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Secret Service May Have To Testify

July 16, 1998

WASHINGTON (AP) _ The U.S. Court of Appeals today refused to reconsider a decision ordering Secret Service officers to testify in the Monica Lewinsky investigation. The judges suggested the Clinton administration was unlikely to prevail before the Supreme Court.

The appeals court gave the administration until noon Friday to appeal to the nation’s high court, but sent a strong message to the Justice Department by saying none of its nine judges available on the case wanted to intervene.

The department’s ``likelihood of success before the Supreme Court is insufficient to warrant further delay in the grand jury’s investigation,″ the appeals court said.

The ruling came just hours after the appeals court had issued an emergency order stopping President Clinton’s chief bodyguard and several Secret Service officers from testifying before the grand jury until the full court made its decision.

Agent Larry Cockell, who oversees the president’s security detail, and the uniformed officers had arrived at the courthouse this morning prepared to testify before the last-minute legal wrangling began.

The temporary stay will expire and the Secret Service personnel will be forced to testify unless Chief Justice William Rehnquist intervenes by the noon Friday deadline.

Today’s decision lets stand an earlier ruling by a three-judge panel of the appeals court that had ordered the Secret Service personnel to answer Independent Counsel Kenneth Starr’s questions before a grand jury.

The administration had asked the full court to reconsider that decision, prompting the order today. It has tried to argue that the agents are entitled to a new ``protective function privilege″ that should exempt them from testifying.

But the appeals court scoffed at the argument.

The Justice Department ``has not made a sufficient showing that it will ultimately prevail in establishing the privilege it alleges. The harm asserted is future harm, depending on a prediction about what the president will do in the absence of the privilege,″ the court concluded.

``This court has ruled that the privilege does not exist; no judge on the court has even requested a vote,″ it said.

Now that the court declined the case, the Justice Department has one last recourse: an appeal to the Supreme Court.

Anticipating the need, Justice lawyers had sent protective paperwork to the Supreme Court that would ask Rehnquist to block the testimony and take the case when the high court returns to work in October.

Uncertain of the status of the legal wrangling, Cockell and his Secret Service colleagues had waited outside the grand jury room for more than an hour until the appeals court issued the temporary stay at 10:20 a.m. They left immediately to resume the work of protecting the president.

But their status was immediately thrown back into doubt when the appeals court decided not to review the legal dispute.

Attorney Mike Leibig, who represents two of the Secret Service officers who had been subpoenaed, said his clients were prepared to testify but were relieved to have been spared having to do so until the courts settle what they can and cannot talk about it.

Leibig said the two officers he represents, whose names he declined to provide, ``do not know about some vital, embarrassing, blockbuster event″ between Clinton and Ms. Lewinsky.

With all the legal drama outside, key prosecution witness Linda Tripp, whose secret tape recording spurred the Lewinsky investigation, quietly walked into the grand jury room and began a sixth day of testimony.

On Wednesday, U.S. District Judge Norma Holloway Johnson refused to block the testimony by Cockell and eight uniformed Secret Service officers who had been subpoenaed by Starr. That prompted the appeal.

Clinton’s lawyers opened another line of defense in the case _ declaring Starr’s subpoenas a ``backdoor attempt″ to find out about Clinton’s confidential conversations with his lawyers.

Clinton’s private lawyers even asked the Secret Service to instruct any employees forced to testify to decline to answer questions about what they may have overheard when the president talked with his lawyers, The Associated Press learned. That would preserve a claim of attorney-client privilege.

Starr is moving toward a new and sensitive area of his investigation _ questioning the head of Clinton’s Secret Service detail and eight uniformed officers about what they saw or heard about the president and Ms. Lewinsky, a former White House intern.

The grand jury is probing possible suborning of perjury, witness tampering and obstruction in an alleged sexual relationship between Clinton and Ms. Lewinsky.

While fighting the battle over Secret Service testimony, Starr’s office also is trying to complete the grand jury testimony of Mrs. Tripp, whose 20 hours of secretly tape-recorded phone calls of Ms. Lewinsky triggered the criminal investigation of the president.

Regarding the subpoenas to the Secret Service, Starr ``appears to be tracking private counsel’s meetings and conversations with the president in an effort to intrude on that relationship,″ Clinton lawyers Robert Bennett and David Kendall said in a statement.

``Any backdoor attempt by this prosecutor to invade the president’s right to consult with personal counsel will be aggressively and firmly resisted,″ they added.

Officials said privately that the administration suspects Starr wants Cockell to testify about what he heard in the limousine with Clinton’s attorneys after the president’s Jan. 17 deposition in the Paula Jones sexual harassment case, in which he was questioned extensively about Ms. Lewinsky.

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