By George Lardner Jr. and Toni Locy
It was also made late on Jan. 15, before Attorney General Janet Reno acceded to Starr's request for authority to investigate allegations that Lewinsky may have been urged to perjure herself about her sexual relations with President Clinton and before a three-judge court added its stamp of approval.
According to one high-ranking law enforcement source, it is possible Starr violated the independent counsel law or some internal Justice Department rules by using Tripp as a government agent before his mandate was expanded.
"That's a question for which there is no answer at this point," the source said. "That would be something that would have to be looked at." The key issue, this source said, is whether Starr moved too quickly and "acted without authority."
Democrats on the House Judiciary Committee have announced that during the impeachment inquiry of Clinton they intend to challenge Starr and the ways he collected his evidence. Reno has also said she is "reviewing" Clinton lawyer David Kendall's claims that Starr might have misled the Justice Department in winning jurisdiction over the Lewinsky scandal.
Kendall suggested that Tripp manipulated events to give Starr his opening and that Tripp in turn might have been prompted by Starr's office.
Starr responded that Kendall's letter to Reno last Monday was filled with "innuendo and guilt by association" and defended his conduct as "professional, responsible and forthright."
Critics of Starr said they were struck by the lack of supervision during the Jan. 15 taping. Customarily, they said, an FBI agent would have been present to vouch for the time and circumstances of the taping and guarantee the chain of custody.
Tripp's notes show she was still using her own Radio Shack recorder, with FBI approval from the previous day. She had difficulty making it work just before she placed her last call to Lewinsky, sometime after 9:38 p.m.
"Tape all screwed up -- don't know what is wrong," she wrote. "Finally got machine working. Long conversation with Monica. . . . She is more relaxed, happy I am going to another attorney. . . . Show I'm a team player."
"It's unusual for a private citizen supposedly under the supervision of a law enforcement officer to be sitting there at home, taping someone," said one administration official. "You always have to be prepared to explain to defense lawyers how the tape is complete, how nothing was left out, and so forth."
A spokesman for Starr's office, Charles Bakaly, cited what he called a continuing need for grand jury secrecy in refusing to discuss in detail the taping on Jan. 15. Starr's office, however, is said to be confident that the taping itself was perfectly legal.
Other experts agreed, saying Tripp's one-party consent was all that was needed under federal rules covering informants and other operatives acting under the supervision and direction of a prosecutor or other law enforcement officer in the course of a criminal investigation.
"Tripp was acting as Starr's agent," said Gavin Patashnick, a spokesman for Maryland state prosecutor Stephen Montanarelli. "We're not concerned with those particular [Jan. 15] tapes."
Montanarelli is conducting a state grand jury investigation of Tripp's earlier secret tapings of phone conversations with Lewinsky. Maryland's anti-wiretap law requires the consent of both parties, but is hard to enforce because prosecutors must prove a defendant knowingly broke the law.
Tripp taped Lewinsky twice on Jan. 15, the first time around 2 p.m. and then late at night, returning a phone message Lewinsky had left her at 9:38 p.m. According to her notes, Starr's agents had tried to install their own wiretapping equipment in her house the day before but were "unsuccessful" and "so hooked up mine with written authorization and their signature and mine."
The final conversation begins with Tripp asking Lewinsky if she'd been asleep. It includes small talk, complaints from Lewinsky about how selfish "all men are," and a discussion of Clinton's forthcoming deposition in the Paula Jones sexual harassment case, scheduled for Jan. 17.
Tripp says she is worried about what to say when she is questioned under oath about Clinton's relationship with Lewinsky.
"You could say . . . 'I think that's something I'd remember, and I don't recall,' " Lewinsky suggests. "See, there you haven't said no."
The president's personal secretary, Betty Currie, described on other tapes as a "facilitator" of Clinton's dalliances with Lewinsky, comes up at one point.
Tripp: "And you're positive that Betty will lie if -- if she's subpoenaed?"
Lewinsky: "About me?"
The start of the conversation, with Tripp asking Lewinsky if she'd been sleeping, poses a striking contrast with the FBI-supervised tape of Jan. 13 at the Ritz-Carlton Hotel in Pentagon City, when Tripp was wearing a body wire. That begins with the voice of an FBI agent saying "Hi. My name is Special Supervisory Agent [name redacted]. I'm here with Linda R. Tripp."
The agent then asks Tripp to state her name and to say "whether or not you're conducting the recording today voluntarily." Tripp said she was and affirmed that no one in Starr's office had threatened her or coerced her to make the recording.
Washington lawyer Richard Ben-Veniste, a former Watergate prosecutor and a Clinton defender, emphasized the lack of any such statement on the Jan. 15 recordings. He also noted that Tripp, worried about her earlier tapings of Lewinsky, was at the time asking Starr's office for immunity from prosecution.
"If this tape was made under the supervision of the independent counsel, then one would expect to see indications of that supervision in the form of the presence of an FBI agent who states the time and circumstances of the taping, vouches for the integrity of the recording, and immediately takes possession of it to preserve the chain of custody. That's the way it's supposed to work," Ben-Veniste said.
Tripp's last recording of Lewinsky came hours after an entourage led by Starr's top lieutenant, Jackie Bennett, arrived at Justice around 7 or 7:30 p.m. to meet with Reno and her top aides. According to another high-ranking law enforcement source, Starr's team did not bring tapes or transcripts with them and did not go into great detail about how they were made.
"They just said, 'This is what we have,' " this source said.
According to another account, an official from Justice was sent across the street to Starr's office to listen to the Jan. 13 tape.
Reno did not give a definitive answer to Bennett's request until Jan. 16 when she asked the three-judge court to expand his mandate, which the court did later that day.
The high-ranking source said Starr could -- and probably would -- argue that he put Tripp to work that night because he was in the "heat of battle" in a fast-moving investigation and this would probably be a good argument from Starr's point of view.
"I'm not sure it's that big a deal standing by itself," the source said of the Jan. 15 taping. "The question is: Is there more and how many of these things are there? And how far are people at Justice willing to go to discipline him for it?"
Staff writers Paul Valentine and Susan Schmidt and staff researcher Madonna Lebling contributed to this report.
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