Politics & Policy

Ms. Perfect

The case against Domestic Diva Martha Stewart.

In most trials, the court attempts to select jurymen who know nothing about the case to be tried. It is assumed that, if someone knows nothing about the case, he can hardly hold prejudiced views about it. In the Martha Stewart case, the ideal juror would appear to have been someone who knew nothing whatsoever about Martha Stewart.

To judge from commentary during and after the trial, Stewart seems to have been universally known and almost universally disliked. She was regarded as cold, aloof, arrogant, snobbish, cruel, and patronizing–and she made matters worse by cooking, flower-arranging, table-setting, and generally domesticating to an irritating degree of perfection.

Well, bully for her: She overcame these perceptions to build a commercial empire and become a success in a medium (television) already notorious for its synthetic and simpering “niceness” to begin with. That, at least, is my reaction.

That’s not a common reaction, however. Since well before the verdict, newspapers and television news programs have been slavering at the prospect of the “domestic diva” behind bars. To judge from the level of hostility to Stewart’s personality, it must have been almost impossible to find a jury not prejudiced against her. And the guilty verdict delivered last Friday might almost be as much the jury’s rebuke to her irritating perfectionism as a response to the evidence.

For this is surely a case that should never have been brought in the first place.

Sure, no one is above the law; lying is wrong; and there was strong evidence that she had committed the crimes with which she was charged. Nothing in this column is intended to contradict any of these arguments.

Weighing down the other side of justice’s scales, however, are these equally valid points: The rich and famous should not be held to higher legal standards; lying when not under oath is almost never a crime; and it is hard to find the original crime that Stewart was prosecuted for covering up.

Let’s start at the beginning. The feds suspected that Stewart was guilty of “insider trading” because she dumped some ImClone stock shortly before a federal regulatory decision caused its price to plummet. Since Stewart was a personal friend of ImClone’s CEO, Sam Waksal, it was reasonable to suspect that he might have tipped her off that bad news was coming down the pike. That would have been insider trading according to almost any criterion.

But there was, in fact, a very different explanation. Stewart was advised to sell by her broker, who knew that Waksal was selling his stock and put two and two together. Was Stewart guilty of insider trading because she acted on her broker’s inference?

Legal definitions of insider trading have expanded beyond all common sense in recent years. One financial expert told me not long ago that I would be guilty of it if I saw a factory on fire from my plane as it landed in Des Moines, inquired about it, learned that the factory was owned by a company in which I had stock, and promptly telephoned my broker to sell before the news reached Wall Street. Even by these elastic standards, however, Martha was almost certainly not guilty of insider trading.

The feds reached that same conclusion, and never charged her with the offense. She was charged instead with obstructing justice during the FBI investigation into whether or not she had committed the crime. She had falsely claimed to FBI investigators that she had instructed her broker to sell the ImClone stock when it fell below a certain price.

Now, you can lie quite legally to private persons or to the state police (though it is highly inadvisable, as well as immoral, to do so). Lying is a crime either when the liar is under oath or when he is talking to federal investigators. And though Stewart had not committed the crime, she had lied about not committing it. If the law were not an ass, she would have been charged with obstructing injustice.

So why did she lie? She may have thought the feds were out to get her at all costs. If so, that was a serious mistake–that made the feds determined to get her at all costs–but not a completely unreasonable calculation.

Martha would have known that she fit, to perfection, the part of the Great White Defendant, who, as Tom Wolfe observed in The Bonfire of the Vanities, is the legal prey all ambitious headline-hungry prosecutors dream about.

With 50 percent of the American public now members of the “investor class,” the voters were baying for the blood of celebrity CEOs. And the investigators were pressing Stewart about a crime she rightly believed she had not committed.

Was there any sign of the leniency generally shown first offenders? Quite the contrary: The prosecutors alleged that for her even to maintain she was innocent was itself a crime. And although this last charge was rightly thrown out by the judge, it would have convinced Stewart that the prosecutors were, to say the least, not under-zealous.

Under these circumstances, the real mystery is not why Stewart lied, but why she spoke to the FBI in the first place. She was under no legal obligation to do so. And she had already consulted lawyers who usually advise their clients not to talk to federal investigators–especially in meetings where there is neither a tape recorder nor note-taking. Either she got bad legal advice, or she thought that silence would be interpreted as guilt.

The final blow was the judge’s decision that the jury could not be told that Stewart had not committed insider trading in the first place. Some members of the jury might well have assumed wrongly that if there was a cover-up, there must have been a crime to be covered up–and voted to find her guilty on that count.

That is perhaps the one point on which Stewart’s appeal might succeed. Though the appeals court is rightly reluctant to challenge a judge’s discretion in such matters, this particular exercise of it seems at least questionable to the lay mind. And it was the climax of a series of dubious legal decisions that descended heavily on Stewart’s beautifully coiffed head.

Yet it is that fine grooming that explains the verdict as much as the legal technicalities. Stewart may be the first criminal to be sent to prison for the terrible offense of being Too Too Perfect.

John O’Sullivan is editor-in-chief of The National Interest. This piece first appeared in the Chicago Sun-Times and is reprinted with permission. O’Sullivan can be reached through Benador Associates

Members of the National Review editorial and operational teams are included under the umbrella “NR Staff.”

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