5/24/00 5:30 p.m.
The Failed Political Prosecution
There was no way prosecutors could succeed in their political prosecution of Linda Tripp.

By Mark Levin, president, Landmark Legal Foundation

n August 1999, former federal prosecutor Arthur Fergenson and I were the first to argue that there was simply no way Maryland State prosecutors could succeed in their political prosecution of Linda Tripp. (See "No Immunity from Political Prosecution," The Washington Times, August 3, 1999.) We both had worked in the U.S. Justice Department and were familiar with the U.S. Supreme Court's decision in Kastigar v. United States, and the D.C. Circuit's decision in United States v. North. Those decision made plain that prosecutors cannot use immunized testimony against a party for to do so violates the right against self-incrimination under the Fifth Amendment.

We also argued that these decisions put the burden solely on Maryland prosecutors' shoulders to demonstrate that none of the evidence or testimony used by them to indict Tripp came directly or indirectly from her immunized testimony. Therefore, state prosecutors were required to prove that, among other things, their grand jury never even read newspaper accounts of the Starr Report or watched Starr's testimony before the House as they included information provided by Tripp under her grant of immunity. The burden on prosecutors was impossible to overcome from the outset.

State prosecutors were also required to demonstrated that their witnesses were not motivated by any immunized disclosures. Indeed, they had to prove that no testimony of any witness was shaped, altered or affected by exposure to the immunized testimony. This is the test that resulted in Monica Lewinsky's testimony being severely limited by the state judge, making it her effectively useless to the prosecution.

The indictment of Linda Tripp was, from the start, a transparently political act of revenge by Maryland Democrats sympathetic to their soon-to-be disbarred leader, Bill Clinton. There was never any doubt that this prosecutorial abuse would fail.

Linda Tripp not only foiled Bill Clinton's illegal acts to deny Paula Jones her day in court, but she stood up to and defeated efforts by Clinton cronies in Maryland to abuse the judicial process. I tip my hat to her.