Late Friday, Judge Richard A. Posner of the 7th U.S. Circuit Court of Appeals set himself up as both judge and jury and found Conrad Black, once the head of one of the most illustrious publishing chains in the world, guilty of fraud and obstruction of justice in running his newspapers. That is somewhat of a comedown for our criminal justice system. Years ago, the Department of Justice arrayed about 13 charges against Black, including tax evasion, racketeering, various types of fraud and that lonely obstruction-of-justice charge. Black beat the department back on nine of 13 charges, leaving just three fraud charges and the obstruction charge against him. He was sentenced to 6 1/2 years in prison. Then sanity intruded.
Over the summer, the Supreme Court decided to take up the so-called honest services law at the request of Black’s lawyer. The law as applied to Black was, in the view of the court, unconstitutional. The court further found the law unconstitutionally vague, except when bribes or kickbacks are involved - there were no allegations of bribes or kickbacks in Black’s case. The court’s judgment was unanimous. It sent Black’s case back to Judge Posner for further adjudication. Judge Posner and his associates unanimously threw out two of Black’s fraud counts but stood by one and also that obstruction charge.
Judge Posner is very fortunate that the Supreme Court has found the honest services law unconstitutional. By it, if one did not provide what was deemed honest services to his shareholders or presumably to his boss, one is guilty of fraud. Judge Posner, despite his obligations to the 7th U.S. Circuit Court of Appeals, is given to popping off on all manner of public issues about which he knows very little. For instance, he recently popped off on the Catholic Church and on “public intellectuals.” In the first case, he sounded about as knowledgeable regarding the church as an erudite member of the Ku Klux Klan. In the second, he was a mere philistine. But in taking time to write his drivel, he clearly is not providing the court with honest services. I think solitary confinement would do him just fine.
I think Black’s lawyer, Miguel Estrada, put Judge Posner’s derelictions just right - and again the cloud of honest services hovers over the judge’s glabrous head. Mr. Estrada was critical of the information on which Judge Posner based his opinion, saying it “did not accurately reflect the facts, misapplied the test for harmless error review, is inconsistent with the Sixth Amendment, and did not remotely respond adequately to the Supreme Court’s instructions.” Judge Posner took it upon himself to decide matters that Black had the right to have decided by a jury.
Mr. Estrada goes on, “Instead, [the court] recounted the government’s spin on its supposed evidence, trivialized the strong defense case, and all but ignored the jury’s rejection of any proof of a real crime with the sweeping acquittals on most of the counts in the original case.” Mr. Estrada will appeal to the Supreme Court.
This proceeding has been a travesty from the beginning to its unhappy denouement on Friday. A vindictive government went after a publisher for a sensational amount of booty. Initially, it was $400 million. The government had arrayed 13 charges against him and his loyal associates. It spoke of golden bathroom fixtures, prodigal use of the corporate jet and a party in Bora Bora - not to be confused with Tora Bora and Osama bin Laden. Now it is down to a few hundred thousand dollars, and the golden pipes were forgotten long ago. The government of the United States has destroyed a great publishing empire that provided intelligence to a reading audience of millions of people on four continents. It has left Black practically penniless although, as his defense continues, his reputation grows as a a valiant fighter and one of the great defenders of a free press. He has shown exceptional grace under the fire of bullies, writing regularly and now coming out for prison reform.
I have had my innings with Conrad Black in the past and know what a formidable journalistic competitor he can be. But all of that is long ago and far away. I have come to admire him and his fight for both his good name and the First Amendment. The irony is that he, a Canadian by birth and now a British lord, has been a friend of America. He has written biographies of Franklin D. Roosevelt and Richard M. Nixon that should give every thoughtful reader cause to reappraise both men. He thought of America as a haven for freedom and excellence. Now his faith is wobbling. But there is always the Supreme Court, which acted admirably in its consideration of the honest services law. And there is Judge Amy St. Eve, whose duty it is to resentence Black. She is a sensible judge and surely can discern when we have reached the point in the criminal justice system when enough is enough.
R. Emmett Tyrrell, Jr. is founder and editor-in-chief of the American Spectator and an adjunct scholar at the Hudson Institute. His new book is “After the Hangover: The Conservatives’ Road to Recovery” (Thomas Nelson, 2010).