Washington — Vaguely written laws are a great benefit to two
kinds of people, the inveterate criminal and the bullying
prosecutor. Law-abiding citizens do not want vaguely-written laws.
They want to know what is permissible and what is not. The
criminal, however, is encouraged to work every angle of the law if
the law is vague, and the bullying prosecutor uses such laws to
prosecute, often to prosecute innocent people caught in the gray
areas of these vague laws. Both the inveterate criminal and the
bullying prosecutor have the time and the motivation to manipulate
the law. The law-abiding citizen does not.
These thoughts occurred to me when I heard last week that the
prosecutors had finally come down hard on Martha Stewart, the
entrepreneur of good taste. It has taken them months to settle on
precisely what to nail her on. At first it was going to be “insider
trading,” for she had allegedly sold shares of ImClone late in 2001
on a tip from her friend the company’s CEO Sam Waksal. How many
shares did she sell? The multi-millionaire boss of Martha Stewart
Living Omnimedia sold 3,900 shares. The sale saved her from a loss
of $45,673. It struck me as curious that she would waste her time
on such a transaction, and in the era of the really spectacular
financial scandals such as Enron and WorldCom it struck me as even
more curious that the prosecutors would settle on Ms. Stewart’s
paltry take.
Yet the engines of prosecution were supposedly at work on
Stewart’s case and the media were reverberating with rumors of her
meanness and impending fall. As the months passed with no
indictments one had to conclude that there was division among the
prosecutors over what kind of case they had. Now we know. She is
not being accused of insider trading but of securities fraud —
allegedly she struggled to keep her company’s stock price up while
the rumors against her spread — conspiracy, and making false
statements. The evidence is vague and most of the charges are
vague.
All of Ms. Stewart’s nefarious deeds supposedly went on while
she was under the cloud of doing something that the government now
admits she did not do, commit insider trading. Yet as a consequence
of the government’s ominous claims and of the media’s hysteria
other infelicitous deeds may have been committed. So the government
is going to get her.
What does the case against Martha Stewart now boil down to? It
boils down to discrepancies over what she said a year and a half
ago to an assistant broker whose veracity on such matters has
already been disproved. There is also a discrepancy over the pens
her stockbroker used on a faraway day. And Ms. Stewart is accused
of changing a computer notation about a telephone call.
Frankly if this case goes to a jury it is going to be very hard
on the jurors. I hope they are not prone to headaches or to
narcolepsy. I would have trouble staying awake during a reading of
the evidence, and the government’s rendering of the “facts” will be
much like the treatment of “facts” by Sidney Blumenthal and Hillary
Rodham Clinton, to wit, confusing.
Of, course, with such a weak case the government is counting on
Ms. Stewart to cop a plea. That way the government looks good and
Ms. Stewart get off with a light judgment. I hope she fights the
bullying prosecutors, and it appears she might.
She is taking out full-page advertisements. She is taking her
case to the Web. Her lawyers are girding up. From all I can see her
only failure has been a failure of prudence under tremendous
pressure that the government has been able to apply thanks to vague
laws about conspiracy and computer records. As a businesswoman Ms.
Stewart has provided high-grade products at reasonable prices. No
taint of scandal touched her before the feds set their sights on
her. A successful defense by Ms. Stewart might even encourage a
revision in the vague laws now being used to string her up. That
would be a fine contribution to the commonweal, by the entrepreneur
who advises America on a proper domicile.
