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 be-
fore a Federal grand jury (In Re Grand Jury Proceed-
ings, 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 pro-
tective techniques or procedures of the Secret Service’’
(Grand Jury Proceedings at 1);
•HRES 480 IH
Whereas Federal Rule of Evidence 501 provides that evi-
dentiary 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 re-
quire 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 ‘‘dis-
inclined to exercise [its] authority [under Rule 501] ex-
pansively’’ (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 privi-
lege or its equivalent,’’ and ‘‘the policy arguments ad-
vanced by the Secret Service are not strong enough to
overcome the grand jury’s substantial interest in obtain-
ing 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 en-
actment of a protective function privilege;
•HRES 480 IH
Whereas Chief Judge Norma Holloway Johnson refused to
establish a protective function privilege (Grand Jury Pro-
ceedings at 9) and correctly noted such claims should be
made to Congress, not to the courts (Grand Jury Pro-
ceedings 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 ap-
pealing 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 Exec-
utive 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
Resolved, That it is the sense of the House that the
President of the United States, if he believes such a policy
is warranted, should submit to the Congress proposed leg-
islation which would establish a protective function privi-
lege and also direct the Attorney General to immediately
withdraw the appeal of the district court’s decision in the
matter styled In Re Grand Jury Proceedings, Misc. No.
91–148 (NHJ), redacted version, (D.D.C. May 22, 1998).
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