Secret Service Agents Must Testify, Court Says

Barring last-minute intervention today by the Supreme Court, Secret Service agents who protect President Clinton soon will be forced to tell a federal grand jury what they know about his relationship with a former White House intern.

The potential for imminent testimony by the chief of the president’s protective detail and several uniformed officers arose Thursday as the U.S. Court of Appeals, in a stinging rebuke of the administration, rejected a Justice Department request to hold up the grand jury testimony of Secret Service personnel. The court said it already had ruled that a privilege shielding agents from testifying “does not exist.”

Not a single judge on the 11-member appellate court voted to rehear the administration’s arguments, a development that bodes ill for administration efforts, filed within hours of the appeals court decision, to get a Supreme Court review.

The administration’s plea went to Chief Justice William H. Rehnquist because he is the circuit justice for the District of Columbia. Though the high court is not in session, all the justices are available to act on emergency appeals.

Often, a single justice who receives an emergency appeal will consult with the rest of the court before issuing an order granting or denying it. The odds, however, are against the high court intervening to block independent counsel Kenneth W. Starr’s subpoena.

“I’d be very surprised if the court took up this case now,” said George Washington University law professor Stephen A. Saltzburg. On the appellate court, Judge Laurence H. Silberman said in a concurring opinion that Atty. Gen. Janet Reno should get out of the way of Starr’s investigation because it is Starr, not Reno, who represents the interests of the United States in his current investigation.

Starr is investigating the nature of Clinton’s relationship with former intern Monica S. Lewinsky and whether either of them lied about it under oath or encouraged others to do so. Both the president and Lewinsky have denied having a sexual relationship.

Silberman, a Reagan administration appointee, said Reno, in her opposition to testimony by Secret Service agents, was “acting as the president’s counsel under the false guise of representing the United States.”

He added, acidly: “I am mindful of the terrible political pressures and strains of conscience that bear upon senior political appointees of the Justice Department when an independent counsel--or special prosecutor--is investigating the president of the United States.

“Those strains are surely exacerbated when the president’s agents literally and figuratively ‘declare war’ on the independent counsel,” he said.

Silberman apparently was referring to criticism of Starr by the president’s personal lawyers and by White House Press Secretary Mike McCurry, who accused the prosecutor Wednesday of being “overzealous” and seeking to pry into confidential discussions between Clinton and his attorneys.

McCurry on Thursday insisted that Reno is representing the Secret Service and not the White House, saying that the agents “feel strongly about their need for that protection and we defer to their judgment when it comes to security.”

Acting on a plea by Justice Department officials, the appellate court early Thursday had granted a temporary stay of Starr’s subpoenas for chief Secret Service agent Larry Cockell and six other agents to appear before the grand jury. But only hours later, after polling its members, the court lifted its stay on grounds that the department “has not made a sufficient showing that irreparable harm will result” from testimony by the agents.

“The privilege is said [by the department] to be necessary because, without it, the president will distance himself from Secret Service agents charged with the duty of protecting him,” the court observed. But, it said, it could foresee no immediate harm to the presidency from the agents’ testimony.

The court also appeared to handicap the administration’s chances with the high court, saying that “the Justice Department’s likelihood of success before the Supreme Court is insufficient to warrant further delay in the grand jury’s investigation.”

With Thursday’s actions, a legal process that seemed likely to stretch into the fall appeared to be cut dramatically short, with the time frame suddenly becoming one of days rather than months. The remaining key witnesses in Starr’s investigation appear to be Lewinsky herself and White House Deputy Counsel Bruce R. Lindsey. In an effort to prevent Lindsey from answering some grand jury questions, the White House is claiming an attorney-client privilege for Clinton’s longtime friend and political advisor.

The day began with Cockell and other subpoenaed officers showing up at the federal courthouse because they were uncertain of their legal status.

Justice Department lawyers had attended a closed-door hearing a day earlier before Chief U.S. District Judge Norma Holloway Johnson to seek a stay in their testimony but Johnson turned them down, leaving them the option of filing a brief to the appellate court.

When that stay was temporarily granted Thursday morning, the agents left the courthouse.

Mike Leibig, an attorney representing two of the agents, whom he would not identify, told reporters that his clients “do not know about some vital, embarrassing, blockbuster event” between Lewinsky and the president.

Nevertheless, he added, the agents are unhappy about Starr’s efforts to compel their testimony because “they take very seriously their duty to protect the president” and it’s “very difficult for them to carry out their jobs” under the circumstances.

With all the legal drama outside the courthouse, Pentagon employee Linda Tripp, whose secret tape recordings of her conversations with Lewinsky prompted Starr’s investigation, finished her sixth day of testimony and is scheduled to return before the grand jury Tuesday.

At the Supreme Court, special emergency appeals are frowned upon as a general matter. The justices normally decide legal questions after they have been thoroughly considered in the lower courts and they are reluctant to intervene at midstream in a case.

Under the court’s rules, an appealing party bears a heavy burden to persuade the justices to issue an emergency order blocking a lower court decision from taking effect. The appealing lawyers must show, for example, that they likely will prevail in the end and that their clients will suffer an “irreparable harm” if the court does not intervene.

The first half of that equation poses a problem for the administration. So far, no law nor judge has recognized a right for Secret Service agents to refuse to testify in court.

The U.S. appeals court panel called it “a novel claim of privilege” in rejecting it last week and the high court justices traditionally are reluctant to recognize a new legal privilege.

Paul Rothstein, a Georgetown University law professor, said the appellate court decision “does not bode well” for the administration to achieve a favorable high court ruling.

“This is a good victory for Starr but it remains to be seen if there’s any information from the agents for Starr to get,” Rothstein said. “After all, these are guys who are trained to take a bullet for the president and throw their bodies in the way of any danger.”

Times staff writer Erin Trodden contributed to this story.

To join in an ongoing discussion of the investigation of the President Clinton-Monica S. Lewinsky matter on The Times’ Web site, go to: https://www.latimes.com/scandal