Several current and former deputies of former independent counsel Kenneth Starr are on a prosecution witness list in the Linda R. Tripp wiretapping case, according to lawyers involved in the case, which gets underway tomorrow.
Starr's deputies don't wish to testify against Tripp because they believe that the argument of State Prosecutor Stephen Montanarelli, if successful, would undermine a fundamental tool--immunity--regularly used by prosecutors, according to two lawyers close to Starr's office.
Montanarelli will argue tomorrow that Tripp's immunity had not been formalized when she handed over the tapes of her phone conversations with White House intern Monica S. Lewinsky to Starr's office. At the time, Tripp had a written commitment from Starr's office but not the agreement that a judge signed a month later.
Tripp is charged with illegally taping a phone conversation with Lewinsky and illegally disclosing its contents to Newsweek magazine. Each charge carries a maximum of five years in prison and a $10,000 fine. Tomorrow's hearing will focus on Montanarelli's key piece of evidence: the audio tape itself.
Tripp's lawyers argue Tripp was covered by a federal immunity agreement when she turned over the tapes to Starr's office. Therefore the tapes cannot be used against her, they say.
Starr's deputies believe the case against Tripp is based on a misunderstanding of their actions during the first months of the scandal involving Lewinsky and President Clinton, according to the lawyers close to Starr's former office. The current staff of the office, as well as Starr, is opposed to the prosecution, the lawyers said.
Current and former deputies of the Office of Independent Counsel could play a major role in the case. At least three of them--Jackie M. Bennett, Paul Rosenzweig and Stephen Binhak--are on a sealed witness list submitted to the court, according to lawyers close to the case. Lewinsky is also on the list and will likely be called to testify in a pretrial hearing scheduled for Dec. 13, the lawyers said.
Starr's deputies view Montanarelli's argument as casting doubt on the integrity of the promise they made Tripp on Jan. 16, 1998. On that day, deputy independent counsel Bennett sent her a letter on official stationery making the immunity offer. Montanarelli declined to comment yesterday.
The hearing before Howard County Circuit Court Judge Diane O. Leasure tomorrow will deal primarily with timing: when to decide if the tape can be used. The trial is slated for Jan. 18, though it will likely be delayed. Tripp attorney Joseph Murtha will argue tomorrow that the issue should be decided at the Dec. 13 hearing. Montanarelli said in court filings that he would prefer it to occur during or after the trial.
"Arguing over the key piece of evidence after the trial? It makes no sense," Murtha said.
Although Tripp made numerous other secret recordings of her phone conversations with Lewinsky, she is being prosecuted only for the tape she made Dec. 22, 1997. Montanarelli focused on this tape because Tripp recorded it after being advised by a lawyer that wiretapping was illegal in Maryland, according to Tripp's own testimony before a federal grand jury in 1998.
The focus of the case is now on a rapid series of events that took place in early 1998, beginning just over a week before the scandal exploded into public view. On Jan. 8, one of Starr's deputies learned that Tripp was in possession of the tapes. Shortly after, the office contacted her lawyer and made a verbal immunity offer. On Jan. 16, the day before Clinton gave a deposition in the Paula Jones sexual harassment case, Tripp received a court subpoena ordering her to testify before a federal grand jury and produce the tapes.
Along with the subpoena came a letter signed by deputy independent counsel Bennett. It said that Tripp would have immunity "in any criminal case" and that "this agreement expressly covers . . . certain tape recordings."
Tripp asked that her immunity be sanctioned by a court order because she was nervous about the case, according to lawyers close to Starr's former office. That order was not formalized until Feb. 19 because Starr's deputies were busy with the rapidly expanding investigation, the lawyers said.