.
The Justice Department responded with a two-track bid at the Supreme Court, which is in its summer recess. First it filed a sealed motion seeking an order from Rehnquist temporarily putting the subpoenas on hold while the legal issues can be heard. Later in the evening, it filed a formal petition requesting that the full court consider the question of whether the Secret Service can invoke a confidentiality privilege.
"This case presents an issue of extraordinary national importance," the department said in its petition. The appeals court decision "portends grave consequences for the Secret Service's future ability to protect those in whom the Constitution singularly vests the Nation's executive power."
Rehnquist, who returned to Washington from a visit to Salzburg, Austria, yesterday afternoon as previously scheduled, can grant the stay unilaterally or he can ask the rest of the justices to weigh in, which would require five votes out of nine. To agree to hear the legal issues requires just four votes, but the court would not have to decide that issue right away.
Few independent scholars or even the lawyers involved believed the administration had much chance of prevailing at the high court. Indeed, the appeals court concluded that the "likelihood of success before the Supreme Court is insufficient to warrant further delay."
While it was preparing its legal strategy, the Justice Department bristled at Silberman's opinion yesterday.
"The Justice Department's position on behalf of the Secret Service was arrived at in good faith and after thorough analysis and discussion involving Justice Department, Treasury and Secret Service officials, including many career officials," said department spokesman Bert Brandenburg. "The Justice Department is representing the Secret Service in this case in the same way it represents the Agriculture Department or the Interior Department of any other federal agency or department."
Yet internally, up until the end yesterday, some senior officials privately continued to argue that the department should not file its Supreme Court appeal because of the long odds.
"There's been a low-key debate in which some people have asked whether it is wise to continue on if the possibility of winning is quite low," said an official familiar with the strategy deliberations. Yet given the stakes invoked by the Secret Service, he said, "a sense of inevitability about seeing this through to the end built up gradually."
Staff writers Roberto Suro, Bill Miller and Susan Schmidt and staff researcher Nathan Abse contributed to this report.
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