Obstacles lie in path of case against Tripp Immunity may hinder state prosecutor

July 13, 1998|By SUSAN BAER | SUSAN BAER,SUN NATIONAL STAFF Sun staff writer Lyle Denniston contributed to this article.

WASHINGTON - When Democratic lawmakers in Maryland pressed for the prosecution of Linda R. Tripp on wiretap charges in February, one state delegate called her secret taping of Monica Lewinsky a "slam-dunk felony violation."

But for state prosecutor Stephen Montanarelli, who announced last week that he had launched a criminal investigation into Tripp's activities, bringing a case against the Columbia resident would not necessarily be such an easy shot.

In his way are serious obstacles. Among them, the immunity from federal prosecution granted to Tripp in exchange for her cooperation with independent counsel Kenneth W. Starr's investigation into the Lewinsky matter. In addition, the Maryland law prohibiting the taping of conversations without both parties' consent appears to require that a prosecutor prove that the offender knew he or she was breaking the law.

"Mr. Montanarelli has a Herculean task in proving her guilt," said Richard M. Karceski, a criminal defense attorney in Towson.

When Tripp approached Starr in January, she was given an immunity letter from the independent counsel, ensuring that the evidence she turned over - including tapes of her conversations with Lewinsky - would not be used against her by the federal government.

What's more, Tripp received a sealed immunity order from a federal judge that compelled her to waive her Fifth Amendment right against self-incrimination by barring any federal prosecutor from using against her the evidence she had provided.

None of the parties involved has challenged Montanarelli's right to bring state charges against Tripp should he choose to do so and find the necessary evidence.

"A federal prosecutor does not have inherent authority to bind somebody from a separate sovereign investigation," said Charles Bakaly, a spokesman for Starr.

But what is and is not available to Montanarelli is likely to become the subject of battles between the state prosecutor and Tripp's lawyers - and possibly between Montanarelli and the independent counsel. And many lawyers believe that the immunity deals alone will keep much evidence out of the state's hands.

Just as governments at all levels must obey the Fifth Amendment, so must governments at all levels respect the immunity that one jurisdiction gives to an individual in return for that person's forced testimony. An immunity grant displaces the Fifth Amendment right to silence.

'An Ollie North problem'

"The state cannot use against Linda Tripp any testimony or evidence she offers to the federal grand jury," said George Beall, a former U.S. attorney in Maryland, adding that the state "would be in no better position than the federal government with regard to using against her anything on the tapes."

"There's going to be an Ollie North problem for Mr. Montanarelli," said Beall, a lawyer in Baltimore.

Oliver L. North received congressional immunity for his testimony in the Iran-contra hearings in 1987. Later, his conviction for his role in the secret arms deals was overturned by a federal appeals court, which said that North's immunized testimony had been used to refresh witnesses' memories and had, therefore, tainted the case against him.

Establishing the basic fact that Tripp made tapes could be a challenge for the state prosecutor if he cannot obtain the tapes - which are in Starr's possession - or Tripp's testimony. Tripp's lawyers have not conceded that their client taped Lewinsky and, in fact, refer to "alleged" tapes that Tripp turned over to Starr.

But Montanarelli may not need Tripp's testimony, the contents of the tapes or the tapes themselves if he can establish - through independent means from others with firsthand knowledge of the tapes - that Tripp recorded Lewinsky, did so without her consent and did so knowing it was a crime.

"If, in fact, Tripp had been given a form of immunity, it would not impede or disable our investigation," said James I. Cabezas, chief investigator for the state prosecutor.

State's options

For instance, the state could seek testimony from Lewinsky, who is expected to comply with a subpoena from the Maryland prosecutor should she receive one. Lewinsky could be crucial to the state in at least establishing that she never gave Tripp permission to record their telephone conversations.

The state could also turn to Lucianne Goldberg, a New York book agent and Tripp confidante, who concedes that she has a '' tape of a phone call in which she encouraged Tripp to tape Lewinsky and then told her, incorrectly, that it was legal to do so in Maryland.

According to Goldberg, on the tape - which she said she made legally from her home in New York - she said to Tripp: "I checked on Maryland, and it's perfectly legal - and you checked, too?"

Goldberg says Tripp doesn't answer her question but instead moves on to another subject.

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