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.
