IN THE LINE OF FIRE
FEBRUARY 12, 1998
A former Secret Service officer appeared before the federal grand jury investigating perjury and other allegations concerning President Clinton and Monica Lewinsky. At least one current officer has been subpoenaed. After this background report, experts debate whether Secret Service officers can be required to testify and still do their job.
PHIL PONCE: Now two perspectives on the Secret Service subpoenas. Jonathan Turley is a professor at George Washington University Law School. Ron Noble was the Treasury Department undersecretary in charge of the Secret Service during the first Clinton term. He now teaches at New York University Law School. Gentlemen, welcome. Mr. Noble, should Secret Service agents be compelled to give testimony against the President?
A RealAudio version of this segment is available.
February 12, 1998:
A background report on the role of the Secret Service.
June 20, 1996:
The Secret Service's role in a controversy surrounding FBI files containing materials on Bush and Reagan administration employees, obtained by the Clinton White House.
Review the NewsHour's coverage of Kenneth Starr's investigation into the relationship between President Clinton and former White House intern Monica Lewinsky.
Browse the NewsHour's coverage of the White House
The Washingtonpost.com's coverage of the crisis.
RONALD K. NOBLE, Former Treasury Undersecretary for Enforcement: Well, I think the starting point should be that Secret Service agents ought to have a privilege; there ought to be a recognition that the work they perform requires them to be trusted by the protectee. In order for them to be trusted they've got to be able to maintain confidences of non-criminal conduct that they might observe or overhear. Once you get beyond that point then you have to ask yourself, what kind of information is being pursued? If it's technical information, procedural information, how many other ways can you get that information, other than by asking a Secret Service agent or uniform division officer to testify? But I think a starting point has to be that there is a privilege and it's tied to national security because it's tied to the safety and protection of the President.
PHIL PONCE: Amplify on that. What harm would be done to that relationship if a Secret Service agent were compelled to testify?
Would removing confidentiality endanger the President?
RONALD K. NOBLE: The best parallel I can draw would be if you think about a reporter who's maintaining the confidence of his or her sources, once the reporter discloses the confidential nature of the source, that reporter can forget about getting any kind of information from any other confidential source. And I would also say it would have a negative impact on reporters all over. Similarly, with the President and the Secret Service--if the President or any protectee, any visiting head of state, believes that the Secret Service is there to spy on them, the protectee will put the Secret Service at arm's length, further and further away from the body, exposing their body to greater risk of harm and potentially death.
PHIL PONCE: How about that, Mr. Turley?
JONATHAN TURLEY, George Washington University Law School: Well, I don't think--I don't agree. I agree with the general principles laid out by Professor Nobel. I just don't agree with the details. As Prof. Noble indicated, any privilege should not cover criminal matters. Well, that's the rub. I mean, we have an independent counsel in the field. He's investigating criminal matters. He believes that these agents could have relevant evidence about crimes committed in the White House. He has a right as an independent counsel to bring them to a grand jury and have them testify. The Secret Service is not unique. They're a law enforcement agency. They do not have a privilege that extends to criminal conduct. The President of the United States doesn't have an executive privilege to refuse to answer questions of the independent counsel as to criminal conduct. He can invoke the Fifth Amendment, like any citizen, but the President's executive privilege cannot extend beyond the official duties of his office. Playing God his duties do not include criminal acts. Well, the Secret Service cannot have a privilege that is broader than the President's, and that's the issue. Now, someone has to decide whether they have evidence of crimes. That's not up to the Secret Service. That's up to the independent counsel and ultimately up to the grand jury when it votes on any indictment.
PHIL PONCE: Putting aside the issue of privilege, which I'd like to get back to in just a second, how about--respond to his point about the trust relationship and the fact that if the President doesn't trust his Secret Service agents to be discreet, then he or she in the future might want to put an arm's length distance from them and maybe jeopardize their personal security.
JONATHAN TURLEY: With all due respect to Prof. Noble, I disagree with the effect that a ruling would have. The president is not going to physically separate himself from an agent. All presidents should be uncomfortable discussing potential criminal matters in front of a public employee, particularly a law enforcement officer. We don't want them to feel comfortable. This is a law enforcement officer working for the public, not the president. They protect the president from the crimes of others, not from the disclosure of crimes committed by the president. There's a very clear line there. Now, the president requires them for physical safety. He does not require them for legal safety. If he committed the crime or discussed a crime with his own lawyers in the White House counsel's office, they can't claim privilege to refuse to answer these questions. It would be absurd to say that the president who cannot claim this privilege and the lawyer in the White House cannot claim this privilege--would have to answer these questions--but the Secret Service agent guarding both of them would be able to claim a broader privilege. That's the problem.
PHIL PONCE: How about that, Mr. Noble, special privileges for Secret Service agents?
Defining the role of the Secret Service.
RONALD K. NOBLE: Well, he raised about five or six points, and blurred many of them together, so let me try to separate them. First, as a matter of fact, I disagree with his point that the Secret Service is like any other law enforcement agency. It is not. It is the only law enforcement agency tasked with the responsibilities of protecting the president. Second, his point that it would not have a negative impact on their ability to protect the President, I would defer to the head of the Secret Service. The Secret Service is an entirely career law enforcement agency. They protect all presidents, Republicans and Democrats. Third, with regard to the privilege being broader than a president's privilege, it is not broader than a president's privilege. What we're talking about here is the Secret Service not observing a crime in being committed, the Secret Service observing a fact that someone says may or may not corroborate a crime. It's simple, factual testimony. If an attorney's client came in to talk to the attorney and told the attorney about something that happened in the past connected to his relationship with the attorney, that attorney wouldn't be required to disclose it. Similarly, with regard to the Secret Service and the President, they need to be close to the President in order to protect him, so anything that they hear or overhear has to be treated as though they were invisible because they are necessary to protect the president.
JONATHAN TURLEY: I--
RONALD K. NOBLE: Excuse me, sir. I let you finish--patiently. If you could afford me the same respect, I'd appreciate it. So from my perspective what we're talking about here is an executive-based privilege. I submit that as a matter of fact there's a nexus between the Secret Service's ability to protect the President and how close they can get to him. If they can't protect the President, that affects their ability to protect national security. If national security's at risk, that's an executive branch function just like happened in Iran Contra.
PHIL PONCE: Mr. Turley.
JONATHAN TURLEY: I'm not quite sure why according to Mr. Noble we should defer to the head of the Secret Service. Why? He's the head of an agency claiming a privilege. We never defer to people who have such a strong interest. There are other agencies to protect the president's life, including the FBI, including local police, and there's also, by the way, other people in the White House who may be present during these conversations. There's people that serve the President lunch. Are we going to have a luncheonette, a privilege to cover those conversations? The question is, is the Secret Service unique? Now, people in the Secret Service want to believe that they are unique. Well, you know what, they're not. They have given testimony in the past. They have often been put forward by the White House to give testimony. In the case of President Bush the Secret Service was pushed out in front by the White House to clear him of the allegations--the October Surprise.
The Secret Service has also been the source of numerous leaks. You know, the Secret Service often appears more like, you know, Kitty Kelley than Dudley Doright. I mean, they have often been the sores of many of the most scurrilous comments. So the Secret Service is neither legally nor historically unique in the sense of this. There's a vast difference between a protocol and a privilege, and what the Secret Service is citing is a protocol. They can make a claim of executive privilege that is based in the office of the president, but they cannot hope to get a privilege that's based on their unique status. They will lose in federal court.
Secret Service rules and procedures.
PHIL PONCE: Mr. Noble, what if the Secret Service agents were to see an act committed that was inherently a criminal act, not just what somebody might have said, or what somebody might have done, but in and of itself was a criminal act. At that point should they be compelled to testify?
RONALD K. NOBLE: I'll answer your question but first I have to take personal issue with the characterization of the United States Secret Service as being an agency that engages in scurrilous conduct. There's no basis for it; there's no reason to make that kind of allegation.
JONATHAN TURLEY: It's on the record.
RONALD K. NOBLE: Well, please, if I might just finish, please, sir. I let you finish. Please let me finish. The second point, with regard to conversations that the President engages in that someone else might overhear, if that someone else is not a Secret Service agent, then I'm saying the privilege does not apply. The third point I would make with regard to the specific question you just asked me, I submit that if the Secret Service agent witnesses the president engaged in patently or obvious criminal conduct, the privilege would not attach. What I'm talking about is simply fact-related information that someone believes may corroborate allegations of criminal wrongdoing that were observed in the context of the Secret Service discharging their protective responsibilities.
PHIL PONCE: Mr. Noble, what is it that Secret Service agents are told exactly about what they see, what they hear, what they can talk about, either as--when they're in office or afterwards?
RONALD K. NOBLE: They're basically told that it's their obligation to protect the president; that they have to think about protecting the president and any head of state above all else, and that requires that they maintain the confidence not only of the president but any confidence that's required in order for them to discharge their responsibilities. So what I don't want to do and I have to be very careful about doing is I don't want to go through a blow by blow description about how the Secret Service actually protects the President. We know from a classified information basis that that might create problems. And one of the reasons I said we should turn to the Secret Service for a basis in terms of deciding whether or not a privilege ought to attach is because it's the same thing we do in a classified information context where we ask the head of the agency to make an affirmation about the relationship between the content of the information and classified information.
PHIL PONCE: Mr. Turley, do you think there are any situations where Secret Service agents should have some kind of an exemption?
Secret Service leaks: Ford, Carter and Reagan.
JONATHAN TURLEY: Certainly, there are going to be subpoenas or requests for information that are too broad. But let me point out one thing that I think is useful. The suggestion that these agents shouldn't testify because they just witness facts and not crimes is a distinction that can't possibly hold. Most witnesses before a grand jury saw only facts. Most of them didn't witness the actual crime. It's up to a prosecutor to determine the relevancy and potentially a judge. It's not up to the Secret Service. They don't have a unique status or insight in that sense. Also, in terms of the record, the Secret Service has been attributed with leaks throughout its history. During the Carter administration it was Secret Service agents that disclosed what they said were drug problems within the White House; during the Ford administration there were similar statements; during the Reagan administration leaks came by a powerful torrent out of the Secret Service. And during the Clinton administration the Secret Service has also been responsible for those. And--
PHIL PONCE: I'd like to get Mr. Noble to respond--if you can wrap up very quickly.
JONATHAN TURLEY: Yes. Four agents went on the record with Seymour Hirsch and gave detailed scurrilous comments about President Kennedy. That's on the record. It's not me saying that.
PHIL PONCE: Mr. Noble.
RONALD K. NOBLE: I'm trying to draw a distinction between allegations that are attributed to the Secret Service and the Secret Service being the source of leaks. Let me give you one example. There was an allegation reported just in the context of this case that a Secret Service agent reportedly witnessed the President and Ms. Lewinsky in a compromising position, and the Dallas Morning News had to withdraw that allegation. There are other allegations that in order to give them life they attribute them to the Secret Service. So I'm drawing a distinction between allegations and reality. And with regard to the role the Secret Service and whether we want them to divulge or not divulge information related to criminal conduct, what I'm saying is, yes, it's true, in every case you want to build your case by having fact, witnesses disclose what they observed, but there are situations when you don't do that. For example, with reporters and their sources, we don't ask reporters and their sources to do that, and we shouldn't do it with the Secret Service.
PHIL PONCE: Gentlemen, we're out of time. We'll have to leave it there. I thank you both.