Conrad Black

by A Matter of Principle

  BUT AFTER WINNING SOME of their cases, the persecutors and the attendant media, having consigned their victims, they imagine, to the dustbin of the “disgraced,” and so on, move on to new victims, and the confined innocent, if he retains the determination and the means, can pick away at the weaknesses of the false case that has been made against him.

  The endless much-savoured references to me as “disgraced” caused me to rummage through the Bible the kindly British stranger sent me to find an apposite quote. Like so much else, it came in Isaiah: 50: 6–8. “I have set my face like flint knowing that I shall not be put to shame. Who will prove me wrong?”

  AT THE END OF 2008, Richard Breeden, Gordon Paris, and Raymond Seitz announced their retirement from the former Hollinger International and the disbandment of the Special Committee. The vulture funds moved to sweep out the other directors and the pseudo-“management” installed by Breeden. There have been more improbable resurrections than Sun-Times Media Group, though perhaps not without wide spread religious adherences as a consequence. The vandalized hulk of STMG was sold out of bankruptcy to fly-by-night financial buyers in late 2009, in another vintage Chicago court stitch-up. I pipelined in advice to the stakeholders many times on how to salvage something for themselves, but like so many others in this tawdry farce, they allowed their sense of self-preservation to atrophy at the mere Medusan presence of Richard Breeden.

  On inauguration eve, January 19, George W. Bush rejected fifty-eight hundred commutation applications and left the other twenty-two hundred, including mine, to his successor. We had a magnificently written and sponsored application, and put it into the president’s hands via both a close family member and his own counsel. But the outgoing president, whose career had been saved by Richard Breeden’s whitewash of his insider sale of Harkin Energy Company stock during his father’s term, said he didn’t approve of people using highly paid lawyers to make such applications, and rode unlamented into the sunset. (I found the monthly requests for contributions to the George W. Bush Library, exactly addressed to me in prison, and warmly machine-signed “George,” though they were obviously computerized, indicative of a man who incited the dispatch of shoes at his head, when visiting Iraq.)

  I KNEW THE HOLY GRAIL of justice was out there somewhere, beyond the barbed wire and the comedians in Receiving and Departing. And in May 2009, finally, unmistakably, came the apparition of justice. Breeden, Healy, and the former Hollinger International directors who had published and circulated the Special Committee report and 10Ks had tried to eliminate my libel suits. They claimed in court in Toronto that I was just jurisdiction-shopping to sue in Canada, and that the action should be brought in the United States, where intent to defame has to be proved for the plaintiff to succeed, an almost impossible burden. And they claimed that since some guilty verdicts had been returned, I had no reputation to protect anyway, and so my action was unfounded.

  The traditions of Canada as a country of the rule of law, which had partly prompted me to graduate in law in Quebec forty years before, almost miraculously reappeared like a phoenix (or even the well-travelled but infrequent flyer, the Archangel Gabriel, who allegedly appeared to Christ, and six hundred years later to Muhammad). Superior Court Justice Edward Belobaba threw out the change-of-jurisdiction request very declaratively, adding that I appeared to have well-founded grounds of action, without at all prejudging them, and that the misdeeds alleged by the defendants vastly exceeded the convictions of the plaintiff. Then, showing again that when fortune returns, it often comes in a flood, as it had fled, Judge Belobaba added: “Juries, including American juries, are fallible.” He implied that the standard of whether a Canadian court would return any guilty verdicts on the same evidence (it would not) could be applied. This had long been my reserve position, in case nothing further could be achieved in the U.S. justice system. I could arrange, in effect, for that system to be, itself, tried in Canada, Britain, or the European Court of Justice.

  At last, now I could be sure of my ability to put Breeden, Thompson, Seitz, Paris, Healy, and the others in the witness box without immunities or a right to remain silent (as I promised Seitz and Thompson would happen when they deposed me as chairman of Hollinger International five years before) and under the full penalties of perjury. It was and is a delicious prospect.

  Two weeks later came an even greater seismic change. The Supreme Court of the United States, which consents to hear only 1 or 2 per cent of the applications it receives, but reverses 70 per cent of the verdicts it does review, agreed to hear our appeal. This was a headline news story throughout the Western world. The enemy dug in again, blinking in the unaccustomed daylight, as the rock was lifted away. St. Eve gave Jack Boultbee bail, and he went home to Victoria. Peter Atkinson was treaty-transferred to Canada and released.

  The Supreme Court, through its erratic Chicago representative, Justice John Paul Stevens, took the position that bail was beneath its dignity and denied my application. The mask was thrown down; Breeden and Fitzgerald had never cared about the others, except technically. It was my honour to be the sole real subject of their cause. Our informants told us that Judge St. Eve was outraged that the Supreme Court would review her jury instruction that the jurors could convict in the absence of a fraud, or of harm, or evidence of intent to harm, the company. She dug in her Nike-clad, nimble little feet and rejected my bail application without a hearing, I suspect out of fear of the tatters the very able and motivated Miguel Estrada* would make of her instructions, rulings, and sentence before the international media. She and the private sector’s own Eric Sussman acknowledged the possibility that the fraud counts would be struck down, and clung like drowning people to the flimsy life preserver that what would then happen to the obstruction charge was “speculation,” as St. Eve put it. (So had been that small part of the prosecution case that had not been simply false.)

  Our sources also reported (well-founded) consternation in the U.S. attorney’s office in Chicago, and in Breeden’s suddenly jittery camp. Prominent members of the financial media rediscovered our coordinates. Strong amicus curiae briefs supporting us came in from the U.S. Chamber of Commerce and the Criminal Defense Trial Lawyers’ Association. Words of encouragement and congratulation flooded my email terminal and mail box, from most U.S. states, all Canadian provinces, and many countries.

  After nearly six dire years, finally, the enemy, which had no more ammunition to fire at me, would have to account for itself in serious courts of law, and not just in echo chambers for frenzied prosecutors, the Chicago political machine, and the media tricoteuses, none of whom have any more interest in justice than a tomcat has in a marriage license. The mills of justice are proverbially slow, but they would finally test Breeden and his accomplices. Of course, the outcome was not a foregone conclusion, but the prospect of a fair hearing was a novelty of inexpressible consolation. I felt, of the judiciary, and soon of the media too, of both countries, in Schiller’s famous phrase: “Late you come, but still you come.”

  The Honest Services Statute, appropriately from a draftsman (Joe Biden), who plagiarized a political theme from one of Britain’s most forgettable political leaders (Neil Kinnock), was a menace to all American business. This was now a landmark case that would sort out differences between the U.S. circuits and subject aspects of the U.S. justice system to intense scrutiny. My father used to quote Browning’s “It is a long lane that knows no turning.” I was still in captivity, but my tormentors were doing a fearful tap dance, and the banshees of pharisaical bigotry were finally silent (as surveys confirmed a seismic shift in Canadian public opinion).

  It all began, finally, majestically, to turn. The Washington Post, Wall Street Journal (television year-end roundup), National Law Review, Fortune, even the Guardian, and many individual writers and bloggers called for or predicted my vindication. Long silent former friends mysteriously reappeared in my email queue.

  The heavily attended hearing at the Supreme Court of the United States on December 8, 2
009, could not have gone better. Miguel Estrada and David Debold wrote a brilliant brief, and Miguel’s court performance matched it. The justices, from right to left, challenged the assistant solicitor general representing the Justice Department and expressed concern, and even contempt, for the Honest Services Statute. Justice Stephen Breyer (the only one of them I had actually met) said the statute could convict 140 million of the U.S. workforce of 150 million people. Chief Justice John Roberts said that it was impossible for a reasonable person to read the statute and judge if his own conduct was legal. Justice Antonin Scalia said it wasn’t the place or task of the Supreme Court to rewrite defective statutes for the Congress.

  Suddenly, the odds and the omens, and not merely the law and the facts, were with us. There was now room for great hope and cautious optimism. Whatever might happen, I had never felt so strongly how great is the reward for being true to oneself.

  ALL THIS RAISES THE QUESTION of why, apart from desperately missing my beloved Barbara, I was not completely miserable as a prisoner, as long as it didn’t go on indefinitely, and I knew it would not. As I had been unjustly accused and convicted, I had the somewhat bracing status of a relatively comfortable martyrdom. No one who has not experienced such an injustice can easily appreciate how repulsive it is, but the enormity of it is morally empowering without being a lifetaking or life-threatening sacrifice. It had deprived me of many pleasures and liberties but reaffirmed my self-confidence that I have not lost the ability to live simply, to socialize easily with, to say the least, a very disparate group, and even to accept an unnatural subordinacy. When the crisis burst and fortune fled, I did not know what I could endure. It has been, in the abstract, a fearful but broadening experience. I will emerge stronger and certainly wiser, and with the actuarial right to look forward to a golden afterburner to my life and career.

  It has been an education. People from my socio-economic background may suspect what goes on in the dark, vast, unwashed underside of life, which throbs and heaves just out of sight to the inhabitants of Norman Rockwell’s and Bill Buckley’s Americas. But suspecting how the justice system works, and how it interacts with everything that shares its corrosion, does not prepare someone at all adequately for going through it from the wrong end. Nor does it prepare someone to endure the sudden, completely unwarranted inversion of fortune, and unbidden plunge from one of the powerful to one of the designated pariahs, and to see how strong still is the moralistic, disgracing whiplash of this deeply corrupt process.

  No one conscripted me to go into business in the United States, and I knew when I did that there were some wild and woolly aspects of the country’s justice system. But it is becoming a prosecutocracy and a carceral state where what has happened to me could happen to anyone, and often does. In a democratic country, the people are always right, and if the American people are happy with their justice system, their will is sovereign. Once clear of it, it will be no concern of mine. But the majority of Americans have no idea how far their justice system has putrefied. When the victims of official injustice and their families and supporters, tens of millions of people (as there are an astounding 47 million Americans with a criminal record, most of the offenses relatively minor) become so numerous and aroused that every congressman receives fifty messages a week from them and there are, as there will be, extreme actions by people whose lives prosecutors and judges have broken unjustly, change will be possible. That is democracy too, but as long as these problems are not addressed, the human and moral damage to American society will become steadily more severe.

  My admiration of the United States is well known – notorious, in fact – and it continues yet, in some ways, despite being so prodigiously unrequited. I do not take America’s persecution of me personally; indeed, the impersonality makes it even more irritating. While my admiration of aspects of America perseveres, my affair with that country has ended. It won’t be revived but is remembered fondly. I am not Captain Dreyfus or Dr. Mudd, but I have a legitimate grievance, and I have been reassured to find that I am happy enough to be who I am. Whatever the sophistries of the law and the vagaries of the bench, I have committed no crimes. This is already widely recognized.

  The foregoing is accurate and indisputable in all material respects. By surviving it all, physically, morally, and financially, despite everything and against all odds and disappointments, I win.

  Inmate 18330-424

  Cubicle 30, Unit B-1,

  Coleman Low Security Prison,

  Federal Correctional Complex,

  Coleman, Florida

  May 15, 2010

  * He grew quickly to be a large, much-loved dog, but died, very sadly, less than two years later, while I was still incarcerated. Barbara was inconsolable, and bearing this loss alone was another rod at a terrible time. There are many casualties even in a non-shooting war, but fortunately, they were not all on our side. Barbara’s dog outlived, by a few weeks, Bruce Wasserstein, sixty-one, of Lazard, whose passing was observed with commendations of his deal-making talents and general craftiness, though not panegyrics to his ethics or suavity; and poor Christopher Browne, who died pitifully at sixty-three, a hopeless alcoholic, in Palm Beach, a town he had professed to despise. His obituaries referred exclusively to his role in my travails, now generally hinting that it had not worked out quite as he had hoped, and to the fact that his predecessors in his company had done some early work for Warren Buffett. His uprising against me was his only hurrah, apart from a few cultural munificences and his conviviality in the gay community of the Hamptons. He was an intelligent and, at his best, moderately entertaining man. It was obvious to me that he was seriously maladjusted, but while I cannot claim to be crestfallen that he is dead, I do regret what must have been a much steeper and more tortured decline than I ever imagined or would have wished.

  * Maurice L. Duplessis was premier of Quebec, 1936–1939 and 1944–1959, and the leading political personality in Quebec for thirty years. He was the subject of my first book, Render Unto Caesar. Paul-Émile Cardinal Léger was archbishop of Montreal 1950–1967, and I was the vice president of his charity for some years.

  * The public defenders are usually just Judas goats, paid by the court, intimidated by the prosecutors, part of the charade of preservation of the constitutional rights to due process and advice of counsel and paid by the numbers of people they supposedly represent, not the results they achieve.

  * Judge St. Eve jogged many days at noon. Miguel Estrada had been filibustered six times by the Democrats when nominated to the U.S. Circuit Court of Appeals for Washington, D.C., by President George W. Bush. He believes strongly in the rights of defendants, and proved a magnificently thorough counsel.

  EPILOGUE

  “COMES NOW THE UNITED STATES OF AMERICA” as professional jargon couches a government legal initiative, and a large swath of the legal, commercial, and media communities waited for the Supreme Court of the United States to bring down its decision before the court term ended at the close of July 2010. Ours was one of several prominent cases that would affect the lives of many, and was featured with gun control and intellectual property cases as the most closely watched and carefully awaited.

  The Court announced its decisions on its website at 10:00 a.m. Eastern Time, each Monday (and later Thursdays as well), scrolling through the judgments, and finishing by 10:30 a.m. I called Barbara at 10:35 on such mornings, but there was nothing for several weeks. On June 26, she took the call after half a ring, and said in a very calm voice: “Miguel [Estrada] is evaluating this; the Court has vacated all counts unanimously, but has sent them back to Posner to determine if they are the subject of harmless error. They were pretty hard on Posner in the opinion, which was written by Justice Ginsburg.” The Honest Services Statute was rewritten to require a bribe or kickback for conviction, which, the high court mentioned, was not applicable in our case. Justice Ginsburg decried “the infirmity of invented law” and the “anomalous” nature of Posner’s findings; pretty severe strictures b
etween eminent judges. But it seemed to us perversely American that, having administered such a battering to Posner, that he would have a cranium like the skin of a golf ball, it invited him to determine the gravity of his own errors.

  It was a decisive turn and a great victory. The Honest Services Statute had been struck from the hands of the prosecutors and thousands of cases had been reopened. Our informants shortly confirmed that the prosecutorial community was none too pleased with Posner for having fumbled them out of this very efficient method, which almost all had happily abused for decades, of taking down their targeted opponents. Fitzgerald had been propelled by Breeden to go after me for life imprisonment and complete impoverishment, and was now disarmed and humbled.

  The press was very extensive and unambiguously generous. I gave a press statement to Theresa Tedesco of the National Post that was widely taken up: “The decision of the Supreme Court of the United States is very gratifying. It has been a very long struggle and a difficult time. Our camp is very hopeful but naturally cautious about what will come next.” It was no time for triumphalism, both because indignities would be out of place, and because the process of Posner reviewing his own errors would naturally be unpredictable.

  True to form, as the sort of Comical Ali (Saddam Husssein’s notoriously mendacious press officer, constantly announcing great Iraqi victories against the U.S. and its allies) of the prosecution committee that he had departed two years before, Eric Sussman claimed a victory and said that “the Justice Department dodged a bullet today.” His interviewer, finally, was incredulous. He said I had a “five percent chance of a reduced sentence,” and almost no chance of bail. Posner’s initial pass at the case had been such a monstrosity of bigoted ignorance and he was such a notorious egomaniac that we did not think he would grant bail, but felt we must ask for it, to show we had faith in our case. We did not see how he could salvage the fraud counts, no matter how redoubled his desire to do so.