Statement on the Investigation
Of President Clinton

Ira Glasser, Executive Director
American Civil Liberties Union
FOR IMMEDIATE RELEASE
Wednesday, January 28, 1998

NEW YORK -- The frenzy to determine what President Clinton may have done* has eclipsed any serious consideration of the means by which evidence has been gathered. The focus on President Clinton's conduct has distracted us from focusing on the propriety of the prosecutor's and Linda Tripp's conduct.

The following methods raise grave concerns:
Monica Lewinsky's privacy was initially invaded by the persistent, secret recording of what she believed to be private conversations by a woman she thought was her friend. The ACLU believes it should be unlawful to record private telephone conversations without the knowledge and consent of all parties to the conversation. This incident shows why. Although what Linda Tripp did is against the law in Maryland where the recording took place, many other states and the federal government still permit recordings based upon only one party's knowledge and consent ("consensual participant monitoring"). Moreover, the federal courts permit, and therefore encourage, the use of such recordings even if obtained in violation of state law, as these were. When Linda Tripp gave those recordings to the Independent Counsel, other issues arose.

After receiving Linda Tripp's recordings, Kenneth Starr decided to wire her and use her as a government agent to record additional conversations with Monica Lewinsky. He did this even before his jurisdiction was expanded to cover this case. This is prosecutorial overreaching, and should not be condoned even if his decision was ratified after the fact. Electronic surveillance should never be permitted without a judicial warrant. If Starr had wanted to wiretap Monica Lewinsky, a warrant would have been required. It ought similarly to be required when the recording device is carried by an informer whom the target trusts. Informer warrants are not legally required, but this case shows why they should be.

Descriptions of the encounter between Lewinsky and the FBI agents and lawyers at the Ritz-Carlton raise questions as to whether Lewinsky's right to remain silent and her right to the assistance of counsel were respected. According to news reports, six agents and lawyers surrounded Lewinsky at lunch. Three of them then escorted her to a hotel room, where they reduced her to tears by revealing her friend's betrayal. They remained with her for nine hours before her mother arrived, and during that time tried to persuade her to provide evidence against President Clinton and pressed her to wear a wire in order to record conversations with others. The means of persuasion may have included threatening both Lewinsky and her mother with perjury prosecutions. Additional facts are required to determine whether or not the agents acted within the law. The Miranda rule requires that warnings and rights be given before an interrogation, if the person being questioned does not reasonably feel free to leave. Even if they remained technically within the law, the agents may well have in fact intimidated and manipulated a young agitated woman who was probably not in a position to understand or assert her rights or to evaluate her best interests without an attorney present.

The ACLU believes that no matter how important the quarry or how serious the charges, we must be careful to impose appropriate limits on the means by which evidence is gathered. If we do not, we may end up living in a country that we no longer recognize, a country where people we trust are encouraged by the law secretly to record our conversations, where prosecutors may without a judicial warrant persuade our friends and colleagues to become informers and to spy on us, where prosecutors can operate outside their jurisdiction and before obtaining the necessary legal authority, and where people may be bullied into giving evidence because of what has already been obtained from them by stealth or even illegally.

The ACLU calls upon the American people to reflect on these methods and ask ourselves once again whether the ends justify the means.

__________________________________ *The ACLU takes no position at this time on whether President Clinton has commited any impeachable or indictable offense, such as obstruction of justice, perjury, or suborning of perjury.

Copyright 1998, The American Civil Liberties Union

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