IV

105TH CONGRESS

2D SESSION H. RES. 480

Expressing the sense of the House of Representatives concerning the assertion

of protective function privilege.

IN THE HOUSE OF REPRESENTATIVES

JUNE 19, 1998

Mr. DELAY submitted the following resolution; which was referred to the

Committee on the Judiciary

RESOLUTION

Expressing the sense of the House of Representatives

concerning the assertion of protective function privilege.

Whereas the Office of the Independent Counsel and a Federal

grand jury are investigating allegations of personal

wrongdoing and possible crimes in the White House;

Whereas certain Secret Service agents asserted a ‘‘protective

function privilege’’ and refused to answer questions before a Federal grand jury (In Re Grand Jury Proceedings, Misc. No. 91–148 (NHJ), redacted version at 1,

(D.D.C. May 22, 1998) (hereinafter referred to as

‘‘Grand Jury Proceedings’’));

Whereas ‘‘[n]one of the questions at issue relate to the protective techniques or procedures of the Secret Service’’

(Grand Jury Proceedings at 1);
2

•HRES 480 IH

Whereas Federal Rule of Evidence 501 provides that evidentiary privileges ‘‘shall be governed by the principles of

the common law as they may be interpreted by the

Courts of the United States in the light of reason and

experience’’;

Whereas the Supreme Court has interpreted Rule 501 to require courts to consider whether the asserted privilege is

historically rooted in Federal law, whether any States

have recognized the privilege, and public policy interests

(Grand Jury Proceedings at 2, citing Jaffee v. Redmond,

518 U.S. 1, 12–15 (1996));

Whereas the Supreme Court has emphasized that it is ‘‘disinclined to exercise [its] authority [under Rule 501] expansively’’ (University of Pennsylvania v. EEOC, 493

U.S. 182, 189 (1990)) and has cautioned that privileges

‘‘are not lightly created nor expansively construed, for

they are in derogation of the search for truth’’ (U.S. v.

Nixon, 418 U.S. 683, 710 (1974));

Whereas the district court found ‘‘no constitutional basis for

recognizing a protective function privilege,’’ ‘‘no history

of the privilege in Federal common or statutory law,’’

‘‘[n]o State [recognition of] a protective function privilege or its equivalent,’’ and ‘‘the policy arguments advanced by the Secret Service are not strong enough to

overcome the grand jury’s substantial interest in obtaining evidence of crimes or to cause this Court to create

a new testimonial privilege’’ (Grand Jury Proceedings at

3, 6–9);

Whereas no administration has ever sought congressional enactment of a protective function privilege;
3

•HRES 480 IH

Whereas Chief Judge Norma Holloway Johnson refused to

establish a protective function privilege (Grand Jury Proceedings at 9) and correctly noted such claims should be

made to Congress, not to the courts (Grand Jury Proceedings at 4);

Whereas the Attorney General, who is the Nation’s chief law

enforcement official, should not assert claims of privilege,

such as the protective function privilege, that have no

basis in law and the assertion of which substantially

delays the work of the grand jury;

Whereas former Attorneys General Barr, Thornburgh, Meese,

and Bell encouraged Attorney General Reno to forego appealing the district court’s decision because they believe

the decision was ‘‘legally and historically well-founded,’’

and ‘‘any appeal would likely result in an opinion that

would only magnify the precedential damage to the Executive Branch’’ (Letter from Professor Jonathan Turley to

Attorney General Reno, May 25, 1998); and

Whereas the Attorney General has appealed the district

court’s decision: Now, therefore, be it

1 Resolved, That it is the sense of the House that the

2 President of the United States, if he believes such a policy

3 is warranted, should submit to the Congress proposed leg4 islation which would establish a protective function privi5 lege and also direct the Attorney General to immediately

6 withdraw the appeal of the district court’s decision in the

7 matter styled In Re Grand Jury Proceedings, Misc. No.

8 91–148 (NHJ), redacted version, (D.D.C. May 22, 1998).

Æ