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Appellate Court Rules for Secret Service Disclosure

By Ronald J. Ostrow and Robert L. Jackson
Los Angeles Times
WASHINGTON

In a significant victory for Independent Counsel Kenneth W. Starr, an appellate court ruled Tuesday that Secret Service employees must tell the Monica S. Lewinsky grand jury what they saw or learned of President Clinton's dealings with the former White House intern.

The three-judge panel, in refusing to create a new Secret Service privilege, rejected claims by Treasury and Justice Department officials that compelling the testimony could imperil the safety of presidents by tempting them to push away their "protective envelope."

The ruling moves Starr one important step closer to obtaining testimony from perhaps the last impartial and credible witnesses in his probe of the Clinton-Lewinsky matter, and the two Secret Service agents and one attorney for the agency are believed to have information vital to his case.

The judges handed down their opinion as Pentagon employee Linda R. Tripp, another key witness for Starr, completed her third day of testifying before the grand jury. She is scheduled to return again on Thursday.

Tripp's closed-door testimony reportedly has dealt with the 20 hours of secretly tape-recorded phone conversations she had with Lewinsky in which the 24-year-old woman told of a relationship with the president and urged Tripp to lie about it in a civil lawsuit.

A Maryland prosecutor, meanwhile, said he was launching a state grand jury probe into evidence that Tripp may have violated state law by making the recordings without Lewinsky's knowledge.

Tripp, in a statement read outside the federal courthouse by her attorney, denounced the Maryland probe as a political effort to intimidate her.

The Secret Service dispute arose after Starr's prosecutors earlier this year summoned two agents and an agency attorney to tell what they knew about Lewinsky's relationship with Clinton. Secret Service Director Lewis C. Merletti and his boss, Treasury Secretary Robert Rubin, objected to such testimony on grounds that it could compromise the trust and confidence between a president and his protective detail.

On May 22, however, after studying legal briefs and arguments by both sides, Chief U.S. District Judge Norma Holloway Johnson ruled that the Secret Service employees must testify, declaring they are part of the federal law enforcement establishment sworn to assist in criminal investigations.

Despite Tuesday's ruling, it seems unlikely that Starr will obtain the Secret Service testimony before the end of summer.

In affirming Johnson's opinion, the appellate judges gave Treasury and Justice officials seven days to petition for a rehearing by the full 11-member Court of Appeals. Officials said they would study the ruling before deciding on a course of action.

If the full court should uphold its three-judge panel, the most likely development, any further appeal by the administration to the Supreme Court could delay Secret Service testimony until October, when the Supreme Court's next term begins, at the earliest.

Starr also is awaiting a decision from the appeals court on whether longtime Clinton aide and White House Deputy Counsel Bruce R. Lindsey will have to answer all questions from the grand jury. Lindsey has invoked attorney-client privilege, and the White House, which is appealing a lower court ruling, has argued that the risk of impeachment proceedings creates "special circumstances" that should make such a privilege absolute.

In addition, Starr has been unable so far to arrange for Lewinsky to testify.

Justice and Secret Service officials said they were "disappointed" by Tuesday's ruling and soon would decide whether to appeal.

The three-judge panel, without dissent, found that Treasury and Justice officials had shown no "clear and convincing" reason why Secret Service agents should be given a special "protective function privilege" against testifying in a criminal investigation.

The judges, handing down their decision with unaccustomed speed less than two weeks after hearing oral arguments, gave several reasons for refusing to carve out out a special exemption to excuse Secret Service agents from testifying.

They noted that Clinton himself has not declared the need for such a privilege, leaving it to Treasury and Justice Department officials to argue the case.

"We also think the efficacy of the privilege is undermined by its being vested in the secretary of the Treasury and not in the president, whose conduct the proposed privilege is supposed to influence," the court said.

"We know of no other privilege that works that way."

Starr, who had suffered recent setbacks including dismissal of his criminal tax case against Webster L. Hubbell and the release from prison of defendant Susan McDougal, issued a statement saying he was "gratified by the prompt resolution of the Secret Service's appeal in this case."