[Congressional Record Volume 144, Number 81 (Friday, June 19, 1998)]
[Extensions of Remarks]
[Pages E1182-E1185]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   INTRODUCTION OF RESOLUTION REGARDING PROTECTING FUNCTION PRIVILEGE

                                 ______
                                 

                             HON. TOM DeLAY

                                of texas

                    in the house of representatives

                         Friday, June 19, 1998

  Mr. DeLAY. Mr. Speaker, today I am introducing a resolution 
expressing the sense of the House of Representatives that President 
Clinton should immediately withdraw his appeal of the U.S. District 
Court for the District of Columbia's recent decision rejecting the 
fabricated ``protective function privilege.'' Judge Johnson correctly 
observed that this new privilege, which would prevent Secret Service 
agents from testifying, is not based in the Constitution, statute or 
common law. In short, there is no legal basis for a protective function 
privilege.
  The fact that this administration would assert such a specious 
privilege is deeply troubling for a number of reasons. First, the 
president has apparently decided, contrary to his public 
pronouncements, that he will not cooperate with the grand jury 
investigation. I recall President Clinton looking the American people 
in the eye and proclaiming that the ``American people have a right to 
get answers'' regarding questions about the Monica Lewinsky 
investigation? He said it was his intention to supply more information 
rather than less, sooner rather than later. Does any one recall his 
promise to give ``as many answers as we can, as soon as we can, at the 
appropriate time, consistent with our obligation to also cooperate with 
the investigations.''
  Instead, the President has decided to hide behind an army of lawyers, 
most of whom are paid with taxpayer money. President Clinton and his 
attorneys have decided to throw as many legal obstacles in front of the 
investigation as possible. They have apparently been

[[Page E1183]]

instructed to go so far as to claim the newly fabricated ``protective 
function privilege.'' The Attorney General should be ashamed that she 
is now part of the conspiracy of obstruction and silence.
  Mr. Speaker, I am also concerned about the assertion of this 
privilege because of the signal it sends across America. President 
Clinton is demonstrating that if one has enough money and power, one 
can use the legal system to delay, obstruct, and avoid accountability. 
The President is willing to abuse America's justice system to avoid 
coming clean with the American people. Like so many of his liberal 
friends, the President and his lawyers urged the court to legislate a 
new law where there was none. That is not the appropriate use of our 
court system. Only Congress can make new laws in this area as Judge 
Johnson so aptly noted. If the President is so concerned about harm to 
himself or the Secret Service, he should propose legislation to 
Congress not abuse our judicial system.
  Mr. Speaker, I urge the President to direct the Attorney General to 
immediately withdraw her appeal of Judge Johnson's correct decision. 
The time has come for the President to fulfill his commitment to the 
American people.
  I also ask that the resolution, various editorials, and a letter from 
Professor Jonathan Turley on behalf of former Attorneys General Barr, 
Thornburgh, Meese, and Bell be included in the Record immediately 
following this statement.

                               H. Res.--

       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 
     dereogation 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).


     
                                  ____
           [From the Las Vegas Review-Journal, May 27, 1998]

                         Phantom ``Privilege''

       By now, everybody who follows the White House scandals 
     knows that a federal judge has shot down the groundless claim 
     that Secret Service agents enjoy some special ``privilege'' 
     which shields them from having to testify in court 
     proceedings.
       Arguing on the president's behalf, the Justice Department 
     contended that compelling Secret Service agents to testify 
     would damage the relationship between the president and the 
     agents assigned to protect him and would put the president's 
     life, and those of future chief executives, in jeopardy.
       Last week, federal district court judge Norma Holloway 
     Johnson ruled that Secret Service agents enjoy no immunity 
     from testifying--no ``privilege'' whatsoever under law, 
     precedent, tradition or even the rules of common sense.
       Judge Johnson's decision is worth examining further because 
     it helps expose the White House ``privilege'' ploy for what 
     it was: the latest in a host of tactical moves designed not 
     to ``protect the presidency''--as Mr. Clinton's more simple-
     minded apologists would have it--but to delay, to obfuscate 
     and to keep the president's fat out of the fire for as long 
     as possible.
       In her ruling, Judge Johnson found:
       (1) The Constitution says nothing and implies nothing about 
     any such privilege for the Secret Service.
       (2) Nowhere in U.S. history or custom or common law--or in 
     the law of any state as regards protection for governors--is 
     there any basis for such a claim.
       (3) Not only did Congress not give the Secret Service 
     immunity from testifying, Judge Johnson wrote in reference to 
     the United States Code, ``under section 535(b), Congress 
     imposed a duty on all executive branch personnel to report 
     criminal activity by government officers and employees to the 
     attorney general. . . . Secret Service employees are not only 
     executive branch personnel subject to 535(b), but they are 
     also law enforcement officers.''
       (4) Wrote Judge Johnson: ``The court is not ultimately 
     persuaded that a president would put his life at risk for 
     fear that a Secret Service agent might be called to testify 
     before a grand jury'' on a rare occasion.
       In all respects, the judge's ruling was sound and correct. 
     Only Mr. Clinton's most vapid defenders can believe that 
     ``the presidency'' is somehow harmed by calling upon Secret 
     Service agents to tell the truth about possible felonious 
     actions.


     
                                  ____
                 [From the Tampa Tribune, May 23, 1998]

                   Secret Service Agents and the Law

       In plenty of palaces in the backwaters of the world, a 
     dictator's bodyguards never testify against the boss. It is 
     outrageous that such an issue should even be under debate 
     here.
       Yet the Justice Department is arguing that Secret Service 
     agents assigned to protect the president shouldn't be allowed 
     to answer questions by the special prosecutor investigating 
     possible obstruction of justice in the Monica Lewinsky 
     episode.
       The White House argues that if Secret Service agents had to 
     tell what they might have seen while guarding the president, 
     it would destroy their ``relationship'' with him and damage 
     their ability to protect him. The president would ``push the 
     agents away,'' says Justice Department lawyer Gary Grindler.
       That assumes the president is doing things he wouldn't want 
     a grand jury to know about. Requiring agents to see no evil 
     would require them to help obstruct justice, which is to say 
     make them assist their boss in the commission of a crime. For 
     officers sworn to uphold the law, such a position is 
     untenable.
       Whitewater prosecutor Kenneth Starr is right that 
     absolutely nothing in federal law allows for such a 
     privilege. In our form of government, no one is above the 
     law. Starr points out that federal law actually requires 
     employees of the executive branch to report any evidence of a 
     crime.
       Even the president himself can be subpoenaed to testify. 
     Surely his bodyguards don't deserve more protection than he 
     does.
       If the president, in his desperation to avoid embarrassment 
     or worse, is allowed to turn the Secret Service into the 
     Silent Service, he will have done the country a great 
     disservice.


     
                                  ____
               [From the Washington Times, May 26, 1998]

                  The President's Tough Times in Court

       Things certainly have all been going Kenneth Starr's way, 
     legally speaking, in his attempts to carry out a thorough 
     investigation of possible perjury, subornation of perjury and 
     obstruction of justice by Bill Clinton, Vernon Jordan and 
     Monica Lewinsky.
       U.S. District Judge Nora Holloway Johnson found in Mr. 
     Starr's favor when she rejected the demonstrably preposterous 
     White House claim that conversations Mr. Clinton had with 
     aides Bruce Lindsey and Sidney Blumenthal about how to deal 
     with the President's Lewinsky problem were covered by 
     executive privilege.
       Judge Johnson also came down on Mr. Starr's side in 
     rejecting Miss Lewinsky's claim that Mr. Starr had made an 
     immunity deal with her on which he then reneged. An appeals 
     court last week refused to overturn that decision, which 
     leaves Miss Lewinsky with the delicate task of squaring her 
     sworn testimony that she and Bill Clinton had no sexual 
     relationship with her statements on

[[Page E1184]]

     the Linda Tripp tapes that she had indeed had such a 
     relationship, that she was prepared to lie about it in her 
     sworn deposition, and that she hoped Mrs. Tripp would do the 
     same.
       And, putting another chink in the Clintons' stone wall, 
     last week Judge Johnson agreed with Mr. Starr that there is 
     no legal basis for granting a hitherto unheard of 
     ``protective function privilege'' to Secret Service agents 
     who guard the president, and that the state's interest in 
     gathering evidence in a criminal case must outweigh qualms 
     about any damage that might be done to the trust between a 
     president and his guards. Actually, Judge Johnson cut right 
     to the heart of the issue in the particular case of this 
     particular president.
       ``The court is not ultimately persuaded,'' wrote the judge, 
     ``that a president would put his life at risk for fear that a 
     Secret Service agent might be called to testify before a 
     grand jury about observed conduct or overheard statements. . 
     . . When people act within the law, they do not ordinarily 
     push away those they trust or rely upon for fear that their 
     actions will be reported to a grand jury. . . . It is not at 
     all clear that a president would push Secret Service 
     protection away if he were acting legally or even if he were 
     engaged in personally embarrassing acts. Such actions are 
     extremely unlikely to become the subject of a grand jury 
     investigation.''
       In other words, as has been suggested before in this space, 
     a president could feel free to do a lot of things in front of 
     his Secret Service detail--short of breaking the law, that 
     is--without conjuring up the spectre of the grand jury. Only 
     a president who had broken the law would have reason to worry 
     that the agents guarding him might be asked to testify 
     against him.
       President Clinton himself, clearly distraught about the 
     ruling, warned that it would have a ``chilling'' effect--and 
     went on to commit the kind of inadvertent honesty that may be 
     becoming a habit (such as his statement at his recent press 
     conference that he is the last person in the world who ought 
     to comment on the question of character). Thinking to 
     chastise Mr. Starr for demanding Secret Service testimony, 
     the president said after the ruling, ``I don't think anyone 
     ever thought about [Secret Service agents testifying] because 
     no one ever thought that anyone would ever abuse the 
     responsibility that the Secret Service has to the president 
     and to the president's family. . . . But we're living in a 
     time which is without precedent, where actions are being 
     taken without precedent, and we just have to live with the 
     consequences.''
       Mr. Clinton and his various legal problems in a nutshell, 
     no?


     
                                  ____
                                     George Washington University,


                                                   Law School,

                                     Washington, DC, May 25, 1998.
     Hon. Janet Reno
     Attorney General of the United States,
     U.S. Department of Justice, Washington, DC.
       Dear Madam Attorneys General: I am writing on behalf of 
     four former United States Attorneys General, who have asked 
     me to assist them in the on-going controversy over the 
     proposed ``protective function privilege.'' In deference to 
     the Court and your office, the former Attorneys General have 
     been highly circumspect in their public statements on this 
     issue despite their strong concerns about the proposed 
     privilege. After the May 22, 1998 decision by the Court, 
     however, these concerns have become more acute with the 
     possible appeal of the decision rejecting the proposed 
     privilege. It is to the question of an appeal that I wish to 
     convey the view of former Attorneys General William P. Barr, 
     Griffin B. Bell, Edwin Meese III, and Richard L. Thornburgh.
       It is the collective view of the former Attorneys General 
     that the decision of Chief Judge Norma Holloway Johnson was 
     legally and historically well-founded. Moreover, any appeal 
     would likely result in an opinion that would only magnify the 
     precedential damage to the Executive Branch. While Secret 
     Service Director Lewis Merletti has already stated his 
     intention to appeal this matter to the United States Supreme 
     Court, it falls to you and Solicitor General Seth Waxman to 
     make such a decision. For the reasons stated below, the 
     former Attorneys General encourage you to exercise your 
     authority to forego an appeal in this matter.
       The former Attorneys General take no position on the merits 
     or underlying allegations of this investigation. However, the 
     former Attorneys General have watched the on-going 
     confrontation between the White House and the Office of the 
     Independent Counsel with increasing unease and concern. As 
     the investigation becomes more embroiled in claims of 
     executive privilege, the danger of lasting and negative 
     consequences for both the Executive Branch and the legal 
     system has grown considerably. In an area with little prior 
     litigation, we have already seen a series of new rulings on 
     issues ranging from attorney-client privilege to presidential 
     communications to civil liability of sitting Presidents. 
     While many of these rulings were not unexpected, they 
     constitute significant limitations for future presidents. 
     Despite their unease, the former Attorneys General have 
     avoided any direct involvement in the crisis and waited for 
     the decision of the trial court in the hope that an appeal 
     would not be taken after the widely anticipated rejection of 
     the proposed privilege.
       As you know, during their service over the last two decades 
     for both Democratic and Republican administrations, the 
     former Attorneys General have played central roles in the 
     development of executive privilege principles and advocated 
     the rights of the Executive Branch on numerous occasions. 
     While strong supporters of executive privilege, they feel 
     equally strongly that such privilege claims must be carefully 
     balanced and cautiously invoked in litigation. Certainly, 
     such claims should not suddenly emerge from the fog and 
     frenzy of litigation with no historical antecedent or legal 
     precedent. In adopting such common law privileges, the 
     Supreme Court relies upon ``historical antecedents'' and 
     evidence that the privilege is ``established'' and 
     ``indelibly ensconced in our common law.'' United States v. 
     Gillock, 445 U.S. 360, 366, 368 (1980). Accordingly, common 
     law privileges develop slowly within the federal system 
     through general acceptance and recognition. Judge Benjamin 
     Cardozo described this gradual process as developing ``inch 
     by inch'' and ``measured . . . by decades and even 
     centuries.'' Benjamin N. Cardozo, The Nature of the Judicial 
     Process 25 (1921).
       In comparison, rather than developing a new privilege by 
     precedential inches, the proposed protective function 
     privilege represents a great leap--in the wrong direction. 
     This proposed privilege was suddenly crafted to meet the 
     immediate demands of a criminal investigation. Rather than 
     offering ``historical antecedents,'' the proposed privilege 
     would spring fully grown without prior recognition or 
     development in the common law. Rather than emerge through 
     general acceptance, the privilege would be created amidst 
     sharp divisions and opposition among the Bar and legal 
     academics. Moreover, a protective function privilege appears 
     to be designed to permit what is expressly disavowed in 
     established privileges, specifically (1) a general claim of 
     privilege that is not directly tied to specific presidential 
     communications or policy processes, and (2) a refusal to 
     supply information in criminal inquiries as a matter of 
     common law.
       Not only is there an absence of any prior judicial 
     recognition of this privilege, the proposed privilege would 
     conflict with the traditional view of the obligations of 
     federal employees in supplying information in criminal 
     proceedings. As noted by the United States Court of Appeals 
     for the Eighth Circuit in In re: Grand Jury Subpoena Duces 
     Tecum, 112 F.3d 910, 919 (8th Cir. 1997) (citing 28 U.S.C. 
     Sec. 535(b)(1994)) ``executive branch employees, including 
     attorneys, are under a statutory duty to report criminal 
     wrongdoing by other employees to the Attorney General.'' 
     Courts have repeatedly stressed that law enforcement 
     personnel have an obligation running to the public to 
     disclose any evidence of crime and the failure to do so would 
     be grounds for removal, or even prosecution, in some 
     circumstances.
       While the proposed privilege refers to the protective 
     function of the Secret Service, it is important to note that 
     the actual physical protection of the President, and 
     information relevant to protective functions, is not at risk 
     of disclosure. Existing common law privileges and statutory 
     sources protect security-related information. Most security-
     related documents and information would be easily shielded 
     from disclosure under the military and state secrets 
     privilege. In addition to this established privilege, 
     classification laws impose heavy restrictions and procedures 
     for the disclosure of such information. Thus, the protective 
     function privilege would not serve any direct protective 
     function in the withholding of sensitive information.
       Ironically, as to non-security related information, the 
     proposed privilege cannot possibly achieve its objective of 
     assured confidentiality since it shields only a small 
     percentage of the federal employees who witness presidential 
     communications and conduct. Specifically, the proposed 
     privilege would not prevent the identical communications from 
     being revealed by legal staff, political staff, 
     administrative staff, household staff, retired security 
     staff, or state or local security officers. For example, in 
     the Oval Office, a pantry is staffed by employees who can be 
     (and have been) called as witnesses in criminal 
     investigations. As public employees, these employees must 
     give relevant testimony to criminal investigators. Likewise, 
     White House lawyers, secretaries, and administrative staff 
     can be (and have been) called to testify in criminal 
     investigations. These ``unprivileged'' employees would hear 
     the same communications presumably overheard by Secret 
     Service agents. Even security staff would not be completely 
     barred from disclosures under a protective function 
     privilege. The President is often guarded by a host of state 
     and federal law enforcement personnel beyond the relatively 
     small contingent of Secret Service personnel. As a result, 
     this proposed privilege would achieve little in terms of 
     added guarantees of nondisclosure for the President but would 
     change much of our traditional view of the Secret Service and 
     its function.
       In the end, all that will be achieved is an alarming 
     anomaly in which every public employee in the White House, 
     from office secretaries to cabinet secretaries, would be 
     required to give evidence of criminal conduct with the sole 
     exception of the law enforcement officers stationed at the 
     White House. Only the personnel trained to enforce federal 
     law would be exempt from the most basic fulfillment of public 
     employment. This would be a considerable, but hardly a 
     commendable, achievement.

[[Page E1185]]

       The proposed privilege would be equally unique in its 
     invocation and application. Unlike the standard executive 
     privilege protecting presidential communications, the 
     proposed privilege would be invoked by the Secretary of the 
     Treasury rather than the President of the United States. Not 
     only would the new privilege invest this single cabinet 
     officer with unique and troubling authority, it allows a 
     political appointee of a President to create a major barrier 
     to a criminal investigation that is, by statute, meant to be 
     independent of the Executive Branch. Morrison v. Olson, 487 
     U.S. 654, 661 (1988). Such exclusive and unilateral authority 
     claimed by the Secretary of the Treasury is completely 
     unprecedented and unanticipated in our history.
       Even if successful on appeal, this privilege would be 
     secured at a tremendous and prohibitive cost for the 
     traditions of the Secret Service. Created as a law 
     enforcement agency, the new privilege would shift an 
     obligation running currently to the public in favor of an 
     obligation running to the personal household of the 
     President. This creates a unit more closely analogized to a 
     Praetorian or palace guard and introduces a dangerous 
     ambiguity for law enforcement officers. Secret Service agents 
     are law enforcement professionals, not members of a personal 
     household guard. Moreover, a new privilege would create a 
     legal morass for future cases for other law enforcement 
     officers. Federal law enforcement Officers, including United 
     States Marshals, currently guard hundreds of dignitaries, 
     judges, and other officials. The status and controlling 
     duties of these individuals would become hopelessly and 
     dangerously ambiguous under a protective function privilege. 
     Currently, there is a clear line for protective personnel. 
     Their jobs require them to protect the physical safety of 
     those officials in their care but their status as law 
     enforcement officers require them to share any relevant 
     criminal evidence. This has been a bright-line rule under 
     which federal enforcement personnel have served for many 
     decades without objection.
       The common law cannot guarantee a President that his 
     conduct will never be the subject of criminal investigation. 
     However, few Presidents have ever been the subject of 
     criminal allegations and even fewer have faced criminal 
     inquiries. The likelihood of future court-sanctioned 
     inquiries into either criminal or non-criminal conduct of the 
     President is extremely remote. In any area where a President 
     may fear possible allegations of criminal conduct, the 
     chilling effect of a criminal inquiry would be a positive, 
     not a negative, influence. Put simply, it is not in the 
     public's interest for their President to feel comfortable 
     discussing possible criminal information in front of any 
     public servant, let alone a law enforcement officer.
       The former Attorneys General are deeply concerned about the 
     inherent dangers in recognizing a special privilege for the 
     Secret Service. To that end, the former Attorneys General 
     have asked me to prepare an amici curiae brief opposing the 
     privilege for their consideration, should an appeal be taken 
     in this case. The immediate question, however, rests with 
     your evaluation of the relative merits and costs of an appeal 
     from the Court's decision. There are clearly many competing 
     interests weighing into the decision of an appeal in the 
     case. In making this decision, I hope that the unique 
     perspective of your predecessors will assist you in the 
     coming days.
           Respectfully,
                                                  Jonathan Turley,
                                                 Professor of Law.

     

                          ____________________