April 27, 1998
The Rule of Law
Praetorian Privilege
By JONATHAN TURLEY
They were called the Praetorian Guard. Roughly the same size as the
2,000-member Secret Service, the Praetorians protected the lives and
secrets of emperors of Rome and their families. These ancient bodyguards
came to mind last week when the Clinton administration asked a federal
court to create a sweeping new "protective function" privilege. If the court
agrees, the Secret Service would be transformed from a law enforcement
organization into something close to a palace guard. These new Praetorians
would come with dangerous legal and historical implications.
Many presidents have longed to convert the Secret Service, if only in
appearance, into a more imperial image. In 1970, Richard Nixon ordered
the White House guards to wear Graustarkian uniforms with braided
epaulets and helmets. While there was no legal change to match substance
to appearance, there was such a public outcry that the uniforms were
eventually given to the Southern Utah State College marching band. Under
the Clinton plan, the Secret Service would keep their drab uniforms and
plain clothes but take on an imperial legal status.
Before considering the imperial Secret Service of the future, it is useful to
review the professional Secret Service of the past. Founded in 1865 to fight
counterfeiting, the Secret Service was fashioned as a law enforcement
agency. In 1901, after the assassination of President McKinley, it was given
responsibility for protecting the president and, later, other high U.S. and
foreign officials. The Secret Service performed these tasks through various
wars and social upheavals, including Watergate, without any special
privilege. Quite the contrary; as law enforcement officers, Secret Service
members were compelled to share any possible evidence of criminal
conduct in their possession. This all changed in 1998. The Secret Service
has dealt with dictators and crazed assassins but never before had it
encountered the likes of Kenneth Starr.
The president has testified that he did not have a sexual relationship with
Monica Lewinsky and never molested Kathleen Willey, despite their
statements to the contrary. Since either the president or these women have
committed perjury, Mr. Starr wants to question the agents about their White
House visits to establish who is lying. That is when the Secret Service
suddenly discovered the new privilege that would move its agents outside
the legal line of fire.
The Secret Service has never had either a legal or historical commitment to
confidentiality. Unlike many government agencies, the Secret Service does
not require its agents to sign confidentiality agreements. To the contrary,
agents have repeatedly supplied information in criminal and congressional
investigations. During Watergate, the Secret Service gave testimony on the
taping system in the Oval Office and later supplied documents. During the
Bush administration, the Secret Service supplied information clearing Mr.
Bush of "October surprise" allegations by showing that he did not meet in
Paris with Iranian leaders to delay the release of hostages in Iran.
At times, the Secret Service has more resembled Kitty Kelly than Dudley
Do-Right. Presidents from Harding to Clinton have faced the release of
personal details from their security staff. Most recently, President
Kennedy's sexual escapades were documented by Seymour Hersh with the
assistance of Secret Service agents, who supplied the most lurid details.
The new privilege would not, of course, halt such disclosures. It notably
doesn't cover former agents or the many White House employees with
access to the same information as Secret Service agents. Presidential
barbers and pantry staff often hear presidential communications. Are we
now to expect a "pantry privilege" for people serving meals and drinks in the
Oval Office? Absent such a privilege, the president might refuse sustenance
as well as security in order to protect his privacy. In the end, the argument
for a new privilege misses a salient point: We shouldn't want the president to
feel comfortable speaking about possible criminal conduct in front of public
employees.
It is notable that the Clinton administration is attempting to craft a new
privilege rather than extend the doctrine of executive privilege. The
president cannot use executive privilege to refuse to answer questions of
criminal conduct in office. Likewise, White House lawyers cannot use
attorney-client privilege to bar questions of criminal acts committed in their
presence or with their cooperation. The proposed new privilege for the
Secret Service would be broader than both these privileges.
It is worth noting that the Clinton administration's proposed privilege would
significantly limit the inquiry called for under the Independent Counsel Act.
An independent counsel can be appointed when a president is involved in
credible allegations of criminal conduct, but he would be barred from
questioning central witnesses in order to protect the president from such
intrusive inquiries. Only in Washington can such logic find its way into legal
papers.
Now, back to the Praetorians. Fiercely loyal to their masters, they often
carried out the secret activities of emperors against the Roman Senate. As
an independent and powerful organization, the Praetorians became
increasingly direct about their view of good government, including killing
Emperor Caligula, whose sexual exploits and depravities shocked even
ancient Rome. Ultimately, under Tiberius, the Praetorians controlled the
daily operations of the government by controlling the physical seat of
government. While there is a leading alternative model--the eunuchs of the
Chinese emperors--this would be understandably less attractive for the
Secret Service (though, given the current allegations, perhaps more
suitable).
As with the Praetorians, a special privilege for Secret Service agents would
create a dangerous concentration of power in this small agency. It is the job
of Secret Service agents to reduce access to the president, which only
increases the need for their testimony in the absence of other witnesses.
The very function and access of the Secret Service places its members at
continual risk of becoming willing or unwilling participants in criminal
conduct by executive branch officers. In such circumstances, it's not hard to
see how agents could play an active role in assisting a coverup of a criminal
act by a president and then insist on immunity from any testimony about
their knowledge. It is essential that these federal officers must not be free to
refuse to testify about possible criminal acts. Otherwise, the Secret Service
could all too readily evolve into a Secret Police.
Mr. Turley is a professor at George Washington Law School in
Washington, D.C.
interactive.wsj.com |
