The Contemporary Presidency: Presidential Safety, Prosecutorial Zeal, and Judicial Blunders: The Protective Function Privilege

During the Clinton-Lewinsky scandal of 1998, the independent prosecutor demanded, for the first time in history, that Secret Service agents testify against the president whom they guarded. The director of the Secret Service contended that a"protective function privilege" exempted agents from such compulsion and that the violation of confidentiality involved might weaken the shield protecting the president. The judicial rulings that followed failed to reflect adequately the widely understood concept that societal decisions impinging on the presidency should generally err on the side of protecting the person and his office, unless he is manifestly derelict in fulfilling his constitutional obligations. This view recognizes both the great power and influence of the executive branch and its symbolic significance in the American system. Chronology In January 1998, the Monica Lewinsky affair burst on the national scene. In rapid succession, Lewinsky presented an affidavit in the Paula Jones case; Linda Tripp told Kenneth Starr's office that she had tape-recorded conversations with Lewinsky; President Clinton testified in the Jones suit; Attorney General Reno approved the expansion of Starr's investigation, unaware that he had any connection at all to the Jones litigation; and Clinton denied press reports that he had had sexual relations with "that woman." Starr quickly announced his intention to subpoena Secret Service agents in the White House detail and to question them about their daily observations as they worked next to the president (Farrell 1998). Lewis Merletti, director of the Secret Service, then met with lawyers from Starr's office. He had guarded Presidents Reagan, Bush, and Clinton, and he believed that Starr's actions might endanger the safety and lives of the current and all future White House occupants. Forcing agents to testify might alter their relationship with the president and might well reveal some of their methods of protection, thereby rendering it easier for potential assassins to attack the president.(1) (U.S. District Judge Susan Webber Wright used this logic in rejecting the request of Paula Jones's lawyers to subpoena the agents [Jackson and Timms 1998].) On February 10, former agent Lewis Fox claimed in a television interview in Pittsburgh that Lewinsky had spent at least forty minutes in the Oval Office with Clinton sometime in the fall of 1995. Three days later, the Justice and Treasury Departments decided to allow limited questioning of Fox by the special prosecutor. This concession failed to satisfy Starr, who then subpoenaed an agent on active duty. In response, the Justice Department filed a sealed brief on February 21, claiming a protective function privilege that would defend agents from forced disclosure. This would formalize the long-standing tradition of confidentiality of the agents and would help assure the safety of the president (Buffalo News 1998). During March and April, the pressure on the agents to testify became more intense (Cannon 1998). On April 3, Starr filed a sealed motion to compel. On April 28, he wrote to Charles Ruff, the president's counsel, disputing the existence of a protective function privilege.(2) He was now asking the president to waive a privilege whose existence he denied (Ruff 1998). The case was heard on May 13, 1998 in the U.S. District Court of the District of Columbia. The special prosecutor argued that the agents had a duty to testify (Yost 1998) and that there was no legal authority for them to refuse (Lardner and Miller 1998). The Secret Service contended that compelling agents to disclose their observations might distance the president from those who guarded him and thereby increase the hazard to his life and health (Baker 1998c). The positions were sharply etched and seemed unbridgeable. The Response of the Courts On May 22, Judge Norma Holloway Johnson rejected the Justice Department's request for the privilege (Baker 1998b). …