Throughout this past presidential election campaign, John Edwards, the Democratic Party nominee for vice president, has been stressing his theme that there exist "two Americas." Edwards’ point, not surprisingly, is that there are only rich and poor Americans, and only a few wealthy people (excepting himself and John Kerry, of course, because they are Men of the Masses) are able to receive decent healthcare benefits, pay no taxes, ad nauseum.
In the wake of the sentencing of Martha Stewart, however, we would like to take that same theme and actually place a legitimate spin on it. There are two Americas, but not the two of which Edwards speaks. Instead, we hold that the federal criminal justice system operates on the basis of a great divide between those who are targeted by "law enforcement" people, and those people whose actions are exempt from legal standards of conduct. But first, we review Stewart’s current circumstances.
A federal judge sentenced Stewart to five months in prison, five months home confinement, and two years supervised probation. This means that on top of the time she will serve at a federal prison camp (most likely in Danbury, Connecticut), she will have to remain on her property and can leave only with special permission. After those 10 months are served, she then will be restricted in her travels, having to ask the permission of her parole officer to travel outside the federal district in which she lives. In other words, the feds will be her near total masters for about three years, during which time she constantly will be reminded of whom she really serves.
She received at least one break from Judge Miriam Cedarbaum, who proved herself to be a sorry arbiter of justice during Stewart’s trial. Stewart will be permitted to remain free on bond while her attorneys appeal her conviction, with her sentence stayed. If there is any justice left in the federal criminal system, we believe she has very good grounds for winning a new trial.
First, while the government hinted in its opening remarks that Stewart engaged in illegal insider trading, Cedarbaum prevented Stewart’s legal team from defending her against such accusations. After hearing jurors speak of de facto convicting Stewart of insider trading (following the trial), it seems that Cedarbaum committed the most fundamental error — and injustice — that should be part of a trial: permitting the defendant to raise a legitimate defense.
Second, one of the jurors lied on his jury application (in legal terms, that is called committing a crime, but when the feds are in charge, who cares). As it turned out, this particular juror proved himself to be motivated from the start to get onto that body and to vote to convict Stewart. This violates a fundamental aspect of rule of law, and especially of trial by jury. Jurors are required by law to assume "innocent until proven guilty" in the Anglo-American system of justice; to act otherwise is to violate one’s oath as a juror — and to commit a crime. (One has no doubt that if the tables had been turned and this juror had lied on his jury application so he could become a juror in order to acquit Stewart, the feds would have acted swiftly and harshly and would have indicted him. Instead, the government has given him a free pass. We assume it’s because they’re too busy targeting their latest high-profile victim Ken Lay to bother cleaning up the mess they made in the Stewart prosecution.)
Third, it turns out that the government suborned perjury. Its "expert" witness on ink used on a sell order for ImClone stock (ground zero of Stewart’s legal troubles) lied on the stand, and prosecutors knew it. Even though jurors voted "not guilty" on the charge involved with the sell order, there is almost no way that prosecutors were unaware of the witness’ lack of credentials. Indeed, we suspect that federal prosecutors indicted the lying witness only after it became clear that his lack of veracity would soon be made public. Thus, the feds were able to "hold off the posse" and make it look as though they were as shocked as anyone else that a government witness actually would lie in court.
(One cannot help but wonder what is the real story behind this latest indictment. Perhaps we will never know, except to be reminded once again that prosecutorial misconduct — and the subornation of perjury — are regular staples of the federal criminal system.)
We are not surprised that Judge Cedarbaum turned down Stewart’s request for a new trial. No judge likes to be exposed for acting like a government employee, and Cedarbaum no doubt was trying to save her tattered honor; other than dropping the infamous "securities fraud" charge, she basically was a statist kangaroo running interference for federal prosecutors. While we will be surprised if Stewart does receive a new trial, our shock will not be based upon the merits of her case, but rather upon the fact that the federal system is a disgrace to the rule of law, and most of the official participants in it are morally and intellectually unfit to be taking part in the magnificent system that we inherited from 18th century England.
As for two Americas, we see it plainly in the Stewart case. Although most media pundits, along with the political classes, wax poetic that "all are equal under the law," the opposite is true. The government targeted Stewart because of her self-made fame and fortune; her conviction has been a prize scalp for federal prosecutors in New York, and jurors were eager to convict her, all because she was, as we put it in an article last March, "wealthy beyond a reasonable doubt."
In other words, while Stewart was able to pay for lawyers, she was not able to purchase a defense; in fact, she was stymied in her efforts to raise a legitimate defense in Judge Cedarbaum’s courtroom, which is a nice way of saying that we believe the trial practically was rigged. Moreover, Stewart was held to a much higher legal standard than were her accusers. Let us count the ways.
As noted earlier, federal prosecutors suborned perjury. That is a felony, but no one on the prosecutorial staff faces danger of being indicted. When federal authorities questioned Stewart about her stock sale, she was required to be "truthful" (tell the investigators what they wanted to hear), but at no time were the authorities required to tell the truth on their end. In other words, the demand for truth-telling is one-sided in the federal system.
The Stewart sale of ImClone came about because someone on a congressional staff illegally leaked information to the New York Times. That was a felony, but no one who was responsible for the crime need fear indictment. Federal prosecutors leaked sealed grand jury information to the New York Times. This, too, is a felony, but no prosecutors will find themselves in the dock. By the way, the New York Times editorial writers gushed with praise for prosecutors and Stewart’s accusers, making itself little more than the publicity arm for the feds. Rule of law at the Times goes only one way, too.
In his book Freedom in Chains, James Bovard noted that nearly one-fifth of Americans are exempt from many of the laws that bind the rest of us, due to the fact that they are government employees. Bovard’s sobering words ring true as the media and prosecutors celebrate the imprisonment of a very productive and decent American. Yes, there are two Americas. Martha Stewart and most people reading this opinion piece are lodged in one America, a place where being law-abiding is not good enough.
The other America is a very different place. In that country, one can hold the law in contempt, commit felonies, destroy people and their families, and force productive businesses into bankruptcy or even oblivion. We wonder in which America does John Edwards live; we already know the location of Martha Stewart’s abode.
July 17, 2004
William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute. Candice E. Jackson [send her mail] is an attorney and graduate of Pepperdine Law School.