The Contemporary Presidency: Presidential Safety, Prosecutorial Zeal, and Judicial Blunders: The Protective Function Privilege

Abstract

During the Clinton‐Lewinsky episode of 1998, the independent prosecutor issued subpoenas to Secret Service agents to force them to testify. Presidential safety was at the heart of the debate that followed. The Treasury Department asserted a protective function privilege, whereby the agents could maintain confidentiality and thereby preserve the president's trust and decrease his tendency to distance himself. The courts rejected the privilege on the grounds that there was no precedent, that the agents were federal officials with a duty to testify, and that no harm would follow the president. In their decisions, the courts blurred the margins of separation and devalued the opinions of the experts–the Secret Service director and all prior living heads of the agency. To safeguard future presidents, the best recourse for the nation is legislative enactment of a protective function privilege, which would preserve confidentiality between the president and the agents who guard him.