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In re Grand Jury Proceedings

May 22, 1998

IN RE GRAND JURY PROCEEDINGS


The opinion of the court was delivered by: Norma Holloway Johnson Chief Judge

NORMA HOLLOWAY JOHNSON, CHIEF JUDGE.

The opinion of the court was delivered by: NORMA HOLLOWAY JOHNSON

ORDER

Pending before the Court is the motion of the Office of Independent Counsel ("OIC") to compel the testimony of [REDACTED]. These witnesses have refused to answer questions before a grand jury, asserting the protective function privilege. [REDACTED]. Upon consideration of the OIC's motion to compel, the opposing and supporting memoranda, and the oral argument of counsel, it is this 22nd day of May 1998,

ORDERED that the motion be, and hereby is, granted with respect to the questions to which the [REDACTED] witnesses asserted the protective function privilege; and it is further

ORDERED that [REDACTED].

ATTACHMENT

IN RE GRAND JURY PROCEEDINGS

Misc. No. 98-148 (NHJ)

REDACTED VERSION

I. Background

Pending before the Court is the motion of the Office of Independent Counsel ("OIC") to compel the testimony of [REDACTED]. These witnesses have refused to answer questions before a grand jury about [REDACTED] [FOOTNOTE REDACTED]. Each witness asserted the "protective function privilege" [REDACTED] [FOOTNOTE REDACTED]. None of the questions at issue relate to the protective techniques or procedures of the Secret Service.

The Secret Service wants this Court to recognize a new "protective function privilege" as a basis for withholding testimony before a federal grand jury. Because this privilege is a novel one, the Secret Service has suggested to the Court what it contends to be the scope of the privilege. The Service characterizes its proposed privilege as an absolute privilege that would preclude the OIC from compelling any testimony regarding information learned by Secret Service agents and officers while performing protective functions in physical proximity to the President where the information would tend to reveal the President's contemporaneous activities. According to the Secret Service, this privilege would encompass the agents or officers' observations of conduct and of individuals' identities as well as statements that they overheard.

In addition, the Secret Service suggests certain exceptions to its proposed privilege. The protective function privilege would not include observations made or statements overheard by an officer or agent who is not performing a protective function. There would also be an exception allowing testimony for observed actions or overheard statements that were, at the time of their perception, "sufficient to provide reasonable grounds to conclude that a felony has been, is being, or will be committed." Opp. to the Mot. to Compel at 2. Finally, the Secret Service declares that ...


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