Md. state prosecutor to begin his own investigation of Tripp Montanarelli had been expected to wait for Starr probe to end



An article in The Sun on June 18 regarding the possible prosecution of Linda R. Tripp on a charge of violating Maryland's wiretapping law contained this sentence: "Tripp's lawyers have maintained that she was unaware of the wiretap law at the time she taped her former friend." (The Maryland statute requires that both parties be aware that a telephone conversation is being taped.)

While Tripp's former attorney, James Moody, acknowledged that Tripp had taped conversations with Monica Lewinsky, her current attorneys, Anthony J. Zaccagnini and Joe Murtha, have not acknowledged that Tripp taped Lewinsky. Further, while Zaccagnini and Murtha have discussed the possible prosecution Tripp, they have not commented explicitly on Tripp's knowledge of the Maryland statute.

WASHINGTON -- Maryland's state prosecutor has decided to begin an investigation into whether Linda R. Tripp broke Maryland's wiretap law by secretly taping Monica Lewinsky and should be charged, according to Tripp's lawyers.

The state prosecutor, Stephen Montanarelli, had been expected await the conclusion of independent counsel Kenneth W. Starr's own inquiry into the Lewinsky matter before deciding whether to conduct his own investigation. But Montanarelli, apparently frustrated by the slow pace of Starr's probe, has decided to begin his own inquiry now.

Tripp's Baltimore lawyers, Joseph Murtha and Anthony J. Zaccagnini, met with Montanarelli last week and urged him not to prosecute Tripp, who is a Pentagon employee and a former colleague of Lewinsky's.

Tripp taped hours of phone conversations with Lewinsky -- in which the former White House intern described a sexual relationship with President Clinton -- and turned the tapes over to Starr in January. Clinton has denied that he had a sexual relationship with Lewinsky. But the tapes sparked a sex scandal that has dogged the president ever since.

Tripp made the surreptitious tapes from her home in Columbia at the urging of her friend Lucianne Goldberg, a New York literary agent.

Under Maryland law, it is a felony to tape a phone conversation without the consent of both parties. But in an unusual facet of the law, the offender must have knowledge that such secret taping is illegal. Tripp's lawyers have maintained that she was unaware of the wiretap law at the time she taped her former friend.

Asked about his meeting with Tripp's lawyers and whether he would indeed investigate Tripp, Montanarelli said: "I can't discuss that except to tell you, you can assume from that that something is happening. What is happening I can't discuss. When we get ready to charge someone, we'll talk."

Initially, the case was in the hands of the Howard County state's attorney, Marna McLendon, a Republican who said she would wait until Starr completed his investigation before she would consider prosecuting Tripp. But her decision to delay led to a near brawl in the Maryland General Assembly in February.

Forty-nine Democrats in the House of Delegates signed a letter urging McLendon to prosecute Tripp, with Del. Gilbert J. Genn of Montgomery County calling the secret recording of Lewinsky "a slam-dunk felony violation."

Del. Robert L. Flanagan, a Howard County Republican, nearly came to blows with Genn after Flanagan denounced the letter and said a policy of having lawmakers push for prosecutions "opened the door to a police state."

Soon after, McLendon decided that the politically volatile nature of the case required her to hand it off to Montanarelli.

Montanarelli, who investigates official misconduct and is independent of the attorney general's office, said in February that he had no immediate plans to investigate Tripp. Yesterday, he acknowledged that he had originally told Starr's office that he would give Starr time to work before he proceeded.

"I did tell a representative of the independent counsel we would defer our investigation," Montanarelli said. "I didn't say how long. I did say a reasonable time."

Democratic lawmakers in Maryland were critical that Montanarelli was given the case, noting that he lacks certain prosecutorial tools. As a state prosecutor, he cannot offer immunity from prosecution. And he cannot directly issue subpoenas, except through local grand juries.

Because the alleged crime occurred in Howard County, Montanarelli said he would impanel a Howard County grand jury if he needs to subpoena information or witnesses.

Montanarelli declined to explain why he had decided to proceed now with his inquiry rather than wait until Starr has concluded his investigation. But he denied that he had been pressured by anyone to investigate Tripp.

"I'm a career prosecutor; I feel no pressure," he said, noting that he has been on the job for 14 years and is in his third six-year term. He was appointed by then-Gov. Harry R. Hughes, a Democrat.

"The reason you have a state prosecutor is you can't be pressured," Montanarelli said. "I don't run for election. I've been here 14 years. This job is the most insulated from politics."

Tripp's lawyers have said such wiretap cases are rarely prosecuted in Maryland because, given the law, it is hard to win a conviction.

"What the case law says is that the state has to show Linda Tripp intentionally violated or recklessly disregarded a known legal duty," Murtha said. "What that means is that she had to know that what she was doing was illegal."

In a meeting with Tripp's lawyers last week, the state prosecutor discussed the high threshold that was set by the state's Court of Special Appeals in 1995 in a case involving the secret wiretapping of a former Hagerstown police officer, Leon C. Fearnow.

"I talked about the Fearnow case as a legal problem we will have to overcome," Montanarelli said.

Abraham Dash, a University of Maryland law professor, said the Fearnow case has made prosecution "I won't say unenforceable, but very difficult."

Since the Lewinsky story broke, Tripp has been cooperating with Starr's investigation while continuing her duties as a Pentagon public relations specialist from her home. She has set up a legal defense fund and a Web site.

It was her fear of prosecution on the Maryland law that led Tripp to approach Starr and spurred the scandal, according to Goldberg, the literary agent and Tripp's confidante.

Tripp became concerned in January that her tapes might be illegal and began looking for a new lawyer to seek immunity from prosecution, Goldberg has said.

But Tripp's lawyer at the time, James Moody, said Tripp had approached Starr because Lewinsky had asked her to lie in the Paula Corbin Jones sexual misconduct lawsuit against Clinton.

Pub Date: 6/18/98

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