Court Weighs Starr's Request To Make Secret Service Talk

Agents await ruling on whether pursuit of justice outweighs risk to president's security.

A federal judge is expected to rule soon on a matter of life and death for the president.

That, at least, is how the US Secret Service characterizes the stakes if the court orders its agents to testify before Kenneth Starr's grand jury on the Monica Lewinsky matter.

If a president knows that agents can be made to testify about what they see or hear while on duty, he will distance himself, greatly increasing the risk of assassination, the Secret Service argues.

But legally, counters independent counsel Starr, there is no precedent for Secret Service agents to enjoy a special privilege exempting them from giving testimony.

Once again in the Clinton presidency, the courts will decide the extent of privileges enjoyed by the executive branch. Last May, it was the Supreme Court that allowed Paula Jones to proceed in a civil suit against a sitting president. Earlier this month, it was a federal court that denied executive privilege to President Clinton's top aides in the Lewinsky probe.

Now, it appears unlikely that a federal judge - the same one who said Mr. Clinton's senior aides had no claim of executive privilege - will allow a special privilege for his guards.

When the two sides presented their arguments before Chief US District Judge Norma Holloway Johnson last week, she did not seem to find the Secret Service's position convincing.

"I just don't see it," she told Gary Grindler, who represents the agency. "How will the fact that you ask a Secret Service agent to appear before a grand jury affect the ability of the agent to protect the president of the US?"

Mr. Grindler and others say the answer lies in the president's trust of his security detail, which in turn affects agents' proximity to the president. And proximity, they argue, is everything.

"The problem arises if there's distrust," says Philip Melanson at the University of Massachusetts at Dartmouth, author of a book on the Secret Service.

By nature, the relationship between a president and his detail is "fragile" and sometimes tense, says Professor Melanson. If a president doesn't trust his detail will keep confidences, he could "distance himself" from his protectors, he says.

Admittedly, says Melanson, keeping security agents at arm's length in the White House is hardly a danger, because security there is at its greatest and access to the president is controlled. Secret Service agents, for example, are not usually in the Oval Office.

More troublesome are times when a president is on the road and wants to prevent his ever-present shadows from spoiling a photo opportunity or blocking him from mixing with "the people" during an event.

President Kennedy, for instance, refused to have the Secret Service stand on the rear running board of his Lincoln convertible the day he was assassinated. He was shot from the rear.

A president is required by law to accept the Secret Service protection. But no law or rule exempts agents from testifying before a grand jury. If the Secret Service wants to create this privilege, it should turn to Congress, Mr. Starr argued last week. Above all, he said, the Secret Service is a "law-enforcement agency" obligated to cooperate in his probe.

Starr is investigating whether Clinton lied under oath or urged others to lie about his relationship with Ms. Lewinsky, a former White House intern. The Starr grand jury has so far heard testimony from one retired uniformed officer assigned to the White House. While the Secret Service has supplied records and responded to inquiries, it has refused to allow current agents and officers to testify.

Ultimately, argues Starr, a president should have no worry about whatever a Secret Service agent might testify if the president is upholding the law.

Mark Rozell, a political scientist at American University here, calls this last point "the bottom line." Mr. Rozell, who has written extensively on executive privilege, says that "any form of privilege has to be created to protect somehow the public interest, not merely to protect the private or political interests of the president."

This reasoning is not very satisfying to Hamilton Brown of the Association of Former Secret Service Agents, who served under Presidents Kennedy, Johnson, and Nixon. "We're all talking about the legal issues instead of the practical issues," he says. "The issue is proximity" and regardless of the legal arguments, the reality will be that presidents will keep their details dangerously far away if Judge Johnson rules against the Secret Service, insists Mr. Brown.

At least one former president agrees. President Bush has said he "would not have felt comfortable having [agents] close in" if he thought "they would be compelled to testify as to what they had seen or heard, no matter what the subject."

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