The Clinton scandals continue to gurgle below the surface of American politics and law, occasionally throwing up a polluted geyser. Kenneth Starr’s successor as independent counsel, Robert Ray, is still considering indicting the President when he leaves office; disbarment proceedings are under way against Mr. Clinton in his home state of Arkansas; and Linda Tripp, nemesis of Mr. Clinton and his paramour. Miss Lewinsky, is still enmeshed in Maryland criminal proceedings.

Mrs. Tripp is the only major player in the Lewinsky imbroglio yet to find herself under criminal prosecution. A Democratic prosecutor in Maryland had her indicted by a grand jury for violating Maryland’s anti-wiretap statute, which, on its face, prohibits the interception of telephone communications unless both parties to the conversation give permission. Miss Lewinsky never gave Mrs. Tripp permission to record their chats, and it appears that, at some time in late November or early December 1998, Mrs. Tripp became aware that taping conversations without permission violated Maryland law. The indictment refers only to the taping of one conversation, on December 22, 1998, at a time when she would have possessed the requisite criminal intent to violate the statute.

Some months ago (Cultural Revolutions, October 1999), I predicted that the case would soon be dismissed or withdrawn. First of all, it seemed clear that the Maryland statute was designed to protect innocent Marylanders, not a resident of the District of Columbia (such as Miss Lewinsky) who was trying to enmesh a citizen of Maryland (Mrs. Tripp) in the commission of a felony (obstructing justice in the Paula Jones case). Second, it seemed that the obvious political motives of the prosecution would prove too embarrassing even for an ambitious Maryland district attorney. What goes on in our courts, however, is now more unpredictable than college sports or the stock market. The Maryland prosecutors stuck to their case, and Tripp’s attorneys filed a battery of motions to try to get the indictment dismissed or witnesses barred from testifying.

On May 5, Maryland trial judge Diane Leisure denied the motion to dismiss the indictment. This was the chief fact that appeared in the headlines, but a closer look at some of the early articles and the judge’s 42-page decision tells a different story. It turns out that the judge had granted defense motions to bar most of the testimony of Miss Lewinsky and one of Mrs. Tripp’s neighbors, apparently the only two witnesses who are capable of dating the December conversation after the time when Mrs. Tripp had learned that taping without consent was impermissible. Judge Leisure found that these witnesses had derived their knowledge of the matter from Ken Starr’s investigation, and since Starr had granted Tripp immunity from federal prosecution, federal and state law prevented material from his investigation from serving as a basis for conviction in a state trial.

Judge Leisure’s comments about Miss Lewinsky and about the Maryland prosecutors were unusually caustic. “The fact that Ms. Lewinsky admitted that she lied under oath in a federal proceeding and has stated that lying has been a part of her life,” noted the judge, “does not enhance her credibility as a witness.” With exquisite judicial understatement, she observed that “The evidence also supports a finding that [Miss Lewinsky’s] testimony was shaped to meet the needs of the State.” Judge Leisure declined to dismiss the indictment because it did charge a crime (in judicial parlance, it was “valid on its face”), but she made no effort to conceal her view that the prosecution had mismanaged the case and that there was no other witness who could supply an untainted dating of the tape mentioned in the indictment.

Judge Leisure threw the prosecution a tiny bone by holding that it was still permissible for Miss Lewinsky to testify that she never gave permission for the tapings, but Stephen Montanarelli, the Maryland prosecutor, admitted that he now had a “major problem” that was a “tremendous hurdle” to overcome. One of Mrs. Tripp’s attorneys, Stephen M. Kohn, went further and stated that Judge Leisure’s rulings were “devastating to the prosecution.” The smart money was betting that the Maryland prosecutors would now decide to drop the case, since they had none to speak of. Your correspondent, though, having once been burned, is now twice shy. The most astute comment on Judge Leisure’s ruling was probably Mrs. Tripp’s: “The decision to indict me was politically motivated and wrong. This case was prosecuted solely because I blew the whistle on President Clinton’s attempt to fix a court case. Given the court’s ruling today, any action by the prosecution short of dismissal will constitute malicious prosecution.”