July 17, 1998
Rejecting a Justice Department appeal, Chief Justice William Rehnquist refused to block Secret Service agents from testifying before the grand jury investigating the president. Our political pundits Paul Gigot and Mark Shields discuss the growing legal drama surrounding the independent counsel's investigation as well as the HMO debate, another hot topic in Washington.
JIM LEHRER: The Secret Service decision and other matters as seen by Shields & Gigot, syndicated columnist Mark Shields, Wall Street Journal columnist Paul Gigot. Mark, Secret Service agents must testify before the Lewinsky grand jury and, in fact, three of them did today. How significant a decision was that by Chief Justice Rehnquist?
A RealAudio version of this segment is available.
July 16, 1998:
The Clinton administration appeals to Chief Justice William Rehnquist to intervene.
July 15, 1998:
Can the Justice Dept. force secret service agents to testify?
July 4, 1998:
The Supreme Court refuses to hear from Kenneth Starr.
July 1, 1998:
A report on the question of executive privilege and the Starr investigation.
June 4, 1998:
The Supreme Court refuses to expedite matters in the Ken Starr investigation.
July 9, 1998:
Susan Dentzer reports on the background issues in the HMO debate.
Should the government regulate managed care health plans?
Browse the NewsHour's past segments with Shields and Gigot.
MARK SHIELDS: Well, we won't know the significance till we hear the testimony but certainly there's -
JIM LEHRER: A setback.
MARK SHIELDS: Setback for the White House-no question about it. An up for Ken Starr. But I have to admit I was struck by the fact just a week ago in the written documents it was wanted to talk to the uniformed Secret Service officers to see who was going in and out of the office. The first person who called and identified was the lead agent for the president's detail, security detail. And to me, if there's one person who by definition of his office is the most vulnerable person-and that's the person who takes a slug for the president-that's the president who shadows the president-and to me, I suppose, I guess, if anything, the intensity of Ken Starr's pursuit in this matter.
If Secret Service agents can testify, will the life of a president be at risk?
JIM LEHRER: But legalities aside, Paul, what do you think of the basic White House argument, the Justice Department argument, the Secret Service argument that this, in fact, puts the life of the president-any president-in jeopardy because these bodyguards are having to testify?
PAUL GIGOT: I don't think you can treat any argument like that frivolously. I think it has to be listened to. But the White House case was for such sweeping privilege that it didn't give the opportunity for some kind of negotiation to take place to sort that out. In other words, we want our law enforcement agents-and they are law enforcement agents-to be able to testify if crimes are committed, but the whole sweeping privilege they asked for might have prevented that. But Orrin Hatch has said, the chairman of the Judiciary Committee, he's willing to do what Congresses should do, which is set the scope for a privilege like that, but before you did that, you had to get rid of the president's claim. So there is a fair argument here, but they went way too far.
JIM LEHRER: But, Mark, we've had Watergate; we've had Iran Contra; we've had a lot of other things in history that involved presidents and alleged crimes. This is the first time that Secret Service agents have ever been asked to testify. There was kind of an unspoken agreement that was never going to be-sorry-
PAUL GIGOT: I think-I mean, they did testify in Watergate in regard to the taping and some other things.
JIM LEHRER: Right. But not to what they might have heard, did they?
PAUL GIGOT: No. They did testify in October Surprise on behalf of George Bush--remember, one of those scandals back then, about-his whereabouts at a given time. So they have played a role in somebody's investigations-
JIM LEHRER: I stand corrected.
MARK SHIELDS: Really don't.
JIM LEHRER: I don't stand corrected?
MARK SHIELDS: No. What they testified-
PAUL GIGOT: He's always playing up to you.
JIM LEHRER: It works. (group laughing)
MARK SHIELDS: Okay, boss. What they testified was George Bush did not travel outside the country, which was one of the allegations that was made about him.
JIM LEHRER: We ought to explain that to people. The October Surprise was that somebody was going to come up with something in October right before the election and the issue was how to do it with Iran or-
MARK SHIELDS: 1980, and allegedly later Ronald Reagan's director of the CIA, Mr. Casey, Bill Casey, and George Bush, there was a question of holding off the repatriation and dealing with the Iranians because Jimmy Carter would have a coup and that this would somehow prevent Ronald Reagan's being elected if Jimmy Carter triumphed and prevailed. So George Bush was allegedly involved in that, and the Secret Service said, no, he never left the country. He didn't go to Madrid, didn't go to Barcelona, whatever.
PAUL GIGOT: Total facts-recall-
MARK SHIELDS: Okay. Now-amazing what the brain calls back after you lay off the Chardonnay-but the key I think here is that there had been a special relationship, and there's no question-I mean, the White House tried to play it both ways. They played it cute, and well, we're not involved in this, but this is pretty darn serious. When you go out and you grab that-nobody's ever set up to assassinate a Secret Service agent. Right? The Secret Service agent's not-as Tim McCarthy demonstrated outside the Washington Hilton-that fateful day in March 1981-you step in and you take the slug for the President of the United States, as Jerry Parr demonstrated that very same day as he placed the President in the car. I mean, that's what the job is. That's pretty serious stuff, very serious stuff.
Paul Gigot: "Kenneth Starr may have won the legal argument but he may lose the public argument" on calling agents to testify.
JIM LEHRER: What do you, Paul-it's been suggested-the wires were running the stories today-well, Kenneth Starr may have won the legal argument but he may lose the public argument on this because of just the kinds of things that Mark is talking about here. This is something different than an ordinary subpoena to have an ordinary witness.
PAUL GIGOT: Boy, the legal judgment here was so sweeping and it was across every single court, district court, appellate court, the entire appellate court, and the Supreme Court, it should buttress Ken Starr's case that he was on solid ground, that he wasn't a rogue prosecutor pursuing this. I mean, that stands in his stead. If it turns out in the end that there is nothing that any of these Secret Service agents know that relates to the case, then it will look like he was perhaps on a fishing expedition. And that will hurt him in the end, but, again, that depends on what the final evidence is. The other thing is we have to step back for a second. I mean, why has this happened to the Secret Service? It wouldn't be happening to the Secret Service if the president would say, what happened? I mean, if he just said it-he would answer-he hasn't even been subpoenaed, but if he'd go up and testify himself, he's been asked by Ken Starr to go up and say, what happened, he won't. So you get this damage frankly to institutions, not just to the Secret Service but the president is weaker after this Supreme Court decision, and the Justice Department's credibility has been hurt.
JIM LEHRER: Weaker in, Mark, that who knows what the next case might be where a president-
PAUL GIGOT: Right.
JIM LEHRER: --might get involved in something and say, well, wait a minute, we have had Secret Service testimony before, we can have it again and again and again, is that-
MARK SHIELDS: I guess that's the argument, Jim. I mean, there is just-there's no allegation of a crime here. We're not talking about somebody taking eight grand to parole-you know-three-fingered Mickey from Dana Moore early or something of the sort. That isn't what we're talking about. We're talking about allegations involving an improper relationship.
PAUL GIGOT: Perjury, obstruction. I mean-
MARK SHIELDS: Well, okay. We're talking about, in my judgment anyway, what we have in this case is not something that rises to the level of major national crimes. It's a serious offense if, as alleged, if proved, but I have to look at this right now and the politics of it, and come to the conclusion that Ken Starr right now is trying to get a back door approach to what these Secret Service agents may have heard the president discussing with his own attorneys. Boy, oh, boy, I mean, that's-you know, that's really a strange avenue to go down and to pursue.
PAUL GIGOT: I actually disagree with that. I don't think that's what he's asking.
MARK SHIELDS: Okay.
PAUL GIGOT: It'd get thrown out of court if that were the case. You can't-
JIM LEHRER: Couldn't do that?
Should Secret Service agents testify if they are not violating attorney/client privileges?
PAUL GIGOT: Yes. And Orrin Hatch has said that he would be willing to make-write that into the statute that you don't want that kind of thing happening. We ought to be able to see-the Secret Service agent has to travel with the president on the way-maybe with his counsel on the way to an event and what he overhears there should not be admissible, because that is perhaps a violation of the attorney/client privilege.
JIM LEHRER: But if he's having a conversation with the secretary of commerce or the secretary of state, that would not be covered by this?
PAUL GIGOT: That's right. Or if he happened to be walking into the Oval Office and happened to see something that the President later said didn't occur, that seems to me to be fair ground.
MARK SHIELDS: 1981, Ronald Reagan's out at the Boston Hilton and he thinks to Mike Deaver, gee, we really ought to talk about-you know, I don't want-we ought to talk about that deal we're cutting because we need four Democratic votes on our tax bill up on the Hill, and maybe we ought to talk about that judgeship. Tim McCarthy, Jerry Parr, you move over there, I want to talk to Deaver over here. I want to talk to Jim Baker over here about something that if overheard could look like you're trading a federal appointment for a vote on the Hill. I just-I really think this is quite aside from where the White House on this-I think this is pretty serious stuff.
PAUL GIGOT: It is a serious question but you have to balance. You have to balance the president's security with the fact that they are law enforcement agents, this is not a Praetorian Guard beholden only to the president. They're beholden to an institution or the presidency, which is accountable to the United States of America-to the voters and to the Congress. And there is a balancing act here, and what the courts were saying in these decisions was this is something for Congress to decide the scope. The president can't create out of whole cloth something that didn't exist before, protective function privilege.
JIM LEHRER: Then the courts can't either, I mean, the courts themselves are saying that, right?
PAUL GIGOT: They're not prepared to do so. They're saying, Congress, you do it.
JIM LEHRER: Look, before we go, we talked last Friday about HMO's, regulating HMO's. This thing is really heating up, is it not? Everybody's talking about it; I got my plan, I've got-you know, mine is better than your plan?
Mark Shields: "Al D'Amato-- he's a one-man focus group" on HMOs.
MARK SHIELDS: Well, I mean, the Republicans started the year by saying not on your life, we're not going to go near this issue, you know, and then it got hot. Two Republicans deserve special credit because they took a lot of heat on it. Charlie Norwood, a dentist from Georgia, Republican House member, said this is a big issue going in. Al D'Amato, don't ever argue with Al D'Amato-he's a one-man focus group-Al D'Amato was on teacher testing before anybody else in the country, he was on HMO's. And the Republicans have all come to them, and what they're basically saying is we're not going to go as far as the Democrats, but we're got a plan to-we got a plan to. We're in the ball game. Listen to us. Maybe our plan covers only a third as many as the Senate-48 million versus 150 million-the Democrats' plan does-but we've got a plan. We're not out of the ball game. Listen to us.
PAUL GIGOT: Well, the irony in the next few weeks may be that the Democrats end up saving the insurers and the HMO's from the Republicans. The Democrats have the Republicans on the run here, but the Republicans, they don't like to think about health care. They thought that it had gone away when the Clinton care plan went away. Of course, it never does. These things always come back, but they say, don't make me deal with it; that's not our issue; I lose votes-
JIM LEHRER: The Democratic-
PAUL GIGOT: And it always comes back, and so they're scrambling in three weeks to put something together, but Democrats have the Republicans on the run in this one, and yet, they could pass something, but, you know what, they're not going to. And the reason they're not going to is because they want the issues.
JIM LEHRER: The Democrats do.
PAUL GIGOT: They sure do. They think they can take some seats against Republicans this fall and watch out, they're going to filibuster this in the Senate.
JIM LEHRER: Well, we're going to wait and see what happens. You don't think-
MARK SHIELDS: Do you think the Democrats are cynical? They may be on to something.
JIM LEHRER: Thank you both.