Secrets and Security

The Justice Department is pondering an appeal of a federal district judge’s ruling that Secret Service agents can be compelled to testify about President Clinton’s relationship with former White House intern Monica Lewinsky. Secret Service Director Lewis Merletti urges an appeal, arguing that Judge Norma Holloway Johnson’s ruling strikes at the heart of the trust a president must have in the discretion of his protectors. Any erosion in that confidence could tempt a president to put greater distance between himself and his guardians, perhaps jeopardizing his security. Merletti believes Secret Service agents should have a “protective function privilege” that would give them the legal right to refuse to testify. His argument has merit.

Independent counsel Kenneth Starr wants two uniformed members of the Secret Service and its chief counsel to testify before a grand jury. What Starr is trying to find out is whether the three have information that Clinton had a sexual relationship with Lewinsky. The president has denied under oath having had any such affair, and so has Lewinsky. If testimony from the Secret Service personnel contradicted those assertions, then presumably Starr could accuse the president of obstructing justice by trying to cover up the truth.

There is no precedent for the course Starr is pursuing. In its 97 years of guarding the president, the Secret Service has never been compelled to give the kind of testimony Starr seeks. Neither is there any precedent for claiming that the Secret Service, because of its work in such intimate proximity to the president, ought to be protected from testifying by a claim of privilege. This legal void hadn’t mattered. Now it does. If Judge Johnson’s ruling is upheld on appeal, Congress might want to consider legislation to clarify the Secret Service’s responsibilities when it comes to confidentiality.

Secret Service personnel must of course report any criminal activity they witness. But seeing or overhearing instances of noncriminal but possibly indiscreet behavior is another matter. Presidents, vice presidents, visiting heads of state--all who are given Secret Service protection--may say and do a lot of things in the presence of their protectors that could be misconstrued or, if publicly known, prove to be politically or personally embarrassing. The Secret Service has traditionally been trusted to hold in confidence what it sees and hears. Merletti, the service’s director, believes that confidence should “continue forever.”

Human nature being what it is, that is clearly asking the impossible. Recent spicy revelations by former Secret Service agents about President John F. Kennedy’s private life underscore the point. But an agent who talks out of school decades after the fact is far different from an agent who is forced to testify, especially before a grand jury, where prosecutors are free to ask virtually anything and where answers can be demanded. The precedent that has been raised by Starr’s subpoenas and supported by Johnson’s ruling is very serious for the future of the presidency. An appeal of the judge’s decision is not just desirable but imperative.