Appeals court orders Clinton guards to testify Secret Service agents must tell observations of president, Lewinsky

July 08, 1998|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- A federal appeals court ordered two Secret Service officers yesterday to tell a federal grand jury about their observations of President Clinton inside the White House, including possible private encounters with Monica Lewinsky.

Rejecting the Secret Service's argument that forcing the officers to testify would put the president's life at risk, a three-judge panel of the U.S. Circuit Court of Appeals in Washington gave a significant -- though perhaps only temporary -- victory to independent counsel Kenneth W. Starr.

The Secret Service contends that if presidents knew that their protectors could be summoned to testify in the future, the presidents would push the agents away, lessening the chances that the Secret Service could keep a close protective envelope around the chief executive and his family.

The appeals court said it was upholding Starr's demand for the testimony of officers assigned to protect the president. The Secret Service failed to show that a legal bar to such testimony was necessary to its ability to effectively protect the president, the appeals court said.

It added: "The arguments of the Secret Service . . . are based in large part on speculation -- thoughtful speculation, but speculation nonetheless."

At the same time, the court set up a shortened schedule for the next step in the case that could speed it on toward the Supreme Court for a final showdown. The Secret Service was given seven days -- compared with the usual 45 -- to ask the full appeals court to review the three-judge panel's ruling in Starr's favor. After that, an appeal would go to the Supreme Court.

Starr has conceded that only the Supreme Court "has the moral authority and public credibility to issue a final ruling on what the Secret Service plainly believes is a sensitive, life-or-death issue."

While further legal steps unfold, the two officers, along with a Secret Service lawyer who has debriefed them about what they saw or heard while near the president, are unlikely to have to appear before the grand jury in the Lewinsky matter.

Starr, praising the appeals court for acting swiftly, said, "We trust the Secret Service will now join us in helping the grand jury gather information that is relevant to this investigation. It is fundamental in our country that all law enforcement officers cooperate fully in responding to requests for relevant information in a federal grand jury investigation. The court of appeals today reaffirmed that bedrock principle."

The Secret Service said only that it would review the ruling "and discuss the options."

The independent counsel has said that the Secret Service officers have "some of the most important evidence" the grand jury is seeking in its investigation of whether Clinton lied when he denied under oath having a sexual relationship with Lewinsky, and whether the president and others tried to persuade Lewinsky to lie as well.

The prosecutor has said that the two officers, identified in court papers as Gary Byrne and Brian Henderson, have together refused to answer 19 of the prosecutors' questions, and that the Secret Service's chief counsel, John J. Kelleher, has refused to answer four questions about what Byrne and Henderson told him.

Starr has not said publicly what he believes the officers saw, but he has said the information is "highly relevant" to whether the president and others committed the crimes of perjury or obstruction of justice.

U.S. District Judge Norma Holloway Johnson refused in May to bar the officers' testimony. That was the result the appeals court upheld yesterday. Though it ruled in Starr's favor, the appeals court did not accept all of the legal arguments he had made.

The court said, for example, that it did not need to rule on Starr's claims that federal law compels the Secret Service to share evidence of crime with the grand jury and that the courts had no power to create a privilege against testimony by the Secret Service.

Nor did the appeals court embrace Starr's argument that presidents would never push away their protectors unless the presidents had something to hide. Instead, the appeals court said that at a practical level, the Secret Service had simply offered insufficient proof that the privilege it was seeking was closely related to the president's physical safety.

While conceding that "the nation has a profound interest in the security of the president," the court said, "the president knows that effective protection depends upon proximity to his protectors," making it unlikely that he would push them away.

The court also questioned why the Secret Service needs protection against forced testimony, when it does not require its officers or agents to sign promises of confidentiality about what they see and hear. Moreover, the court noted, agents are not barred from telling their stories after they have left the Secret Service.

The court also said the protection against testimony would be of little value to the president, since Clinton has insisted that the privilege would be the Secret Service's to claim, not his.

Pub Date: 7/08/98

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