Tripp Indicted on Charges of Wiretapping
Washington Post Staff Writers
Saturday, July 31, 1999; Page A1 Linda R. Tripp, whose secret telephone tapes of Monica S. Lewinsky titillated and dismayed the nation and ultimately led to President Clinton's impeachment, was indicted yesterday in Maryland on criminal charges of illegal wiretapping.
After a 13-month investigation, Tripp, 49, who lives in Columbia, was indicted on two counts of violating a rarely used Maryland law that makes it a crime to record telephone conversations without the consent of all parties. Tripp has said she recorded more than two dozen phone conversations with Lewinsky in 1997. She also has said she had been warned during that period that secret taping in Maryland was illegal.
In the calls, Lewinsky, who had been a White House intern, revealed to her friend, Tripp, sexual encounters with Clinton.
At a news conference announcing the indictments, Howard County State's Attorney Marna McLendon (R) prosecution was essential when there was an alleged violation of Maryland law in such a high-profile incident. "Prosecutors then can't turn away from that heightened sense of information," she said. "It would be a terrible message to send to the public."
But Philip Coughter, a Tripp spokesman, called the case "disgraceful, transparent and politically motivated." And Stephen M. Kohn, one of Tripp's attorneys, said the indictment "would have a chilling effect on witnesses who have the courage to document and report official misconduct."
Those whose lives were changed by Tripp's secret tapes stayed quietly out of the picture. Lewinsky, who has been vacationing in the Adirondacks, had little reaction and no comment on the indictment, according to a source close to her. One of Lewinsky's attorneys, Jacob Stein, said, "I don't have a reaction."
Nor did the White House.
Each of the wiretapping violations carries a maximum penalty of five years in prison, a fine of $10,000 or both.
With yesterday's indictment, Tripp became the only one among the central figures in the Clinton-Lewinsky scandal to be criminally charged. Clinton was impeached but acquitted by the Senate, and Lewinsky received an unusually broad grant of immunity from independent counsel Kenneth W. Starr.
Although Tripp received a narrower grant of federal immunity before turning the tapes over to Starr, it has not shielded her against a separate state investigation. Her attorneys, however, have argued that state prosecutors cannot use the tapes or Tripp's grand jury testimony in their case. Those arguments promise to be central themes in pre-trial wrangling over her indictment.
Like so much that has come before in the Clinton-Lewinsky saga, the case promises to set off convoluted legal battles even before the trial begins. "Our goal is that it will never get to trial," said Joseph Murtha, one of Tripp's attorneys.
Tripp's legal team plans to attack on several fronts, likely arguing that the federal grant of immunity protects her and that Maryland prosecutors have exceeded their jurisdiction by bringing an indictment on phone calls made across state lines to Lewinsky's apartment in the District.
The indictment also spurred a new wave of reaction to Tripp's secret tapes, viewed by some as cause for a presidential prosecution and by others as a deplorable betrayal of friendship. Much of the bickering was decidedly partisan.
The outcome was hailed by Maryland Democrats, who previously called for McLendon, an elected Republican, to hand off the investigation to state prosecutor Stephen Montanarelli, an appointed Democrat. Montanarelli presented the case to the grand jury and will handle the prosecution.
"Thank God for Montanarelli, because she [McLendon] ducked," said Maryland Del. Leon G. Billings (D-Montgomery). Del. Robert L. Flanagan (R-Howard), who opposed the investigation from the start, called the indictment "an extension of the White House apparatus trying to destroy Linda Tripp."
Tripp let her legal team do the talking. A former White House and Pentagon employee, she is an analyst with the Defense Manpower Data Center, where she heads up a funeral honors program for veterans. She was on sick leave yesterday.
The indictment rests on a single telephone call charging Tripp with illegally taping a conversation with Lewinsky on Dec. 22, 1997. The second count accuses her of "unlawfully disclosing the contents" of that call by instructing her then-attorney, James Moody, to play the tape for Newsweek magazine reporters on Jan. 17, 1998.
Newsweek reporter Michael Isikoff was one of the first to report on the Lewinsky saga. He and Newsweek declined comment yesterday.
The Dec. 22 tape includes an oft-quoted confession from Lewinsky to Tripp: "I have lied my entire life." But the content isn't important to the prosecutors. The conversation was likely chosen, according to one legal source, because it occurred after Tripp was warned that secret taping was illegal in Maryland and before she received her federal grant of immunity.
Montanarelli, this source speculated, may have included the second count to build a case that Tripp "wanted to obtain some form of financial remuneration" for the tapes and that that's why she revealed them to reporters. Though that isn't a crime, it could help paint her as a venal betrayer of her friend.
Tripp testified to a federal grand jury last July that she made the Dec. 22 tape, knowing it was illegal, because she "needed to protect" herself.
Maryland is one of only a dozen states that make it a crime to tape a conversation without the consent of all the parties. Under federal law, and laws in 38 other states and the District, only one person must know the call is being taped. The Maryland law has an added quirk: In 1995, an appellate court ruled that prosecutors must prove the person taping the calls knows they are breaking the law -- a difficult burden.
Nor is the Maryland wiretapping law used very often. Occasionally, it comes up in rancorous divorce cases, but a Montgomery County prosecutor said yesterday that it is usually handled with the offender agreeing to do community service. A former Prince George's County prosecutor could recall no such case being brought during a decade in that office.
To avoid publicity, Tripp's attorneys arranged for her to turn herself in at an undisclosed police station for criminal processing rather than be arrested, as is typical for those indicted for felonies. Although a trial date has not been set, the legal wrangling has already started, with defense attorneys attacking the charges. Kohn, a D.C. lawyer who specializes in whistle-blower defenses, was brought in last week. Yesterday, he argued that Tripp had a First Amendment right to "document" possible wrongdoing by taping Lewinsky.
Also, if Montanarelli attempts to use the Dec. 22 tape, which Tripp turned over to Starr under immunity, her defense team will protest. But Montanarelli hinted yesterday that he may present a "circumstantial" case, and experts say he could prosecute without using the actual tape.
If defense attorneys win their argument that Tripp's federal grand jury testimony cannot be used against her because of immunity, prosecutors might seek to circumvent the issue by using outside statements that Tripp may have made to friends, a lawyer said.
"If Linda Tripp is loose of lip, then she is in more trouble than she ever imagined," said American University law professor Michael Tigar, a prominent criminal defense lawyer.
Legal experts said the trial would be tough to handicap. A jury may not "be favorably disposed toward her [because] she is seen as someone who betrayed a friend," said New York University law professor Stephen Gillers. There may also be a "strong feeling," however, that "Tripp is in her own special prison for life" and "the criminal law is no longer needed to do justice to this series of events called Whitewater and Lewinsky."
Staff writers Linda Perlstein, Bradley Graham and Ruben Castaneda contributed to this report.
Linda R. Tripp would not have faced the same criminal charges had she recorded her telephone calls with Monica S. Lewinsky in the District or Virginia. That's because in those jurisdictions unlike Maryland, with its stringent wiretap laws taping a phone conversation is legal as long as one party consents. That can be the person recording the call. In Maryland, however, all parties must consent. According to the two-count indictment brought against her yesterday, Tripp violated Section 10-402(a)(1) and (2) of the Courts and Judicial Proceedings Article, Annotated Code of Maryland:
(a) Except as otherwise specifically provided in this subtitle it is unlawful for any person to:
(1) Willfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication;
(2) Willfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.