Three skeptical federal appeals court judges Friday questioned why Secret Service officers should be exempted from testifying in the Monica Lewinsky investigation about what they observed and heard while guarding President Clinton.
U.S. Appeals Court Judges Raymond Randolph, Douglas Ginsburg, and Stephen Williams pressed Justice Department lawyer Stephen Preston about the circumstances in which Secret Service employees should and should not give testimony.
"This case is about the safety of the president," Preston replied.
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Starr, a former solicitor general and member of the appeals court hearing the argument, made his arguments in person.
He told the three-judge panel, all Republican appointees, that there are no rulings giving the Secret Service authority to claim the so-called protective service privilege that would exempt agents from testifying about what they saw or heard while protecting a president.
But Preston said that when Secret Service officers are in "close proximity" to the president, they should not have to reveal what they saw or heard.
Preston argued that the safety of presidents is at stake in the dispute because if chief executives know their conversations or actions will be reported, they will push away their protectors.
Randolph asked whether a Secret Service officer should testify about what he sees or hears if he is on guard outside the Oval Office and the president is in the adjacent study.
Preston indicated it is a difficult question to answer, declaring that "proximity" is "situational."
Randolph's question goes to a key issue in the Lewinsky investigation - whether the president and the former White House intern were ever alone in the study off the Oval Office.
Williams and Ginsburg questioned why Mr. Clinton himself did not invoke the proposed protective privilege sought by the Secret Service. The secretary of the treasury, who oversees the Secret Service, is invoking the privilege in the Lewinsky probe. Preston replied that it is the treasury secretary's to invoke, not the president's.
If three agency employees are compelled to answer questions, "presidents will inevitably distance themselves from their protectors, and the ability of the Secret Service to executive its protective mission will be undermined," the Justice and Treasury departments said in court papers.
The Secret Service is appealing ruling by U.S. District Judge Norma Holloway Johnson rejecting a proposed protective-function privilege that would keep the three Secret Service personnel from giving grand jury testimony. Presidential safety would not be affected by the testimony, and the proposed privilege has never been recognized at the federal or state level, Johnson said.
Starr is seeking testimony from uniformed Secret Service officers Gary Byrne and Brian Henderson and agency lawyer John Kelleher about what they or others learned while guarding Mr. Clinton.
During lengthy questions by Starr's office, Byrne and Henderson refused to answer 19 questions and Kelleher refused to answer four.
"The long-term interest of the Secret Service - like all law enforcement agencies - is served by permitting its agents to present evidence that is relevant to a federal criminal investigation," Starr said in federal appeals court papers.
"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," Starr added.
Written by Pete Yost