Tripp May Bug You, but That’s No Crime

Linda Tripp’s indictment on two charges of illegal wiretapping

may have been a necessary vindication of the rule of law, as the Maryland state

prosecutor insists. But actually sending her to prison-a conviction on either

felony count carries a maximum sentence of five years-would constitute terrible

and unwarranted punishment of a woman who already is enduring a life sentence

of public humiliation.

Even if decency did not

argue against the imprisonment of Ms. Tripp, there are other good reasons why

she should be allowed to arrange some lesser sanction for her offense. Much as

conservatives might insist otherwise, the proper aim of the courts is justice,

not vengeance. The fact that she and her friends tried to abuse the law for bad

motives is no reason for the law to be misused against her (even though

Lucianne Goldberg’s grandstanding offer to go to jail in Ms. Tripp’s place is

tempting).

It’s not easy to advocate mercy for Ms. Tripp. She committed

a miserable act of betrayal against Monica Lewinsky. She did so, moreover, not

to protect herself, as she continues to claim, but in pursuit of personal

profit and political mayhem, as the tapes of her conversations with Ms.

Goldberg have proved. She taped Ms.

Lewinsky and then disseminated those recordings after she had been warned that

it was unlawful to do so.

Worse still, she seems

wholly unrepentant, spewing fresh outrages and lies almost every time she opens

her mouth. She regards herself as a noble “whistle-blower,” when everyone knows

she was only a scheming voyeur. Her latest obnoxious pronouncement-that Hillary

Rodham Clinton and Lieut. Gov. Kathleen Kennedy Townsend of Maryland are

lurking behind her legal troubles-only underscores the fraudulence of her claim

that she is the victim of a “political prosecution.”

Meanwhile, Ms. Tripp’s

friends on the right cannot be of much help to her anymore. Having insisted all

last year that even the President must be subject to “the rule of law,” they

become hypocrites when they suddenly demand leniency for Ms. Tripp.

Yet despite all that,

she should be permitted to negotiate a deal, pay a small fine or perform some

community service, and go home.

The statute under which

she has been indicted is a foolish contrivance that is not often invoked even

in the few states that have tried to outlaw so-called “one-party” telephone

recording. Although state officials have said that such cases are prosecuted

sometimes on the county level, an assistant state prosecutor in Maryland with

16 years’ experience told me he has never actually heard of anyone being

prosecuted under the statute before; he was even more certain that nobody has

actually done time for this “crime.” Maryland’s highest court was so ambivalent

about the criminalization of one-party taping that the State Legislature

amended the law to make ignorance a valid defense-which is not the case in

other criminal proceedings, there or elsewhere.

The prosecution of Ms.

Tripp may also jeopardize important constitutional rights. Under a grant of

immunity from the independent counsel, she provided information that would tend

to incriminate her. The Maryland authorities have not only sought to obtain

that evidence, in possible violation of the Fifth Amendment, but they also

attempted to call her former attorney before the grand jury in a blatant breach

of attorney-client privilege.

Those civil liberties concerns have to be balanced against

respect for the law, as the state’s attorney in Howard County, Marna McLendon,

noted in endorsing the Tripp prosecution. “People are waiting to see what the

message is for this alleged violation of the Maryland wiretap law,” Ms.

McLendon, a Republican, told the Baltimore

Sun . “There is this issue of accountability, because there is sufficient

evidence to move forward.”

A wiser solution may be

found in a Maryland legal procedure known as “probation before judgment,” which

resembles a plea bargain except that no finding of guilt is necessarily entered

on the record. If she is willing, Ms. Tripp could be appropriately sanctioned

without a trial or a criminal record-a proportionate response, like the sanctions

recently accepted by the President in the Paula Jones lawsuit. (Based on her

remarks about the First Lady and her grandiose view of her own behavior, Ms.

Tripp may also need professional counseling.)

It shouldn’t be necessary to recapitulate all the mean televised

mockery and public opprobrium inflicted on Ms. Tripp since January 1998 to

suggest that she has suffered enough. The one citizen who may remain

justifiably unsatisfied is Monica Lewinsky, and Ms. Lewinsky has chosen not to

pursue a civil lawsuit against her former friend. While there are others who

surely deserve to be held accountable and probably will not be, including

Kenneth Starr, that doesn’t mean Ms. Tripp should be treated as a scapegoat.

Her case challenges everyone, and especially liberals, to

consider what we mean when we praise ourselves as “compassionate.” Feeling

sorry for the innocent victim is never difficult. The truer test of compassion

is to be merciful and just toward those whom you have every reason to despise.