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Burden of Proof

Linda Tripp Wiretapping Trial: Case Moves Forward, but Lewinsky Testimony Limited

Aired May 8, 2000 - 12:30 p.m. ET



LINDA TRIPP: Imagine how you would feel if your boss' attorney called you a liar in front of the whole country, and imagine if that boss was the president of the United States.

MARNA MCCLENDON, STATE'S ATTORNEY, HOWARD COUNTY, MARYLAND: Maryland has a very strict wiretaps statue, which says that if there is going to be a conversation recorded, all parties or participants must agree.

JOE MURTHA, LINDA TRIPP'S DEFENSE ATTORNEY: Linda Tripp never would have cooperated with the Office of the Independent Counsel if she didn't have immunity, and that immunity should protect her from being prosecuted in the state of Maryland, because the state has to use that information in order to attempt to get a conviction.


ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: Linda Tripp will stand trial, but how much can Monica Lewinsky say?

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

COSSACK: Hello and welcome to BURDEN OF PROOF.

On Friday, a judge refused to throw out charges of criminal wiretapping against Linda Tripp. The ruling clears the path for a summer trial against Tripp, brought by prosecutors in Maryland.

GRETA VAN SUSTEREN, CO-HOST: Judge Diane Leasure also gave the green light for testimony by former White House intern Monica Lewinsky, although that testimony will be limited.

Tripp is accused of unlawfully taping a December 22, 1997 conversation she had with Monica Lewinsky, and then unlawfully having it played for editors of "Newsweek" magazine. The recording served as controversial evidence in the independent counsel investigation of President Clinton.

COSSACK: Joining us today from Owings Mills, Maryland, is Linda Tripp's criminal defense attorney, Joe Murtha. Here in Washington: Brian Jones, Linda Tripp's civil attorney, Stephen Kohn, and the deputy state's attorney for Montgomery County, Maryland, John McCarthy.

VAN SUSTEREN: And in our back row: Adam Thomas (ph) and Shiby Chacko (ph). Also joining us from Capitol Hill is CNN national correspondent Bob Franken.

Bob, Linda Tripp still in the news. Bring us, tell us again why is she in the news?

BOB FRANKEN, CNN NATIONAL CORRESPONDENT: Well, first of all, if a compromise is defined, as somebody did, as an agreement where everybody is unhappy, I think we that could consider this a compromise. The judge has made the defense attorneys unhappy by rejecting their request for dismissal, saying that notwithstanding any agreement she might have had with Ken Starr, the trial can go forward.

But, they also decided, the judge decided, that in the case of Monica Lewinsky, much of what she would have to say, and a companion of hers, would not be admissible. The one thing that would be admissible, however, is the question about her consent, which is fundamental to this case.

Remember, this is not about the relationship between Monica Lewinsky had with Linda Tripp, this is simply about whether Linda Tripp legally, under Maryland law, recorded those conversations in secret with Monica Lewinsky.

VAN SUSTEREN: Bob, why does the indictment charging Linda Tripp only talk about December 22? There were a series of recordings.

FRANKEN: Well, the question really is: Under Maryland law, as you know, it is really kind of unique, if you don't have knowledge of the law that can be an argument about that, and what they are doing in that indictment is trying to come up with instances where they can show, the prosecutors can show, that in fact she was knowledgeable about the law, and chose to violate it.

COSSACK: Joe Murtha, who won this decision? Did the defense win or the prosecution? Now, as I understand it, a lot of the evidence that Monica Lewinsky was going to give, she can't give, but yet she can come in and testify that she never gave permission to Linda Tripp to wiretap her.

JOE MURTHA, LINDA TRIPP'S DEFENSE ATTY.: Well, Roger, we are very encouraged by the court's ruling. We believe that the case against Linda Tripp has been weakened, that there is yet another obstacle that has been put in the way of the state in pursuing this politically-motivated and based prosecution.

So whether it is a win, I think defining victory is a little too early to start championing that we actually won. What we don't is our job, zealously defending Linda Tripp, and making the state show that there was an independent source of information, and quite honestly, I don't think that are going to be able to continue forward as strongly as they thought they could. COSSACK: Joe, how much more does the state have to do than to put on Monica Lewinsky to get up on the witness stand and say: I never gave permission for Linda Tripp to record our telephone conversations?

MURTHA: They have a lot more to do. It is interesting. They had two witnesses that were actually removed from the case as a result of Judge Leasure's ruling, Kate Freidrick and Monica Lewinsky subsequently dealing with the date of the tape and also some other issue which I would prefer not to go into, but I believe that consent is literally just one piece of the puzzle, there are many other pieces of the puzzle that are missing right now, and the state is actually reviewing whether or not it can go forward with the case.

VAN SUSTEREN: Steve, you are also a Linda Tripp lawyer in the civil case. What was Linda Tripp's reaction? What did she think about the decision?

STEPHEN KOHN, LINDA TRIPP'S CIVIL ATTORNEY: Well, she thinks that the entire prosecution is politically-motivated. The case wasn't thrown out, so she's not overly happy.

VAN SUSTEREN: Does she think that's a political decision or a legal decision?

KOHN: Well, I think anyone reading the judge's decision, that was a sound, legal decision. But the decision of the prosecutors to go forward with this case was ridiculous to begin with. But now, with the limitations, that prosecution has to dismiss this case. It is their move. And if they don't, I believe it is clearly malicious prosecution from today forward. There is no legal reason to keep Linda Tripp under the burdens of an indictment after that decision.

COSSACK: John, you heard what Steve says. Is it malicious prosecution? And can the prosecution go forward?

JOHN MCCARTHY, DEPUTY STATE'S ATTORNEY, MONTGOMERY COUNTY, MARYLAND: I think the position Mr. Montanarelli finds himself in is not uncommon. In almost any criminal trial, there are pre-trial motions where people are going to try to keep out bits and pieces of evidence, and then prosecutors, as well as defense attorneys, have to adjust their strategy and basically whether their case is makeable. I'm sure, and I know from the comments we see in the paper, clearly that's what they are doing.

I don't know that necessarily it is absolutely flawed, but I do agree with Mr. Murtha, they have -- the hurdle that they have got to jump over at this point in time, with the excluded evidence, is much more difficult for them to be successful. I don't think it necessarily is vindicative on their part. Having known Mr. Montanarelli personally and Marna McClendon, I don't believe it is vindictive on their part going forward initially with the prosecution. I don't agree with that portion.

VAN SUSTEREN: Bob, there are two counts in the indictment, one is that she illegally or unlawfully taped Monica Lewinsky on December 22. The other count has to do with the fact that there was the tape recording of December 22 was unlawfully disclosed to "Newsweek." What were the circumstances surrounding that count?

FRANKEN: Well, the whole matter was brought to the attention of the media and to the independent counsel, Ken Starr, after the tapings were done. And what the prosecution is trying to do is just to go to another part of the law, which says that you are not able to do this, you are not able to take this ill-gotten information, from the prosecution point of view, and pass it on.

Now, all of this, of course, resulted in 13 months of our lives being preoccupied with the relationship between Monica Lewinsky and the president of the United States. But it got its start when this information was shared, both with the independent counsel and with the media.

VAN SUSTEREN: John, you know, when I listen to what Steve says, he says that Linda Tripp says it is politically-motivated. And I don't necessarily think it was politically-motivated. But I must tell you, I think it is a waste of money. Punishment should fit the crime, and I mean, prosecutors have to exercise judgment. Why in the world does the state of Maryland want to kick this dead horse and spend this money?

MCCARTHY: Well, decision to go forward with this case was made months ago. And obviously, I think that when Mr. Montanarelli, and even when the referral was made in this case, no one was going to be able to foretell what was going to happen to the president, what was going to happen in the ensuing months.

VAN SUSTEREN: Why did that make the difference, though, because the case is directed at Linda Tripp's conduct?

MCCARTHY: I think, on the face of it, clearly a felony was committed in our state. I understand that Maryland is one of the most restrictive states in the county, in terms of its wiretap law, but clearly she has committed a felony.

VAN SUSTEREN: But so, I mean, prosecutors oftentimes exercise judgment, and even when a felony has been committed, you look at sort of the big picture, is this really worth us pursuing? And I must tell you that Linda Tripp certainly has received her maybe punishment in the media, people have said unkind things about her.

COSSACK: Well, people often say unkind things about criminals and they still get prosecuted.

VAN SUSTEREN: But I mean, like, this is costing an awful lot of money, and this is not the worse crime I have ever seen.

COSSACK: I'm not saying it is a violent crime, and that perhaps she should go to prison. I guess what I'm saying is I just -- and you know, Greta, how I feel, I mean, I probably wouldn't have done this if I was a prosecutor. But I just don't think it is a clear cut decision that she shouldn't get prosecuted. I am, you know, once again on the fence. MCCARTHY: Unfortunately, when these things come to the public forum, as this case has come, there is different pressures that are brought to bear on everybody that is a participant, and it is something I think everybody recognizes that. is a reality in this case at this point in time. But -- and unfortunately. I think once you become a high-visibility case, it is harder to walk away from it because, to a certain extent, there's public pressure to continue to go forward, and it is hard to walk away from that.

VAN SUSTEREN: But there in lies the story, is that the prosecutor should be able to take the heat, should be able to take the pressure, should be able to take noise. But we need to take a break.

And Up next, Linda Tripp on trial. What is the state required to prove? and what witnesses from the investigation of the president will be taking the stand? Stay with us.


According to FBI statistics, serious crime in the United States was down seven percent in 1999, the eighth consecutive year of decline.



COSSACK: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the Worldwide Web. Just log on to We now provide a live video feed Monday through Friday at 12:30 p.m. Eastern time. And if you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.


TRIPP: The facts will show that, time after time, I urged her to tell the truth right up until the end. I understand that there has been a great deal of speculation about just who I am and how I got here. Well, the answer is simple: I'm you. I'm just like you. I'm an average American who found herself in a situation not of her own making.


VAN SUSTEREN: Linda Tripp's secret telephone recordings of Monica Lewinsky made her one of the key witnesses in the investigation of President Clinton, but her federal immunity deal didn't shield her from state prosecution. She now faces a trial on wiretapping charges in Maryland.

Joe, according to Judge Leasure's decision the other day, on Friday, Monica Lewinsky's testimony has been chopped in two and Monica Lewinsky will be able to talk about consent. She gets on the witness stand, the prosecutor says, did you consent to being taped on December 22, Monica Lewinsky says, no, what's your cross-examination? MURTHA: No questions, your honor.


COSSACK: OK, Joe, now at that point, you are left with a great deal of -- but wait a minute. You are left with a great deal of the people's case made. Now, there has been put in the corpus of the case: I've been recorded and I didn't give permission. You would -- you said that you -- by no questions, you are saying, that's right, we admit that.

MURTHA: No, I don't necessarily believe that we admit that, because we -- I don't want to disclose part of our defense theory on national television, but there are issues that may arise.

COSSACK: You're not going to dispute the fact that these tape recording were done, are you?

MURTHA: No. I think that's all part of an immunized record that is in the office of the independent counsel. There are two parts to what has to be proven: not only that a person did not consent, but that the individual had knowledge of it at the time. And whether...

VAN SUSTEREN: Aren't they going to roll in a bunch of witnesses, including an ex-lawyer who says he told her and Lucianne Goldberg sort of tipped her off a little bit? I mean, is knowledge of the law truly going to be a disputed fact?

MURTHA: I believe it is. I believe that we are going to hold the state to its responsibility under the United States Constitution, under the Maryland Declaration of Rights. The state has to prove its case. And that's what we have said: not guilty, come forward, put the evidence in front of the jury -- hopefully there's not going to much left after we're finished with all of our pretrial motions -- and we'll see what happens.

COSSACK: Well, Joe, it seems to me, then, that what you're going to -- what you're saying is that you're going to put Linda Tripp on the witness stand to say that she didn't know it was illegal.

MURTHA: Well, that's not necessarily true. Because of Judge Leasure's ruling, I believe the state has a very serious problem left with part of its case. Now, only the state can make that decision. Mr. Montanarelli and members of his staff are reviewing what evidence is left. But I believe a significant portion of that element has been removed from the state's case because of "Kate" Freidrich and Monica Lewinsky's removal from being witnesses in the prosecution.

VAN SUSTEREN: Steve, is one of Monica -- or, not Monica Lewinsky, but one of Linda Tripp's lawyers, former lawyers, on the witness list for the state?

KOHN: Well, probably. Whether they'll get to that lawyer or not is a whole other issue with the privileges. But I think the important thing to keep in mind is we're just dealing with the immunity issue here. And I think it's a disgrace that Maryland is prosecuting a major witness of a major federal crime who had federal immunity. It is rare. It is rare and it's malicious.

VAN SUSTEREN: Yes, but it can. But we're beyond that. You know what, Steve? I agree with you, only I think of it of a different reason: What a waste of money. But they are. And we've all said that the problem is, though, is now what are you going to do?

KOHN: Exactly. And the next step is not only is immunity an issue, but Linda Tripp as a federal employee was obligated as a matter of law to document and turn in other federal employees who violated the law.

VAN SUSTEREN: Well, wait a second. Then she should have gone to the police.

KOHN: We have a supremacy clause argument.

VAN SUSTEREN: She should have gone to the...

KOHN: She did. She went -- she did. And, in fact, in Maryland, that law is so crazy you can't legally wiretap perjurers.

VAN SUSTEREN: But wait a second. You're not supposed to violate the law to go out and sort of snatch other criminals.

KOHN: But that's it: She never violated...


VAN SUSTEREN: I've always said this is just a waste of money, but I'm...

KOHN: To say that Linda Tripp violated a law is assuming that the First Amendment, that your right to due process, that your right to document crime can somehow be taken away by, I think, a questionable prosecution in the state of Maryland.

COSSACK: John...

VAN SUSTEREN: If that's the argument, you better hope that I'm not on the jury because I don't like that one.

COSSACK: We had Judge Van Susteren just for a minute, but now we may be in trouble with her -- John.

MCCARTHY: In her defense -- and I think, you know, with all due respect to Ms. Tripp, I think one of the things that was offensive to an average person watching when they see her say, I'm you. Well -- and she's out there telling them, I'm just like you and I'm being crucified here in the press. Well, most people don't go out and wiretap their friends and confidential conversations.

COSSACK: But how do you answer...

MURTHA: But that's not true. That's not true. I was prosecutor in the state of Maryland. Mr. McCarthy truly knows that, day in, day out, the state's attorney's office throughout the state of Maryland are contacted about wiretap violations, and they make conscious decisions not to pursue those crimes.

MCCARTHY: I don't dispute that. I'm making a somewhat different point here. I think that friends do not routinely -- and I think it was offensive to a common person -- friends do not routinely...

COSSACK: But that's not a reason to prosecute, even though we don't like it.

VAN SUSTEREN: Being a bad friend.

MCCARTHY: But I think it makes her less attractive, let's say, before a jury, which I think poses a very interesting issue, I think, to Mr. Murtha as to whether or not, based on Judge Leasure's comments about the credibility of Monica and views on the case, whether he's going to waive a jury in this case and try this before a judge.

COSSACK: Well, I know we'll never get him to answer that one.

Let's take a break. Up next, the Tripp tapes: They were designed as a presidential dragnet, but will Tripp get snagged with jail time? Stay with us.


Q: The trial of alleged Railway Killer, Angel Maturino Resendiz, begins today in Houston, Texas.

This trial is for the stabbing murder of Dr. Claudia Benton, one of his suspected victims. How long is it expected to last?

A: One or two weeks




COSSACK: Nearly 2 1/2 years ago, Linda Tripp secretly taped a phone conversation with a fellow Pentagon employee; the employee: Monica Lewinsky; the subject: her relationship with the president of the United States. Now Tripp's famous tapes have landed her in court.

John, let's talk about something that we talked a little bit about. I thought a good point was brought up by Joe Murtha when he says: Look, people call you every day and talk about phone conversations that were taped, but usually it is in the context of marital divorces.

MCCARTHY: Actually, I do absolutely agree with Mr. Murtha's observation. We do get calls about illegal wiretaps, and almost invariably, they come up in the context of domestic disputes.

COSSACK: And you don't prosecute them.

VAN SUSTEREN: Have you ever prosecuted one in Montgomery County? MCCARTHY: I have not.

VAN SUSTEREN: Do you know of any -- you have been there 18 years as a prosecutor, do you remember anyone being prosecuted for this in Montgomery County?

MCCARTHY: Not specifically for this crime.

VAN SUSTEREN: You know, Joe, I will tell you, a motion to dismiss for selective prosecution. judges hate them, they never grant them, but I will tell you, if there is no one else prosecuted in this state, especially when you listen to John talk about the number in this office, this is a ripe for a motion to dismiss for selective prosecution.

COSSACK: You know, particularly when you have that federal immunity issue going for you.

MURTHA: If the state elects to proceed with the prosecution, we are filing a selective prosecution motion to dismiss. And I believe that it has great substance, they are very difficult, like you said, judges don't like to see them. But if we ever had a case that was ripe to have one filed, I believe this is it.

VAN SUSTEREN: Joe, you were a prosecutor before you became a defense attorney, how long were you prosecutor?

MURTHA: Five years.

VAN SUSTEREN: In the five years that you were a Maryland prosecutor, did your office ever prosecute anyone for unlawfully taping a phone conversation?

MURTHA: No, and I have asked questions similarly, and most people can't recall. Now, there have been some cases prosecuted since Linda Tripp has actually been indicted, but prior to and around that time, still day in and day out, I have heard...

MCCARTHY: As a prosecutor, there is a rationale for not doing most of the domestic cases because you are in a forum. As a prosecutor, I think you have to be judicious in the way you use the resources of the court system...

VAN SUSTEREN: That's my arguments right there...


MCCARTHY: But in a domestic case between a boyfriend and a girlfriend, who have a legal problem. But in most of the instances where people have come to me because I have made this decision personally myself, and decline to prosecute in the instances when it has come to me. I have declined it because they had a forum within which to revolve it. They were in domestic court already.

VAN SUSTEREN: So did this, too, because, first of all, this was, you know, a federal investigation, Office of the Independent Counsel being investigated. So in some ways, it did have a forum.

Secondly, the operative words you said if "most of." And the thing that is so important to me, at least in listening to this, is 18 years as a prosecutor, and still you can't remember one in the state.

COSSACK: Let me ask you this, in domestic...

MCCARTHY: On the other side of this, that Mr. Murtha probably knows as a prosecutor, trying to fit ourselves into an exception so we can use the tape is actually what we usually do...

MURTHA: That's true. That's usually where we are right now.

COSSACK: In a domestic relations, let me go back to the domestic relations context. Every day in domestic relations court, the husband gets up on the witness stand and says: I don't have any money. And the wife says: He's hiding it. Now, somebody is lying, you ever brought a perjury case?


COSSACK: How many perjury cases?


MCCARTHY: Not many, one every couple of years, usually they are referred by judges in our court who have seen -- they refer the case because it is so egregious or so patently obvious that person is committing perjury, we will take them generally on referrals from judges.

VAN SUSTEREN: Joe, in the 30 seconds we have left, John raised an interesting question, why not go non-jury since this judge has already said that she's got serious questions about Monica Lewinsky's credibility, she sounds like she's on your side.

MURTHA: Well, there's always the issue of all the evidence has already been put before the court, so whether or this judge could set aside and listen to all the evidence, and not be influenced by that, even though that's their oath, that is their role, it is always questionable. But it certainly is an option that we are considering.

VAN SUSTEREN: All right, and that's all the time we have for today. Thanks to our guests, and thank you for watching.

Join me tonight on CNN's "LARRY KING LIVE" with TV judges. Phone in your questions to Judge Mills Lane, Judge Joe Brown and Judge Greg Mathis. That's at 9:00 p.m. Eastern time, 6:00 Pacific.

COSSACK: And we'll be back tomorrow with another edition of BURDEN OF PROOF. We'll see you then.



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