[Congressional Record Volume 144, Number 99 (Wednesday, July 22, 1998)]
[Extensions of Remarks]
[Pages E1388-E1389]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        SECRET SERVICE PRIVILEGE

                                 ______
                                 

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                        Wednesday, July 22, 1998

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today to make a few 
observations about the Secret Service's position on a ``Protective 
Function Privilege'' that should exist between the President of the 
United States and his security detail.
  In his ruling denying the Secret Service's request for a stay last 
week, Supreme Court Chief Justice William Rehnquist stated ``in my 
view, the [Administration] * * * has not demonstrated that   * * 
enforcing subpoenas [in this case] * * *  would cause irreparable 
harm''. I beg to differ. Not only do I believe that there is 
irreparable harm here, but I also believe that the Secret Service's 
legal theory stands on firm footing. Furthermore, this decision may 
cause the President of the United States to push away his ``protective 
envelope'', and as a result, make him more vulnerable to assassination.

[[Page E1389]]

  In this country, we have a profound respect for certain types of 
relationships. These important relationships are often protected by the 
law for several reasons. First, because of their value. Many of these 
relationships, like the doctor-patient, the attorney-client, the 
priest-penitent and the spousal privilege, are important not only 
because they are woven from the very fabric of our society, but also 
because they represent relationships which are necessary for our social 
institutions to function effectively. It is a rationale well accepted 
by our courts, for instance, in the case of United States v. United 
Shoe Machine Corporation, where the court shared its thoughts on the 
worth of the attorney-client privilege when it said ``the social good 
derived from the proper performance of the functions of lawyers acting 
on [behalf of] their clients is believed to outweigh the harm that may 
come from the suppression of the evidence in specific cases.'' 89 F. 
Supp. 347 (D. Mass. 1950).
  As another example, we rely on the doctor-patient privilege to 
protect the privacy of medical patients. Without assurances that a 
Doctor will discuss the medical condition of his clients with others, a 
patient would be hesitant to seek necessary medical attention. Our 
institution of medicine would be shaken to its very foundation as a 
result, and for that reason, we legally protect communications between 
a patient and their health care professional.
  I do not believe that anyone doubts the importance of the 
relationship between the President and his protectors. I this day and 
age, we must remember that these people are responsible for protecting 
the most powerful person on the face of the planet. I do not think any 
Member of this Congress can, in good faith, state that this is not as 
important a relationship as that between an attorney and their client, 
or a doctor and their patient. We have already mourned the death of 
enough Presidents and civil rights leaders. Assassinations are 
cataclysmic events. We must do our best to spare the people of this 
great country, from tragic events reminiscent of the deaths of 
Presidents Kennedy and Lincoln.
  The second reason that we protect these ``special relationships'' 
under the law, is because of their nature. We protect them because of 
their fragility when exposed to the eye of the unyielding public. We 
fear the susceptibility of these relationships to the harsh conditions 
of the public courtroom. For instance, one of the reasons that we so 
vehemently protect the attorney-client privilege is because we must 
protect a client from having their attorney testify against them at 
trial. That is not only commonsensical, but necessary to promote candor 
between a lawyer and the client seeking protection. The Supreme Court, 
in the case of Upjohn v. United States, 449 U.S. 383 (1981) emphasized 
that point when it declared that the purpose of the attorney-client 
privilege is ``to encourage full and frank communications between 
attorneys and their clients.'' This is a long-established cornerstone 
of the common law, developed as far back as the reign of Elizabeth I, 
and is inscribed in one of the most authoritative treatises of law 
currently published in the United States, Wigmore's ``Evidence.''

  The relationship between the President and the Secret Service is 
equally delicate. The ``cover and evacuate'' strategy developed by the 
Secret Service over the last few decades specifically requires that 
agents remain in extremely close proximity to the President. Lewis 
Merletti, Director of the Secret Service, in his declaration on behalf 
of his agency's position on this matter, has concluded, that both the 
McKinley and the Kennedy assassination attempts could have been averted 
had the agents stayed within their proscribed proximity of the 
President.
  It is also important to understand the complete level of trust that 
must exist between the President and his guard. Even Former-President 
Bush has recently stated ``I can assure you that had I felt [the Secret 
Service] would be compelled to testify as to what they had seen or 
heard, no matter what the subject, I would not have felt comfortable 
having them close in.'' That statement singularly spells out the 
problem in this case, the President of the United States cannot 
function effectively, and cannot be safe in his person, if he believes 
that his actions could later be used against him by someone outside of 
his close circle of advisors.
  Even beyond the issues of trust and confidence, the fact that the 
President must be accompanied by his escort at all times destroys other 
privileges he may have, such as the one that should exist between 
himself and his attorneys. That is because, under our law, a 
communication is not privileged unless it is confidential in other 
words, made without other people in attendance. The result is that the 
President is barred from asserting his attorney-client privilege if the 
people charged with protecting his life are present when he discusses 
his legal matters. Therefore, not only must we recognize the 
``Protective Function Privilege'' on its own merits, but also to 
preserve other privileges already recognized by our legal system.
  From my perspective, the ``Protective Function Privilege'' that has 
been asserted by the Secret Service in recent times has both qualities 
necessary for the application of a limited privilege. First, the Secret 
Service performs a function that is necessary in this day and age. It 
was not long ago that an agent named Timothy J. McCarthy took a bullet 
for then-President Ronald Reagan. Was it not for his willingness to 
perform this important duty, history may very well have turned out 
differently.
  The special relationship that the President must have with the 
members of his detail also supports the position that the ``Protective 
Function Privilege'' exists. The motto of the Secret Service is 
``Worthy of Trust and Confidence''. We cannot undermine that essential 
message by taking away the President's trust and confidence in his 
faithful protectors. We cannot tolerate any situation where the 
President will no longer be able to make confidential negotiations in 
the presence of the people charged with protecting his life. We cannot 
afford to create the circumstances where our Commander-in-Chief must 
ask a member of his own security detail to leave the room while he 
conducts his business. We cannot give any malcontent the slightest 
opportunity to kill the President of the United States.
  We must protect this relationship as we have others. We must protect 
it, not only for the good of our politicians, but also for the good of 
the American people.

                          ____________________