RSS Feed MenuIf the ferocity of questioning indicates which side faces greater skepticism from the justices of the U.S. Supreme Court, then Conrad Black just had himself a very good morning.
Conrad Black is the former media tycoon convicted of fraud in a Chicago court room in 2007. He owned Britain’s Telegraph and Canada’s National Post. He is the author of four books: historically outstanding biographies of Franklin Roosevelt, Richard Nixon and Quebec premier Maurice Dupleissis, as well as an autobiography. He is also my dear friend, and between 1998 and 2001, I worked for him as a columnist and sometime consultant. Patrick Fitzgerald, U.S. attorney in Chicago, charged Black with 13 counts of fraud and obstruction. Black was acquitted on 9, convicted on 4. He has served a year and a half in Florida prison.
Today, attorney Miguel Estrada argued that the statute under which Conrad Black received his heaviest sentence was unconstitutionally vague.
If Black wins, his time already served should more than satisfy the courts that sentenced him.
The law at issue in the Supreme Court requires public and corporate officials to provide “honest services.” Enacted in 1988 to replace a statute struck down by the court as unconstitutional the year before, the substitute law remains as controversial as its predecessor. The New York Times has a good write-up of the problems of the statute here, quoting from an amicus brief the sarcastic question whether a minister could be prosecuted for delivering an insincere Sunday sermon.
Those doubts were aired by the nine justices this morning.
How many of the 150 million employees in the United States are providing honest services all the time asked Stephen Breyer. Is it a crime to read the Racing Form when at work?
The attorney for the U.S. government argued that such prosecutions would never be brought, but Breyer pressed him that such reassurances did not much reassure. It’s like the old brain-teaser about the law that reduces the entire criminal code to one line: “It shall be illegal to do anything that is wrong in the opinion of the attorney general.”
Justice Sotomayor insisted that there was no ambiguity in the actions intended to be prohibited: bribery, kickbacks, and undisclosed self-dealing. Breyer pointed out that an employee who slips out of work an hour early to sell real estate is engaged in undisclosed self-dealing. Is that worth 20 years in prison?
The government argued that these possibilities were constrained by an understanding that employee derelictions had to be material. But what did that mean? Justice Scalia, famously skeptical of the statute, suggested that the government was inviting the Court to make the statute mean whatever the Court would like it to mean in order to preserve it. “That’s not our job.”
When the government argued that the law was undergirded by a well-developed understanding from the core of a long line of cases, Scalia scoffed: How is a lawyer supposed to advise a client based on that? Anyway, the cases the government was invoking were a mess, a mess that had already led the Supreme Court to strike down one previous attempt to codify an honest services doctrine.
One of the most incisive questions was asked by the chief justice. “Is honest services a legal doctrine or a moral one?” He continued: Suppose state corporate law required a corporate officer to disclose any dealings that might benefit his wife or children. He then engaged in dealings that benefited a niece or nephew. He had complied with the letter of the state law. Could the United States now prosecute him for a federal crime? And how was this then different from that prohibited thing, a criminal common law?
To that, the U.S. had no good answer. The attorney conceded: the federal rules would differ from state rules. We were all on notice. Avoid doing what was wrong in the opinion of the attorney general.
Estrada offered the court an alternative to invalidating the statute. They could save it by understanding the honest services doctrine to include an intent to do economic harm. An employee who disappeared from work to watch a ballgame – and caused his employer to miss a huge economic opportunity – may deserve to be fired, but should not go to jail. Unsaid but hanging in the air was the argument that Conrad Black never intended harm to Hollinger shareholders – indeed that their ruin occurred after he was forced out.
Estrada, who argued first and last, got a generally sympathetic hearing, helped by his amazing marshalling of case law – and his deft recollections of which justices had written which previous opinion. “As Justice Kennedy wrote for a unanimous court … ” “As Justice Stevens wrote in another unanimous opinion …”
As we waited for entry, I fell into talk with a group of Black well-wishers who had traveled from Toronto to line up on the courthouse steps before opening hours. Conrad Black’s beautiful daughter Alana tapped me on the shoulder on her way to the family seats for another round of the litigation that has consumed her father’s life. This is not a case of concern only to one man and his family – not only to the many admirers of Conrad Black who think it is long past time that he was returned to home, freedom, and creative work. It’s a case of concern to all Americans who might be caught in the toils of a law that blurs the very concept of what is criminal and what is not.
RioRancho // Dec 8, 2009 at 1:25 pm
OFFS – Conrad Black looted Holliger for his own benefit – but you are willing to go to bat for corporate kleptocracy if it is done by your friends who have beautiful daughters?
MI-GOPer // Dec 8, 2009 at 1:59 pm
David, when I read your money shot: “It’s a case of concern to all Americans who might be caught in the toils of a law that blurs the very concept of what is criminal and what is not.”
I could only think of the injustice heaped upon Scotter Libby, a true American patriot and public servant snared by prosecutors who, like Harney Keitel’s FBI Special Agent character in “National Treasure” says, “Ben, somebody has to go to jail.” I know Scooter Libby; Mr Black is no Scooter Libby.
Baron Black of Crossharbour erred in his attempt to obstruct justice; he saw himself above the law and privilege gave him that “right”. Just like Martha Stewart (D). If he gets off on a technicality in appeal, he will once again prove that money can buy “justice”. And a trophy wife.
tdawg11870 // Dec 8, 2009 at 2:01 pm
Your ongoing defense of Black is quite sweet, as he is a friend of yours. However, if this site is ever going to go larger, you’ll have to abandon some of your most parochial hobbyhorses, Conrad Black being the most conspicuous. Then, you may think about splitting off the Canadian chatter into a separate blog and just cross-post those posts that have more cross-border interest.
NormD // Dec 8, 2009 at 2:17 pm
How many overly broad vague laws are we going to allow the Congress to create.
Fail to provide Honest Services – Felony
Lie to a any Federal Officer – Felony
Give an heirloom to a grandchild without proof it does not contain lead – Felony
Transport toothpicks across state lines without a cert of wood origin – Felony
Grow food in your garden and not file FDA Food Production Facility paperwork – Felony
Fill in a pothole on your property without an ETR – Felony
Spend some money on a sign to support some political position and don’t file paperwork – Felony
The response of the government is always that they are reasonable and they would never actually charge someone, but why should they have the power?
Why do no politicians take up this issue?
DFL // Dec 8, 2009 at 5:10 pm
To be sure, Conrad Black took advantage of his position at Hollinger to make a lot of extra money and many might say he swindled the company he led. But in what way was he different than, say, George W. Bush, whose failing company Hawken Energy was bought by Texas friends. Bush was then sold stock in the Texas Rangers at the instigation of a family friend, Eddie Chiles. The town of Arlington was shaken down by the Rangers and the well-connected Bush shortly thereafter and Bush’s stock in the Rangers skyrocketed in value. Let us not forget Hillary Clinton’s cattle future deals made at the suggestion of political friends which made her big money. Or even Hank Paulson shaking down Congress to save his old firm Goldman-Sachs. America is a plutocracy with thousands of well-connected big shots making inside deals with each other while the peasants fight over the scraps. And if crony capitalism prevails in America, as it indeed does, the Republican Party of Honest Abe was the first great practitioner in the modern republic.
ltoro1 // Dec 8, 2009 at 7:19 pm
Could one of you please explain, in detail, the extent of Conrad Black’s crimes? Everyone has thrown out a lot of blanket accusations, but left out a lot of detail.
Independent // Dec 8, 2009 at 7:56 pm
ltoro1, black was indicted in 2005 in chicago on 11 counts –8 of them mail and wire fraud, the balance were obstruction of justice… lying to a fed agent.
more here on the indictment: http://www.cbc.ca/money/story/2005/11/17/black-051117.html
black was found guilty of misappropriating millions of company dollars and frauding shareholders; the judge thought that prosecutors didn’t prove their case on other fraud charges involving about $32,000,000 in company funds for which black profited personally.
others indicted with black got slaps on the wrist… including black’s legal eagle only getting 5 yrs probation and no jail time –but he did have to stop drinking single malt scotch, aged 27 yrs or older and switch to johnny walker red blended scotch… and no more turkish spa robes… and very limited travel… and he had to stop attending the chicago lyric opera for 6 months. it wasn’t even a slap on the wrist for him.
more on the sentencing here: http://www.cbc.ca/money/story/2007/12/10/conradsentence.html
Edmund Onward James // Dec 9, 2009 at 1:26 pm
Conrad may have been a bit unctuous and suspicious reagrding the non-compete for many; however, as a result of the prosecutors the company was ruined. Who was the winner? Maybe they might have requested the return, fined him, and let the business continue.
Should the Supreme Court turn this around, there will be civil suits galore.
Can’t wait until July for a delicious comeback… and I am sure he can’t either.
DFL // Dec 9, 2009 at 1:40 pm
By their very nature, corporations are meant to be fleeced. Stockholders even expect it; they only wish to make their own profit and if certain officers of the corporation take their cut, well, that’s the cost of doing business. So free Conrad Black.
goethean // Dec 9, 2009 at 1:59 pm
If it were up to me, Black’s jury would consist of former Chicago Sun-Times employees.
Edmund Onward James // Dec 10, 2009 at 12:15 pm
If the Chicago Sun-Times employees were on the jury then he might not have been found guilty. You seem to think they do not have business savvy and got ripped off. Not so. he may have pushed the enevelope, but from all I have read it looked quite legal. But he might have tried to receive bonuses in an acceptable manner.
The prosecutors decimated a sucessful and growing organization, at least maintaining, considering the global probems.
http://www.onwardjames.blogspot.com
Back In Black (And Blago) « Around The Sphere // Dec 10, 2009 at 4:27 pm
[...] David Frum at FrumForum [...]