Update: Just before publication of this story, actress Felicity Huffman was sentenced to 14 days in jail and was fined $30,000 for her role in the college admissions cheating scandal.
Last week, federal prosecutors asked United States District Judge Indira Talwani to impose a one-month jail sentence on actress Felicity Huffman, who pleaded guilty to mail fraud last May in “Operation Varsity Blues,” the bribery investigation that rendered Americans even more cynical about college admissions. It’s a light sentence for a hefty nationwide scandal, and she probably won’t even serve it. Huffman admitted guilt immediately, apologized repeatedly, and — with the exception of a somewhat tin-eared and self-pitying sentencing submission — has made every right move to maximize her chance of a sentence of probation. Last June, former Stanford sailing coach John Vandermoer enjoyed similar lenience in the case, walking away with a time served sentence despite prosecutors’ argument for a 13-month term.
Huffman and Vandermoer chose excellent attorneys, and they heeded good legal advice and made smart choices very quickly to resolve their cases. They have sustained felony convictions, which are humiliating and professionally and personally debilitating, but they have the assets and support to survive them. Not everyone is so fortunate, and not everyone takes the same path. Actress Lori Loughlin and her husband Mossimo Giannulli rejected quick pleas and now face a superseding indictment piling money laundering charges atop the original mail fraud charges against them; they are proceeding to trial. As a result, if convicted, they face significant time in federal prison.
What separates the people who get long sentences from the people who get short sentences, or are never charged at all? The criminal justice system’s narrative — its legend — asks us to believe it’s an accurate reflection of legal and moral guilt. It’s not. Oh, the truth plays a role. But so do wealth, power, relationships, and sheer chance.
Operation Varsity Blues is an excellent example of this phenomenon — it has its roots in wealth, influence, and luck. The prosecutions have captured the public imagination and driven a new debate over admissions, but the numbers and conduct involved would not normally capture the attention of federal authorities. In 1990, model Linda Evangelista famously described the life of supermodels: “we don’t wake up for less than $10,000 a day.” Thirty years later, it’s hard to interest the feds in a white collar case for less than, say, $3 million. White collar crime is rampant, the federal resources to combat it are limited and constantly shrinking, and the United States government can’t possibly charge even one provable federal case in 10,000. So what makes the cut? The answer: epic numbers, the promise of clickbait headlines, and being in the right (or wrong) place at the right time.
In Operation Varsity Blues, the right time and place was a government conference room in Boston in April 2018, where a man named Morrie Tobin was facing securities fraud charges and a draconian sentence over a pump-and-dump scheme. Tobin had a bargaining chip — he had bribed a coach at Yale to get his daughter admitted, and could wear a wire to get the coach to talk about it. That coach, Rudy Meredith, would in turn lead the feds to college admissions bribery kingpin William “Rick” Singer, who could incriminate (and record conversations with) all of his customers, including Huffman and Loughlin.
If you made a movie about this, it could be a police procedural — a story about how federal investigators started with a tip and methodically flipped witness after witness, going from Tobin to Meredith to Singer and out from there to dozens of anxious parents and eager coaches. In that story, the pivotal actors are the investigators. But they’re not. Tobin and his lawyers are. The feds get thousands of tips about just as many schemes, many involving more money and most involving a clearer “victim” — someone who has actually been deprived of something tangible, rather than an intangible value like fairness. The feds can’t investigate more than a tiny fraction of them. Even a single operation like wiring up Tobin for a meeting represents a huge expenditure of resources.
So why do tips from the Morrie Tobins of the world lead to elaborate, expensive investigations? Part of it is the subject matter — everyone understands bribery, everyone with kids already thinks college admissions are unfair, and the feds knew they’d get headlines and thus deterrence. But power and influence are even more important. Someone off the street can’t convince the feds to spend millions of dollars and thousands of hours on an investigation. Tobin got the feds’ attention because he had the money to buy a supremely qualified white collar defense attorney — an attorney with the connections, credibility, and experience to convince federal investigations that his client had a case worth pursuing. Are Huffman and Loughlin and the others facing charges because of what they did? Yes. But they’re also facing charges because Tobin, a guy about to take a hard fall for securities fraud, had the money and influence to convince the feds to launch Operation Varsity Blues. He benefited — the feds allowed him to plead guilty to a single count of securities fraud, dramatically limiting his worst-case exposure, and multiple sources report the government will recommend he not serve prison time.
Tobin’s money let him bribe a coach to help get a kid into Yale. His money hired him a lawyer with the ability, connections, and credibility to help him launch a vast and expensive investigation — and the bigger and more extensive that investigation was, the more credit Tobin would get for cooperation. Soon Tobin’s very justifiably expensive lawyer will in all likelihood win him a sentence that doesn’t include jail. Across the country, money will write the rest of the story — people who had the money to bribe their kids’s way into college will spend some of that money to hire exceptional attorneys to get them excellent results, like Felicity Huffman did. Meanwhile the blue collar players with less money will scramble to stay out of prison, and in courtrooms across the country, people without money will sit in jail, awaiting trial but unable to afford bail, relying on the services of dedicated but underfunded and understaffed public defenders.
The most important person in Operation Varsity Blues isn’t Morrie Tobin, the guy who launched it; or William Singer, the guy at the center of the web; or Felicity Huffman, arguably the most famous person caught in it; or the judges; or the prosecutors; or the FBI agents. The most important person is good old Ben Franklin, the man on the $100 bill.
Ken White, a former federal prosecutor, is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles. He’s a contributing writer at The Atlantic.