Strictly Hush-Hush

By Richard Lacayo

From the first years that Treasury Department agents were assigned full time to protect an American President--Theodore Roosevelt--discretion has been a working principle. Early in the century one of them wrote that unless they ignored presidential confidences that they saw or heard on the job, the Commander in Chief would never let them close enough to provide protection, and so a Secret Service agent, he wrote, must be "deaf, dumb and blind."

No agent has ever testified against a President in court. But no President has ever been pursued by anyone quite like Kenneth Starr, who wants to question agents about Bill Clinton's meetings with Monica Lewinsky. Last week the Secret Service hit back in court with a novel defense the Administration has been testing in public for a while. In a sealed court filing, lawyers for the Justice and Treasury departments argued that agents can refuse to testify because they are shielded by a "protective function" privilege similar to the one that covers spouses, doctors and clerics.

What the lawyers are saying is that the President must believe agents can protect his privacy as well as his life. Otherwise, the thinking goes, he might be tempted to distance himself from his guards whenever he wants to talk, or whatever, in private. The privilege has exceptions, the lawyers argue. Agents could be compelled to testify about whether they had witnessed a President committing a crime, such as taking a bribe. But a prosecutor wanting to know about, say, noncriminal caperings with an intern could be refused. "Proximity is the heart and soul of what we do," says Secret Service director Lewis Merletti, who pressed for the privilege. "It can't be compromised."

Starr is trying to find out whether the President lied under oath when he denied a sexual relationship with Lewinsky to Paula Jones' lawyers. In recent weeks Starr's lawyers have interviewed three uniformed officers outside the grand-jury room, but they reportedly refused to answer questions about Clinton and Lewinsky. Starr wants corroboration for testimony that his grand jury heard in February from Lewis Fox, a retired officer. According to U.S. News & World Report, Fox told the grand jury that in the fall of 1995, he admitted Lewinsky to the Oval Office. Forty minutes later, when he left his post outside the door, she was still there. He was certain she and Clinton were alone because the other entrances to the Oval Office were locked.

For weeks Justice Department officials and Starr's lawyers have negotiated over whether officers and agents would testify. But the atmosphere for those talks may have been poisoned after Secret Service director Merletti learned that Starr was investigating rumors that the previous chief, Eljay Bowron, might have been forced out last year to make room for someone friendlier to Clinton, namely the 49-year-old Merletti. A 23-year veteran of the service, Merletti was troubled: Starr was chasing a conspiracy theory and had sent FBI agents to Bowron's house to try to prove it. Bowron, who had recommended Merletti as a possible successor, said that he informed Starr's investigators that his departure was voluntary and that he strongly supported the protective privilege for agents. Says Bowron: "It's not a new issue with the Secret Service."

In their filing, Administration lawyers included a letter George Bush sent to Merletti in which the former President supported their argument. (In an accompanying letter, Bush noted that he also held Starr in high regard.) But the current President was keeping his distance from the whole dispute. White House press secretary Mike McCurry said Clinton had no position on the privilege. "We've got to stay 100 miles away from it," says a White House official. "Anything we say is seen through the prism of scandal."

But the White House has already invoked the separate notion of Executive privilege in an attempt to screen aides Bruce Lindsey and Sidney Blumenthal from Starr. Extending a similar privilege to the Secret Service would be novel, says Burt Neuborne, former legal director of the American Civil Liberties Union, but not unreasonable. "It has all the hallmarks of other privileges, such as the marital and clergy privileges. Without it, you run the risk of injuring what is a tremendously important relationship." Not everybody is convinced. "The presidency comes with a lot of perks, but this one is just over the top," says St. John's University professor John Barrett, an expert on the independent-counsel law. "Does the law need to build a protection to protect a President from behaving himself?"

--Reported by James Carney, Michael Duffy, Viveca Novak and Elaine Shannon/Washington

With reporting by James Carney, Michael Duffy, Viveca Novak and Elaine Shannon/Washington