Ex-Top Law Officers Urge Privilege Denial

Creating a legal privilege exempting Secret Service officers from testifying in criminal investigations involving a president would risk turning them into personal or Praetorian guards instead of law enforcement agents, four recent U.S. attorneys general warned Friday.

In a friend-of-the-court brief, the former top law enforcement officials urged the U.S. Circuit Court of Appeals here to reject Atty. Gen. Janet Reno’s plea seeking to overturn a lower court order that Secret Service personnel must testify before a federal grand jury in the investigation of President Clinton’s relationship with former White House intern Monica S. Lewinsky.

Submitting the brief were William P. Barr, Edwin Meese III and Richard L. Thornburgh, who served under Republican Presidents Reagan or Bush, and Griffin B. Bell, President Carter’s first attorney general.

“Since its creation, the Secret Service has been composed of federal law enforcement officers who are bound to assist in the investigation and prosecution of federal crimes--not withhold relevant evidence of criminal conduct,” the former attorneys general noted.

“The proposed privilege would convert these law enforcement officers into a form of personal or household guard. The dangers of such a transformation are historically well-documented and distinctly foreign to the traditions of this republic.”

At issue is a May 22 order by Chief U.S. District Judge Norma Holloway Johnson requiring two Secret Service uniformed officers and a Secret Service attorney to testify before the grand jury.

That panel is collecting evidence in independent counsel Kenneth W. Starr’s investigation of whether Clinton, Lewinsky or others suborned perjury, obstructed justice, intimidated witnesses or otherwise violated federal law in connection with the Paula Corbin Jones sexual harassment suit against Clinton. That lawsuit has since been dismissed.

Filing his final brief before the case is argued Friday, Starr disputed the Secret Service’s argument that forcing its personnel to testify about observations made while in close proximity to the president would undermine a tradition of confidentiality and could cause a president to push agents away, increasing his risk of assassination. Rejecting such concerns as “not persuasive,” Starr said: “We would be deeply troubled if we thought that the result we seek posed any substantial risk to the life of this or any other president.

“The proposed privilege has the effect of forcing sworn law enforcement officers to remain silent while in the possession of evidence that could affect serious federal criminal proceedings. And it does not advance the public interest to construct a rule of privilege on the premise that a president of the United States, bound by his constitutional oath, has any legitimate interest in engaging in criminal activity without fear of disclosure by his protectors or anyone else.”

The four former attorneys general, in their brief written by Jonathan Turley, a professor at George Washington University Law School, said the privilege sought by the Secret Service “is wholly without legal or historical precedent and would effectively spring fully formed into a criminal investigation.”

Congress, “where expert testimony can be presented in the open and deliberative process mandated by the Constitution,” would be the appropriate forum for seeking such a privilege, they contended.

Barr and Thornburgh were appointed by Bush, who wrote the Secret Service this year arguing that agents should not have to testify under any circumstances, a position that the Secret Service relies on heavily.

But Starr pointed out that, after Johnson’s ruling, two other former presidents, Carter and Gerald R. Ford, took the opposite view, concluding that Secret Service personnel should testify in criminal cases.

“Few presidents have ever been the subject of criminal allegations, and even fewer have faced criminal inquiries,” the attorneys general told the court. “The likelihood of future court-sanctioned inquiries into either criminal or non-criminal conduct of a president is extremely remote.

“Put simply, the public does not want the president to feel comfortable discussing possible criminal information in front of any public servant, let alone a law enforcement officer.”