The investigation of alleged illegal tape-recording by Linda R. Tripp hit a major obstacle yesterday when a Howard County judge said her former attorney would not have to answer questions posed by state prosecutors.
The potential outcome is unclear, but legal experts said the ruling could derail the investigation into Tripp and her secretive tape recordings of White House intern Monica Lewinsky, which ignited a national scandal and the impeachment of President Clinton.
While alluding to the uphill battle ahead, State Prosecutor Stephen Montanarelli said yesterday the investigation would continue.
"We are proceeding as expeditiously as possible," Montanarelli said. "There are difficult problems with this case but we are still proceeding."
Yesterday's ruling stems from a December grand jury appearance, when Tripp's former lawyer, James Moody, refused to answer questions concerning the tapes. He said answering those questions would violate attorney-client privilege.
Last month, Montanarelli filed a motion with Circuit Judge James B. Dudley seeking a court order to compel Moody to answer those questions.
That motion said: "Moody's knowledge of the disposition of the tape recordings made by Tripp is essential to the State's burden to prove that Tripp illegally taped conversations with Monica Lewinsky after Tripp" had learned it was illegal to do so.
After a closed hearing yesterday, Dudley ruled that Moody did not have to answer those questions and could invoke the attorney-client privilege. A grand jury was apparently waiting to hear Moody's testimony yesterday.
"Based on the judge's orders," Montanarelli said, "we decided not to call Mr. Moody and we don't intend to."
Standing outside in a light snow, Moody and Tripp's current lawyer, Joseph Murtha, said they were pleased with the decision.
"I can't imagine a nonprivileged question they can ask," Moody said. "The whole point of this fight was to prevent prosecutors from using lawyers against their clients."
Murtha, a former prosecutor in Howard County, said he hoped the investigation would end soon. "The job has been done," he said. "I have no idea where the case is going from here."
It is illegal in Maryland to record conversations without both parties' consent. But ignorance of the law is a valid defense. The maximum penalty is five years in prison and a $10,000 fine.
Montanarelli has a difficult job proving what is known -- that Tripp taped Lewinsky even after learning it was illegal, an admission Tripp made to a federal grand jury.
Montanarelli must develop his own evidence and cannot rely on information gathered from Tripp by independent counsel Kenneth W. Starr, who granted the Columbia resident immunity.
In November, Tripp's friend Lucianne Goldberg, a New York literary agent, turned over copies of taped conversations between Tripp and Lewinsky. But those tapes were made before Tripp says she knew about the Maryland law.
Legal experts said it would be possible for Montanarelli to bring charges against Tripp without tapes made after she knew it was illegal, but it would be difficult.
"To make it a nice neat case, you need the tapes themselves," said Abraham Dash, a law professor at the University of Maryland School of Law.
Legal experts also said that going after an attorney usually signals a weak case.
"It's not going to serve as a meaningful vehicle to collect evidence because there are too many legitimate privileges," said Byron L. Warnken, a professor at the University of Baltimore School of Law.
Montanarelli appears to be investigating another aspect of the Maryland law -- that disclosing the tapes may be illegal.
In December, prosecutors questioned Moody about whether he had given copies or original tapes to Michael Isikoff, a Newsweek reporter. In response, Moody asserted the attorney-client privilege and his Fifth Amendment protection from self-incrimination.
Moody will not have to answer those questions because prosecutors failed to prove that Tripp had waived her attorney-client privilege, Dudley ruled.
Pub Date: 2/26/99