Protective Function Essay

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Protective Function Privilege -- Definition / Description

A definition of "protective function privilege" is offered by Michael Kennedy, a Law Clerk for District Judge Shira A. Scheindlin (in the U.S. District court for the Southern District of New York). Published in the Northwestern University Law Review, Kennedy's scholarly piece explains that a deliberative process privilege is a "…shield with which the executive branch deflects public scrutiny into its internal processes" (Kennedy, 2005, 1769). Basically the protective function privilege (PFP) includes any "deliberative material" -- recommendations, advice, and opinions -- which can be kept out of public view in instances of litigation.

The PFP applies in the event a "Freedom of Information Act" request is made for certain information; and PFP is designed so it can rebuff Congressional requests for internal materials, when the release of certain sensitive materials would jeopardize legitimate government discussions or policies, according to the author. Kennedy explains that the privilege is a way to keep the internal activities of the Secret Service from being "forced to operate in a "fish bowl" -- notwithstanding the fact that in some cases judges and prosecutors would like to obtain insider information (1770).

The scope of the privilege is that it protects certain communications that are "predecisional" and "deliberative" (Kennedy, 1772). Predecisional means just what it sounds like it means: discussions that are preliminary to the decision-making when policies are being discussed as part of the legislative or executive process. The belief is that those conversations (because they are not official and don't represent the final idea or bill) should be off-limits to prying eyes. What the president said to the senator when discussing a new idea for a future piece of legislation should be protected under the PFP (Kennedy, 1773). As to the "deliberative" communications, they too should be off limits and should be sheltered under the protective function privilege because as Kennedy reports. Deliberative conversations are "distinct from factual material" and in fact deliberative communication simply reflects "…the advisory and consultative process" through which decisions and policies are ultimately formulated (Kennedy, 1773).

Protective Function Privilege -- Pros and Cons

In the matter of President Bill Clinton's scandal -- his inappropriate involvement with Monica Lewinsky in 1998 -- the special prosecutor (Independent Counsel) Kenneth Starr wanted to interview the Secret Service members who may have been close enough to the situation to shed light on the truth of what happened. As to the U.S. Justice Department's viewpoint, a brief presented by the DOJ (Department of Justice) noted that by providing insider "sources of information about the president" the DOJ would harm the "relationship of trust and confidence" that agents are sworn to uphold (DOJ).

Naturally, Clinton's Administration did not wish to allow the Secret Service agents to be forced to testify, and the DOJ used a quote from former President George H.W. Bush to make a point. Bush wrote to the Secret Service Director Lewis Merletti and said that the "…life of the President and his family" must be protected and the "confidence and trust" that a President has in his Secret Service agents must not be allowed to be compromised (DOJ). Moreover, Bush explained that if the confidence and trust the President has in the agents protecting him "evaporates," then the agents, "denied proximity, cannot properly protect the president" (DOJ). In its brief before the ruling court in this matter the DOJ also pointed out that there has been an attempt on the life of one in every five presidents -- and one in every nine presidents has been killed by assassins -- so the need for privilege (and hence, protection for the agents guarding the president) was considered paramount (DOJ).

Of course Lewis Merletti did not wish to allow his agents to testify in front of a federal grand jury. In his declaration to Judge Norma Holloway Johnson of the U.S. District Court for the District of Columbia -- the judge who was to decide whether the Secret Service should be forced to testify or not -- Merletti said that the "confidence and trust" between a President and the Secret Service should be preserved, if the Secret Service is to "…successfully fulfill its mission" (SS). Regarding the subpoenas requiring his agents to testify, Merletti asserted that the Independent Counsel's Motion to Compel in fact represents "…a threat to the safety of this and future Presidents" (SS).

Merletti, who has served 23 years in the Secret Service, and has protected Presidents Gerald Ford, Jimmy Carter, Ronald Reagan, George H.

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W. Bush, and Clinton, cited scenarios during which Presidents' activities required agents to do extraordinary things to provide needed protection. For example, Merletti used examples to show how closely the agents guard presidents as a way to show that there should be continuing confidentially and trust between agents and the people they protect. Merletti said agents have disguised themselves as major league baseball umpires, soldiers, engineers, priests and others in order to "…achieve seamless proximity" to the President. Again and again in his brief, Merletti requested a chance to speak directly to Judge Johnson, and notwithstanding his long presentation and his pleas, Merletti's assertions did not sway the judge. Merletti even referenced the George H.W. Bush quotes again, and he laid out thirty well-crafted paragraphs as points in his position paper, concluding that the "protective function privilege be recognized" by Judge Johnson (SS).

Meanwhile Judge Johnson said her research has found "…no Federal history of a protective function privilege" and no "constitutional basis for recognizing a protective function privilege" (Johnson). The judge also noted that the U.S. Supreme Court has "rejected several attempts to create new privileges," and the High Court has only recognized a "new privilege" when there is a history of that privilege in federal law. In this case, Johnson asserted, no court has ever recognized this privilege. Moreover, Johnson rejected Merletti's assertion that if agents are compelled to testify, then presidents will likely "push away" his protectors in the future which will put the life of a President in jeopardy. In her ruling, Johnson not only granted the Independent Counsel's motion to compel testimony, she said the privilege should have been involved by the President himself, and hence, the privilege "has not been properly invoked" (Johnson).

In a Time magazine article the authors explained that what Kenneth Starr (a Republican who clearly was pursuing conspiracy theories in an attempt to bring Clinton down) was attempting to learn whether "…the President lied under oath when he denied a sexual relationship with Lewinsky" (Lacayo, et al., 1998, 33). The article went on to point out that the Clinton Administration had already claimed executive privilege on several other matters, and the authors used a quote from St. John's University professor John Barrett to emphasize a point. "The presidency comes with a lot of perks, but this one is just over the top," Barrett pointed out (Lacayo, 34). Barrett, who is introduced by Lacayo as "an expert on the independent counsel law," said this about Clinton: "Does the law need to build a protection to protect a President from behaving himself?" (Lacayo, 34).

A column in The New Republic takes the position that politics played a huge role in the matter because Kenneth Starr was out to bring Clinton to his knees from the beginning. And when the courts allowed Starr's request to go through -- and the agents for the Secret Service were indeed compelled to testify -- it was a "pyrrhic" victory for Starr (Lane, 1998). In winning his case in this specific issue involving protective function privilege for the Secret Service, Starr has "…established the rather novel principle that the Secret Service must henceforth function not only as the president's protectors but also as the eyes and ears of the president's political adversaries" (Lane, 6). A future example….....

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