Three Secret Service Agents Testify
Washington Post Staff Writers
Saturday, July 18, 1998; Page A01
After an unprecedented battle that went all the way to the Supreme Court, two uniformed Secret Service officers and a retired plainclothes agent were questioned before a grand jury yesterday, marking the first time that active White House guards have testified in a criminal investigation of the president they protect.
Chief Justice William H. Rehnquist waited until just four minutes before a high-noon deadline to declare that he would not stop the testimony, in a dramatic climax to six months of legal skirmishing. Independent counsel Kenneth W. Starr wasted no time savoring his win, forcing the Secret Service personnel to return to the courthouse and borrowing a grand jury working on other matters to hear them.
During two hours of closed afternoon hearings, Starr's chief deputy, Jackie M. Bennett Jr., questioned officers Gary J. Byrne and John Muskett and retired agent Robert Ferguson, according to people informed about the proceedings. Secret Service personnel have been instructed to return Tuesday for more testimony about what they know of President Clinton's dealings with Monica S. Lewinsky.
Special Agent Larry L. Cockell, the head of Clinton's security detail, also showed up at the courthouse under orders from Starr, but prosecutors opted not to bring him before the grand jury yesterday. Doing so might have provoked another legal battle because Clinton's private attorneys fear that Cockell may be asked about what he heard the president tell his lawyer after his deposition in the Paula Jones case, and Starr may have been leery of any further delays.
"We're just going to try to get the relevant information as fast as we can," said Starr spokesman Charles G. Bakaly III. In response to Clinton concerns, Bakaly said, "We have never intended to question Secret Service agents about privileged conversations they may have overheard between the president and his private lawyers."
Until yesterday, Starr had been stymied in his efforts to figure out what the people who spend the most time close to the president know about his relationship with Lewinsky. Only a single retired officer, Lewis C. Fox, had testified, and he said he told the grand jury that Clinton and Lewinsky spent 40 minutes together in the Oval Office in the fall of 1995.
While other Secret Service personnel were in position to see comings and goings as well, it remained unknown whether they can shed more light on whether Clinton tried to cover up an affair with Lewinsky during the Jones case. But Starr evinced confidence that they will, declaring in a Supreme Court brief unsealed yesterday that "the privileged information that has been withheld is quite likely to have the highest relevance to charges of the most serious nature."
Sources close to the situation have said Byrne complained to then-White House deputy chief of staff Evelyn S. Lieberman about Lewinsky's behavior in the spring of 1996, shortly before Lieberman had the young correspondence clerk transferred to the Pentagon.
The Secret Service fought Starr vigorously, arguing that a never-before-recognized "protective function privilege" asserted by Treasury Secretary Robert E. Rubin should protect its personnel from disclosing what they see and hear while guarding the president, except for obvious felonies.
The agency said violating confidentiality would prompt presidents to keep agents at a distance, and thereby increase the risk of assassination. The argument split the elite fraternity of ex-presidents, as George Bush sided with the Secret Service while Gerald R. Ford and Jimmy Carter said agents should testify in a criminal investigation.
But there was no disagreement in the judiciary. Every judge who heard the case spurned the Secret Service, saying there was no basis in law for a privilege and no proof that it would endanger presidents. The U.S. Court of Appeals for the D.C. Circuit unanimously refused to hear a Justice Department appeal Thursday.
Rehnquist added his voice to that chorus yesterday with a two-page order rejecting a request for a temporary stay while the full Supreme Court considers the matter, making a rare assessment of the merits of a case that has not yet been heard by the court.
The administration had to "show that there is likelihood that this court . . . would reverse the judgment of the court of appeals," wrote Rehnquist, who canvassed some fellow justices before ruling. "The applicant simply has not made that showing to my satisfaction, and I believe my view would be shared by a majority of my colleagues. The opinion of the court of appeals seems to me cogent and correct."
The Justice Department decided not to shop around for another justice who might grant a stay. "We're standing down," said spokesman Bert Brandenburg. "The chief justice of the Supreme Court has spoken."
The Secret Service repeated its concerns in a statement: "While we accept the decisions of the courts, and will comply with court orders, it remains our professional opinion that recognition of a protective function privilege is critical to our mission."
Clinton offered no reaction and told reporters before the ruling that he had nothing to do with the fight against Starr's subpoenas. "I want the American people to understand that notwithstanding what some have said, and others have implied, this was a decision that came out of the Secret Service, about which they feel very strongly," Clinton said. "And these people risk their lives to protect me and other presidents in a professional way, not a political way."
As the justice overseeing the D.C. circuit, Rehnquist made the decision by himself. The full court still must consider the Justice Department's petition to hear the merits of Rubin v. U.S.; it would take four of the nine justices to agree to take the case, and Rehnquist said he assumed they would do so.
But he added that there was no irreparable harm in allowing testimony in the meantime because if the high court eventually were to side with the Secret Service, it would establish a rule that would reassure future presidents. "If the Secretary's claim of privilege is eventually upheld, disclosure of past events will not affect the President's relationship with his protectors in the future," he wrote.
His statement led some lawyers to conclude that in the unlikely event the high court does take the case and overturn the appeals court, Starr still would be able to use the evidence he will have collected from Secret Service.
To assuage any concerns, Starr pledged in his Supreme Court brief not to question officers or agents about what they see from Wednesday until the justices decide whether to hear the case. "As a result," Starr wrote, "there could not be any conceivable current Presidential pushing away caused by denial of the stay."
Given the fourth decisive court defeat and the slim odds of success, Justice could withdraw its petition seeking full review, though it was not ready to do so yesterday. "We have no plans to withdraw our appeal," Brandenburg said.
Just in case, Starr squeezed in as much testimony as he could, using a grand jury that was meeting on Justice's campaign finance investigation but has never handled Lewinsky-related issues. The regular Lewinsky grand jurors, who usually meet Tuesdays and Thursdays, will handle further Secret Service testimony next week, and a transcript of yesterday's proceedings could be read to them.
Cockell, a 17-year veteran temporarily relieved of his duty as top White House agent with his consent Thursday, was prepared to answer all questions unless they touched upon national security or attorney-client privilege, said his lawyer, John T. Kotelly. Secret Service agents and officers are prohibited from disclosing information that is classified or could jeopardize national security.
According to Kotelly, Cockell is unhappy about his reassignment and fears he may not be able to resume his post. "There is a real possibility that he will never be able to regain the position he had," Kotelly said.
Asked about Cockell's loyalties, Kotelly said, "He feels loyalty to his position in the Secret Service, and that extends to loyalty to the president in regard to the job of protecting the president. But does he have some personal loyalty to Bill Clinton? No. It's the job of the president that he's responsible for."
Staff writers Susan Schmidt, Michael Grunwald and Amy Argetsinger and staff researcher Nathan Abse contributed to this report.
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