Linda Tripp: Victim
She Didn't Break the Law

By Michael J. Gaynor

Professor Steven Lubet (New York Times, "Linda Tripp Deserves to be Prosecuted," Aug. 25) has it all wrong. It is "a crying shame" that Monica Lewinsky asked Linda Tripp to commit perjury and obstruction of justice and told Tripp to think of her children when Tripp refused, it is right and honorable that Tripp cooperated with the Office of Independent Counsel Kenneth W. Starr in lawfully gathering evidence of crimes, and it is discouraging, if not disgraceful, that a law professor is blindly assuming that Tripp committed a crime.

Tripp's secret taping was not unlawful, as has been so often charged that it is "common knowledge."

Tripp apparently is being prosecuted to punish Tripp specifically for exposing President Clinton as a liar and a scoundrel, to discourage generally others who might have the temerity to make unwanted disclosures about the powers that be, and to provide a spectacle for the people, especially vengeful Clinton supporters.

Tripp's prosecution is an egregious abuse of power because Tripp did not violate the Maryland statute, even after being told her taping was illegal, because it was not illegal.

First, the taped calls were interstate. Since Monica Lewinsky could have lawfully taped them, it is ridiculous to read the Maryland statute as criminalizing an action (recording one's own telephone conversation in one's own home) by a Marylander when it was lawful for a nonMarylander (Lewinsky) to do the same.

Second, the statute prohibits "interception," not recording, and interception can only be by others, not by a party to a conversation. (As football fans know, neither a quarterback nor a receiver can "intercept" a pass thrown by the quarterback toward the receiver.)

Even if the statute prohibited either party from recording without the other's consent, it should not be applied to an interstate telephone call in which the nonMarylander is permitted to record the conversation. (Lewinsky was free to record the conversations under the law of the District of Columbia.) It is absurd to think that the Maryland legislature would prohibit Marylanders from recording conversations in their own homes for the purpose of protecting nonMarylanders who may lawfully record the same conversations.

Linda Tripp, like most Americans, apparently believes otherwise. Kenneth Starr, like Tripp wrongly vilified for doing the right thing, may even believe otherwise. But Tripp did not violate the Maryland law prohibiting ex parte recording when she taped her telephone conversations with Monica Lewinsky, Indeed, even if a Radio Shack employee read the statute to her when she purchased the recording equipment and even if she consciously intended to violate the statute when she made the recordings.

Simply put, the Maryland Wiretap Act was intended to apply to interceptions, not recording by a party, and certainly not to recordings of conversations between a Marylander doing the recording, like Tripp, and a non-Marylander, like Lewinsky, legally entitled to do the same.

Under Maryland's rules of statutory construction, courts are supposed to interpret statutes in ways that presume that the state legislature acted logically and reasonably and to shun constructions that would lead to illogical results.

The wiretap law was intended to prevent the surreptitious recording of the conversation of a person with a reasonable expectation of privacy. The people whose privacy the law was supposed to protect were, of course, Marylanders, and arguably, others while in Maryland.

But during the Lewinsky-Tripp telephone conversations, Lewinsky was not a resident of Maryland nor was she temporarily in Maryland. She could not have reasonably supposed herself either restricted by Maryland law or protected by Maryland law. And if she had chosen, she was free under D.C. law to record her phone calls with Tripp.

Maryland cannot prohibit a person outside the state from recording his or her own conversations in his or her own home for the purpose of protecting Marylanders. It is therefore absurd to assume that the Maryland legislature chose to prohibit Marylanders from recording conversations in their own homes for the purpose of protecting non-Marylanders.

The concept of mutuality, or reciprocity, basic to regulating conduct, would be violated if Tripp could be jailed for doing what Lewinsky was entitled to do: record her own phone calls in her own home.

Maryland's highest court has interpreted Maryland^s wiretap law to protect Marylanders, not to put them at a disadvantage in their relations with non-Marylanders. In 1991, the court held that the state could preclude the admission into evidence in a Maryland court of the contents of an electronically recorded phone conversation between a person in the District of Columbia, who lawfully recorded it there, and a Marylander. Mustafa v. State, 323 Md. 65, 591 A.2d 481 (1991). The court was less concerned with whether the surreptitious taping was legal (it was), and more concerned with protecting a Marylander.

Moreover, the Maryland wiretap law is not violated unless the ex parte interception is done willfully, that is, with intent or reckless disregard of a known legal duty. And a Maryland appellate court stated just four years ago that it is "totally incorrect" to say that ignorance of the wiretap statute is no excuse. Hawes v. Carberry, 103 Md. App. 214, 653 A.2d 479 (1995). Unlike some other laws, people are not presumed to know that particular law.

It is not credible to claim that the Maryland legislature, on one hand, treated the offense of secret taping as insufficiently reprehensible to be illegal if the taper was ignorant of the law and, on the other hand, considered the offense of secret taping so reprehensible as to warrant criminalizing it for the purpose of protecting people outside the state entitled to do the same thing.

What Maryland legislator would tell his or her constituents that it is not a crime for a Marylander ignorant of the law to secretly record a fellow Marylander, but it is a crime for a Marylander to secretly record a non-Marylander who is entitled to record the same conversation? That is neither logical nor reasonable. All Marylanders, Linda Tripp included, have a right to equal protection of the law.

Ironically, President Clinton has refused to admit that he committed crimes that he obviously committed (perjury and obstruction of justice), while Linda Tripp, misadvised by her lawyers, "admitted" in grand jury testimony to a "crime" that she did not commit.