Would “alleged cheaters” work any better? People Magazine offers up one of the first — but hardly the last — sympathetic takes about the highest-profile defendants in the Operation Varsity Blues college admissions scandal. Their source laments the “unspeakable stress” that prosecution has placed on the Loughin/Giannulli clan, and the unfairness of being called “cheaters.”
We don’t know yet if the shoe fits in a legal sense, but …
Lori Loughlin and husband Mossimo Giannulli don’t appreciate the backlash over their alleged involvement in the college admissions cheating scam.
After pleading not guilty earlier this week, a source tells PEOPLE that the couple resents how the case is playing out in the public eye.
“This is putting unspeakable stress on her and her family,” a source close to Loughlin tells PEOPLE. “They’re having to play this all out publicly, and they’re fair game for jokes and memes, but also outraged [by] people who are saying that they are cheaters.”
“They’re being destroyed,” the source adds.
Why would they consider themselves “fair game for jokes and memes” but not fair game for being called “cheaters”? There are different questions involved in this scandal and not all of them revolve around the law. If the parents who aren’t pleading out to lesser charges want to argue that they were duped into the Rick Singer scheme, that seems like a plausible enough defense — especially when deployed on behalf of genuinely likable celebs like Loughlin. Until a jury convicts them, we can certainly withhold judgment on criminality.
Cheating, on the other hand, is not just a criminal issue. Prosecutors allege that Loughlin and Giannulli faked photos and claims of athletic experience, as well as coughed up $500K as a bribe or maybe just a “donation,” in order to gain an unfair advantage to admission to USC for their daughters. Thus far, the parents have yet to deny those parts of the government’s case, but are leaking out that they didn’t intend for those to be criminal acts. Even if they weren’t, though, it’s still cheating. By faking the athletic experience and dumping money on the coach, they were taking admission slots that by definition would have gone to students who should have been admitted ahead of their kids.
Maybe that’s a common practice among wealthy parents; in fact, it almost certainly is. Just because a lot of people cheat doesn’t make it not cheating, though.
Anyway, it might not just be the defendants who are cheating. Their attorneys filed motions in court yesterday claiming that the Department of Justice is rigging discovery to keep parents from mounting an effective defense. To some extent this is normal infighting, but the Boston Globe report suggests they may have a point:
In a Tuesday filing from attorneys for the glitzy pair and 14 other defendants, defense counsel said the government’s proposed protective order — which seeks to “prevent individuals outside the Defense Team from accessing the [evidentiary] materials” — doesn’t pass muster. …
But in a second filing Tuesday, lawyers for another group of defendants also took aim at the proposal, and they didn’t hold back.
“The government’s proposed order is remarkable for its breadth,” the separate filing said. “It seeks to shelter materials already disclosed within its own pleadings, indeed, even materials involving ‘court and legal process.’ That the proposed order is tactical, a barely disguised one-way burden on the defense with no reciprocal obligations on the government, is made obvious where not-a-single page of discovery is left unconstrained.”
The filing said “the government has made unbridled use of the ‘sensitive’ materials” in publicly available court documents, “with highly specific allegations about financial transactions, intercepted conversations, and test scores, all chum in the water for a receptive press but which it now seeks to encapsulate in secrecy.”
A protective order, the filing asserted, “is a constraint on the preparation of a defense. It puts defense counsel at risk of a contempt finding in its interactions with prospective witnesses; it requires the defense to seek aid of court, or worse, to divulge its defenses in order to shake free of a constraint which should never have been imposed. … Why the need for a protective order for such documents when the government outlined its intent to use these materials aggressively at trial? Or for that matter, why the need for a protective order for email and other electronic communications which it freely divulged throughout its affidavit?”
Assuming the motions characterize prosecutors’ demands accurately, the defense has a legit gripe. The DoJ and prosecutors certainly had a field day when the news broke on the indictments with this material. They showed quite a few of their cards and made reference to much of this material in their presser. If they’re now arguing that the material is so confidential that the defendants can’t possess it — including high-school transcripts of their own children — that would set up a one-sided media trial. It sounds as though prosecutors might be worried about the celebrity wattage that the defense can harness, as well as the legal artillery they can rent.
Two other parents filed a separate motion earlier this week that might undo a significant part of the DoJ case:
Then, on Monday, lawyers for Gregory and Amy Colburn of Palo Alto, California, went further, seeking a dismissal of the two charges against them, which all the indicted parents face: a mail and wire fraud conspiracy and a money-laundering conspiracy.
The couple wielded several arguments — notably that the government’s case is deficient.
They invoked a 1946 Supreme Court case, Kotteakos v. U.S., in which a broker was accused of conspiring with 32 loan applicants to defraud the government. The high court reversed the resulting convictions, noting the defendants had only the broker in common, not one another, and that there were at least eight separate conspiracies, not just one as alleged.
“This is where conspiracy law gets nebulous,” Henning said, adding that any convicted parents would do well to cite Kotteakos on appeal. “It’s not clear any of the other parents knew anyone else was doing it.”
There is plenty more going on in this prosecution than the conspiracy charge, but that’s still a significant part of the government’s charges. Without those counts, it comes down to bribery and false records without the organized-crime element. That makes it easier for the parents to argue that they were just trying to navigate an already-rigged system and got victimized by Singer and those demanding the bribes. Frankly, that might not be an ineffective argument for a jury wondering why the feds seemed so anxious to cut deals with the architects of the conspiracy to get to Aunt Becky and the rest of the parents.
It’s possible that, absent conspiracy charges, a jury really will agree with Loughlin and Giannulli that this was nothing more than a “family matter“:
“The idea of going to trial is terrifying for Lori,” the source told the outlet. “Everything comes out in trial, whether or not it’s relevant to the case. She will be under a microscope, and you only have to look at the paparazzi outside the court to know that there is widespread interest in this case. She will lose every bit of her privacy, and that’s a shame. This really is a family matter.”
It’s possible. It might not be likely, but it’s possible.