Lack of Tapes Stymies Case Against Tripp
Washington Post Staff Writers
Friday, November 6, 1998; Page B1
Who's got tapes? That's the question bedeviling a Maryland prosecutor investigating Linda R. Tripp's secret telephone recordings of presidential paramour Monica S. Lewinsky.
Tripp's friends and associates either don't have copies or could be playing a legal game of "keep away" to prevent Maryland State Prosecutor Stephen Montanarelli from getting his hands on tapes he needs as evidence in his inquiry into whether Tripp broke Maryland's anti-wiretapping law.
Montanarelli thought one of Tripp's lawyers could have had a copy or two, but that appears to have been a dead end. Tripp's literary agent, Lucianne Goldberg, says she had three or four copies but gave them to a journalist for safekeeping – and won't say who. Independent counsel Kenneth W. Starr has the originals, of course, but he won't hand them over because he gave Tripp immunity. Starr promised to provide a full set of duplicates to another of Tripp's attorneys in January, but the attorney won't say whether that pledge was fulfilled.
"I can't say what happened with this," attorney James A. Moody said. "It's a matter of some delicacy."
Everybody in the world knows Tripp made the tapes – transcripts have been published worldwide and are on the Internet – but that's no help to Montanarelli. Without at least one of Tripp's tapes or an authenticated copy, Montanarelli lacks the "corpus delicti" – Latin for the body as well as proof of a crime. He thus faces difficulties making a case similar to those faced by a prosecutor in a murder case that lacks a corpse.
Goldberg, her son and at least one of Tripp's lawyers have been subpoenaed to appear next week before a Howard County grand jury investigating whether Tripp violated the state's anti-wiretapping law. Moody said he expects a subpoena soon.
Montanarelli would prefer getting one of the tapes Tripp made Dec. 12 or Dec. 22, 1997. Both were made after Tripp was warned that Maryland law requires consent of all parties for such taping. Maximum penalty for violation of the anti-wiretapping law is five years in prison and a $10,000 fine.
Montanarelli cannot get the tapes Tripp made directly from her because she cannot be forced to provide evidence that could be used against her.
Goldberg, who became friends with Tripp in 1996 when Tripp toyed with the idea of writing a book about the Clinton White House, said Starr's office gave her permission to duplicate the tapes.
According to Tripp's testimony before a federal grand jury, she gave originals of her first two tapes to Goldberg after they met with Newsweek reporter Michael Isikoff on Oct. 6, 1997.
When Goldberg received a subpoena for the Tripp tapes from Starr, Goldberg said, she called a Starr deputy and asked whether she could make copies before turning them over to the independent counsel.
"Surprisingly," she said in a recent interview, she was told that she could. She said she made "three or four copies."
Charles Bakaly, a spokesman for Starr, said he could not comment on Goldberg's statement because of grand jury secrecy rules.
Goldberg said she gave copies she made of two Tripp tapes to a journalist because she believed "the First Amendment privilege" would keep the tapes beyond a Maryland prosecutor's reach.
But Goldberg said she still has tapes of conversations she had with Tripp on Sept. 18 and Sept. 25, 1997, when they discussed whether taping was legal in Maryland.
Goldberg said she had asked a couple of people to check on the Maryland law and then advised Tripp, erroneously, that taping was not illegal. She said that she might have asked her son because he is "such a Web-master" and that she cannot recall the identity of the other person.
Goldberg and her son, Jonah, said they will testify before the Maryland grand jury Nov. 12.
Tripp also gave original tapes to lawyer Kirby Behre, who represented her until January. Behre said he had the tapes for "several days" and that he did not make any copies of them.
Behre said he turned those tapes over to Moody, whom Tripp hired to replace Behre, the week of Jan. 12. Behre said he "catalogued" the tapes and had Moody sign a receipt for them.
The tapes wound up with Starr. But in a Jan. 16 letter to Moody, deputy independent counsel Jackie M. Bennett said Tripp would receive duplicates of her tapes by Jan. 19.
Moody said he has talked recently to Montanarelli's investigators and expects to be subpoenaed.
Joseph Murtha, one of Tripp's current attorneys, also received a Maryland subpoena for tapes. But that request appears to have been resolved, though neither Murtha's attorney nor a spokesman for Montanarelli would say how.
Gavin Patashnick, a Montanarelli spokesman, said, "We have dealt with the issue and are satisfied he has complied with our subpoena."
Attorney David B. Irwin, who is representing Murtha, said, "I think it will all work out without a huge legal battle."
Montanarelli's focus on Tripp's attorneys is based on what he sees as their ethical obligations to turn over any evidence of a crime that comes into their possession.
Criminal defense lawyer Richard M. Karceski, of Towson, explained how even the lawyers might sidestep that issue.
"Suppose you held up a bank and killed someone and you came to me and said, 'This is the gun I used.' What you told me would be protected" by the attorney-client privilege, Karceski said.
But a lawyer could not keep the gun. "I wouldn't throw it in the Chesapeake," he said. "I'd maybe give it to someone else to have some insulation."
Starr's grant of immunity to Tripp has further complicated Montanarelli's quest. "Montanarelli has to re-create the absolute silence she would've kept had she stood on her Fifth Amendment rights against self-incrimination," Washington lawyer Steven Tabackman said.
The road map for how well a prosecutor must insulate his case from testimony given under another prosecutor's immunity deal was provided by the U.S. Court of Appeals for the D.C. Circuit when it overturned the conviction of Lt. Col. Oliver L. North in connection with the Iran Contra investigation.
The court's decision was based mainly on the grant of congressional immunity North received and the fact that his testimony was broadcast publicly. Prosecutors in that case failed to avoid the media saturation, and the court concluded it tainted their investigation.
"It's a nice side effect" for a suspect, said lawyer Robert C. Bonsib, of Greenbelt, because it forces prosecutors to prove that they developed evidence on their own.
The Howard County grand jury has heard from two Radio Shack employees who testified about Tripp's purchase of a tape recorder that contained a general warning about possible violations of the law. Radio Shack also issued a statement saying it is company policy for employees in Maryland to warn customers about the law.
Legally, Tripp cannot ignore such warnings, said defense lawyer Karceski. "A person just can't keep marching forward," he said. "That is willful blindness to the law."
But there is yet another obstacle: Ignorance is an excuse for violating the Maryland wiretapping law. A leading court opinion on the issue requires that prosecutors prove a defendant knew that the law requires consent of all parties before taping can occur.
Tripp testified that she did not know about the law until late 1997 when lawyers told her about it. She said she briefly stopped taping Lewinsky but resumed on Dec. 12 and Dec. 22 to protect herself from retribution from the White House.
If Tripp is indicted in Maryland, legal specialists said her attorneys could argue that she is being persecuted for political reasons and is a victim of selective prosecution.
Lawyers who work in Maryland say that what Tripp did goes on every day in acrimonious divorces. Rarely, they said, is anyone charged criminally.
"We don't have a political agenda," said Patashnick, Montanarelli's spokesman.
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