[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 480 Introduced in House (IH)]







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);
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;
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
    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 legislation which would establish a 
protective function privilege 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).
                                  <all>