United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued June 26, 1998 Decided July 7, 1998
No. 98-3069
In re: Sealed Case
---------
Appeal from the United States District Court
for the District of Columbia
(No. 98ms00148)
Stephen W. Preston, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellant,
with whom Janet Reno, Attorney General, Frank W. Hunger,
Assistant Attorney General, Mark B. Stern, Michael S. Raab,
and Maria Simon, Attorneys, were on the briefs.
Kenneth W. Starr, Independent Counsel, argued the cause
for appellee United States, with whom Michael L. Travers,
Associate Independent Counsel, was on the brief.
Arnold I. Burns and Warren L. Dennis were on the brief
for amici curiae in support of the United States Secret
Service.
William P. Barr, Griffin B. Bell, and Jonathan Turley
were on the brief for amici curiae former Attorneys General
of the United States.
Before: Williams, Ginsburg, and Randolph, Circuit
Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: During depositions conducted by the Office of
the Independent Counsel as part of grand jury proceedings,
officers of the United States Secret Service refused to answer
certain questions on the ground that the information sought
was protected from disclosure by a "protective function privi-
lege." When the OIC filed a motion in federal district court
to compel their testimony, the Secret Service, through the
Attorney General, again asserted a protective function privi-
lege, which by that time had been officially invoked by the
Secretary of the Treasury, the cabinet officer who oversees
the Secret Service. The district court refused to recognize
the protective function privilege and granted the motion to
compel.
For the reasons set forth below, we affirm. We note at the
outset, however, that the question before the court today is
whether Secret Service officers can be compelled to testify
before a federal grand jury. We express no opinion about
the propriety of asserting a protective function privilege in
other legal proceedings.
I. Jurisdiction and Standard of Review
As a general rule, in order to obtain appellate review of a
district court's order to testify, a witness must first disobey
the order and be held in contempt. See United States v.
Ryan, 402 U.S. 530, 533 (1971); Cobbledick v. United States,
309 U.S. 323, 328 (1940). When someone other than the
witness holds the privilege, however, the holder may appeal if
"circumstances make it unlikely that [the witness] would risk
a contempt citation in order to allow immediate review of a
claim of privilege." In re Sealed Case, 754 F.2d 395, 399
(D.C. Cir. 1985). We have not hesitated to recognize that
such circumstances exist when a witness has sworn under
oath that he or she will testify if ordered to do so. See id.;
In re Sealed Case, 737 F.3d 94, 98 (D.C. Cir. 1984). In the
absence of such a sworn statement we are properly reluctant
to conclude that we have jurisdiction. Compare In re Sealed
Case, 655 F.2d 1298, 1301 (D.C. Cir. 1981) (denying appeal
where outside counsel "shared the company's interest in
withholding the contested documents") with In re Grand
Jury Investigation of Ocean Transp., 604 F.2d 672, 673 n.1
(D.C. Cir. 1979) (allowing appeal where witness "appears to
have been unwilling to risk a contempt citation"). Because
the witnesses in this case are sworn law enforcement agents,
we think it highly unlikely they would disobey a court order
to testify. Hence, just as a private company may pursue an
immediate appeal in order to prevent an employee from
testifying as to matters protected by a privilege that the
company wishes to assert, see In re Sealed Case, 107 F.3d 46,
48 & n.1 (D.C. Cir. 1997), the Secretary of the Treasury may
here pursue an immediate appeal in order to prevent Secret
Service officers from testifying as to matters protected by a
privilege that he has asserted on behalf of the United States.
Accordingly, we accept jurisdiction over this appeal pursu-
ant to 28 U.S.C. s 1291. Because the recognition of a
testimonial privilege is a legal issue, our review is de novo.
Cf. In re Bevill, Bresler & Schulman Asset Mgmt. Corp., 805
F.2d 120, 124 (3d Cir. 1986) ("Although the applicability of a
privilege is a factual question, determining the scope of a
privilege is a question of law, subject to plenary review").
II. Nature of the Asserted Privilege
As described by the Secret Service, the protective function
privilege absolutely protects "information obtained by Secret
Service personnel while performing their protective function
in physical proximity to the President," except that the
privilege "does not apply, in the context of a federal investiga-
tion or prosecution, to bar testimony by an officer or agent
concerning observations or statements that, at the time they
were made, were sufficient to provide reasonable grounds for
believing that a felony has been, is being, or will be commit-
ted." Brief for Appellant at 4 & 5 n.1.
The privilege is necessary, according to the Secret Service,
in order for the Service to carry out its statutory duty to
protect the President. See 18 U.S.C. s 3056. That is be-
cause the Secret Service uses protective techniques the effec-
tiveness of which depends upon close physical proximity to
the President. Indeed, in the opinion of the current Director
of the Secret Service, "it is no exaggeration to say that the
difference of even a few feet between a President and his
protective detail could mean the difference between life or
death." Declaration of Lewis C. Merletti p 12. The Secret
Service has a tradition and culture of maintaining the confi-
dences of its protectees. The Service is concerned that "if
any President of the United States were given reason to
doubt the confidentiality of actions or conversations taken in
sight or hearing of Secret Service personnel, he would seek to
push the protective envelope away, or eliminate some of its
components, undermining it to the point where it could no
longer be fully effective." Merletti Decl. p 27. In a letter to
the Director dated April 15, 1998, former President George
Bush succinctly stated the case for recognizing the privilege:
What's at stake here is the confidence of the President in
the discretion of the USSS. If that confidence evapo-
rates the agents, denied proximity, cannot properly pro-
tect the President.
III. Analysis
Rule 501 of the Federal Rules of Evidence provides in
relevant part as follows:
Except as otherwise required by the Constitution of the
United States or provided by Act of Congress, or rules
prescribed by the Supreme Court pursuant to statutory
authority, the privilege of a witness, person, government,
State, or political subdivision thereof shall be governed
by the principles of the common law as they may be
interpreted by the courts of the United States in the
light of reason and experience.
In its most recent opinion dealing with the recognition of a
new testimonial privilege, the Supreme Court reiterated that
Rule 501 "did not freeze the law governing the privileges of
witnesses in federal trials at a particular point in our history,
but rather directed federal courts to 'continue the evolution-
ary development of testimonial privileges.' " Jaffee v. Red-
mond, 518 U.S. 1, 9 (1996) (quoting Trammel v. United
States, 445 U.S. 40, 47 (1980)). Still, when evaluating a novel
claim of privilege "we start with the primary assumption that
there is a general duty to give what testimony one is capable
of giving," id. (citations omitted); testimonial privileges "must
be strictly construed and accepted only to the very limited
extent that permitting a refusal to testify ... has a 'public
good transcending the normally predominant principle of
utilizing all rational means for ascertaining truth,' " Trammel,
445 U.S. at 50 (quoting Elkins v. United States, 364 U.S. 206,
234 (1960) (Frankfurter, J., dissenting)); see United States v.
Nixon, 418 U.S. 683, 710 (1974) (new privileges "are not
lightly created nor expansively construed"); see also Jaffee,
518 U.S. at 9.
The Supreme Court has put considerable weight upon
federal and state precedent when recognizing a privilege.
See Jaffee, 518 U.S. at 12 ("That it is appropriate for the
federal courts to recognize a psychotherapist privilege under
Rule 501 is confirmed by the fact that all 50 States and the
District of Columbia have enacted into law some form of
psychotherapist privilege"). Consequently, the OIC makes
much of the lack of relevant federal or state precedent for the
protective function privilege. The lack of such precedent is
hardly surprising, however, in view of the novelty of the
OIC's demand for testimony: This appears to be the first
effort in U.S. history to compel testimony by agents guarding
the President. Although analogies can be drawn to state
Governors and their protectors, the consequences of assassi-
nation (and hence the necessity of suitable protection) are so
much greater at the presidential level that such analogies
offer little guidance. In these circumstances, we do not
regard the absence of precedent as weighing heavily against
recognition of the privilege. The result is simply that judicial
recognition of the privilege depends entirely upon the Secret
Service's ability to establish clearly and convincingly both the
need for and the efficacy of the proposed privilege. In other
words, the Secret Service must demonstrate that recognition
of the privilege in its proposed form will materially enhance
presidential security by lessening any tendency of the Presi-
dent to "push away" his protectors in situations where there
is some risk to his safety.
The Supreme Court requires that a party seeking judicial
recognition of a new evidentiary privilege under Rule 501
demonstrate with a high degree of clarity and certainty that
the proposed privilege will effectively advance a public good.
See, e.g., United States v. Gillock, 445 U.S. 360, 375 (1980)
(rejecting as "speculative" policy arguments in favor of pro-
posed state legislative privilege). Even in cases where the
proposed privilege is designed in part to protect constitutional
rights, the Supreme Court has demanded that the proponent
come forward with a compelling empirical case for the neces-
sity of the privilege. See Branzburg v. Hayes, 408 U.S. 665,
693-94 & n.32 (1972) ("Estimates of the inhibiting effect of
[grand jury] subpoenas on the willingness of informants to
make disclosures to newsmen are widely divergent and to a
great extent speculative"); Herbert v. Lando, 441 U.S. 153,
169-70 (1980) (finding policy arguments in favor of First
Amendment-based editorial process privilege insufficiently
"clear and convincing").
As discussed above, the Secret Service claims that ensuring
the physical safety of the President is the transcendent public
good that justifies the protective function privilege. For its
part the OIC "readily acknowledge[s] the profound public
interest in Presidential safety upon which the Secret Service
places so much emphasis," Brief of Appellee at 14. We
likewise agree that ensuring the physical safety of the Presi-
dent is a public good of the utmost importance. We do not
think, however, that the Secret Service has shown with the
compelling clarity required by Rule 501 that failure to recog-
nize the proposed privilege will jeopardize the ability of the
Secret Service effectively to protect the President. As we
have said before,
[w]hile courts must listen with the utmost respect to the
conclusions of those entrusted with responsibility for
safeguarding the President, we must also assure our-
selves that those conclusions rest upon solid facts and a
realistic appraisal of the danger rather than vague fears
extrapolated beyond any foreseeable threat.
A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117 (D.C.
Cir. 1969). Here, the arguments of the Secret Service, apart
from the universally shared understanding that the nation has
a profound interest in the security of the President, "are
based in large part on speculation--thoughtful speculation,
but speculation nonetheless." Swidler & Berlin v. United
States, 1998 WL 333019, at *7 (U.S. June 25, 1998).
The Secret Service has submitted declarations of senior
Secret Service agents and the above-quoted letter from Presi-
dent Bush in support of the privilege, but against these we
must balance recent statements by Presidents Carter and
Ford expressing their opinion that Secret Service personnel
should be required to testify in a criminal case. See Good
Morning America, ABC television broadcast of June 15, 1998
(Carter); Hardball with Chris Matthews, CNBC television
broadcast of June 4, 1998 (Ford) (transcripts of both available
on LEXIS: NEWS library, SCRIPT file).
In addition, although we must acknowledge that the Secret
Service has a duty to protect the President, we must also
consider that the President has a correlative duty to accept
protection. See 18 U.S.C. s 3056(a) & (d). Moreover, as the
district court observed, the President has a profound personal
interest in being well protected, and the President knows that
effective protection depends upon proximity to his protectors.
According to the Director of the Secret Service, an incoming
President generally "does not sufficiently appreciate the risks
he is facing"; however, each new President's "initial tendency
to resist the close protective envelope in which [the Service]
want[s] to place him" is overcome by a "natural educational
process" in which the President learns the importance of
proximity. Merletti Decl. p 20.
The ability of the proposed privilege to enhance the Secret
Service's protection of the President is further weakened by
the precise form of the proposed privilege: An agent may not
testify about the conduct of the President or anyone else
unless the agent recognizes that conduct as felonious when he
is witnessing it; a felony made apparent to the agent only by
subsequent events--and any misdemeanor, regardless of the
circumstances--must remain secret. The proposed exception
for contemporaneously recognized felonies strikes a strange
balance between the competing goals of providing sound
incentives for the President and facilitating the discovery of
truth. On the one hand, because the President cannot know
whether an agent will realize he is witnessing the commission
of a felony--which depends in part upon how much the agent
knows about prior events--the President will have to discount
substantially the value of the protective function privilege
(and thus perhaps be tempted to distance himself from his
protectors all the same). On the other hand, the exception
would prohibit testimony (and thus thwart the search for
truth) even in cases where the evidence, viewed in the light of
subsequent events, would supply a key element in the proof of
a serious crime.
We think it significant that the Secret Service does not
require its agents to sign confidentiality agreements as a
condition of employment; without such an agreement (or
statute or rule), the Secretary of the Treasury would find it
difficult by invoking the proposed privilege to prevent a
former Secret Service agent from testifying, for at least two
reasons. First, a former agent who is not bound by any
agreement or rule will suffer no adverse consequences by
cooperating in an investigation of the President; second, the
Secretary of the Treasury has no way of knowing when such
a cooperative former agent is about to testify. If preventing
testimony is as critical to the success of its mission as the
Secret Service now claims, it seems anomalous that the
Service has no better mechanism in place to discourage
former agents from revealing confidences or at least to alert
the Secretary when testimony is about to be given.
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 sup-
posed to influence; we know of no other privilege that works
that way. If the person whose conduct is to be influenced
knows that the privilege might be waived by someone else,
the effect of the privilege in shaping his conduct is greatly
diminished if not completely eliminated. Accordingly, the
assertion of the White House Counsel, in a letter to the OIC,
that "the privilege is not [the President's] to assert or to
waive" reinforces our impression that the proposed protective
function privilege will provide only a weak incentive for the
President to keep his protectors in close proximity. Letter
from Charles F.C. Ruff to Kenneth W. Starr dated May 11,
1998.
In any event, an incumbent president's ability to control
the assertion of the privilege--even indirectly, via the Secre-
tary of the Treasury--would end when the President leaves
office. This weakens the claim that the privilage in the form
proposed by the Secret Service will do anything to diminish
the President's incentive to keep his protectors at a distance.
For just as the "[p]osthumous disclosure of [privileged] com-
munications [between attorney and client] may be as feared
as disclosure during the client's lifetime," Swidler & Berlin,
1998 U.S. 333019, at *5, so too may disclosures by Secret
Service agents after the President leaves office be as feared
as disclosures during his incumbency. The privilege in its
proposed form does nothing to allay that fear.
We have still other doubts about both the need for and the
efficacy of the proposed privilege. As for need, the greatest
danger to the President arises when he is in public, yet the
privilege presumably would have its greatest effect when he
is in the White House or in private meetings. See United
States Dept. of the Treasury, Public Report of the White
House Security Review 92 (1995), quoted in Brief of Amici
Curiae William P. Barr et al. at 27 n.10 ("Although ...
Presidents have been exposed to deadly or life-threatening
assaults with frightening regularity, not one of these assaults
has occurred within the White House Complex. Indeed, each
assassination or potentially deadly assassination attempt has
occurred when the Presidential protectee was away from the
White House, in the proximity of a crowd"). We note also
that Secret Service agents have given testimony in the past
about the functioning of the tape recording system in the
Oval Office and that some Secret Service agents have dis-
closed observations from their protective experiences in
books, apparently without causing Presidents to distance
themselves from their protectors. As for efficacy, we suspect
that even with a protective function privilege in place, con-
science might impel a President to distance himself from
Secret Service agents when engaging in wrongful conduct, as
might a simple desire for privacy at other times.
Finally, s 535 of the Judicial Code, 28 U.S.C., under which
the Independent Counsel exercises the authority of the Attor-
ney General by virtue of 28 U.S.C. s 594(a), militates against
recognition of the proposed privilege. Section 535(a) initially
authorizes the Attorney General to "investigate any violation
of title 18 [the federal criminal code] involving Government
officers and employees"; s 594(a) transfers that responsibili-
ty to the Independent Counsel by giving him, "with respect to
all matters in [his] prosecutorial jurisdiction ... full power
and independent authority to exercise all investigative and
prosecutorial functions and powers of ... the Attorney Gen-
eral." The OIC contends that the Independent Counsel
stands in the shoes of the Attorney General for purposes of
s 535(b)(1) as well. That section provides that any "informa-
tion, allegation, or complaint received in a department or
agency of the executive branch of the Government relating to
violations of title 18 involving Government officers and em-
ployees shall be expeditiously reported to the Attorney Gen-
eral, unless the responsibility to perform an investigation with
respect thereto is specifically assigned otherwise by another
provision of law." Because the Secret Service is an executive
branch agency, and because s 594(a) assigns the responsibili-
ty for the investigation at issue to the Independent Counsel,
the OIC maintains that the statute affirmatively requires
Secret Service employees to report any covered information
directly to him and hence leaves no room for the assertion of
the claimed privilege. The Secret Service disputes this read-
ing. It argues that the "unless" proviso in that section
eliminates the reporting requirement once the Attorney Gen-
eral is out of the picture and that, even if it does not, the
proposed protective function privilege carves out an exception
to the general rule of the statute. We need not resolve this
dispute. Whatever the answer, it is apparent that s 535(b)
evinces a strong congressional policy that executive branch
employees must report information "relating to violations of
title 18 involving Government officers and employees." That
policy weighs against judicial recognition of the privilege
proposed here.
Recalling the Supreme Court's caution that privileges "are
not lightly created nor expansively construed," Nixon, 418
U.S. at 710, we are constrained not to recognize any new
privilege the need for which is less than "clear and convinc-
ing." Herbert v. Lando, 441 U.S. at 710. Here the need is
fairly disputed, and "[i]n an area where empirical information
would be useful, it is scant and inconclusive." Swidler &
Berlin, 1998 WL 333019, at *7. In these circumstances we
cannot say that the proposed protective function privilege
clearly "promotes sufficiently important interests to outweigh
the need for probative evidence" in a criminal inveatigation.
Jaffee,518 U.S. at 9-10 (quoting Trammel, 445 U.S. at 51).
IV. Conclusion
The Secret Service has failed to carry its heavy burden
under Rule 501 of establishing the need for the protective
function privilege it sought to assert in this case. Conse-
quently, 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. The order of the district court
compelling testimony of Secret Service officers is there-
fore affirmed.
In accordance with the Supreme Court's expectation that
"the Court of Appeals will procede expeditiously to decide
this case," United states v. Clinton, 1998 WL 286739 at *1
(June 4, 1998), any petition for rehearing or suggestion for
rehearing in banc shall be filed within 7 days after the date of
this decision.
It is so ordered.