- The Washington Times - Wednesday, December 15, 1999

Thirty-five years ago, in the case of Murphy vs. Waterfront Commission, Justice Arthur Goldberg wrote for the U.S. Supreme Court that: “We hold that the constitutional privilege against self-incrimination protects a state witness against incrimination under federal as well as state law and a federal witness against incrimination under state as well as federal law.” Thus, whenever the federal government extends immunity to one of its witnesses, that immunity is granted by every state in the union. Except Maryland, apparently.
The Free State has become the Rights-Free State. Yesterday, Montgomery County Circuit Court Judge Diana Leasure, a Democrat appointee, ruled that when federal prosecutors from the Office of the Independent Counsel (OIC) gave Linda Tripp a letter of immunity on Jan. 16, 1998, it was not binding on Maryland prosecutors. The Court’s ruling abets a prosecution by the state that should never have been commenced, and only can be explained by political convenience.
The courts have recognized that a promise by a federal agent to give immunity in order to induce cooperation by a witness binds completely the government, i.e., performance by the individual creates a contract with the United States.
Moreover, the promise is extended, by constitutional principles established in repeated cases by federal and state courts, to the states. As Justice David Souter wrote just last year for the Supreme Court in United States vs. Balsys: “[T]he immunity open to the Executive Branch could only be exercised on the understanding that the state and federal jurisdictions were as one, with a federally mandated exclusionary rule filling the space between the limits of state immunity statutes and the scope of the privilege.”
The constitutional limits placed on federal prosecutors by the January 16, 1998, grant of immunity were also placed on Maryland’s prosecutors. However, Maryland’s prosecutors, led by another Democrat appointee, persuaded Judge Leasure that Mrs. Tripp’s immunity did not begin on Jan. 16, 1998, but on Feb. 19, 1998, when a federal judge signed off on the immunity deal. Judge Leasure ruled that while this was a technicality, it was an important technicality. The truth is that Judge Leasure used the excuse of the federal court’s pro forma approval to eviscerate Mrs. Tripp’s Fifth Amendment right against self-incrimination.
The Maryland prosecutors now base their entire case on a single-tape recording made by Mrs. Tripp on Dec. 22, 1997, which was played for a Newsweek reporter on Jan. 17, 1998 the day after Mrs. Tripp received her letter of immunity, but before a federal judge undertook the ministerial task of approving it.
The Fifth Amendment prevents Maryland from using anything obtained from Mrs. Tripp under a federal grant of immunity in any state prosecution. While such use immunity does not theoretically prevent Maryland from prosecuting Mrs. Tripp for the alleged unlawful interception of a wire communication, it makes it a practical impossibility.
In what’s called a Kastigar hearing, named after another Supreme Court decision, Maryland prosecutors now have the burden of proving affirmatively that any evidence they intend to use, directly or indirectly, is derived from a source wholly independent of Mrs. Tripp’s compelled testimony after Feb. 19, 1998.
In reversing the unconstitutional convictions of Oliver North and John Poindexter, the District of Columbia Circuit Court of Appeals required federal prosecutors to demonstrate that their witnesses were not motivated by any immunized disclosures. Indeed, the government must prove that no testimony of any witness was shaped, altered or affected by exposure to the immunized testimony.
The test is impossible to meet in the Tripp case, and the Maryland prosecutors know it. Monica Lewinsky is a necessary witness, for it is she who would establish a necessary element of the crime alleged, i.e., that Miss Lewinsky never gave consent to the taping. It is beyond reason to believe that her testimony would be unaffected by the disclosures that flowed from Mrs. Tripp’s immunized testimony and assistance to Mr. Starr’s office. As a consequence of Mrs. Tripp’s immunized cooperation, Miss Lewinksy was compelled to disclose the intimate details of her sexual encounters with Bill Clinton.
The Democratic Party, including over 40 state delegates, demanded that Mrs. Tripp be prosecuted, and their Democrat appointees are towing the line. This conclusion is inescapable when you consider the otherwise complete lack of prosecutorial interest in enforcing the Maryland wiretap statute against nonconsensual telephone recordings.
If a journalist working at the Baltimore Sun newspaper tapes a telephone conversation with a Maryland politician without the politician’s prior consent, but for the purpose of ensuring the accuracy of his story, the journalist has violated the Maryland wiretapping statute. When is the last time a journalist has been investigated, let alone prosecuted, for violating Maryland law?
What is happening to Linda Tripp is a true travesty of justice. She didn’t forfeit her constitutional rights just because she had the courage to stand up to a corrupt president.

Mark R. Levin served as chief of staff to former Attorney General Edwin Meese III and is president of Landmark Legal Foundation. Arthur F. Fergenson is a former assistant United States attorney now practicing law in Baltimore.

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