WASHINGTON -- In the latest legal setback for President Clinton, a judge ruled yesterday that Secret Service agents could be compelled to testify before the grand jury investigating the president's relationship with Monica Lewinsky.
U.S. District Judge Norma Holloway Johnson dismissed the Clinton administration's argument that agents working close to the president should be able to assert a new "protective" privilege that would allow them to avoid testifying before a grand jury.
The administration asserted that forcing agents to testify might cause presidents to distance themselves from their agents and thus heighten the risk of assassination or peril.
Clinton reacted to the decision with pointed, angry words, saying that it would have a "chilling effect" on his conversations and actions -- and those of future presidents. He said he did not know if the decision would be appealed.
The Justice Department and Secret Service said in a statement that they were reviewing the decision and "continue to believe that any action that could distance the Secret Service from the president increases the danger to his life and that of future presidents."
In her order, the judge said she did not believe that compelling agents to testify would lead a president to "push away" his protectors.
"When people act within the law, theydo not ordinarily push away those they trust or rely upon for fear that their actions will be reported to a grand jury," Johnson said. "It is not at all clear that a president would push Secret Service protection away if he were acting legally or even if he were engaged in personally embarrassing acts."
She noted that "no court has ever recognized" such a protective privilege.
On the winning side of the ruling was Whitewater independent counsel Kenneth W. Starr, who has scored several recent victories in Johnson's courtroom. The judge rejected the administration's claim of executive privilege in efforts to keep two top White House aides from answering grand jury questions, and she ruled that Lewinsky, a former White House intern, had not been awarded immunity from prosecution as her lawyers had contended.
Yesterday's ruling grants Starr the authority to compel testimony from two uniformed Secret Service officers, Gary Byrne and Brian Henderson, and agency counsel John Kelleher. Starr wants to question the Secret Service officials as part of his investigation into whether Clinton lied under oath about his relationship with Lewinsky and encouraged her to do the same in exchange for helping her get a private-sector job. Both the president and Lewinsky have denied in sworn statements that they had a sexual relationship.
Charles Bakaly, a spokesman for Starr, said the prosecutor wanted to "let the opinion speak for itself. It was a very emphatic, clear decision, but we still don't have the evidence and we could be prevented from getting the evidence for some time" if there is an appeal.
Talking with reporters in the Rose Garden, Clinton acknowledged that there was no legal history for such a claim of protective privilege.
But pointing out that former President George Bush supported his position on this issue, he said, "It never occurred to anybody that anyone would ever be so insensitive to the responsibility of the Secret Service that this kind of legal question would arise."
He said, "I think it will raise some serious questions and present a whole new array of problems for managing the presidency and for the Secret Service managing their responsibility. And because previous people have understood that and cared enough about it, I don't think that anybody's ever even considered doing this before."
Call for privilege dismissed
Lawrence Barcella, a criminal defense attorney in Washington, said he thought it was "always dangerous when you second-guess the protective argument made by those who are charged with that protection."
Moreover, he said, there's no evidence that any Secret Service officials witnessed a crime, terming the Starr's efforts a "fishing expedition."
But Jonathan R. Turley, a George Washington University law professor, dismissed the privilege assertion as an attempt to create a praetorian or palace guard at the White House, arguments that have been seized by both Starr and House Speaker Newt Gingrich.
"The White House was requesting a near-impossible task of the court," Turley said. Common-law privileges, ranging from attorney-client privilege or those between doctors and patients, evolve in society at a "glacial pace," he explained. Clinton wanted "a sweeping new privilege" in the middle of a "heated" investigation.
Turley doubted that the administration would be successful on appeal.
In arguing his case before Johnson, Starr said the testimony of Secret Service officials was "highly relevant" in determining whether "one or more persons may have engaged in illegal acts including perjury, obstruction of justice and intimidation of witnesses."
Tell-all books mentioned
But Justice Department lawyers, recalling successful and unsuccessful assassination attempts, insisted that the only reason agents can protect the president "is that he has complete trust in them."
In her ruling, Johnson noted that Secret Service agents had written books about their experiences. And she mentioned "The Dark Side of Camelot," a controversial book in which Secret Service agents told embarrassing stories about John F. Kennedy to author Seymour Hersh.
"There is no indication that those published accounts have caused presidents to push Secret Service agents away because information about their private lives might become public," Johnson said.
Pub Date: 5/23/98