[Congressional Record Volume 144, Number 96 (Friday, July 17, 1998)]
[Senate]
[Pages S8466-S8468]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      THE SECRET SERVICE AND THE ``PROTECTIVE FUNCTION'' PRIVILEGE

  Mr. HATCH. Mr. President, I rise today to address the current 
controversy over whether Secret Service agents and employees should 
testify before the grand jury convened by the Independent Counsel, 
Judge Kenneth Starr. At noon today, the Chief Justice of the United 
States denied the Department of Justice's request for a stay of the 
order compelling Secret Service agents to comply with subpoenas. Thus, 
every level of the federal judiciary, including the Supreme Court, has 
now rejected the arguments advanced by the Department of Justice in 
support of a judicially-created ``protective function'' privilege. I 
sincerely hope that the Service and the Department will abide by these 
decisions and that the agents will testify truthfully and fully before 
the grand jury.
  In my view, the Secret Service's duty to protect the President does 
raise legitimate issues about whether agents should receive special 
privileges before being forced to disclose what they see or hear as a 
result of being so physically close to the President. However, the 
Department of Justice has taken these legitimate factual concerns and 
used them for political reasons to mount a fruitless legal battle to 
find a court, any court, to concoct this privilege out of thin air. In 
so doing, at least in my opinion, the Department has squandered its own 
credibility and acted solely as the defense attorney for the President 
in his personal legal problems.
  The trial judge and the D.C. Circuit have it right: there is no way 
for a court to conjure up a ``protective function'' privilege out of 
whole cloth. The Court of Appeals which rejected the Department's 
arguments concluded:

       We leave to Congress the question whether a protective 
     function privilege is appropriate

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     in order to ensure the safety of the President and, if so, 
     what the contours of that privilege should be.

  I have offered to lead such an effort in the Congress to craft a 
narrow privilege, and therefore I am at a loss as to the Department's 
motivations for so many appeals. I am worried, however, that the 
lengthy obstruction will lead my colleagues to conclude that the 
Service is not worthy of our support, and make it much more difficult 
for me to try to help them.
  The narrow privilege I envision would address legitimate concerns of 
the Secret Service, but I am sure it would not be the broad, 
impenetrable privilege advocated by the Service, nor should it be. But 
a Congressional solution which ``splits the baby'' is possible. As the 
Washington Post concluded in an editorial this morning:

       Any protection must recognize the responsibility of law 
     enforcement officers to aid criminal investigations.

  I hope that the circumstances when testimony by Secret Service agents 
is taken are limited to the most serious cases where the testimony is 
unique and directly related to accusations of criminal behavior. I am 
concerned, for example, that agents should not, under normal 
circumstances, be forced to testify before Congressional Committees or 
in civil matters. Again, I plan to address these issues when the 
Judiciary Committee holds hearings next year.
  One particular issue I will address during these hearings is whether 
the presence of a Secret Service agent at a conversation between an 
attorney and the protected person should negate the attorney-client 
privilege. Now the law generally is that having another non-lawyer 
present voids the privilege, at least as to that person. I do not 
believe we want this outcome, and I plan to work on creating an 
exception to correct this problem. I should point out that press 
accounts have recounted promises made by Judge Starr that he will not 
attempt to use testimony by Secret Service personnel to pierce 
protected conversations.
  I have to also add that if Secret Service Agent Cockell was in the 
President's presence because he had to be in the car to protect the 
President, and overheard conversations between the President and Mr. 
Bennett, his attorney, or between the President and Mr. Kendall, his 
attorney, or any other attorney of the President's, he had to be there 
as much as the seat they sat on had to be there. So I hope, even though 
technically the privilege would be waived because of Secret Servant 
Agent Cockell, I hope the Independent Counsel would respect that 
particular position of the Secret Service agent, and I have no doubt 
that he would. After all, there is some comity that must occur, even in 
matters like these.
  In any event, that is something we can clarify next year, and I 
intend to do so. I have to say, neither attorney Robert Bennett nor 
David Kendall is an inexperienced attorney. I doubt if either of them 
would have discussed crucial secret matters with the President before 
anybody else, including a Secret Service agent. So I think this is a 
much overblown point, and I have no doubt that Judge Starr did not 
intend to pierce that type of conversation anyway. But that still does 
not relieve the Secret Service agents of their duty as law enforcement 
officers to make sure that criminal activity is not undertaken or, if 
it is undertaken, to make sure that they do everything they can to stop 
it.
  I should note, however, that the Secret Service has been its own 
worst enemy here. No court is going to create this privilege out of 
thin air, and thus until Congress acts, the Service may have to provide 
testimony without any exceptions. I am talking about this so-called 
``protective function'' privilege. But rather than come to Congress to 
work constructively, the Service has fought a futile effort in the 
courts of this land.
  Many of the President's apologists have cited this current 
controversy as another alleged example of Judge Starr being too 
aggressive in his search for evidence related to the Lewinsky matter. 
But let's look at the record:
  When Judge Starr sought evidence from White House employees, the 
Justice Department and the White House claimed privilege: the court 
sided with Starr.
  When Judge Starr sought evidence from government attorneys, the 
Justice Department and the White House claimed privilege: the court 
sided with Starr.
  When Judge Starr sought evidence from Secret Service agents, the 
Service and the Department claimed privilege: the court sided with 
Starr.
  When Judge Starr sought evidence from Monica Lewinsky's first 
attorney, he claimed privilege: the court sided with Starr.
  When Judge Starr sought evidence from a bookstore, it claimed 
privilege: the court sided with Starr.
  And just over the last 48 hours when Judge Starr sought evidence from 
additional Secret Service personnel, the Justice Department and the 
White House claimed privilege: the District Court, the Court of Appeals 
and the Supreme Court all sided with Starr.
  I hope when the pundits talk about these controversies, they remember 
that, when it comes to debates on privileges, Judge Starr has an 
impressive record. It is easy to criticize a prosecutor for being 
overly-aggressive in seeking evidence, but let us all remember that 
Judge Starr has not only a right, but an obligation, to conduct a 
complete investigation within the bounds of the law. As demonstrated by 
his impeccable record before impartial judges, he has done exactly 
that.
  Lastly, it is hard to believe that the same White House that less 
than six weeks ago fought Judge Starr's request to have the Supreme 
Court take an expedited appeal of the Secret Service issue--and then 
gloated when the Supreme Court denied the request--resorted to an 
emergency appeal to the exact same court on the same issue. The 
hypocrisy speaks for itself.
  Mr. President, I have confidence that Judge Starr will do what is 
right here. I have confidence that the Secret Service men and women 
will do what is right here. There is no excuse for the Justice 
Department--nor, I might add, the Treasury Department--to continue to 
pursue these fruitless claims. I was willing to go along with the 
pursuit of the claims to try to get the court involved en banc--the 11 
sitting judges of the Court of Appeals for the District of Columbia--to 
make a decision on this. But anything beyond that just smacks of delay, 
and I believe that is exactly what is happening, especially since the 
White House has been slapped down so hard and the Justice Department 
has been slapped down in no uncertain terms, a number of times, on this 
very issue. I think it is time for them to wake up and realize they 
represent all of the taxpayers in this country and that they have an 
obligation to live within the law themselves and to not make any 
further frivolous appeals of this matter.
  It is my understanding that they still are asking for the Supreme 
Court to grant certiorari in this matter. I can't imagine why they 
would do that after what they have seen in both the district court and 
now the D.C. Circuit Court of Appeals, and with the rejection of the 
stay by Justice Rehnquist. It seems to me that just smacks of another 
fruitless appeal for delay.
  I do understand why the head of the Secret Service and others would 
fight for their Secret Service people and would try to take it to the 
nth degree. But that nth degree, it seems to me, ended with the Circuit 
Court of Appeals for the District of Columbia. Anything more than that 
seems to me to be highly frivolous, a delaying tactic that literally 
should not be done.
  I think the Secret Service ought to come to us and help us to fashion 
a way so they can have certain protections with regard to the closeness 
that they have to the President of the United States, and we will try 
to give them that kind of protection. We will try to find some way of 
giving them a privilege from testifying in matters that do not involve 
criminal activity, among other things.
  We will have to have hearings, and we will have to look at it very 
carefully, because it is a broad privilege they are asking for. They 
will never get exactly what they want, because I think people on both 
sides of the aisle will acknowledge that if it comes to criminal 
activity, if there is any criminal activity that they have observed or 
they participated in--and I doubt they have done anything like that, 
and I hope they haven't observed any criminal activity--they have an 
obligation, as law enforcement officers, to cooperate with the courts 
and to cooperate in

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getting to the bottom of these things and getting these matters 
resolved.
  With that, I thank my colleagues for letting me have this time.
  I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.

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