Indict the State

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Indicting the State

by James Ostrowski by James Ostrowski

What do Martha Stewart and Waco have in common?

One of Murray Rothbard multifarious critical insights was that since the state always has a minority of net beneficiaries — a small ruling elite — that it can only rule the masses by convincing them to allow themselves to be ruled. There are many ways of doing this, but instilling fear is one of them. The state must be feared; people must cower in its shadow.

The state, by its nature, tends to mess around in other people’s business. Since by definition, the state is that which cannot be resisted, when resistance or defiance is encountered, as with Waco or Martha Stewart, the enemy must be smashed, else the state will cease to be that which cannot be resisted. The justice of the initial state incursion becomes irrelevant.

A day or two before the Waco holocaust, I was studying the scene closely. A bunch of "religious nuts with guns," as P. J. O’Rourke described them with approval,1 were making fools of the elite of federal law enforcement. People were beginning to laugh at the feds. Laughter can be a weapon of mass destruction. The feds knew this too. This is why they had to go in, risking all that followed, including Timothy McVeigh’s visit to the gravesite, etc.

Now, to Martha. The feds were looking for scapegoats for the stock market crash caused by "the fed." Also, there are a lot of federal bureaucrats out there with free-floating hostility toward people who work for a living. They are called U. S. Attorneys, who, judging by prison statistics, specialize in prosecuting people for victimless crimes. Also, every federal prosecutor envisions himself ensconced in the U. S. Senate in a few years and to that end it is always helpful to destroy the life of someone famous. Combine these malevolent motives and add in one famous businesswoman friendly with the previous administration and the result is an expensive and highly-publicized investigation over nothing.

As I wrote last August, Martha Stewart was not guilty of insider trading; she was "guilty" of outsider trading, which is perfectly legal. Nevertheless, she was investigated by people who are virtually immune from suit. They investigate, prosecute and ruin lives because they can get away with it. Martha did commit a serious crime during the investigation. She refused to be intimidated; she refused to grovel; she refused to take a plea. The feds can’t stand it when anyone stands up to them. It’s an attitude they copped after the confederates kicked them out of Charleston harbor in 1861.

But the feds faced a small problem. Martha was not guilty. What to do? Apologize and offer to pay her legal fees? Not a chance. They needed the scalp of a non-friend-of-George. They plunged forward, playing the old perjury trap game. You go after someone who has done nothing wrong in the hope of getting them to lie so they can be charged with perjury or lying to the government. Funny — when people lie to the government, it’s a crime; when government lies to the people, it’s just another day at the office.

I have no way of knowing whether the federales’ claim that Martha lied about her order to sell her ImClone stock, is true or false. Apparently, their chief witness will be someone they worked over good and who has already pled guilty. He is yet to be sentenced. Hmmm. I do know that they had no business targeting her for destruction in the first place. Is there an absolute ethical duty to tell the truth to those who would destroy you for no good reason?

Someone asked me why I am defending a "billionaire." It’s not because she’s Polish (Kostyra). We Poles lost our inferiority complex when we took over the world’s top job in 1978. It’s not because she learned her craft at her grandparents’ home in my hometown of Buffalo. It’s not because Martha has been abandoned by her liberal friends like Hilary and by conservatives busy searching for those weapons of mass deception. It is amazing that liberals and many conservatives2 have abandoned ship on Martha’s Stewart’s classic American rags to riches, self-made millionaire story they normally would be expected to latch onto. I am proud to say, though, that it is primarily the libertarians who have had the brains, the verve and the nerve to unapologetically defend her. The honor roll includes Cato,,, Mercer, and Anderson.

Rather, I defend Martha because so many weasels like Neil Cavuto, Christopher Byron and Bill O’Reilly have been attacking her for so many stupid reasons. And I defend her because "A hanging’s any man’s business that’s around." And I defend her because if they can get her, no one is safe. If they can get a 61-year old, famous and wealthy, successful businesswoman with no prior criminal record who returned a call to her stockbroker, then getting you will be just another day at the office. First they came for Martha Stewart, but I did nothing because . . .

We can only hope that a New York jury will do their duty as it was understood by Jefferson, Hamilton, and John Adams: to judge both the fact and the law to achieve justice in the particular case. In that event, we can all have a good and contagious laugh.

  1. "And the Clinton administration launched an attack on people in Texas because those people were religious nuts with guns. Hell, this country was founded by religious nuts with guns. Who does Bill Clinton think stepped ashore on Plymouth Rock?"
  2. One exception being Larry Kudlow.

August 12, 2003

James Ostrowski is an attorney practicing in Buffalo, New York. See his website at

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