Loughlin: Prosecutors are covering up evidence of our innocence

Well, why not? It’s not as if the FBI hasn’t cooked a case or two in the recent past. Perhaps sensing an opening, or at least a clever PR movement, actor Lori Loughlin and husband Mossimo Giannulli filed a new claim in court of prosecutorial misconduct in the Operation Varsity Blues scandal. If prosecutors have evidence that the pair thought the money would go directly to USC, then where’s the crime?

Loughlin and her husband, fashion designer Mossimo Giannulli, asked a federal judge in Boston for “urgently needed” help in forcing the government to fork over evidence they say disproves charges they bribed a USC administrator to get their daughters, Isabella and Olivia Jade Giannulli, into the school.

“The Government appears to be concealing exculpatory evidence that helps show that both Defendants believed all of the payments they made would go to USC itself — for legitimate, university-approved purposes — or to other legitimate charitable causes. The Government’s failure to disclose this information is unacceptable, and this Court should put a stop to it,” lawyers for Loughlin and Giannulli wrote in documents filed in Boston federal court.

“If, for example, USC knew of Singer’s operation and accepted donations to the university from Singer’s clients as legitimate, then not only was there no bribery at USC, but also no fraud conspiracy at all.”

Let’s start with the basics. In a criminal prosecution, the defense is entitled to the discovery process, in which all pertinent information about the case is revealed. That includes documents, fact witnesses, expert analysis, the works. If the Department of Justice has not fully cooperated in the discovery process and transparently disclosed all material to the defense, the court can impose a range of sanctions, including dismissal with prejudice or even legal sanctions on the prosecutors. And this does happen, albeit infrequently, especially at the federal level.

First, though, one has to prove that the prosecutors have withheld anything relevant and substantial to the case. That brings us to the legal theory being pursued here, which is apparently that the Loughlins believed it was normal and proper to pay $500,000 during the admission process and pretend that their daughter was on an athletic team to gain admittance to USC. That’s, er, a rather strange claim, although maybe not entirely unbelievable. If the Loughlins thought this was all above board, why lie about their daughter’s athletic status — and why pay the money through ringleader Rick Singer at all? Would anyone engaging in that behavior be able to credibly claim that they thought all of that was both normal and legal? This doesn’t sound like a very good defense theory at all, even if they can prove that prosecutors have withheld evidence relevant to their own state of mind, which seems unlikely.

However, that theory is only implausible, not impossible. Fraud does require a mens rea, which prosecutors can infer from the actions of those involved, but it raises a core question about the DoJ’s handling of this case from the start. The true mens rea for fraud belonged to Singer and the university personnel who profited from this scheme. The parents aren’t blameless, but they’re not the ones who got rich off this scheme. Why did the DoJ decided to cut deals with Singer and his associates rather than with the parents? Shouldn’t they have treated most harshly the person who created the fraud?

The defense can — and surely will — argue that the parents thought that the schools were participating in Singer’s scheme based on the involvement of coaches and admissions personnel, and that the participation absolves them of the mens rea for fraud. And they will attack the prosecution for targeting the people who got taken in the fraud rather than the fraudsters themselves, which is a stretch but still arguable n this instance. Will a jury buy that argument from Full House’s Aunt Becky? Prosecutors might not be anxious to find that out, especially with the FBI’s reputation taking serious body blows of late.