Thursday, May 27, 2004

Martha Stewart and 18 USC 1001

Very few leftists have paid attention to the Martha Stewart affair. One of the exceptions is Doug Henwood of the Left Business Observer, who has objected to her prosecution and conviction on the grounds that her unpopularity is in large part due to resentment against her invasion of "the traditionally male turf of big business," compounded by her business of ironically making commodities out of "homemaking" and thereby stripping it of the mythical aura of domesticity untouched by capitalism, and that "[t]he only obvious victim of Martha's alleged crime is the public's perception of the fairness of the stock market," so the only effect of her conviction is to "preserve the illusion that everyone is equal, and that the rich and well connected have no special advantage over the masses" ("Free Martha!" The Nation, February 9, 2004). Henwood has been so moved by the Martha Stewart affair that he has even begun to sell a "Give Martha's Cell to Cheney" T-shirt and other Free Martha merchandise -- the T-shirt is designed and modeled by Nomi Prins (whose appearance is as sultry as her mind is sharp), the author of Other People's Money: The Corporate Mugging of America, on the LBO homepage. Despite Henwood's valiant efforts, the Martha Stewart case remains beneath the radar of leftists across the political spectrum. After all, Stewart is hardly the only successful businesswoman nowadays, and it is not just sporadic investigations of insider trading but nearly all institutions (from elections to the United Nations) of capitalist democracy that are in the same business of marketing the illusion of equality and fairness.

Perhaps, a more compelling reason for leftists to take a second look at the Martha Stewart affair is 18 USC 1001:
[D]efense lawyers for white-collar criminal cases say the focus on Ms. Stewart's celebrity misses the point. The real lesson of the case, they say, is that it once again proves the potency of a little-known federal law that has become a crucial weapon for prosecutors.

The law, which lawyers usually call 1001, for the section of the federal code that contains it, prohibits lying to any federal agent, even by a person who is not under oath and even by a person who has committed no other crime. Ms. Stewart's case illustrates the breadth of the law, legal experts say.

Ms. Stewart was convicted of obstruction of justice and making false statements to F.B.I. agents and investigators from the Securities and Exchange Commission who were investigating her for insider trading. . . .

But Ms. Stewart was never charged with criminal insider trading, suggesting that if she had simply told investigators the truth she would not have faced criminal charges. . . .

That disturbs civil libertarians, who say that 1001 charges typically criminalize behavior that most people would not recognize as illegal.

"This 1001 law is really a remarkable trap," said Harvey Silverglate, a criminal defense lawyer in Boston.

People lie all the time to colleagues, friends and family, Mr. Silverglate said, and unless they are legal experts they probably do not know that lying to any federal investigator is illegal even if they are not under oath.

And F.B.I. agents and other investigators usually do not tape-record their conversations, so people can be convicted of making false statements based only on an investigator's notes, which may not exactly reflect what was said.

"Any casual conversation between a citizen and a person of the executive branch is fraught with the possibility that you can be convicted of lying," Mr. Silverglate said. If the government wants to make sure it is being told the truth, he added, it should put people under oath. "That's why we have perjury laws -- because we tell people this time you're under a special formal obligation to tell the truth," he said. "And by the way, you'll notice it doesn't run in both directions, so a federal agent can lie to you, can trick you, in order to get information." (Alex Berenson, "There's a Reason Your Mother Told You Not to Lie," New York Times, March 7, 2004, Section 4, p. 14)
The only source on the left available for discussion of civil liberties implications of 18 USC 1001 concerning the Martha Stewart affair has been a liberal blog TalkLeft developed by Denver-based criminal defense attorney Jeralyn Merritt:
18 USC 1001 deserves more attention of leftists, however, given what Congress intended the section to criminalize:
Title 18, Section 1001 of the U.S. Code, amended by Congress in 1996, imposes criminal liability for making false statements in "any matter within the jurisdiction of the executive, legislative or judicial branch of the government."

The law is intended to criminalize false statements on applications for government benefits like food stamps and loans. (Alexei Oreskovic, "9th Circuit Clears Man Who Faked Poverty to Win a PD," The Recorder, March 29, 2004)
From social welfare to immigration to criminal justice, 18 USC 1001 is likely to present a far more danger to the poor than to the rich, especially during the endless "war on terrorism."

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