CHARLES REX ARBOGAST/AP/CP
A year or so back, in the lobby of Fox News, I was approached by a gentleman who introduced himself as a member of Conrad Black’s legal team. That doesn’t narrow it down very much. There’ve been so many of them over the years: Canadian, American, young, old, rough and ready, bespoke and urbane, incompetent and . . . well, marginally less incompetent. “Good news,” this one told me. “We’re really pleased with the way things are going on the Supreme Court appeal.”
“That’s great,” I said, forcing a smile and feeling the way the Indian Foreign Minister must have felt when President Ahmadinejad told him not to worry because everything would be hunky-dory in two years’ time when the Twelfth Imam would be showing up. On balance, the Twelfth Imam seemed more likely to ride to Mahmoud’s rescue than the U.S. Supreme Court to Conrad’s. I’d been in Washington a few days earlier and various legal “experts” had derided Black’s SCOTUS appeal as a pathetic but characteristically self-aggrandizing last roll of the dice that was bound to come up snake eyes.
The federal justice system is a bit like one of those unmanned drones President Obama is so fond of using on the unfortunate villagers of Waziristan. Once it’s locked on to you and your coordinates are in the system, it’s hard to get it called off. Three years ago, during his trial in Chicago, I suggested to the defendant he’d be better off saving his gazillions in legal fees and instead climbing under the tarp in the bed of my truck and letting me drive him over the minimally enforced Pittsburg-La Patrie border crossing to Quebec and thence by fishing boat to a remote landing strip on Miquelon where a waiting plane could spirit him somewhere beyond the reach of the U.S. Attorney. Estimated cost: about a thousandth of what he’d spent on lawyers to date. P’shaw, scoffed Conrad, or ejaculations to that effect. He was not a fugitive but an innocent man, and eventually he would be vindicated by the justice system of this great republic.
This kind of talk persuaded his American friends that Conrad was out of his tree. Guilt? Innocence? What sort of nut subscribed to such outmoded absolutisms? If Black had just cut a deal, sighed Richard Breeden, the $800-an-hour special investigator brought in to “clean up” Hollinger, all this could have gone away years ago. When the U.S. justice system comes a-calling, the sane response is: What do I have to do to get you guys to piss off and screw over someone else? For former governor Jim Thompson, former ambassador Richard Burt and former woman d’un certain âge Marie-Josée Kravis, the star directors of Hollinger’s audit committee, it took going on the witness stand and making a fool of yourself for a couple of hours by swearing that, even though Black’s various non-compete fees had all been declared right there in the documents they’d signed their names to, it would obviously be entirely unreasonable to expect a busy person such as yourself actually to read the boring old paperwork rather than just append one’s John Hancock, thank Conrad for another excellent lunch, and then cash your cheque for a little light directorial oversight. They were embarrassing performances, but the day ends and life goes on. Black’s lifelong business partner, David Radler, eventually cut his deal, too. Nothing personal. That’s just the way the system works.
Conrad Black didn’t want a deal. He wanted justice.
He will never get his life back, and he will never get his company back, Richard Breeden’s “cleanup” having destroyed it. And, that being so, he will never get real justice. But through sheer doggedness he has demolished 99 per cent of the case against him. The US$400 million he was accused by Breeden of looting from Hollinger was down to US$60 million by the time the trial began in Chicago. He was found guilty of stealing US$2.9 million, which is less than one per cent of what Breeden accused him of, and indeed about 1.5 per cent of the US$200 million Breeden’s “investigation” had cost the post-Black regime at Hollinger by the start of the trial. Of the 19 original counts against him, Conrad was convicted of just four. The government lost on all the eye-catching tabloid fodder: Barbara’s birthday party, taking the corporate jet to Tahiti. The government won on three counts of “mail fraud.” But winning 80 per cent of the case isn’t enough. No matter how remorselessly it shrivelled from US$400 million to US$79 million to US$60 million to US$2.9 million, what was left was still enough to send Black to jail.
Nevertheless, he pressed on. And last week he won a huge victory. The Supreme Court voted unanimously—nine-zip—that the 28-word vaguely drafted “honest services” statute used by Conrad’s prosecutors had been applied too broadly. Rather than striking it down as unconstitutional (as three justices wished), they narrowed it drastically and declared that it “criminalizes only schemes to defraud that involve bribes or kickbacks. That holding renders the honest-services instructions given in this case incorrect.” They didn’t overturn Conrad’s conviction but sent it back to the Court of Appeals for “further proceedings consistent with this opinion.” Which presumably means that the presiding judge, Richard Posner, previously sneering and contemptuous if remarkably uninformed about the basic issues, will at least have to be less sweepingly dismissive second time around.
Most of us have heard the one about the defendant who says, “It wasn’t me, your Honour. I was out of town that night. And anyway he started it.” In essence, that was the strategy of the prosecution. Among many procedural advantages enjoyed by the government, they can advance multiple theories of the crime and invite the jurors to pick whichever tickles their fancy. The first theory was outlined in the prosecution’s lurid opening statement. “Bank robbers wear masks and use guns,” Jeffrey Cramer told the jury. “These four, three lawyers and an accountant, dressed in ties and wore a suit.”
Don’t ask me why they had multiple ties but only one suit. It’s only one of the more obvious flaws in the theory. The real problem is that the prosecution could produce no victims of this louchely tailored heist. The companies that bought the Hollinger papers and paid Black’s non-compete fees were entirely indifferent on the matter: they looked on it as standard practice and part of the overall purchase price. As for the aggrieved minority shareholders who set in motion the Hollinger meltdown, they were nowhere in sight. Whatever their original fantasies about “realizing the value” of the company’s assets, by 2007 they understood that Barbara Amiel’s birthday party was chump change (US$42,870) compared to the cost of investigating Barbara Amiel’s birthday party (US$200 million). Had Conrad thrown Barbara a birthday party at La Grenouille every night of the week for 12 years, it still wouldn’t have added up to what Richard Breeden and the stooges installed at his behest spent looking into it. By the time Black and Co. were hauled into court, the “victims” were at least as furious with the post-Black management and the government.
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