In a dramatic decision just eight minutes before a noon deadline, Chief Justice William Rehnquist on Friday allowed the testimony of Secret Service agents in the Monica Lewinsky matter to go forward.
Two-and-a-half hours later, seven agents in dark suits were on hand to begin answering prosecutors’ questions before a grand jury. Three agents testified by day’s end, and all seven–including Larry Cockell, who heads the president’s protective team–will return, probably next week.
The appearance of the jut-jawed, tight-lipped agents culminated a bitter, monthslong fight between the Clinton administration and Independent Counsel Kenneth Starr over whether the officers can be forced to testify in the Lewinsky matter.
It was also the first time in the Secret Service’s century-long history that agents have testified about a president’s activities in a criminal proceeding. Agents have, however, testified about assassinations and assassination attempts.
Every judge who has ruled on the dispute has favored Starr, but the legal wrangling interrupted and distracted Starr’s team for weeks. That ended with Rehnquist’s rejection of the Justice Department request for an emergency stay of the agents’ grand jury appearances.
“In my view, (the Secret Service) has not demonstrated that denying a stay and enforcing the subpoenas . . . would cause irreparable harm,” the chief justice wrote.
Rehnquist did not consult with the other Supreme Court justices on the matter because several were overseas, he said in his ruling.
Starr is investigating whether President Clinton lied under oath about an alleged affair with Lewinsky, and prosecutors believe the agents could help clarify the relationship between the two. Grand jury proceedings are secret, so it is not known what questions the three agents were asked.
The Justice Department’s dash to the nation’s highest court in an attempt to thwart a prosecutor carried inevitable historical echoes of Watergate, when President Richard Nixon sought to avoid turning over secret tapes.
The usual role of Secret Service agents involves being virtually invisible, as they seek to spot danger without attracting attention. Now they suddenly face the glare of lights.
Cockell’s lawyer, John Kotelly, said he was disappointed but not surprised by Rehnquist’s decision, and he added that Cockell finds his plight difficult.
“His experience and training has always been to maintain the confidences of what he sees and hears in the presence of the president or the others he is protecting,” Kotelly said in an interview. “For him to be testifying at all is going to be contrary to his very lifeblood, in terms of his job and how he views it.”
But Cockell will obey the court’s orders, Kotelly said.
“He will have to testify as to what he has seen and heard, unless some other privilege like national security comes up,” Kotelly said. “If that happened, he would come and talk to counsel, and a decision would be made as to whether to invoke a privilege.”
Cockell supervises the president’s day-to-day security, and when on duty he stays inches from Clinton. But the 17-year Secret Service veteran has taken a desk job until his testimony is complete.
“He felt that he could not give 100 percent attention to protecting the president with this thing pending,” Kotelly said. He added later that it might be difficult for Cockell to return to his duties now that he is in essence a public figure.
The White House had no official comment Friday. But speaking to reporters before Rehnquist’s ruling, Clinton emphasized the crusade was pushed by the Secret Service, not by him.
“These people risk their lives to protect me and other presidents in a professional way, not a political way,” Clinton said. “They have strong convictions, and they have manifested those convictions.”
Starr acted with unusual aggressiveness in pushing ahead with the subpoenas this week. The Supreme Court has not yet ruled on the underlying question of whether he can compel the agents to testify.
Rehnquist’s refusal Friday to delay Starr’s subpoenas means that even if the high court considers the matter when it reconvenes this fall, it will be moot as far as the Lewinsky investigation is concerned.
For good measure, the chief justice hinted that the Supreme Court would side with Starr, as an appeals court did recently. “The opinion of the Court of Appeals seems to me cogent and correct,” Rehnquist wrote.
Once Rehnquist ruled, Starr acted quickly. He did not wait until Tuesday, the next time the Lewinsky grand jury convenes, to summon the agents.
Instead, the agents were called before a different grand jury that happened to be meeting in the courthouse Friday. A transcript of this testimony will be read later to the Lewinsky grand jury.
The stage for this drama was set Thursday when a federal court directed the agents to testify–but deferred its order until noon Friday. That gave the Justice Department a brief window to seek the emergency stay.
Tension grew as midday Friday approached. Starr had said he would summon the agents at exactly high noon–a theatrical gesture that called to mind an Old West showdown. Unlike most events in the Lewinsky saga, Rehnquist’s decision was not leaked beforehand, so the outcome was uncertain.
At 11:50 a.m., a long blue van with tinted windows pulled up to the federal courthouse and the seven clean-cut agents stepped out. Cockell, clearly the leader, opened the courthouse door for the others and followed them in.
Moments later, at the Supreme Court building a few blocks away, a staffer walked into the press room with a stack of copies of Rehnquist’s edict.
In his ruling, Rehnquist addressed the conflict’s inherent drama. “This case is obviously not a run-of-the-mine dispute, pitting as it does the prosecution’s need for testimony before a grand jury against claims involving the safety and protection of the president of the United States,” the chief justice wrote.
In its appeal for delay, the Justice Department repeated its argument that presidents will distance themselves from their protectors, increasing the risk of assassination, if the bodyguards can be forced to testify.
“The issue presented here is exceptional and the risk posed by an erroneous judicial determination has potentially grave consequences for the nation,” the department’s brief said. “The Secret Service stands between the nation and the calamity of assassination.”
Starr responded that the agents’ testimony had been delayed long enough. “Given the seriousness of the charges, the deep national interest in concluding this investigation as promptly as possible, and our sense of the fundamental weakness of the Secret Service’s claims, we cannot in good conscience continue to sit by,” Starr wrote.
While Friday’s ruling was a near-final rebuke to claims that a “protective function privilege” shields Secret Service agents from testifying, several courts have noted that Congress can enact such a privilege into law.
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