The Secret Service stands between the Nation and the calamity of assassination. The court of appeals’ refusal to recognize the protective function privilege will undermine the Secret Service’s ability to step into the breach and protect the Nation from profound and predictable peril.”

So said Solicitor General Seth P. Waxman, in a dramatic petition for Supreme Court review filed the evening of July 16. Waxman all but predicted that disaster would strike–sooner or later–if Kenneth Starr were allowed to haul Secret Service members before a grand jury to testify about President Clinton.

But by noon the next day, Chief Justice William H. Rehnquist had allowed Starr to do just that, effectively ordering the subpoenaed agents and officers to testify by refusing to stay lower court rulings while the full Supreme Court decides whether to take up the case. Rehnquist was the 11th judge to reject what Starr had conceded to be a sincere Secret Service belief that this was ”a sensitive, life-or-death issue.” Five of the judges were Democratic appointees, two of them named by Clinton.

What accounts for such striking unanimity in the face of such dire warnings?

The most direct answer is that the judges simply discounted as implausible the claims of Secret Service officials that Clinton and future presidents would keep their protectors at an unsafe distance if they could be called before grand juries. ”The President has a profound personal interest in being well protected, and (this) depends on proximity to his protectors,” as a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held on July 7, in an opinion that Rehnquist called ”cogent and correct.”

But there was more to it than that. Judges usually give law enforcement experts the benefit of the doubt, especially on matters as momentous as the president’s safety. But these 11 judges gave the Secret Service no deference at all.

They would have–and should have–taken a different tack, in my view, had the subpoenas come not from a federal prosecutor but from a civil plaintiff, like Paula Jones, or a congressional committee.

The outcome might also have been different had the administration’s privilege claim been tailored more narrowly to fit its purported goal of protecting presidents’ physical safety and legitimate expectations of privacy in the future, rather than Bill Clinton’s personal legal and political interest in suppressing agents’ remembrance of things past.

The three D.C. Circuit judges who heard the Secret Service case–Douglas H. Ginsburg, Stephen F. Williams and A. Raymond Randolph–stressed in their July 7 joint opinion that the contours of the administration’s proposed privilege seemed ill- suited to its supposed purpose, in ways including these: First, the administration ”strikes a strange balance between the competing goals of providing sound incentives for the president (to stay close to his protectors) and facilitating the discovery of truth,” in that its proposed privilege would allow Secret Service agents to testify about any conduct they immediately recognize as felonious, but not about conduct that would be only one link in proving a crime.

This would not protect a president who (for example) urged a witness in the presence of a Secret Service agent to give testimony that the agent knew was false. But it would block any effort to prove perjury by Clinton based on Secret Service testimony about his conduct with Monica Lewinsky, Kathleen Willey or others.

Second, the panel suggested (as had U.S. district Judge Norma Holloway Johnson), it was passing strange for the administration to propose that the privilege be vested not in the president himself–who said through his White House counsel that ”the privilege is not his to assert or waive”–but in Treasury Secretary Robert E. Rubin, and in his successors, who could be unfriendly to Clinton. The president’s ”I’m-not-involved” ploy may have played well in Peoria and in the press, but it did did not play at all in court.

”We know of no other privilege that works that way,” the appeals panel said. ”If the person whose conduct is to be influenced knows that the privilege might be waived by someone else, (it) will provide only a weak incentive for the President to keep his protectors in close proximity.”

The notion that the president cannot waive a privilege designed to protect him is also ”a constitutional absurdity,” wrote D.C. circuit Judge Laurence H. Silberman: Rubin and his Secret Service subordinates take their orders from the president.

Why did Clinton take such an outlandish stand, ostentatiously claiming to have nothing to do with the fight for the privilege claim, even as he trashed Starr for being ”insensitive” to it?

The apparent reason was to avoid the political onus of overtly seeking to suppress possibly incriminating Secret Service evidence about his own conduct, on top of Clinton’s conspicuous refusal to explain that conduct and his assertions of executive privilege and attorney-client privilege to block still others from testifying. (What is left of those assertions is a claim of attorney-client privilege to block Starr’s inquries into some of deputy White House counsel Bruce R. Lindsey’s activities, still pending before the D.C. Circuit.)

Third, the panel stressed, ”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.” Most or all of Clinton’s contacts with Monica Lewinsky and Kathleen Willey, for example, apparently took place while he was in the White House, where multiple rings of security make it virtually impossible for anyone to get near him with a weapon, even if he does sometimes keep the Secret Service at a distance for reasons of privacy and confidentiality (as all presidents do).

The asserted privilege barring all testimony by Secret Service members about what they saw and heard while guarding the president would thus be broader and more absolute than necessary by any reasonable measure. The courts might have been more receptive to a proposal for a qualified Secret Service privilege, one providing strong protection against civil plaintiffs and Congress and more limited protection against grand jury subpoenas.

Indeed, such a qualified privilege could have been couched as a logical extension of executive privilege. It would then have been far easier to reconcile with the assertion in U.S. v. Nixon, the 1974 case in which the Supreme Court first recognized executive privilege, that new testimonial privileges ”are not lightly created nor expansively construed, for they are in derogation of the search for truth.”

Such a qualified privilege would be sufficient to allay any reasonable concerns that presidents might have in the future about having Secret Service agents as close as necessary to avert danger. ”When people act within the law,” as Judge Johnson wrote, ”they do not ordinarily push away those they trust or rely upon for fear that their actions will be reported to a grand jury.”

Perhaps Clinton decided not to advocate such an extension of executive privilege to the Secret Service because executive privilege can be (and would have been) overridden by a showing of probable relevance to a criminal investigation. Nor would an effort to extend executive privilege to the Secret Service have fit with Clinton’s ”I’m-not-involved” charade.

But by trying to sell the courts an unduly broad, indefensibly absolute and entirely novel ”protective function” privilege, the administration foreseeably undercut its chance of winning a reasonable degree of privacy and confidentiality for future presidents and their protectors.

Just as hard cases make bad law, a president preoccupied with protecting his personal posterior has now saddled his successors with a judicial precedent that might have been avoided. Clinton did the same thing earlier when he sought to deflect the Paula Jones lawsuit by invoking a claim of presidential immunity so grandiose as to suffer a unanimous rebuff (in May 1997) in the Supreme Court.

What should be done now? Congress–if not the Court, before which Waxman’s petition for review is still pending– should guard against any long-term damage to the legitimate confidentiality needs of the presidency and the Secret Service by creating the kind of limited privilege that Clinton should have sought in the first place.

Senate Judiciary Committee chairman Orrin G. Hatch of Utah has pledged to lead an effort next year to do that. He has suggested that Secret Service members ordinarily should not be forced to testify before congressional committees or in civil matters, or in grand jury investigations unless ”the testimony is unique and directly related to accusations of criminal behavior.”

Meanwhile, the courts will properly be watching to see whether Starr delivers on his assurance that the Secret Service testimony now under way is not an unwarranted intrusion into a delicate relationship, but rather is ”likely to have the highest relevance to charges of the most serious nature.”