At any rate, what happened on December 27 isn't at the heart of the criminal complaint. What Stewart's really in the dock for are the defenses she mounted after news of her well-timed sale became public. The Feds accuse her and Bacanovic of conspiring to "conceal and cover up" Bacanovic's violation of Merrill's confidentiality policy as well as Stewart's real reasons for the sale. The prosecutors claim that the $60 agreement was an invention after the fact. They also claim that aside from trying to exculpate herself, Martha also designed her alibi to prop up the stock price of her company, Martha Stewart Living Omnimedia, since her being packed off to jail would almost certainly damage the firm severely. That, to the prosecutors, was securities fraud. So even though the circumstances of the original sale were probably not criminal, it may be that Stewart thought they were, and made up the $60 story as a self-defense. Should bad judgment be a felony?
Amazingly, Slate hired Henry Blodget to cover Martha's trial. Judging from his earlier dispatches, Blodget is as qualified to be a journalist as he was qualified in his previous career on Wall Street. He was a Merrill Lynch research analyst, one of the major promoters of the tech bubble, who privately disdained stocks (he famously referred to one as a "piece of shit" in an e-mail to a colleague) he was publicly recommending. Though people lost pots of money on Blodget's advice, he paid a $4 million civil fine, but faced no criminal charges. Why isn't he the defendant?
Though she has millions of fans, Martha is not broadly loved. She was voted the seventh most annoying person of 2003 on the website amiannoying.com (falling between Osama bin Laden and Jacques Chirac). More rigorously, Gallup reports that 55 percent of Americans have an unfavorable opinion of the Diva of Domesticity, and just 36 percent a favorable one. There's little doubt that this dislike contributed to her indictment, and to the widespread assumptions of her guilt.
Why the resentment? As one young fan recently pointed out to me, it's because she severely confuses our gender codes. She invaded the traditionally male turf of big business, but her business is based on "skills that were supposed to be girly and stay-at-home." Yet while she "plays the über-homemaker, she isn't charming or warm. She's cold and efficient and a little awkward. She's not marketing the warmth and the comfort of the home, she's showing how it's like a business or a machine. That's not so easy to like, and it makes her scarier, to men especially."
Those are not good reasons to send someone to jail. But, more broadly, why are insider trading and related transgressions often treated more severely than defrauding retirees, lying to stockholders or, more prosaically, running a dangerous workplace? The only obvious victim of Martha's alleged crime is the public's perception of the fairness of the stock market. The authorities would love to preserve the illusion that everyone is equal, and that the rich and well connected have no special advantage over the masses. But that's absolute nonsense. Though people on the left often cheer the prosecution of insider trading (which, remember, is something Stewart isn't even accused of), there's nothing particularly progressive about preserving the illusion of Wall Street's fairness. It is, therefore, in the interests of both individual justice and political clarity that Martha be found innocent.