Secret Service Must Testify, Judge Decides

In a development that could accelerate the fiercely fought investigation of President Clinton, a federal judge ruled Friday that Secret Service officials can be compelled to testify before the grand jury examining Clinton’s relationship with a former White House intern.

Chief U.S. District Judge Norma Holloway Johnson rejected the position of Clinton administration lawyers, who had argued that subjecting the agents to such questioning would cause presidents to withdraw from their protectors and increase the likelihood of assassination.

“When people act within the law, they do not ordinarily push away those they trust or rely upon for fear that their actions will be reported to a grand jury,” Johnson said in a 10-page ruling. “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.”

The judge’s decision appears to have strengthened independent counsel Kenneth W. Starr’s hand in obtaining first-person accounts of the comings and goings at the White House of the former intern, Monica S. Lewinsky.

Two uniformed Secret Service officers and an agency lawyer summoned before the grand jury had cited a “protective function” privilege in refusing to answer certain questions from prosecutors. As Johnson noted in her ruling, that privilege had never before been asserted.

Asked for his reaction to Johnson’s ruling, Clinton told reporters at the White House: “At least, it will have a chilling effect, perhaps, on the conversations presidents have and the work that they do and the way they do it.”

In a gibe at Starr, the president added: “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.”

Johnson’s ruling seemed to surprise Clinton’s lawyers in at least one respect: The document was not filed under seal and was immediately made available to the public.

By keeping most earlier proceedings and documents secret, Johnson has sought to keep a tight lid on confidential investigative information. But in so doing, the judge also has allowed the White House to resist various aspects of Starr’s investigation without the potential downside of public exposure.

This was particularly evident when Clinton and administration lawyers refused for weeks to acknowledge whether the president had asserted executive privilege to shield two senior aides from answering certain questions before the grand jury. Johnson ruled this month--in a decision that remains under seal--that neither executive privilege nor attorney-client privilege can be used to constrain questioning of the two aides.

Prosecutors now will reassess how best to approach Lewinsky about her controversial dealings with the president, according to lawyers familiar with the investigation. Lewinsky had signaled three months ago through her lawyers that in exchange for immunity from prosecution she was prepared to testify that she and Clinton engaged in oral sex, sources have said.

Talks between prosecutors and Lewinsky dissolved after she declined to indicate whether she would say under oath that Clinton or any of his surrogates had encouraged her to lie. Lewinsky’s lawyers claimed that they had a binding immunity deal with the independent counsel. Johnson rejected that claim last month.

Prosecutors also want information from Lewinsky about the identity of the person who drafted a list of “talking points” she presented to a co-worker about to be questioned under oath and details about how presidential advisor Vernon E. Jordan Jr. came to arrange a job offer for her.

Based on tape-recorded conversations and other evidence, Starr’s office in January persuaded Atty. Gen. Janet Reno and a panel of appellate judges that oversees the independent counsel to authorize the investigation of whether Clinton or others have testified falsely, obstructed justice or intimidated witnesses.

The president on Jan. 17 denied under oath that he had engaged in any sexual activity with Lewinsky, who 10 days earlier had signed an affidavit denying intimate contact with Clinton. Clinton testified in connection with a sexual-harassment lawsuit brought by former Arkansas government worker Paula Corbin Jones. A federal judge in Little Rock, Ark., dismissed that lawsuit April 1.

Lawyers representing Clinton in the Lewinsky investigation said Friday that a decision on whether to appeal Johnson’s ruling is in the hands of the Justice Department and the Secret Service, whose director had strongly urged that the agents not be forced to testify.

In a terse, joint statement, Justice Department and Secret Service officials said that they “are reviewing Judge Johnson’s decision. We 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.”

The officials added: “We are concerned that the court did not fully appreciate the impact that its decision could have on the safety of the president and other people the Secret Service protects.”

Clinton told reporters that he did not know if administration lawyers would appeal. “I don’t know because I’m not involved,” he said.

Starr’s office offered no comment.

Johnson ruled that the Secret Service’s law-enforcement mission trumps any fear that the compelling of agents’ grand-jury testimony would indirectly endanger a president.

“The Secret Service’s law-enforcement obligation and its duty to report criminal activity under [federal law] provide persuasive policy reasons in favor of compelling grand jury testimony,” Johnson wrote.

On a related point, the judge questioned how the administration had gone about asserting the novel, protective function privilege. She noted that Treasury Secretary Robert E. Rubin--but not the president--had formally asserted the privilege. Therefore, she said, “the privilege has not been properly invoked.”

Moreover, Johnson said, if officials wish to shield Secret Service agents from testifying before a grand jury, they should take their brief to the legislative branch of the government.

“In mandating that the Secret Service be near the President at all times,” Johnson wrote, “Congress must have realized that Secret Service members would inevitably witness the President’s conduct and hear his communications. Nevertheless, Congress did not create a protective function privilege. . . . If Congress now believes such a privilege is warranted it, unlike this court, is free to create one.”

One legal expert, George Washington University Law School professor Stephen A. Saltzburg, said he found it “absurd” that the privilege was asserted by anyone other than the president.

Johnson’s ruling drew harsh criticism from Hamilton Brown, of the Assn. of Former Agents of the Secret Service.

“When the president is talking to a member of his staff and doesn’t feel comfortable with us being close by, he might tend to keep us at a distance,” said Brown. “One might hope a president wouldn’t do this, but it could open a Pandora’s box. This ruling is mind-boggling.”

Times staff writers Robert L. Jackson and David G. Savage contributed to this report.