She Didn't Break the
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
Lewinsky asked Linda Tripp to commit perjury and obstruction of justice
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
is "common knowledge."
Tripp apparently is being prosecuted to punish Tripp specifically for
exposing President Clinton as a liar and a scoundrel, to discourage
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
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
own home) by a Marylander when it was lawful for a nonMarylander
to do the same.
Second, the statute prohibits "interception," not recording, and
can only be by others, not by a party to a conversation. (As football
know, neither a quarterback nor a receiver can "intercept" a pass thrown
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
in which the nonMarylander is permitted to record the conversation.
(Lewinsky was free to record the conversations under the law of the
of Columbia.) It is absurd to think that the Maryland legislature would
prohibit Marylanders from recording conversations in their own homes for
purpose of protecting nonMarylanders who may lawfully record the same
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
parte recording when she taped her telephone conversations with Monica
Lewinsky, Indeed, even if a Radio Shack employee read the statute to her
she purchased the recording equipment and even if she consciously intended
violate the statute when she made the recordings.
Simply put, the Maryland Wiretap Act was intended to apply to
not recording by a party, and certainly not to recordings of conversations
between a Marylander doing the recording, like Tripp, and a
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
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
reasonably supposed herself either restricted by Maryland law or protected
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
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,
violated if Tripp could be jailed for doing what Lewinsky was entitled to
record her own phone calls in her own home.
Maryland's highest court has interpreted Maryland^Òs 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
the admission into evidence in a Maryland court of the contents of an
electronically recorded phone conversation between a person in the
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
taping was legal (it was), and more concerned with protecting a
Moreover, the Maryland wiretap law is not violated unless the ex parte
interception is done willfully, that is, with intent or reckless disregard
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
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
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,
a right to equal protection of the law.
Ironically, President Clinton has refused to admit that he committed
that he obviously committed (perjury and obstruction of justice), while
Tripp, misadvised by her lawyers, "admitted" in grand jury testimony to a
"crime" that she did not commit.