Floor Statement- Secret Service

Mr. HATCH. Mr. President, I rise today to address the current controversy over whether Secret Service agents and employees should testify before the grand jury convened by the Independent Counsel, Judge Kenneth Starr. At noon today, the Chief Justice of the United States denied the Department of Justice's request for a stay of the order compelling Secret Service agents to comply with subpoenas. Thus, every level of the federal judiciary, including the Supreme Court, has now rejected the arguments advanced by the Department of Justice in support of a judicially-created "protective function" privilege. I sincerely hope that the Service and the Department will abide by these decisions and that the agents will testify truthfully and fully before the grand jury.

In my view, the Secret Service's duty to protect the President does raise legitimate issues about whether agents should receive special privileges before being forced to disclose what they see or hear as a result of being so physically close to the President. However, the Department of Justice has taken these legitimate factual concerns and used them for political reasons to mount a fruitless legal battle to find a court, any court, to concoct this privilege out of thin air. In so doing, at least in my opinion, the Department has squandered its own credibility and acted solely as the defense attorney for the President in his personal legal problems.

The trial judge and the D.C. Circuit have it right: there is no way for a court to conjure up a "protective function" privilege out of whole cloth. The Court of Appeals which rejected the Department's arguments concluded:

We leave to Congress the question whether a protective function privilege is appropriate in order to ensure the safety of the President and, if so, what the contours of that privilege should be.

I have offered to lead such an effort in the Congress to craft a narrow privilege, and therefore I am at a loss as to the Department's motivations for so many appeals. I am worried, however, that the lengthy obstruction will lead my colleagues to conclude that the Service is not worthy of our support, and make it much more difficult for me to try to help them.

The narrow privilege I envision would address legitimate concerns of the Secret Service, but I am sure it would not be the broad, impenetrable privilege advocated by the Service, nor should it be. But a Congressional solution which "splits the baby" is possible. As the Washington Post concluded in an editorial this morning:

Any protection must recognize the responsibility of law enforcement officers to aid criminal investigations.

I hope that the circumstances when testimony by Secret Service agents is taken are limited to the most serious cases where the testimony is unique and directly related to accusations of criminal behavior. I am concerned, for example, that agents should not, under normal circumstances, be forced to testify before Congressional Committees or in civil matters. Again, I plan to address these issues when the Judiciary Committee holds hearings next year.

One particular issue I will address during these hearings is whether the presence of a Secret Service agent at a conversation between an attorney and the protected person should negate the attorney-client privilege. Now the law generally is that having another non-lawyer present voids the privilege, at least as to that person. I do not believe we want this outcome, and I plan to work on creating an exception to correct this problem. I should point out that press accounts have recounted promises made by Judge Starr that he will not attempt to use testimony by Secret Service personnel to pierce protected conversations.

I have to also add that if Secret Service Agent Cockell was in the President's presence because he had to be in the car to protect the President, and overheard conversations between the President and Mr. Bennett, his attorney, or between the President and Mr. Kendall, his attorney, or any other attorney of the President's, he had to be there as much as the seat they sat on had to be there. So I hope, even though technically the privilege would be waived because of Secret Servant Agent Cockell, I hope the Independent Counsel would respect that particular position of the Secret Service agent, and I have no doubt that he would. After all, there is some comity that must occur, even in matters like these.

In any event, that is something we can clarify next year, and I intend to do so. I have to say, neither attorney Robert Bennett nor David Kendall is an inexperienced attorney. I doubt if either of them would have discussed crucial secret matters with the President before anybody else, including a Secret Service agent. So I think this is a much overblown point, and I have no doubt that Judge Starr did not intend to pierce that type of conversation anyway. But that still does not relieve the Secret Service agents of their duty as law enforcement officers to make sure that criminal activity is not undertaken or, if it is undertaken, to make sure that they do everything they can to stop it.

I should note, however, that the Secret Service has been its own worst enemy here. No court is going to create this privilege out of thin air, and thus until Congress acts, the Service may have to provide testimony without any exceptions. I am talking about this so-called "protective function" privilege. But rather than come to Congress to work constructively, the Service has fought a futile effort in the courts of this land.

Many of the President's apologists have cited this current controversy as another alleged example of Judge Starr being too aggressive in his search for evidence related to the Lewinsky matter. But let's look at the record:

When Judge Starr sought evidence from White House employees, the Justice Department and the White House claimed privilege: the court sided with Starr.

When Judge Starr sought evidence from government attorneys, the Justice Department and the White House claimed privilege: the court sided with Starr.

When Judge Starr sought evidence from Secret Service agents, the Service and the Department claimed privilege: the court sided with Starr.

When Judge Starr sought evidence from Monica Lewinsky's first attorney, he claimed privilege: the court sided with Starr.

When Judge Starr sought evidence from a bookstore, it claimed privilege: the court sided with Starr.

And just over the last 48 hours when Judge Starr sought evidence from additional Secret Service personnel, the Justice Department and the White House claimed privilege: the District Court, the Court of Appeals and the Supreme Court all sided with Starr.

I hope when the pundits talk about these controversies, they remember that, when it comes to debates on privileges, Judge Starr has an impressive record. It is easy to criticize a prosecutor for being overly-aggressive in seeking evidence, but let us all remember that Judge Starr has not only a right, but an obligation, to conduct a complete investigation within the bounds of the law. As demonstrated by his impeccable record before impartial judges, he has done exactly that.

Lastly, it is hard to believe that the same White House that less than six weeks ago fought Judge Starr's request to have the Supreme Court take an expedited appeal of the Secret Service issue-and then gloated when the Supreme Court denied the request-resorted to an emergency appeal to the exact same court on the same issue. The hypocrisy speaks for itself.

Mr. President, I have confidence that Judge Starr will do what is right here. I have confidence that the Secret Service men and women will do what is right here. There is no excuse for the Justice Department-nor, I might add, the Treasury Department-to continue to pursue these fruitless claims. I was willing to go along with the pursuit of the claims to try to get the court involved en banc-the 11 sitting judges of the Court of Appeals for the District of Columbia-to make a decision on this. But anything beyond that just smacks of delay, and I believe that is exactly what is happening, especially since the White House has been slapped down so hard and the Justice Department has been slapped down in no uncertain terms, a number of times, on this very issue. I think it is time for them to wake up and realize they represent all of the taxpayers in this country and that they have an obligation to live within the law themselves and to not make any further frivolous appeals of this matter.

It is my understanding that they still are asking for the Supreme Court to grant certiorari in this matter. I can't imagine why they would do that after what they have seen in both the district court and now the D.C. Circuit Court of Appeals, and with the rejection of the stay by Justice Rehnquist. It seems to me that just smacks of another fruitless appeal for delay.

I do understand why the head of the Secret Service and others would fight for their Secret Service people and would try to take it to the nth degree. But that nth degree, it seems to me, ended with the Circuit Court of Appeals for the District of Columbia. Anything more than that seems to me to be highly frivolous, a delaying tactic that literally should not be done.

I think the Secret Service ought to come to us and help us to fashion a way so they can have certain protections with regard to the closeness that they have to the President of the United States, and we will try to give them that kind of protection. We will try to find some way of giving them a privilege from testifying in matters that do not involve criminal activity, among other things.

We will have to have hearings, and we will have to look at it very carefully, because it is a broad privilege they are asking for. They will never get exactly what they want, because I think people on both sides of the aisle will acknowledge that if it comes to criminal activity, if there is any criminal activity that they have observed or they participated in-and I doubt they have done anything like that, and I hope they haven't observed any criminal activity-they have an obligation, as law enforcement officers, to cooperate with the courts and to cooperate in getting to the bottom of these things and getting these matters resolved.

With that, I thank my colleagues for letting me have this time.

I yield the floor.