Maryland Jury to Probe Tripp's Taping
Washington Post Staff Writer
Wednesday, July 8, 1998; Page A14
As Linda R. Tripp spent her third day testifying before a federal grand jury investigating the Monica S. Lewinsky matter, a Maryland prosecutor said yesterday that he has begun a separate grand jury probe into whether Tripp's secret tape-recordings of her Pentagon colleague violated the state's wiretap law.
After months of deferring to independent counsel Kenneth W. Starr's investigation in which Tripp is the central cooperating witness, Maryland State Prosecutor Stephen Montanarelli yesterday said he did not need to wait any longer. "There is no longer any reason to defer to the Office of Independent Counsel since Linda Tripp has testified before a federal grand jury," he said in a brief statement announcing the grand jury probe in Howard County, where Tripp lives.
From her Columbia home, Tripp made more than 20 hours of secret recordings of her conversations with Lewinsky in which the former White House intern alleged she had an affair with President Clinton and was being urged to lie about it under oath. Those tapes sparked Starr's investigation when Tripp handed them over to the independent counsel in January.
Now, Montanarelli will determine whether they were made in violation of Maryland law, which is among the toughest in the nation and forbids the taping of telephone calls unless both parties consent or a judge issues a court order.
But Tripp's lawyers, talking before the large crowd of reporters who gathered outside the Washington courthouse where she was testifying, questioned why Montanarelli chose to announce his probe in the midst of her grand jury appearances for Starr.
"I believe today's announcement is the latest in a series of attempts to intimidate me," said Tripp in a statement read by her lawyer Anthony J. Zaccagnini. "This is evident by the fact that this attempt occurs at the very moment I am testifying before the federal grand jury. I am not intimidated in any way. I will continue to testify truthfully and completely, and I urge everyone involved to do the same."
Lewinsky's camp hailed the opening of the Maryland probe. "Every American has the right to and the expectation of privacy in their private conversations," Lewinsky's spokeswoman, Judy Smith, said in a statement. The inquiry "will help establish that our cherished right of privacy cannot be trampled on."
Montanarelli said earlier this year that telephone-taping cases in Maryland require an "extremely difficult burden of proof" that cannot be developed quickly. Prosecution has been made even tougher under a pair of 1995 appellate court rulings requiring proof that defendants in telephone-taping cases know they are violating the law. There have been few, if any, successful prosecutions since 1995, law enforcement officials said.
Tripp's lawyers declined to say whether she knew it was against the law when she taped the conversations. "I will decline to make any comments concerning the state of mind of Linda Tripp," Zaccagnini said. "It's actually the burden of the state or the prosecution to prove the state of mind, and we'll let Mr. Montanarelli pursue that information."
Tripp co-counsel Joe Murtha, himself a former prosecutor in Howard County, called the investigation "virtually unprecedented" and said Montanarelli will face a difficult time proving any charges.
"The prosecutor must show that a person knew that it was illegal to tape the conversation . . . and in addition to that, despite that knowledge, the prosecutor must show that the person defied the law without any justification," Murtha said. "It's a significant burden, a substantial obstacle for Mr. Montanarelli."
Some legal experts agreed that it would be difficult to meet that standard. "How do you prove knowledge?" said Byron L. Warnken, a University of Baltimore law school professor. "Any mental state is hard to prove."
New York literary agent Lucianne Goldberg, who counseled Tripp to begin surreptitiously taping Lewinsky last year, said yesterday that after checking with several associates, she erroneously told Tripp it was legal to tape record in Maryland. Goldberg said she has her own tape of that Sept. 29 conversation with Tripp and has provided it to Starr.
"She had asked me to find out, because she felt very gnarly about taping," said Goldberg. "She asked me, 'Did you check if it's legal to tape in Maryland?' I said, 'I did and it's okay.' "
The Montanarelli inquiry promises to be slow. The grand jury, which meets only twice a month, is not a special panel convened exclusively for the Tripp case but a regular county jury hearing a range of other routine criminal matters.
Montanarelli would not discuss his plans for the investigation, but his chief investigator said no witnesses are scheduled before next week. The grand jury is set to expire in early September but can be extended at the request of prosecutors.
Montanarelli's office, created by the Maryland General Assembly in 1977 primarily to provide a state-level, nonelected prosecutor to pursue political corruption, received the Tripp case in February as a political hot potato after the locally elected Republican prosecutor in Howard County, Marna McLendon, passed it on to him to avoid what she said was "any perception of a conflict of interest."
Pressured by Democratic leaders in both the county and General Assembly to start an immediate investigation, McLendon said her office had been "placed in an untenable position: Whatever we do -- or don't do -- will be subject to charges of political partisanship."
Montanarelli, a Democrat known for keeping his distance from party functions, agreed to take the case. His office, which operates on a $715,000 annual budget, has only three assistant prosecutors and three investigators.
Staff writer Susan Schmidt and staff researcher Ben White contributed to this report.
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