Justice Appeals Secret Service Dispute To Supreme Court
Appeals court's temporary stay expires Friday
WASHINGTON (AllPolitics, July 16) -- The Justice Department has asked the U.S. Supreme Court to block subpoenas that could force President Bill Clinton's chief bodyguard and other members of the Secret Service to testify before the Monica Lewinsky grand jury.
Chief Justice William Rehnquist has until noon on Friday to stay the subpoenas or else Larry Cockell, the head of President Bill Clinton's security team, and several other Secret Service employees, including the three originally called by Independent Counsel Ken Starr, would be required by law to testify.
Earlier Thursday, a U.S. Court of Appeals refused to hear Justice Department appeals on the subpoenas, saying the "likelihood of success before the Supreme Court is insufficient to warrant further delay in the grand jury's investigation."
The eleven judge court issued a stern rebuke of the Justice Department's request that the court recognize a "protective function privilege" for the Secret Service.
The Justice Department "has not made a sufficient showing that it will ultimately prevail in establishing the privilege it alleges. The harm asserted is future harm, depending on a prediction about what the president will do in the absence of the privilege," the court wrote. "This court has ruled that the privilege does not exist; no judge on the court has even requested a vote."
A few hours earlier, the panel had issued an temporary "stay" that delayed the day's scheduled testimony for Secret Service personnel until a decision was made to hear the Justice Department's request for an appeal hearing by the full Court of Appeals.
Cockell and other members of the Secret Service appeared at the federal courthouse in Washington Thursday, apparently prepared to testify, but the stay meant they would not have to answer questions. The group left about 10:45 a.m. EDT., after the last-minute order was issued.
The question is now in the hands of Rehnquist, who has oversight for the Federal Circuit. The chief justice could act independently, granting or denying a stay. He could, but does not have to, refer the appeal to the entire court for a decision, as is sometimes done in response to appeals for a stay of execution.
Whether or not it grants a stay on testimony by Cockell, the Supreme Court could still be
asked to decide the broader question of creating a privilege for the Secret Service when the court convenes next in October. That is an appeal separate from Thursday's request for a delay. Administration officials indicate they are unlikely to let the matter rest at the lower court.
To get on the Supreme Court's fall calendar, the Clinton Administration would have to petition the justices to "grant certiorari" -- a decision to hear the case. If there are four votes among the nine to hear it, the case would be scheduled for argument in the fall.
Attorney General Janet Reno was hit with a blistering attack by of the one judges, Lawrence Sliberman. He blasted her as wrong on the law and, perhaps, dishonorable.
In extraordinarly blunt language, Silberman suggested Reno's decisions on whether the Secret Service should have a special protective privliege are being affected by politics. He declared that senior political appointees,like Reno, are under terrible political pressure -- made worse, he said, when the president's agents "declare war" on the independent counsel.
White House counsel Charles Ruff fired back saying the White House has no role in Reno's deliberations.
"As we have stated before, the attorney general and the secretary of the Treasury have made their decisions on how to proceed in this matter with complete independence, guided by the advice of career law enforcement professionals." Ruff said in a statement. "They have had only one interest -- to ensure that the Secret Service is able to perform its vitally important duties. Any suggestion to the contrary is without foundation."
But Silberman said the attorney general is in effect acting as the president's counsel under the false guise of representing the United States and that Reno has no legal standing to oppose Starr over whether Secret Service agents should be forced to testify.
"It is up to the independent counsel, the surrogate attorney general in this matter, to decide whether the "privilege" asserted by the Secret Service as a government entity should be recognized," Silberman wrote.
Silberman went on to say that federal law limits the options that the attorney general can legally and honorably pursue and litigating against the independent counsel is not among them.
The judge's strong words drew swift response from Reno's second-in-command Eric Holder.
"There has been nothing dishonorable about the way in which the Justice Department has conducted itself in this matter," Holder said. "The lawyers at the Justice Department who put forward these arguments believe in the arguments, we have not done this to delay anything, we sincerely believe in the positions we have taken."
Michael Leibig, an attorney for two of the Secret Service Officers, told reporters outside the federal courthouse that his clients are very concerned about the prospect of testifying before the grand jury.
"It's very difficult for them to carry out their job when rather than just being guards, anyone thinks they're actually witnesses to what's happening behind them or around them." Leibig said. "Secondly, they're worried because they're getting, as you are, as everybody in the United States is, all sorts of different cross-opinions of what their legal duties are."
Leibig also said the two officers he represents "do not know about some vital, embarrassing,
blockbuster event."
Starr's spokesman Charles Bakaly told the Associated Press that this legal battle over Secret Service testimony is just part of their job. "Our position has always been to use all available legal means to gather full and truthful testimony for the grand jury as expeditiously as possible," Bakaly said.
Starr is investigating whether Clinton had a sexual affair with Lewinsky
and then urged her to lie about it under oath in the Jones case. Both Clinton and Lewinsky have denied the allegations.
Cockell will not travel with Clinton on his weekend trip to Arkansas and Louisiana and will not travel with him "indefinitely," until the matter is resolved, administration sources tell CNN.
"They [the Secret Service] cannot afford to have him distracted," said one source familiar with the decision. "Protecting the president is too critical to have him distracted."
A source cited the probability that reporters would throw questions at Cockell, which could take his attention away from the guarding the president.
Cockell will be replaced by the man who preceded him as head of the security detail, Assistant Secret Service Director Brian Stafford.
Sources outside the government tell CNN, Cockell has retained Washington attorney John Kotelly to represent him.
Starr hoped to move toward a new, sensitive area of his investigation, questioning Cockell, head of Clinton's plainclothes Secret Service detail, and eight uniformed officers about what they saw or heard about the president and Lewinsky, a former White House intern.
Cockell was at Clinton's side when Clinton gave testimony on Jan. 17 in the now-defunct Paula Jones sexual harassment lawsuit. He also rode in the presidential limousine after the six-hour session, meaning the agent was privy to conversations between the president and his lawyer.
Clinton's personal lawyers, Robert Bennett and David Kendall, say the Secret Service subpoenas are a "backdoor attempt" to get at private conversations between Clinton and his attorneys that would be protected by attorney-client privilege.
Bennett and David Kendall are prepared to enter the fray if the agents are ultimately forced to testify and asked questions they consider objectionable, CNN has learned.
These sources, an attorney and a government official familiar with the president's legal strategy, said Bennett and Kendall told the Justice Department they want to be immediately informed if agents are forced to testify and are asked whether they overheard conversations between the president and his attorneys.
The sources said the Bennett-Kendall communication to the Justice
Department mirrored a public statement the two lawyers issued Wednesday,
putting Starr on notice they would aggressively fight any attempt to pierce the president's attorney-client privilege.
In related news, Linda Tripp completed sixth day of testimony before the grand jury Thursday. It was Tripp who secretly taped the 20 hours of phone conversations with Lewinsky that triggered Starr's investigation. A spokesman for Tripp said she will be back on Tuesday to continue her testimony.
And, two sources close to the Lewinsky defense team told CNN on Thursday there has been no progress in reaching an immunity deal with the Office of the Independent Counsel.
One of the sources called the discussions "all but dead."
The sources said there have been brief, periodic conversations in recent days but that no substantive progress had been made. They declined to discuss the obstacles but one said, "things haven't changed from before."
Previously, sources said the obstacles included a Starr demand that his staff be allowed to interview Lewinsky before agreeing to any immunity deal.
One of the sources said Lewinsky's lawyers believed Starr's office would make "one final push" for a deal after Linda Tripp completes her testimony and the dispute over Secret Service testimony is resolved.
But both sources said they were pessimistic an agreement would be reached.
CNN's John King, Bob Franken, Charles Bierbauer, Pierre Thomas and The Associated Press contributed to this report.
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