By Paul W. Valentine
Linda R. Tripp's encounters with a grand jury aren't over yet.
Her eight days of testimony in the latest investigation of President Clinton, which she set in motion, are finished. But Tripp is under investigation herself by a Maryland grand jury looking into the legality of secretly recorded calls Tripp made of Monica S. Lewinsky talking about an alleged affair with the president.
From their nondescript suburban Baltimore office, lawyers and investigators for Maryland State Prosecutor Stephen Montanarelli, the seasoned but little-known pursuer of public corruption in the Free State, are at work on the Tripp inquiry. More accustomed to probing local voter fraud and public contract kickbacks, the office has been thrust into the national limelight with Montanarelli's recent announcement of the Tripp probe.
The timing of the announcement generated an instant political flap in Maryland when Tripp accused Montanarelli of succumbing to partisan pressure and trying to "intimidate" her as she testified in independent counsel Kenneth W. Starr's federal investigation.
In a blunt statement denying any political motivations, Montanarelli, a Democrat, said "there was no malice intended." The 69-year-old prosecutor has already met at least once with the 23-member local grand jury in the Circuit Court in Ellicott City, seat of suburban Howard County, where Tripp lives and where she taped many of her conversations with Lewinsky. Montanarelli has indicated he will start summoning witnesses soon.
Montanarelli won't name potential witnesses, but attorneys familiar with the case said the list could include Lewinsky, Tripp's New York literary agent Lucianne Goldberg and Tripp's two children. Goldberg has said she encouraged Tripp to record Lewinsky and that she has a tape of a Sept. 29 discussion in which she erroneously advised Tripp it was legal to tape in Maryland.
Under Maryland's tough wiretap laws, the case requires "an extremely difficult burden of proof," Montanarelli acknowledged five months ago when he first took over the case at the request of Howard County's Republican prosecutor, Marna McLendon, who said that no matter what she did, she would be accused of "political partisanship."
Under Maryland law, prosecutors must prove not only that defendants recorded telephone conversations without the consent of the people being called but also that they knew they were violating the law a difficult task requiring evidence of defendants' "state of mind" and knowledge of the law.
In addition, Tripp has been granted immunity from federal prosecution in exchange for her testimony before the Starr grand jury. That means, according to several attorneys, that Montanarelli cannot use the transcripts of Tripp's testimony before the federal grand jury and will have to rely largely on independently developed evidence.
"The Starr transcripts would not be available to a nonfederal prosecutor," said George Beall, a former U.S. attorney in Maryland.
To make things even tougher, Montanarelli's four-prosecutor office operates on a shoestring $713,000 annual budget, with limited powers to grant immunity and subpoena witnesses.
"It's a kind of toothless tiger," said Beall. Created in 1976 by the Maryland legislature, whose members stood to be among its most likely targets, it is charged primarily with prosecuting violations of state elections, ethics and bribery laws. But it lacks the power to grant immunity (except in bribery cases) and cannot subpoena records directly. Year after year, the legislature has turned aside proposals to broaden the office's power, refusing in the last session to extend the statute of limitations on campaign finance and ethics laws.
Even so, Montanarelli, now in his third appointed six-year term, has chalked up a number of corruption convictions of public officials, including several legislators, two county sheriffs, a Baltimore comptroller, a high-ranking official in Maryland's tax-collecting agency and assorted county commissioners.
Montanarelli's reputation for political independence extends even to some local Republicans. He is a "dedicated law enforcement professional whose ethics and impartiality are beyond reproach," said McLendon, the Howard County prosecutor, in a recent letter to state legislator Leon G. Billings of Montgomery County, one of 49 Democratic lawmakers who accused McLendon of stalling the Tripp probe before she turned it over to Montanarelli.
For some politicians, the question is not whether Montanarelli is under pressure to prosecute Tripp a given in Maryland's highly partisan climate but whether he has succumbed to it. As Howard County Republican legislator Robert L. Flanagan put it, Montanarelli is analogous to a football receiver who is "about to catch a ball and might flinch because he's about to get hit from the rear. My feeling is Mr. Montanarelli flinched."
Tripp attorneys Anthony J. Zaccagnini and Joe Murtha contend that Montanarelli cannot avoid political pressure. "He's beholden to the Democratic-dominated General Assembly," said Zaccagnini. "If he chooses not to prosecute, then he'll have a majority of the legislature breathing down his neck. If he does choose to prosecute, then he'll only have a minority breathing down his neck. It's that simple."
Politics aside, some legal experts see almost insurmountable obstacles to a Tripp prosecution. "What kind of witnesses can [Montanarelli] get?" said Beall. "Lewinsky could testify she had conversations with Tripp. But that doesn't [prove] the communications were recorded. ... And how do you establish that [Tripp] knew [it was against the law]? The literary agent [Goldberg] said she told her it was legal. That doesn't help Steve Montanarelli very much, either."
Montanarelli "made a thoughtful, reasonable and moral judgment to take the case," said David B. Irwin, a partner in Murtha's law firm, "but there's still no doubt in my mind that it's a political case. It came to him as a political case. It was already political."
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