With posts to the governor’s coronavirus response team and as chief of staff, Roy McGrath enjoyed a place among Larry Hogan’s inner circle.
The two men knew each other for years. When the pandemic started in early 2020, McGrath, for reasons unknown, secretly recorded conversations with the governor, state prosecutors said.
Authorities found the cellphone recordings when they raided McGrath’s house looking for evidence of fraud. In Maryland politics, the discovery inspired intrigue.
These conversations happened during two of the biggest controversies of Hogan’s administration: McGrath’s $233,000 severance payment and the state’s purchase of half a million South Korean COVID-19 tests that had to be sent back. What might Hogan have said behind closed doors?
Under current state law, the public will never know.
Maryland’s strict wiretapping law forbids not only the act of secretly recording someone’s voice, but any attempt to share an illicit recording — by anyone.
Both actions amount to a felony crime with maximum penalties of five years in prison and a $10,000 fine. It’s tougher than federal recording restrictions. Only two other states, Montana and New Hampshire, go so far, according to an analysis by the Maryland Attorney General’s Office.
Maryland’s law traces to the decades before ubiquitous cellphones and surveillance cameras, back to the days when switchboard operators routed phone calls. The old statute — long outdated, critics say — has frustrated more than Democrats who wanted leverage against the Republican Hogan.
The state’s wiretapping law prompted cries of foul in 2019 after a college activist was charged for filming a meeting inside Congressman Andy Harris’ office without permission. Two decades earlier, Columbia resident Linda Tripp famously ran afoul of the statute when she secretly recorded phone calls with Monica Lewinsky and exposed the sex scandal at the White House.
State’s attorneys, advocates for domestic violence victims, and U.S. military lawyers have lobbied the General Assembly to bring the law up to date.
“I have been trying to change that law for 10 years. I have testified over and over again. It is just plain wrong in this day,” Baltimore County State’s Attorney Scott Shellenberger said. “When anything happens anywhere, the first thing spectators do is pull out their phones and start recording.”
And yet, it’s a felony crime each time someone records the voice of another person without their knowledge and consent in Maryland.
That’s what McGrath allegedly did during the spring and early summer of 2020. He died in April before standing trial on wiretap charges.
State prosecutors had accused McGrath of secretly recording conversations from meetings with Hogan and his chief of staff, the health secretary, chief legislative officer, as well as the governor’s advisors and lawyers. McGrath was charged months later in October 2021 with illegal wiretaps, misconduct in office, and theft for allegedly falsifying timesheets and submitting improper expenses.
As the former head of the Maryland Environmental Service, McGrath faced additional federal charges related to a $233,000 severance package he negotiated when he left the office to become Hogan’s chief of staff. McGrath was due in federal court in Baltimore last March, but never showed up. His disappearance set off a three-week manhunt and ended when he was shot and killed during an encounter with FBI agents outside Knoxville, Tennessee.
Authorities called the encounter an “agent-involved shooting,” and it remains unclear if McGrath killed himself or was fatally shot by agents.
One month later, in May, state prosecutors closed the wiretap case as abated by death. They still won’t release the recordings of Hogan.
Joseph Murtha has wrestled with the wiretap law for decades as the defense attorney for McGrath and Tripp. He said the old law does not take into account the Zoom meetings of today; it would be illegal to secretly record a Zoom meeting under Maryland’s law.
“They should revisit the statute,” Murtha said. “Times have changed and the ability to both defend and prosecute a case has changed with the advance of technology.”
Maryland’s requirement of “two-party consent” hasn’t changed since the mid-1950s, when state lawmakers decided “detection of the guilty does not justify investigative methods which infringe upon the liberties of the innocent,” according to a University of Baltimore Law Review article on the legislative history.
Today, 41 states and Washington, D.C., permit recordings with consent of only one party, according to the attorney general’s analysis. Of the remaining states, five allow an exception when the recording is used as evidence in cases of violence or sexual abuse. Arguments to reform Maryland’s law have centered around issues of abuse and domestic violence.
Yosefi Seltzer, an attorney at Fort George G. Meade, provides legal services to soldiers and their spouses and has testified as an individual — not representing views of the Army — in support of reforms. He told state lawmakers in 2021 that, unfortunately, the military is not immune to domestic violence.
“I have had clients who are victims of domestic violence who have asked whether they would be permitted to record their abusers,” he wrote lawmakers. “They cannot because the recording would be inadmissible and they could be charged with a felony.”
A reform effort fell short in 2020 to eliminate prison time for violators and carve out an exception for evidence. The next year, advocates tried again: to reduce the maximum penalty to 90 days and allow an exception for evidence of violence or domestic abuse. That measure failed, too.
The advocates walked back their attempts at reform further last March. But a bill to establish a work group and study the matter didn’t pass, either.
Family law attorneys have opposed change out of concern it would bring secret recordings into messy divorces and custody cases. In addition, the ACLU of Maryland has argued to uphold the status quo.
“Existing law protects your right to privacy by preventing others from recording you without your consent. We cannot have one protection without the other restriction,” the ACLU wrote during reform debates of 2020. “While Maryland’s current wiretap law predates many technical advances, like phone and doorbell cameras, the importance of protecting Marylanders’ privacy rights has not changed.”
In Baltimore County, Shellenberger has scaled back his effort to change Maryland law to allow one-party consent. Instead, he’s called for smaller and smaller carve-outs. Shellenberger tries to persuade lawmakers by telling them what happened in May 2017, when police were called to Northwest Hospital in Randallstown about a sexual assault.
A woman told officers that her estranged husband had forced her to have sex two days earlier, but she did not try to stop him or “express a stern denial,” police wrote in charging documents. She asked them to cancel their investigation.
Two days later, she called back and asked them to reopen the case. She had blamed herself and feared her husband, officers wrote. Her change of mind could prove difficult for a jury, but prosecutors had a key piece of evidence: a cellphone recording of about eight minutes that she had made during the encounter.
“When the defendant goes to pick up the victim, and actually does that twice, the phone then goes down to where it is only going to black,” Assistant State’s Attorney Ian Wright told the judge.
The judge cited the wiretap law and barred the audio from trial. A jury found her husband not guilty.