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“INTRODUCTION OF RESOLUTION REGARDING PROTECTING FUNCTION PRIVILEGE” mentioning the U.S. Dept. of Justice was published in the Extensions of Remarks section on pages E1182-E1185 on June 19, 1998.
The publication is reproduced in full below:
INTRODUCTION OF RESOLUTION REGARDING PROTECTING FUNCTION PRIVILEGE
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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 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).
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[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.
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[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.
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[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 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?
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George Washington University,
Law School,
Washington, DC, May 25, 1998.Hon. Janet RenoAttorney 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.
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.
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