Conrad Black

by A Matter of Principle

  This would be a desperate game of chance. I had no reason to agonize over it, as there was no alternative. I would go to prison for life before I would plead guilty to crimes I had not committed, much less utter a Radlerian allocution and wrongly accuse others.

  My Roman Catholicism required me to confess and repent improper conduct, and if I had committed a crime, I would have pleaded guilty and accepted a punishment that would enable me to atone and expiate, to redress society’s just grievances against me. I believe in the punishment of crimes. This was something else; it was the punishment of faults, attitudes, and public relations misperceptions, and of misfortune, especially having a crooked associate, but I was the victim, not the author, of crimes – Radler’s frauds, the U.S. government’s impending false accusations, widespread defamation, and, still to come in a torrent, Radler’s and others’ falsehoods in the court in Chicago, as eventually even prosecutors would confirm when they turned on their own witnesses. I do not believe in false, extorted, or unspontaneous allocutions, which demean the spirit of confession and repentance and reduce justice to corruptly procured self-humiliation. I regularly scoured my own conscience and was a more frequent confessant and penitent than usual, keeping my moral ramparts strong, but never attenuated by sanctimony.

  It was an unsought honour, but it was about to come to me – to try to resist the decay of American justice, the degeneration of the grand jury into a prosecutor’s rubber stamp, the hollowing out of due process, and the suspension of the guaranty against uncompensated seizure of property (all in the Fifth Amendment, along with the rights against self-incrimination), and to uphold assurances of prompt justice, access to counsel, an impartial jury, and reasonable bail (in the Sixth and Eighth Amendments). Almost any task, no matter how raw, can be attempted if it has some grandeur, and especially if it is the only way to avoid a terrible fate.

  I was very aware that the end might be imprisonment. This was in some respects an ennobling prospect; if I was to be completely humbled, in conventional and bourgeois terms, I hoped to be elevated in moral terms. I could certainly establish that I was innocent, even if an American jury could be cajoled or dragooned by rabid prosecutors into finding me guilty.

  Up to a point, the greater the injustice, the more complete the revulsion would be when cant and emotionalism subsided and the degraded system was seen in the light, in its ghastly infirmity.

  I had been attempting to privatize my company, retain the Telegraph and the Chicago assets, and reorient their brands into the Internet age. It was the only strategy that would have worked, but it collapsed, the companies were destroyed in the name of corporate governance, and the franchises atrophied in incapable hands. It wasn’t the exit strategy I had sought, or the successor occupation I would have chosen, but at least I had a mission, full of desperate purpose and some drama. The game was afoot, all could still be won, and victory and defeat both had their attractions: instant vindication or the vindication of aggravated injustice.

  And I had already started to envision my strategy for dealing with legal defeat, should it occur: a strategic retreat to another jurisdiction. I could provoke a trial in the U.K. or Canada, on a side issue such as my Canadian libel cases where the Ontario courts have already indicated they might apply the test of whether a court in Canada would return a guilty verdict if seized of the same evidence. Of course, they would not; British or Canadian prosecutors would be disbarred for the routine conduct of American prosecutors, extorting and suborning perjury. I would never relent and I could not be silenced, as long as I remained alive and in funds. This was total war.

  –

  THE FINANCIAL SQUEEZE WOULD begin again if the Park Avenue sale weren’t completed fairly soon. I even entertained an overture from a Russian Canadian for our Toronto house. As usual in these times, it was not so much an offer as a proposal so miserly, it bordered on attempted theft.

  I was awaiting the end of the cease-trade order on Barbara’s Hollinger International stock, which was dependent on International getting up to date on its quarterly filings. All present and previous officers and directors were under a cease-trade order until that was done. The enemy had dragged out the lawsuit for indemnification of my Williams & Connolly bills until near the end of the year. The endless press barrage and general conventional wisdom that I was about to be indicted complicated matters. Murdoch’s New York Post opened a column with: “Tick-tock, tick-tock, as the clock ticks toward Conrad Black’s imprisonment.” Normally one waits for the charge, if not the evidence, or even, in the case of extreme traditionalists, the verdict, but not my former friend Rupert Murdoch’s journalists.

  Barbara and I went to Washington in late August 2005. The indictments of Radler et al. had caused the Justice Department to stay discovery in the civil proceedings, which spared me the unpleasant choice of testifying or, as was for me inevitable in these circumstances, exercising my Fifth Amendment rights, which is damaging in civil proceedings.

  In my more suspicious moments, I wondered whether Breeden had organized the mini-bar inspectors in our hotel. The highlight of the visit was Barbara’s and my conversation with Brendan Sullivan. For the first time in my acquaintance with him, he showed some sense of humour, and he revealed with emotional eloquence how much he hated the “evil and repulsive system” we were fighting.

  Elton John and David Furnish were in Toronto and came to lunch at our home. It was a generous gesture considering Elton’s tight schedule. When Elton came out on our terrace before lunch, his view was of the rolling lawns and hillocks, no flower beds or garden vanities to interfere with the prospect of grass and trees and the ravine. “It’s a good thing you have this place, to keep your sanity,” he said. This was true.

  I managed to get around a bit. Sir Winston Churchill’s biographer Sir Martin Gilbert, speaking at a Jewish function, opened with a very warm commendation of my Roosevelt book and of me personally. My social outings were commented on in the press less breathlessly than they had been. I met and quickly became friendly with the brilliant and delightful Richard Bradshaw, who had turned the Canadian Opera Company orchestra into a first-class one and who had built the first opera house in Canada, one hundred and forty years after its founding as an independent country. Richard’s sudden death from a coronary two years later at the age of sixty-three was a terrible loss to everyone who knew him and to all of Canada. Barbara took his death very hard, in spite of knowing him relatively briefly. He had, she said, that kind of blazing personality that could bore into your soul in an instant. His being was so intimately tied up in her mind with music, and music in turn was so intimately a part of her being, that she felt it as an amputation.

  Writing every other week in the National Post, and later every week, and then in Tina Brown’s online Daily Beast and Bill Buckley’s National Review as well, was an interesting diversion, and helped me focus on the great world beyond my own travails, including many humorous subjects. Barbara was asked back to Maclean’s by the new editor and publisher, Ken Whyte. She accepted. Those who had so brutally dismissed her were fired themselves. These were small portents, perhaps, but a start at regaining lost territory, and even a flickering of natural justice. We fought on in sober but stable spirits.

  As the impasse over completion of the sale of our New York apartment dragged on, I didn’t unpack all the boxes that poured in from there. The Toronto house became very full. Every day at 7:15 a.m. I heard the plaintive beeping of an alarm clock inside one of the packing cases in my dressing room. I finally opened the carton and rummaged through it. It was a little red clock Bill and Pat Buckley had given us for having them as guests on a chartered yacht cruise along the Côte d’Azur in 1996. It had been emitting little squeaks of purposefulness every twelve hours since it was packed up in New York. I resettled it on the vanity of my bathroom.

  Brian Mulroney, who was very supportive throughout this ordeal, volunteered to organize a group of wealthy friends who would help me with legal bills by subscribing a sec
ond mortgage on our Palm Beach house. I deferred this, though I was grateful, because I hoped to come through the nightmare beholden to no one, having been deserted once before by some from whom I had expected more.

  While I was scrambling to find the means to defend myself, Breeden announced he was setting up a hedge fund. This was a man who acknowledged he had not made a success of his own $200 million business in his only foray into commerce. Breeden’s hedge fund has, at time of writing, been a failure. He is a plodding stickler, dogged, like a spider killing anything that touches its web. He does not have a personality that can be transported successfully outside exploitation of the inner strings of the official bureaucracy.

  I WAS IN WASHINGTON IN OCTOBER, partly for the annual dinner of the Nixon Center, where I had a nice talk with the irrepressible Gordon Liddy, the only one of Nixon’s aides who didn’t break and run.

  I met with an unshakably cheerful Greg Craig, who had assured me constantly that there was no possibility of an interruption of the sale of the New York apartment, which was now my big worry. I had breakfast the next morning with the author and journalist George Will, who could not have been more upbeat and supportive, some other appointments, and was preparing for lunch with another friend when, as Private Eye magazine used to write, “the telephone rang.”

  Craig and John Warden and Ben Stapleton of Sullivan & Cromwell, the firm that had written up the closing in New York, telephoned to tell me that when contracts were exchanged and the cheque handed over at Skadden Arps’ offices, two palookas from the FBI rushed in and seized the money, brandishing a warrant issued ex parte by a magistrate under what was shortly proved to be a false affidavit, attesting that I had effectively stolen the apartment from Hollinger International. The prosecutors who would have put the FBI agent up to signing the affidavit should certainly have known that the allegations were untrue.

  My ten million dollars had been seized by the FBI. The buyer had my apartment, the U.S. government had my money, I had nothing. I had asked repeatedly about the delays before the closing and was assured, with the same chipper confidence with which I had been told that the Barclay transaction was legally unassailable by different lawyers but with indistinguishable self-assurance, that there was no problem. The seizure was under the Civil Assets Forfeiture Reform Act, directed ostensibly against drug traffickers. I was given no notice of anything before the ex parte seizure. And it had nothing to do with justice. The FBI affidavit did not mention that I had personally spent $4.6 million on renovating and decorating the apartment, much less that Hollinger International, not I, had been obligated to make those expenditures.

  A Tower of Babel of conflicting advice ensued. The lawyers of Sullivan & Cromwell, Williams & Connolly, and even Baker Botts, who were not directly involved, rivalled one another in their war cries of impending victory over this monstrous overreach. Brendan Sullivan himself, who had cost me almost $2 million per brief conversation, called to say that it could be undone.

  Craig had thought that there might be some utility in a private talk with the assistant U.S. attorney in Chicago, Eric Sussman, who had orchestrated the seizure with Skadden Arps. The thought horrified me by its naïveté. Sullivan said there was no point having “friendly talks” with U.S. prosecutors, that we should go straight to court alleging a false affidavit, false facts, and false law, all employed for the discreditable and unconstitutional purpose of trying to deny me the means of self-defence. “Prosecutors,” he averred, “are like Pavlov’s dog.”

  When I spoke to Sullivan again the following day, though cautious, he thought that “when the government acts this aggressively, it often makes mistakes, and seems to have done so this time. There may be a chance to get a New York court to slap them, hard.” Joan Maida had sent them all the supporting materials, showing the millions I had spent on the apartment, and Sullivan instructed his juniors to work through the weekend preparing the papers.

  I returned home after dinner on October 11, to find that I had been poleaxed by my enemies again. Despite the fact that there were 380,000 Google entries on asset freezes and forfeitures, it took until that night for the aggregation of Brendan Sullivan, the vacationing Greg Craig (this week in Europe), and the rest of the well-paid Williams & Connolly team to figure out that the Civil Assets Forfeiture Reform Act of five years before ensured that there would be no quick recovery of anything. The freeze was in place, and as soon as we pointed out that their affidavit was fraudulent and the discovery procedure began, our suit would be stayed – delayed – with the other criminal-related civil actions.

  The U.S. government was reduced to snooping around like a second-storey man, looking for a balcony door that had been left unlocked, and to mouthing threats in the hope of finding accomplices such as Radler. It put witless FBI agents up to signing false affidavits so rubber-stamp magistrates could conduct ex parte asset seizures and defendants could not defend themselves. The constitutional guarantees of due process and against uncompensated seizure and promising access to counsel had become fables, heirlooms of America’s past, like the legend of Rip Van Winkle, and George Washington and his cherry tree. In these matters the whole country had gone to sleep. And Sleepy Hollow is terrorized by vicious prosecutors.

  Each week in my travails seemed to yield new evidence of the corruption of the system; the plea bargaining–intimidated perjury; the assault on the indemnity for legal costs; the abuse of obstruction of justice; the planted defamations; the threatened invocation of “racketeering” against people who were, as even Leo Strine said of me, anything but racketeers; illegal telephone intercepts (which sweeps revealed, as did bugs on our furniture in New York) – one day the monitor flipped the wrong switch and Barbara and I heard them chatting inconsequentially through their bugging device (which seemed to be concealed in one of her stereo speakers). Normal communication between potential defendants was interdicted. There were fiendish attempts at financial strangulation (asset freezes, fake tax liens, and threats made of unspecific prosecution against mortgagees, such as mine in Palm Beach who was told by the inimitable Sussman that if he renewed my mortgage his company would be prosecuted somehow in the Chicago area). As it arrested the payment side of our apartment sale, the IRS seized $700,000 of refundable tax. Five years later, it was still trying to deny it had the money which at time of writing after threatening to litigate to recover, and after obtained affidavits to prove that they received the money has just been returned to me. No one should invest any credence in the proposition that the U.S. government exhibits many traits of the rule of law that it purports endlessly to be upholding “among ourselves and with all nations.” It may do or it may not, and it certainly did not with me.

  And there were the grasping lawyers. Most of the private sector counsel, prosecutors, and judges lock arms in a cartel to milk anyone who stumbles into the sticky official bouillabaisse behind the revered facade of the rule of law. They all love the system, they all think they are intellectually more elevated than almost all their clients, they are almost all more interested in being well paid than in the outcome of the case, and they are almost all friendlier with prosecutors and opposing counsel than with their clients. The lawyers had to be fed hundreds of thousands of dollars all the time or they would defect and join the serried ranks of those litigating against me, to collect unearned income. Brendan Sullivan, in the most famous statement of his career, told the Iran-Contra Committee of the U.S. Congress that “the American lawyer is not a potted plant.” Perhaps not, but he is watered like one.

  Mercifully, there were a few exceptions, such as Sullivan & Cromwell and Eddie Greenspan, and later Andy Frey, Miguel Estrada, and many of our specialist lawyers. And some other lawyers were not exclusively rapacious self-seekers, but many were. Brendan Sullivan himself, whose barristerial talents are not at issue, is not at all a vain man, and he sincerely detests the corruption of the American justice system.

  THERE WAS NO RELIEF TO THE terrible loneliness. Barbara and I went out into the wor
ld most days, and lived very comfortably in our splendid house in Toronto, yet we had no community of interest with any but a few people, sociable though I was. Others led normal lives, had normal jobs or professions, were not excessively or nastily referred to in the press, and did not fear that any day the police might be at their doors, carrying out search warrants or charging them with heinous crimes of which they were totally innocent.

  I had Greenspan school my staff on how to deal with any such intrusion. I had tired of having my files purloined, deliberately misplaced, leaked in spliced excerpts to the press, and destroyed. The terrorist apparat was always with us. It was not, as I often mused, Kafka, Orwell, or Koestler, but it wasn’t America the beautiful or Canada the unblemished snow-maiden of the North either.

  Every asset realization I made was so long delayed by official obstruction or equal-opportunity, imitative, private sector shilly-shallying that by the time the proceeds arrived, legal bills had grown like steroid-bloated rodents and devoured much of the funds, while the indemnified rebates were denied and had to be litigated endlessly, producing more bills and another round of the cycle. There was minimal due process, only an infernal machine to destroy designated targets and grind them to powder in the gears of the American justice system, while the free press cheered, before anything was adjudicated.

  It was all couched in that pompous legalese that would lead the uninitiated to believe that it was an honourable system run by honourable people. In fact, once focused on a target, prosecutors would adapt their interpretations of the facts to produce the desired verdict. The absence of evidence was not indicative of possible innocence but merely of the fiendish ingenuity of the culprit in covering his tracks, and of the superior sleuthing of the prosecutor in continuing to pursue him.

  Canada, though less vicious, being a smaller jungle with smaller beasts in it, was not appreciably better. In my experience, the Canadian procedural rules are fairer, the courts are less indulgent of runaway government, fewer judges and legislators are ex-prosecutors, but lawyers were generally not as competent, and the judges were more servile marionettes of the media faddists. As in many other spheres, Canada was a junior league for the colossal engine of injustice Americans know little of as they stand at public events, hands over their hearts, singing their splendid anthems. I wondered how could the country of Franklin and Jefferson, Madison and Lincoln, have come to this?