Rubin v. United States ex rel. Independent Counsel

Background

A dispute arose after the Court of Appeals rejected a claimed Secret Service evidentiary privilege that would allow agents protecting the President to refuse to testify about things they saw or heard unless the observations were clearly criminal. The Secretary of the Treasury asked the Supreme Court to review that denial, but the Court declined, leaving the lower-court decision in place for this case.

Reasoning

The core question was whether federal law should recognize a special privilege shielding Secret Service agents’ observations made while performing protective duties near the President. Two Justices argued the issue is important and that federal courts have authority under Federal Rule of Evidence 501 to develop new privileges where a public good transcends normal rules. Those Justices emphasized the history of presidential assassinations and near-misses and relied on sworn statements from former Presidents and Secret Service officials saying the absence of a privilege could reduce trust and cause Presidents to distance themselves from agents. The Court’s denial of review did not resolve this legal question on the merits.

Real world impact

Because the Supreme Court refused review, the appeals court’s conclusion that there is no broad Secret Service testimonial privilege remains undisturbed in this matter. In practical terms, agents who observe or hear events near the President may be compelled to testify in federal investigations or prosecutions unless some other privilege applies. Some Justices warned that this may influence how closely agents stand to the President and could affect routine protective practices. The issue remains open for future litigation and could be decided on the merits later.

Dissents or concurrances

Justices Breyer and Ginsburg dissented from the denial, saying the Court should grant review and provide an authoritative ruling on whether a protective evidentiary privilege is warranted to safeguard presidential security.