Linda Tripp recorded 20 hours of phone conversation with Monica Lewinsky. Many commentators have argued that Tripp violated an implicit rule of friendship. But did she violate a rule of law? And if the tapes were illegal, why can the special prosecutor use them?
The law is generally easier on taping of conversations when the taper is a participant in the conversation. The logic is that the other parties know you’re listening. But Maryland has a law prohibiting secret tape-recording of your own phone conversations. Maryland’s law applies to Tripp because she called from that state; it makes no difference where Lewinsky was. The law also generally holds that “ignorance of the law is no excuse.” But Maryland courts have ruled that the law against tape-recording does not apply to a person who is unaware that the taping is illegal. That’s hard to prove. So bottom line: it is unclear whether Tripp’s taping broke the law.
Even if Tripp broke the law in making them, the tapes could still be used by Ken Starr. First, Starr is currently presenting evidence to a grand jury, where all the rules against tainted evidence don’t apply. Second, if an ordinary jury ever hears a case against President Clinton or Lewinsky, it will be under Federal rules of evidence. Federal statutes do not prohibit one party from secretly taping a conversation (although they also don’t stop states from prohibiting it), so federal courts won’t exclude the tapes. Third, except for the last tapes she made at Starr’s behest by wearing a wire during face-to-face conversations, Tripp was acting as a private citizen and not as an agent of the government. The purpose of excluding illegally obtained evidence is to make sure the government (police, prosecutors, etc.) has no incentive to violate people’s constitutional rights. Therefore, the “exclusionary rule” rarely applies to evidence illegally obtained by a private citizen.
Finally, it was legal for Starr to assist Tripp in wearing a body-wire because with a body-wire, unlike a wiretap, a Federal prosecutor does not have to get permission from a judge. The law distinguishes between body-wires and wiretaps because body-wires indicate that at least one participant, Linda Tripp in this instance, consents to taping the conversation.
Explainer thanks Professors Richard Boldt and Abraham Dash of the University of Maryland Law School, Professor Daniel Meltzer of Harvard Law School, and Professor George Thomas of Rutgers Law School.