3 Secret Service Witnesses Testify Before Grand Jury

Three Secret Service witnesses testified before a federal grand jury Friday only hours after Chief Justice William H. Rehnquist refused an appeal by the Justice Department to put off their appearances in the Monica S. Lewinsky investigation.

The developments marked the first time that Secret Service personnel have been compelled to testify in a criminal investigation about the conduct of a president they were charged with protecting.

Their testimony is considered crucial to independent counsel Kenneth W. Starr’s investigation because their jobs put them in a position to see or know about most of the president’s activities. As law enforcement officers, they are considered extremely credible.

In an unexpected move, Starr called the witnesses to the federal courthouse even though the grand jury that has been investigating President Clinton’s relationship with the former White House intern is not scheduled to meet again until Tuesday. By bringing the witnesses before a different grand jury, Starr apparently wanted to demonstrate that his investigation was moving forward, legal sources said.

The dramatic event was set up by Rehnquist’s refusal to protect the personnel from testifying, saying the administration had not shown that “irreparable harm” would result.

One Secret Service man, Larry Cockell, 47, who since February has been chief of the presidential detail and the agent who most closely shadows Clinton, waited all afternoon at the courthouse but was told late Friday that he would be summoned next week to begin his testimony. Six other Secret Service personnel were also ordered to the courthouse, but not all appeared before the grand jury. The identity of the three who did testify could not be learned immediately but two were uniformed Secret Service personnel and another was a former plainclothes agent.

In addition, Starr spelled out publicly for the first time in a filing to the Supreme Court why he has so persistently sought to obtain the agents’ testimony.

“From the beginning of its inquiry into this matter, OIC [Office of Independent Counsel] has received--and continues to receive--numerous and credible reports that Secret Service personnel have evidence relevant to its investigation,” Starr told the court.

“Specifically, the OIC is in possession of information that Secret Service personnel may have observed evidence of possible crimes while stationed in and around the White House complex,” he added.

An attorney for two of the subpoenaed personnel, however, has said that his clients “do not know” incriminating information about Clinton and Lewinsky.

Veteran Agent to Consult With Lawyer

John Kotelly, Cockell’s attorney, told reporters that the 17-year veteran would consult with him before answering any grand jury questions involving national security or the president’s attorney-client privilege.

Clinton’s lawyers said earlier this week that they feared Starr was trying to pry into the president’s discussions with his lawyers by seeking to get Cockell or other agents to disclose what they may have overheard.

In a brief written order issued just before a noontime deadline, Rehnquist said: “The opinion of the Court of Appeals seems to me cogent and correct.” He also noted that Chief U.S. District Judge Norma Holloway Johnson had issued a similar ruling in May.

Rehnquist’s order contained none of the strong language contained in the appellate court decision, which had sharply rebuked Atty. Gen. Janet Reno for trying to exhaust all legal appeals to keep agents from assisting in Starr’s investigation.

But as the appellate judges did, Rehnquist said the department had failed to demonstrate that “irreparable harm” would result if the Secret Service testimony were allowed to go forward. And he noted that the appellate court decision had been unanimous.

“Because several of my colleagues are out of the country, I have decided to rule on the matter myself rather than refer it to the conference,” Rehnquist said. However, he added, “I believe my view would be shared by a majority of my colleagues.”

The high court is in recess for the summer.

Ruling Possible by Full Supreme Court

Although any subsequent decision by the Supreme Court would come too late to affect Starr’s inquiry, the chief justice suggested that the full court eventually might want to consider whether Secret Service agents are deemed to have a “protective function privilege” against giving testimony about a president’s conduct.

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

Starr brought the witnesses before the second grand jury after his prosecutors briefed the jurors on some details of what they might hear.

Legal experts said that Starr’s use of a different grand jury is immaterial to the investigation because prosecutors could read a summary and excerpts of the witnesses’ testimony to the Lewinsky grand jurors next week. And Cockell will appear before that special panel.

In papers filed with the Supreme Court, Starr ridiculed arguments of the Justice Department and Secret Service that requiring officers to testify would undermine the trust and confidence between a president and his protectors, causing the chief executive to distance himself from his security detail and risking assassination or grave physical harm.

He said that Secret Service agents are “law enforcement officers . . . who work for the people of the United States [and] have a bedrock interest in detecting and prosecuting federal crimes, particularly crimes committed by high government officials.”

In a nod to Secret Service complaints that Clinton might seek to “push away” his protectors if he feared his confidential conversations might be compromised, Starr pledged that he would not question agents about any matters that occurred after Friday, the date of Rehnquist’s order.

Secret Service Director Lewis C. Merletti said late Friday that agents will appear promptly when summoned “and we are prepared to provide complete testimony.”

“While we accept the decisions of the courts, and will comply with court orders,” he said, “it remains our professional opinion that recognition of a protective function privilege is critical to our mission.”

Presidential aides and Clinton’s personal lawyers have said that, besides seeking to learn what Secret Service agents have observed, Starr might be trying to get Cockell and others to reveal confidential discussions overheard between the president and his lawyers. But some legal experts said Friday that some third parties cannot be forced to breach such confidences.

“There is very strong case law that the testimony of a necessary third party cannot be used to destroy attorney-client confidences,” said Paul Rothstein, a Georgetown University law professor.

“A necessary third party is deemed to be someone who had to be present when a confidential discussion took place, like a law clerk, a stenographer or a telephone operator,” Rothstein said.

Because such persons cannot be compelled to disclose what was discussed, a Secret Service agent whose duties include driving the president’s limousine or standing near him would probably fit into this category, he said.

If a Secret Service officer were asked before a grand jury to reveal a sensitive discussion, Rothstein said, he could object to that specific question until a court ruled on it.

Another attorney and former prosecutor close to the White House, who declined use of his name, said, “professor Rothstein makes a very valid point.” He said that an agent with doubts about answering a sensitive question could be excused to consult with his lawyer outside the grand jury room and wait until a judge acts on his objection to the question.

Kotelly, Cockell’s attorney, said that he has had no discussions with prosecutors about areas that they would explore. But, he said, Cockell plans to answer every question, with the exception of those related to national security and attorney-client privilege.

“He is not going to go to jail and be held in contempt,” Kotelly said. “He is a law enforcement agent and . . . he will follow the law as he is directed to by the courts.”

He said that Cockell intends to leave the grand jury room to consult him if he is asked a sensitive question that he finds objectionable.

Asked about Cockell’s mood, Kotelly said: “I think right now he’s resigned to the fact that he has to testify. He’s not happy about that. What more can I say?”

The attorney said that Cockell, a former officer of the St. Louis Police Department, has been temporarily reassigned, at his own request, because Starr’s investigation is “a distraction” from his duties. He will be performing administrative work instead of guarding the president.

And because news coverage of the Secret Service subpoena controversy has made Cockell a widely recognizable figure, Kotelly said, “there is a real possibility he will never be able to return to the position he had.”

Clinton, meanwhile, adopted the posture of standing on the sidelines while the legal disputes are being thrashed out.

“I have a legal opinion and I have a personal opinion but . . . it would be completely inappropriate for me to be involved in this,” the president said Friday before leaving on a trip.

But Clinton took issue with a suggestion by Circuit Court Judge Laurence H. Silberman that the dispute has been taken on for his political protection, not his physical protection.

“Well, I think you have to consider the source of that comment,” Clinton said, presumably a reference to the fact that Silberman, a conservative appointee of President Reagan, is widely known as the appeals court’s most outspoken judge. “That is simply not true,” he said. “These people risk their lives to protect me and other presidents in a professional way, not a political way.”

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