I CAN'T think of any logical argument to refute Ken Starr's claim that the president should not be able to engage in raw illegalities in front of his Secret Service bodyguards, safe in the knowledge that they can't be compelled to testify. Mr. Starr was also right that no court or statute had previously recognized the Secret Service's claim of a "protective function privilege."

("A constitutional absurdity," harrumphed Judge Laurence Silberman of the U.S. Court of Appeals for the District of Columbia Circuit.)

Furthermore, Mr. Starr is hardly the only one to blame for the fact that the agents have been forced to testify. If Mr. Clinton had voluntarily confessed about his relationship with Monica Lewinsky, the whole issue might have been avoided.

Still, I can't avoid feeling that, for American democracy, Mr. Starr's victory is bound to be a Pyrrhic one. It reminds me a bit of the Supreme Court's myopic ruling in Clinton vs. Jones. In putting an end to the ambiguity surrounding the question of whether a president could be subject to civil litigation while in office, that ruling purported to enshrine the principle that "no one is above the law." The court based its decision on the prediction that fending off a lawsuit would present only minor inconveniences for a sitting president.

Media circus

Plausible in theory, the utter impracticality of the decision quickly became evident as the Jones suit devolved into a media circus that nearly consumed the Clinton presidency before it was eventually dismissed.

Now, in that same earnest, breezy spirit, the Court of Appeals for the D.C. Circuit has settled the ambiguities surrounding Secret Service testimony in favor of the independent counsel and against the institution of the presidency, telling us that "the harm asserted [if the Secret Service must testify] is future harm, depending on a prediction about what the president will do in the absence of the privilege." The court writes as if it were self-evident that the Secret Service's prediction is wrong -- but articulated no reason to presume that its own crystal ball is more reliable.

If anything, the Secret Service may have underestimated the risks posed by a situation in which the president's bodyguards can be called upon to testify about his every word and deed, even those that do not appear illegal or even questionable at the time they occur. It's all well and good to say, as Mr. Starr's supporters do, that the president will just have to refrain from doing anything illegal or impeachable in front of his bodyguards. As in Clinton vs. Jones, the theory is "no one is above the law." But, in the real world, the line between controversial presidential policy decisions on the one hand, and violations of the law or impeachable offenses on the other, is often difficult to draw. (Or have the Republican-appointed judges who issued the D.C. Circuit's ruling forgotten the Reagan administration's argument that Iran-contra was just a case of "criminalizing policy differences"?)

Sure, we'd want the Secret Service to rat out a presidential bank-robbery plot (as law requires them to do). But what if the president holds a secret meeting to inform the Bosnian government that, in order to help Bosnia defeat the Serbs, the United States will permit arms shipments from Iran's terrorism-exporting government? Should the law compel Secret Service agents to come before Congress or the courts to tell everything they know about that?

Political foes

The point is that there is no such thing as a purely impartial or nonpartisan investigation of the president. However valid, every investigation will be tinged with politics for the simple reason that every president is an elected official who, like all elected TC officials, has political opponents. Thus, those who are called upon to testify in a case against the president are being brought into a proceeding whose very nature is not only legal but also political. What Ken Starr has established is the rather novel principle that the Secret Service must henceforth function not only as the president's protectors but also as the eyes and ears of the president's political adversaries.

Presidents may deal with this awkward situation in one of two ways. The first is the method the Secret Service's lawyers have ** already warned against: The president could keep his or her bodyguards at a distance, increasing the chances that an assassin will be able to slip into range.

The second method would be to attempt to buy the personal loyalty of the agents -- perhaps by offering plum federal jobs and other benefits -- in the hope that they'll keep their mouths shut if they're subpoenaed. Either way, the credibility and elan of the Secret Service would be compromised. Either way, the door would be opened to the politicization of what is, or was, one of the last bastions of true nonpartisan professionalism in the federal government.

And why is the professionalism of the Secret Service so important? You might as well ask why we care so much about the threat of presidential assassination in the first place. Obviously, we care because any murder is a human tragedy, and the murder of the titular head of the national community is traumatic for all Americans. But morality and emotions are only part of the rationale; cold political and constitutional considerations are even more important. Quite simply, in a democracy, we don't change governments by violence. We cannot permit the will of the people -- as embodied in the person who has been elected to represent the entire nation for four years -- to be thwarted by the gun. When the president is murdered, democracy, too, is a casualty; the very legitimacy of the state is wounded. Indeed, the public's trust in government has probably never fully recovered from the damage done by the Kennedy assassination and the conspiracy theories surrounding it.

Protective function

This, I think, is the political argument the Secret Service's lawyers were trying, unsuccessfully, to articulate when they groped to establish a "protective function privilege" for the president's bodyguards. Judge Silberman can call that notion "a constitutional absurdity" if he wants, but the real absurdity is that a federal judge could be so blithe about the need for a professional, apolitical presidential bodyguard in a contentious, violence-prone modern democracy.

Secret Service protection isn't some kind of presidential perk. It is a critical element in the stability of our political system. And, now that Secret Service bodyguards have been compelled to testify before Ken Starr's grand jury about an incumbent president's private words and actions, it is an element of democratic stability that has been subtly, but significantly, undermined.

Charles Lane is a senior editor of the New Republic, in which this article first appeared.

Pub Date: 7/24/98