Attorneys for Linda R. Tripp, launching a broad-based challenge to the Maryland wiretapping indictment against her, are questioning whether the state law can be used to prosecute Tripp for tape-recording a telephone conversation with Monica S. Lewinsky if Lewinsky was not in the state when the recording was made.
The challenge to the application of the state wiretapping statute was among seven motions filed Tuesday in Howard County by one of Tripp's attorneys, Joseph Murtha, who also asked for the indictment to be dismissed on the grounds that it was obtained using testimony Tripp gave under a federal immunity agreement.
Tripp was indicted by a Howard County grand jury on July 30 and charged with illegally taping a phone conversation with Lewinsky on Dec. 22, 1997, and illegally directing her attorney to reveal its contents to Newsweek magazine.
If convicted, she could be sentenced to five years in prison and fined $10,000 for each count.
In essence, the motions Murtha filed seek to require Maryland State Prosecutor Stephen Montanarelli to turn over to the defense all the evidence collected during the 13-month county grand jury investigation.
"There are areas of evidence that I believe could come from no other source other than the office of independent counsel," Murtha said in an interview yesterday. "Anything from the OIC would be tainted."
Although Murtha asked for Montanarelli to reply to his requests within 20 days, Tripp's case has not yet been assigned to a Howard County Circuit Court judge, so there is no one to decide on whether Montanarelli must comply.
Tripp has not made an appearance in court since the indictment was returned. She waived the formal hearing during which charges normally are presented to a defendant. No hearings in the case have been scheduled.
Montanarelli could not be reached for comment yesterday. An investigator on his staff said the office had received Murtha's motions.
In one specific request, Murtha asked Montanarelli to "identify the jurisdiction where the alleged victim was physically located at the time the alleged tape recorded telephone call was either placed or received. . . ." Tripp's attorneys said they assume Lewinsky was in her residence at the Watergate apartments in the District at the time.
"Are Maryland laws written to protect people outside of the state? We don't think so," Murtha said yesterday.
Murtha said he will argue that federal wiretapping laws should apply. Federal law requires that only one person consent to wiretaping, which could exonerate Tripp, Murtha said. Maryland's stricter law requires that all parties involved give consent. Lewinsky has testified she did not give Tripp permission to tape their conversations.
Towson-based lawyer Richard M. Karceski, who has handled more than 20 wiretapping defenses, said that "Maryland law doesn't say anything about the party on the other end of the line. As long as they're in Maryland and recording without the consent of someone, they're breaking the law."
University of Maryland Law School professor Abraham A. Dash likened the wiretap law to extortion across state lines.
"If you have someone in Maryland committing extortion against someone in the District, they would be prosecuted in Maryland," Dash said.
CAPTION: Linda Tripp's attorneys assume Lewinsky was in the District when the recorded phone call took place.