FacebookTwitterGoogle+RedditEmail

Why Indict Martha Stewart and Not Ken Lay?

by SEAN CARTER

Shortly after Martha Stewart’s indictment for obstruction of justice, perjury and securities fraud, the questions started: “Is she being unfairly singled out for a common crime? Is she the victim of a male-wing conspiracy? Can you really build a home entertainment center out of Popsicle sticks and a bottle of Elmer’s Glue?” Well, after reading the criminal indictment, I have to say that the answer to the first two questions seems to be “Yes.”

According to the federal government, Martha Stewart sold shares of a biotech company, ImClone, after receiving a tip from her broker’s assistant that the company’s CEO was selling all of his shares. Even if these allegations are true, it only proves one thing – I need a new stockbroker.

I can only dream about having such a helpful stockbroker. I can’t even get my broker to return my calls; nevertheless tip me off about bad news before it happens. When Stewart’s broker finally gets out of jail, he will have at least one client – me.

Nevertheless, if these allegations are true, then Stewart is guilty of insider trading. As a general rule, the crime of insider trading occurs when someone buys or sells shares of a company based on non-public (or inside) information.

So why wasn’t Stewart charged with this more serious crime of insider trading? I suspect the reason is because federal prosecutors aren’t convinced that they can prove her guilt “beyond a reasonable doubt.”

Instead, the SEC filed a civil complaint against Stewart for insider trading. The standard of proof in a civil action is not beyond a reasonable doubt but rather by a preponderance of the evidence. Or in other words, in the civil case, the SEC will only have to prove that Stewart likely committed insider trading.

Nevertheless, despite the fact that a civil verdict against Stewart could impose hefty fines, federal prosecutors feel they need to make more of a statement in this case. Therefore, they are charging Stewart with covering up the crime that she hasn’t been formally accused of committing.

According to the indictment, Stewart lied to investigators, falsified records and conspired with her stockbroker to concoct a bogus story. In other words, she is accused of acting like a normal human being. The most human thing in the world is to cover up our wrong doings. In fact, I think it was Ben Franklin who said, “If at first you’re not believed, lie, lie again.” Or maybe it was Bill Clinton.

And although I can’t condone Stewart’s actions, I’m not sure that they should be treated as separate crimes. For instance, let’s take the allegation that she lied to the FBI. Of course, she lied to the FBI. What sane person admits to the FBI that they’ve committed a crime? Yet, lying to investigators isn’t usually considered a separate crime. For instance, O.J. Simpson wasn’t charged with a separate count of obstruction for coming up with that ridiculous “I was in the backyard chipping golf balls in the dark” alibi.

Second, Stewart is accused of deleting phone records to prevent the FBI from learning the truth. Once again, this is pretty common. For instance, bank robbers often dump the getaway car. However, we don’t charge them with obstruction of justice for doing so. We understand that they are supposed to dump the getaway car – it’s one of the rules.

Likewise, Stewart was simply playing by the rules. The government’s job is to capture criminals and the criminal’s job is to avoid capture. However, in this case, Stewart is being charged with the crime of not helping the government convict her. This seems strange even by John Ashcroft standards.

Now, please don’t misunderstand me. I’m not condoning insider trading. However, the government can’t seem to prove its criminal insider trading case. Therefore, it has fallen back on obstruction, perjury and securities fraud as a way to get a conviction of some kind.

But why? Is Martha Stewart a dangerous person that we must somehow get off the streets? Sure, Stewart is annoying, smug and greedy but so are most of our children. Yet, we don’t usually indict them (although perhaps we should).

The simple truth about this case is that there are lies, damn lies and obstruction of justice. Of the three, obstruction of justice is by far the most understandable. Therefore, instead of spending countless hours trying Martha Stewart, perhaps federal prosecutors could better spend that time pursuing real criminals on Wall Street like the people behind Enron, Adelphia and my stockbroker.

SEAN CARTER is a lawyer, comedian, public speaker and the author of If It Does Not Fit, Must You Acquit? Your Humorous Guide to the Law. He can be reached at www.lawpsided.com.

 

More articles by:

CounterPunch Magazine

minimag-edit

bernie-the-sandernistas-cover-344x550

zen economics

Weekend Edition
February 24, 2017
Friday - Sunday
Pierre M. Sprey - Franklin “Chuck” Spinney
Sleepwalking Into a Nuclear Arms Race with Russia
Jeffrey St. Clair
Roaming Charges: Exxon’s End Game Theory
John Laforge
Did Obama Pave the Way for More Torture?
Ajamu Baraka
Malcolm X and Human Rights in the Time of Trumpism:  Transcending the Masters tools
Paul Street
Liberal Hypocrisy, “Late-Shaming,” and Russia-Blaming in the Age of Trump
Vijay Prashad
A Foreign Policy of Cruel Populism
John Chuckman
Israel’s Terrible Problem: Two States or One?
Matthew Stevenson
The Parallax View of Donald Trump
Stan Cox
Can the Climate Survive Electoral Democracy? Maybe. Can It Survive Capitalism? No.
Ramzy Baroud
The Trump-Netanyahu Circus: Now, No One Can Save Israel from Itself
Chuck Collins
Wall Street Hopes You’ve Forgotten the Crash Already
Edward Hunt
The United States of Permanent War
Pete Dolack
The Bait and Switch of Public-Private Partnerships
Elliot Sperber
Why Resistance is Insufficient
Brian Cloughley
What are You Going to Do About Afghanistan, President Trump?
Binoy Kampmark
Warring in the Oncology Ward
Yves Engler
Remembering the Coup in Ghana
Jeremy Brecher
“Climate Kids” v. Trump: Trial of the Century Pits Trump Climate Denialism Against Right to a Climate System Capable of Sustaining Human Life”
Franklin Lamb
Another Small Step for Syrian Refugee Children in Beirut’s “Aleppo Park”
Ron Jacobs
The Realist: Irreverence Was Their Only Sacred Cow
Robert Koehler
Costa Rica’s Peace Journey
Andre Vltchek
Lock up England in Jail or an Insane Asylum!
Paul DeRienzo
Three Years Since the Kitty Litter Disaster at Waste Isolation Pilot Plant
Eric Sommer
Organize Workers Immigrant Defense Committees!
Steve Cooper
A Progressive Agenda
Andrew Stewart
The 4CHAN Presidency: A Media Critique of the Alt-Right
Edward Leer
Tripping USA: The Chair
Nyla Ali Khan
One Certain Effect of Instability in Kashmir is the Erosion of Freedom of Expression and Regional Integration
Rob Hager
The Only Fake News That Probably Threw the Election to Trump was not Russian 
Mark Dickman
The Prophet: Deutscher’s Trotsky
Christopher Brauchli
The Politics of the Toilet Police
Charles R. Larson
Review: Timothy B. Tyson’s “The Blood of Emmett Till”
February 23, 2017
Dave Brotherton
Trump, Moral Panics and Resistance
Jonathan Cook
One State: Trump Has Reminded Palestinians What It Was Always About
Bill Quigley
Ten Examples of Direct Resistance to Stop Government Raids
Linn Washington Jr.
Bigot Boy Business: Trump Exposes His Ignorance and Intolerance, Again
John W. Whitehead
The Illusion of Freedom: the Police State Is Alive and Well
Ralph Nader
Restricting People’s Use of Their Courts
David Macaray
Women As Labor Union Organizers
Kathy Kelly
Friendship in Defiance of War
Doug Weir
Why Did the US Use Depleted Uranium Weapons in Syria?
Steve Horn
Former GOP Congressional Staffer Follows Revolving Door, Now Latest Keystone XL Lobbyist
Binoy Kampmark
From Rights to Repentance: Norma McCorvey and Roe v Wade
Thomas Knapp
The Target of the “Border Adjustment Tax” is You
Chris Zinda
Open Letter to Neoliberal Environmentalists
FacebookTwitterGoogle+RedditEmail