Friday, May 29, 1998

Service not so secret

Secret Service agents are not exempt from the law. Period.

In essence, that's what U.S. District Judge Norma Holloway Johnson ruled in knocking down the Secret Service's attempt to invoke a nonexistent "protective function privilege" to keep its agents from testifying before a grand jury in the Monica Lewinsky investigation.

The Justice Department could appeal the ruling but shouldn't. The result would be the same. Johnson would almost certainly be upheld, and the appeal would only further delay Kenneth Starr's already endless investigation.

The attempt to claim a special privilege for the Secret Service is separate from President Clinton's claim of executive privilege for two of his top aides. The courts have already acknowledged the existence of some kind of executive privilege, that is, the right of the president to confidential, candid advice. That issue, which is more subtle and complex, probably will go to the Supreme Court.

The Secret Service argued that if its agents had to testify about comings and goings and overheard conversations, presidents might put themselves in harm's way to avoid embarrassment or worse. But how likely is that? And would anyone argue that there should never be an instance in which Secret Service testimony would be needed?

Prosecutors should err on the side of caution and be sensitive to the Secret Service argument if the charges are trivial and there is no other way to get the information. As Starr convinced the judge, this does not appear to have been the case here.