Friday, September 30, 2005

A Play

Nothing Shared, Nothing Violated

(phone rings)

Senator Bill Frist: Hello?

Thomas Frist Jr.: Hi, it’s your brother Tom. Called to catch up.

Sen. Frist: Great! What's going on at home?

Tom Frist: Not much, Bill, just mentioning that the executives are SELLING STOCK IN THE MASSIVE FAMILY BUSINESS THAT I HELP MANAGE. Just SELLING, SELLING, SELLING. That’s all publicly-available knowledge, by the way, that the executives are SELLING OUR COMPANY’S STOCK. Certainly not sharing any inside information here amongst family, because that would be wrong. So, what are you doing?

Sen. Frist: Oh, bankrupting the country, hiring investigators to find skeletons in Jeb Bush’s closet, the usual. Selling stock, you say?

Tom Frist: Yes, SELLING STOCK IN OUR FAMILY BUSINESS THAT I'VE HELPED DAD MANAGE. For some purely random reason, while all this SELLING is happening, I thought I’d call you and catch up. And it is publicly available information about who's SELLING THE STOCK. In fact, it’s so public, I’ll send you the disclosure information that shows how much that executives are SELLING. Just for kicks. What are you up to this weekend?

Sen. Frist: Uh, I forget. Look, I’ve got to go and give orders to the guy managing my blind trust that I don’t control and tell him to sell the family stocks, even though as far as I know, I don’t own any such stock.

Tom Frist: That’s interesting – it’s amazing, the number of coincidences in this crazy, crazy world.


What do you think? First play I've written since college. The concealed ending (making it high art) is that on the above facts, Senator Frist committed no crime. Check out the conservative-but-reliable Baseball Crank for confirmation - as long as Frist only had public information, his sales were legal. Think the emphasis from his brother constituted inside information? Have fun proving that in court. Where I differ from Baseball Crank is whether the above scenario vindicates Frist. He could get off while still being as sleazy as any de jure inside trader.

Two short additional notes: First, Baseball Crank notes that even if inside information is given away, the tipper has to receive something from the tippee in order for it to constitute a crime. If Sen. Frist got inside information from his brother or a friend, he's not off the hook - strengthening an established relationship is enough of a quid pro quo.

Second, Baseball Crank properly notes elsewhere that "innocent until proven guilty" is a legal concept, nothing more. If you're a judge or a juror, you better follow that concept, but the rest of us are free to think whatever the hell we want. There's no ethical obligation to believe in innocence until a bunch of other people decide otherwise. The only ethical obligation is to use good judgment about judging people to be guilty of terrible things. And we're free to qualify our judgments, so Frist in my opinion is probably guilty. If I were on a jury right now I'd find him innocent unless I were given a lot more evidence, but I'm not on a jury. Tom Delay: almost certainly guilty. OJ Simpson: you've got to be kidding.

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