Appeals judges sharply question need for Secret Service privilege Panel appears receptive to Starr's arguments for testimony of agents

June 27, 1998|By Geoffrey C. Upton | Geoffrey C. Upton,SUN NATIONAL STAFF

WASHINGTON -- A federal appeals court panel appeared unsympathetic yesterday to the Clinton administration's claim that Secret Service agents should not be forced to testify in the Monica Lewinsky matter.

At issue is whether independent counsel Kenneth W. Starr can compel Secret Service officers to testify about what they saw and heard while guarding the president that might aid Starr's investigation of President Clinton.

Starr, arguing his own case, stressed the lack of precedent for a protective privilege for the Secret Service and said the courts should leave to Congress the question of whether to create one.

U.S. District Judge Norma Holloway Johnson has ruled that no such privilege exists, and the administration has appealed her decision.

The three-judge panel that heard the case yesterday is expected to rule within weeks. The case is eventually expected to reach the Supreme Court.

The appellate panel directed its sharpest questions to Stephen W. Preston, a deputy assistant attorney general representing the administration. Preston contended that if Secret Service agents can be forced to testify about their observations, presidents might jeopardize their own safety by keeping the agents at a distance.

But all three appellate judges appeared skeptical. They cast doubt on Preston's warning about safety and questioned the legal coherence of the proposed privilege for the Secret Service.

They were critical, for example, of the administration's claim that a privilege against compelled testimony by the Secret Service applies to sitting presidents, but not to those who have left office.

"What you're asking for is something that sounds bizarre," Judge Douglas H. Ginsburg said.

Such a privilege, Ginsburg said, "won't do any good if it's not permanent."

But Preston suggested that the threat to the president was justification enough. He cited support for this argument from former President George Bush and from two former directors of the Secret Service, as well as the current director, Lewis Merletti.

"This case is about the safety of the president and what in the judgment of the Secret Service is necessary to prevent assassination," Preston said.

Ginsburg noted, however, that former Presidents Jimmy Carter and Gerald R. Ford have declined to extend such support.

Judge Stephen F. Williams seized upon the disparity that would exist between those who would hold the privilege -- presumably Secret Service officers -- and the person who would benefit from it -- the president.

"If the president doesn't hold the privilege and if it can be waived by the administration following him," Williams said, "it is a rather frail sort of protection."

Most persistent was Judge A. Raymond Randolph, who pushed Preston on whether the privilege would apply to Secret Service officers who had left the government or to other White House staff, such as stewards and secretaries.

"It's not too hypothetical, is it?" Randolph asked, sarcastically.

The need for the privilege, Preston replied, was unique to Secret Service agents and only under two conditions: when the agent was both close to the president and actively protecting him.

Randolph asked whether the privilege would apply if the agent happened to hear something while walking off-duty or while stationed outside the Oval Office when the president was in the Rose Garden.

Preston, who often seemed thrown off, was evasive. "Frankly, my geography isn't that good," he replied. "It depends."

The court interrupted Starr less frequently and seemed less hostile in its questioning of the independent counsel, who is investigating whether Clinton lied under oath when he denied having had a sexual relationship with Lewinsky.

Starr argued that the privilege the administration is seeking has "no foundation in law" and would be a creation of the court -- a function best left, he said, to Congress.

Pub Date: 6/27/98

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