Dear Mr. Holder, (828)
Congratulations Mr. Attorney General.
Your task ahead is both demanding and vital. But along with the most pressing issues in your in-box, there is another issue left over from eleven years ago. This issue may seem dated, but its implications could be dramatic and far-reaching. It must be addressed.
In April 1998, for the first time in our nation's history, the director of the United States Secret Service was asked to testify against a sitting president in court.
Independent Counsel Kenneth Starr wanted to question Director Lewis Merletti and agents on the President's Protective Detail about President Clinton's meetings with White House intern Monica Lewinsky. Starr was trying to find out if the president lied under oath when he denied a sexual relationship with Lewinsky to Paula Jones' lawyers.
In a declaration made in opposition to Starr's Motion to Compel Testimony from Secret Service agents, Merletti argued that agents could refuse to testify because they are shielded by a "protective envelope" privilege similar to those covering doctors, lawyers and clergy. (The privilege, it was pointed out, did not extend to an agent witnessing the commission of a crime.)
As Deputy A.G. at the time, no one knows better than you, Mr. Attorney General, the details of the case Director Merletti mounted in defense of not having agents testify as to what they saw or heard at the time they were protecting President Clinton.
No one knows better than you just how many individuals in Justice agreed with Director Merletti's defense and tried, unsuccessfully, to persuade the Independent Counsel from requiring agents to testify.
No one knows better than you, sir, about Treasury's Memo to Attorney General Janet Reno from General Counsel Edward Knight, Director Merletti and Secret Service Chief Counsel John Kelleher (February 17, 1998) which points out that, "The Secret Service has consistently and historically maintained that protective personnel should not be compelled to divulge information, whether heard or observed, that is obtained as a result of their protective responsibilities. This confidentiality is not simply a matter of institutional culture, but rather serves as an absolutely necessary component to establishing and maintaining a constant and proximate relationship with the President.
"In these times of increasing terrorist activity, there is a very real threat to the President, even in the White House, and Secret Service protective personnel are the front line of his defense against terrorism."
No one knows better than you of the appeals made to Kenneth Starr on behalf of the Secret Service by Attorney General Reno and President George H.W. Bush. In fact, Mr. Bush made public his defense of the Secret Service in a letter he addressed to Director Merletti on April 15, 1998:
...I can assure you that had I felt [Secret Service agents] would be compelled to testify as to what they had seen or heard, no matter what the subject, I would not have felt comfortable having them close... I feel very strongly that the USSS agents should not be made to appear in court to discuss that which they might or might not have seen or heard.
However, no rationale is as powerful as that by Director Merletti himself, some of which he shared in a speech to the National Academy (FBI) on leadership in 2000:
[With the Clinton-Lewinsky situation] I faced one of the most challenging periods in Secret Service history where a situation was brought on by circumstances never dreamed of in our past, threatened to dissolve the trust and confidentiality that the Secret Service had spent 100 years building. ...Even though we knew we had not witnessed a crime and that we had no evidence, we held our ground amid accusations from the Independent Counsel that we were 'facilitators.'
"This was a test of organizational will and character; one that I carried to the United States Supreme Court. In the face of opposition from the world's experts in the field, the Independent Counsel continued in its insistence on the pure letter of the law. The Independent Counsel's actions were re-defining the Secret Service role, and I can tell you it was not the role that will succeed, nor was it the role that I and my fellow agents signed on for...
In spite of the best attempts by many, the Independent Counsel ultimately succeeded in compelling Director Merletti and agents on the President's Protective Detail to testify regarding what they saw and heard of the Clinton-Lewinsky affair.
Although Starr's report points out that the Secret Service angle proved to be "a dry hole," and the Independent Counsel Office has expired, no legal mechanism has ever been put in place to prevent agents from being drawn into what was ultimately a political issue.
Mr. Attorney General, owing to your commitment to remaking the department "into what it once was and what it always should be," I hope you will take the necessary and immediate action to help these highly dedicated men and women of the Secret Service do their jobs effectively, confident that they will never have to be called to testify against a sitting President.