Has there ever been a defendant as thoroughly unsympathetic as this month's cover gal, Martha Stewart, currently in trouble for selling stock in the pharmaceutical company ImClone?
I suspect that on some level we're all rooting for the doyenne of domesticity to get sent to the slammer—and not just to see how she'd accessorize prison grays. Long before the Department of Justice criminally indicted Stewart for securities fraud and obstruction of justice and the Securities and Exchange Commission charged her with insider trading, the American public had already convicted her of a long list of particulars.
These include setting impossibly high standards for everyday home living (including the making of such horrors as cranberry flower frogs and marzipan turkeys) and overexposing herself through an endless stream of self-branded products ranging from magazines to TV shows to furniture. Stewart has even spawned a cottage industry of parodies, such as the "completely unauthorized autobiography" Martha, Really and Cruelly.
Perhaps her ultimate crime was letting the public learn of the gulf between her cloying public persona and the tough-as-nails private person who has become a massively successful CEO (it hasn't helped that she's a woman). As tell-alls such as Jerry Oppenheimer's Just Desserts and Christopher Byron's Martha, Inc. have made clear, Stewart is a driven entrepreneur who can and will turn off the charm whenever she needs to. The most memorable scene in the TV movie based on Byron's book comes when Stewart, played by Cybill Shepherd with Mommie Dearest overtones, screams to a woman she thinks is sleeping with her eventual ex-husband, "Hey slut, I'm sending your parents a letter and telling them you're a whore!"
All this makes Contributing Editor Michael McMenamin's job that much tougher in "St. Martha: Why Martha Stewart should go to heaven and the SEC should go to hell" (page 22). Yet McMenamin shows that the most serious criminal charge against Stewart—securities fraud—"is based on the fact that she denied to the press…that she had engaged in insider trading. This was done, the feds say, not for the purpose of clearing her name, but only to prop up the stock price of her own publicly traded company, Martha Stewart Living Omnimedia. In other words, her crime is claiming to be innocent of a crime with which she was never charged."
More important, McMenamin demonstrates that the SEC's civil case against Stewart "hinges upon an elastic understanding of insider trading, an offense that Congress has never defined," and that "the justification for the ban on insider trading, which makes little or no economic or legal sense, is just as murky as the behavior covered by it."
In disturbing detail, McMenamin documents that the SEC and the Justice Department have a long history of selective, vindictive, and ineffective prosecution. That may drain some of the fun out of the spectacle around the Stewart case, but as she might say, it's a good thing to know who the villains of this drama really are.