“If you’re going to take liberties and break the law with other people’s money, there are going to be consequences.” That, U.S. federal prosecutor Patrick Fitzgerald told reporters yesterday, was the message of the verdict in the Conrad Black trial. Those twenty words of Fitzgerald’s are a lie. His words stand as yet another manifestation of the mania and manipulation with which the prosecution prejudiced the judicial wells in this persecution.
We got an earlier taste of it when the jury came back hung – a clear statement that the government had not proven its case beyond a reasonable doubt – yet Judge Amy St. Eve instructed it to go back into deliberations and “…not be afraid to change your opinions while staying true to your firmly held principles…” That was an oxymoronic instruction and one that sent a blatantly biased signal. Find the defendants guilty of something!
Amidst the cacophony of smug, sanctimonious condemnation of Black in the media that followed in such ungracious haste the announcement of the jury’s decision, one matter was overlooked. He wasn’t found guilty of any actual crimes! But critical thought has long since been replaced by a rush to demonization in our public discourse. We salivate over the prospect of labeling someone – anyone - an enemy of the people much as earlier cultures eagerly anticipated human sacrifices to the gods. Earlier cultures used flaming pyres. We use courts and commissions. We think of ourselves as cleansed, cloaked in the swagger of the false piety of self-righteous hypocrisy.
What “laws” was Conrad Black convicted of breaking? None! At least none that related to the central matters in the Hollinger dispute and the central charges in the government’s case. Surprised? Don’t be. The American criminal justice system is a strange hybrid of competing federal and state jurisdictions. Unlike Canada, where criminal law is governed by a federal statute called the Criminal Code applicable through all provinces, most crimes in the United States are governed by state statutes. For the federal government to intervene and prosecute in a criminal matter – as it did in this case – requires a violation of some federal law. And Washington has for over a century constructed convoluted legal bridgeheads into areas where it had no previous jurisdiction. One of these constructs was mail fraud.
Conrad Black was indicted on some 13 counts of fraud, racketeering, tax evasion and obstruction of justice. He was acquitted on nine. Those nine all related to the heart of the SEC complaint originally brought by investment banker Christopher Browne and that formed the basis of Fitzgerald’s case. They included the receipt of monies from the famous non-compete agreements that the prosecution alleged should have gone to the company and not to Black and his co-defendants personally (including the big $50.1 million from CanWest); the use of company funds and jets for “private” purposes; alleged failure to file tax returns. Black was found innocent of all these charges.
Innocent of criminal fraud. Innocent of tax evasion. Innocent of racketeering. Indeed the amount Black is now liable for forfeiture is some $2 million which relate to two mail fraud convictions on two of the small non-competes on which there was no main fraud conviction. A far cry from the $90 million the prosecution had set up at the beginning of the trial. And some one-tenth of the cost of this case to the taxpaying public.
What he was found guilty of - after the judge’s instruction to the jury to resume deliberations – were three counts of mail fraud and one count of obstruction of justice. Let’s examine the latter first.
The obstruction of justice charge related to Black’s removal of boxes of documents from his Toronto office that we all saw on that security camera film. Three ironies in this charge. The first is that by the prosecution’s own admission it had all the documents in those boxes so how was justice obstructed? The second is that this event occurred in Toronto which is hardly in the jurisdiction of Cook County, Illinois, so how did it form part of an American bill of indictment? The third is that Conrad Black knew the locations of cameras in his own offices yet the tapes showed that he was not concerned nor did he try to dismantle them. Black’s intelligence is something that friend and foe agree on. If he was taking out documents that would have obstructed justice would he have not at least had the cameras closed before he went in?
But it is the three convictions of mail fraud that are the laughable part of this verdict. Laughable if the “consequences” - to use Fitzgerald’s word again – were not so draconian. Mail fraud is one of the federal legal constructs mentioned above that gives Washington jurisdiction in certain criminal cases. It was originally devised in the 1920’s and revised in the 1930’s as a means of implementing more effective racketeering prosecutions through federal indictments and federal prosecutors because state prosecutors were having a difficult time convicting many of violations of state law.
Mail fraud refers to any scheme in which the United States Postal System is used at any point in the commission of a criminal offence. It is used to provide an increased penalty to any main charge of criminal fraud – and allow for the intervention of federal prosecutors since Washington runs the postal service - particularly in those cases where the criminal act would have been only a violation of a state law. Today mail fraud is routinely thrown into almost every white-collar criminal prosecution because it brings in the big stick of the feds. Mail fraud covers everything from non-delivery or misrepresentation of mail-order merchandise to promotional cheques to work-at-home offers. Pretty mundane stuff right? What could it possibly have to do with Conrad Black? If your answer is nothing you’re right!
The three counts of mail fraud that Black was found guilty of related to the expedition by mail of contracts and cheques related to non-compete payments that the prosecution had alleged were fraudulently obtained. They alleged it but there was no conviction on a main charge of fraud. In other words, Black was not convicted of any main fraud count on the very charges he was found guilty of in the mail fraud! How could it be illegal to use the U.S. Postal Service to send contracts and cheques resulting from legal transactions? That is something for the appeals court to decide. But one thing is clear from this jury. Black took no “liberties” with “other people’s money” – to use Fitzgerald’s words again – and could have broken no laws on mail fraud since the jury assigned no culpability on any main fraud charge nor on the racketeering charge.
Mail fraud is not the only example of the distortion of federal statutes in the United States. Perhaps the most notorious law – and one also used to attack prominent figures that were the objects of envy, hate or simple controversy – was the White-Slave Traffic Act of 1910. It is better known as the Mann Act, after James Robert Mann the Illinois – yes, Illinois again – congressman who authored it. The Act banned the interstate transport of females for “immoral purposes”.
Interestingly enough the first person prosecuted under the act was Jack Johnson, the first black man to hold the world heavyweight boxing title. It was 1920 and Johnson was still hated by white racists in many parts of the United States for having held the crown from 1908-1915. There was political mileage to be gained for ambitious prosecutors in getting Johnson, a man who two Southern ministers suggested be lynched after he won the title. Johnson was also a flamboyant man who enjoyed the good life both in the U.S. and abroad. Johnson encouraged a woman, whom he later married, to leave a brothel and a life of prostitution and travel with him to another state. Despite his obvious noble intentions the feds orchestrated a political prosecution and Johnson spent a year in prison.
The great architect Frank Lloyd Wright and his future wife Olga Hinzenburg were arrested for violating the act in 1926 even though they had a child together in 1925. The only reason they hadn’t married was that Wright was waiting the required one-year state limit for his divorce from his first wife to become final. So while respecting a state statute, they had allegedly violated a federal one. The charges were later dropped. Canadian author Elizabeth Smart was arrested under the act in 1940 for crossing a state border with her lover British poet George Barker. Charlie Chaplin was prosecuted in 1944 on charges related to his involvement with actress Joan Barry. Chaplin was acquitted, but the trial permanently damaged his public image in the US and he left America for Europe in the early 1950s.
In an eerily reminiscent parallel to the mail fraud statutes – and the problems with hybrid legal jurisdictions - the United States Supreme Court upheld the Mann Act in the Hoke ruling of 1913 stating that though Congress could not regulate prostitution , as that was strictly the province of the states, it could regulate interstate travel for purposes of prostitution or “immorality”. The precedents were interstate commerce regulations which fell under federal purview.
Were it not for Conrad Black’s notoriety and the political mileage to be gained from his prosecution, this case – which at its base is a commercial dispute – would never have come to criminal trial. Hollinger is not Enron or WorldCom where executives created fictitious wealth and got tens of thousands of their own workers to buy stock which later evaporated destroying lives and wiping out pensions. Conrad Black created wealth. It is estimated that Christopher Browne’s own investment banking firm of Tweedy, Browne profited by $400 million from the work of Conrad Black. Browne simply wanted control and saw the $65 million in non-compete payments – that had been vetted by two law firms in New York and Toronto, Hollinger’s own audit committee and done with complete transparency – as a convenient retroactive weapon with which to get it.
No, this persecution was fuelled by naked greed – political as much as financial. Pat Fitzgerald, who will probably go on to be governor, quickly shed his Eliot Ness – “I’m not turning this into a media circus” - façade and took to the staged press briefings like a fish to water, complete with his young assistants standing behind him like centurion guards. He saw the political profit.
Conrad Black wasn’t brought to trial for anything he did wrong. He was tried precisely for what he does right. In a time of mediocrity he strives for excellence. In a time of conformity he acts audaciously. In a time of intellectual sloth he demonstrates intellectual rigour. In a time peopled by the feckless and the fey he lives with the bold and brave. In a time of a race to the bottom of the lowest common denominator he reaches for the top. In a time of gray, Black stands out.
It takes courage to live such a life. And as Robert Kennedy said, “Courage is the cardinal human virtue.” Is Black arrogant and egotistical? Maybe, so what. Kennedy was accused of being ruthless. It takes many kinds of leaders to move a world forward. And arrogance and ego are needed to lead. One thing’s for sure. Conrad Black is not like the French revolutionary leader who interrupted his dinner party because he said he heard a mob outside and said he needs to see in which direction its heading because he is their leader. Black will overcome this latest test and lead at the head of the pack loyal to the words of another French revolutionary leader, Georges Danton, who said, “L’audace, encore l’audace et toujours l’audace”.
You may not like Conrad Black for a dozen different reasons. It doesn’t matter. His life and this trial are important to each and every one of us. For when the strongest among us cannot get justice then the weakest will be at the mercy of the same corrupted power. Law without Lord Acton’s “equity of just consideration” can be many things and used for many purposes but it can never be justice. And without just consideration, law becomes nothing more than a two-edged sword of craft and oppression instead of a staff for the just and a shield for the innocent.
Oh, and as for Pat Fitzgerald, I’d recommend he read the words of a truly great man of the law, former Supreme Court Justice William O. Douglas who once wrote, “In a civilized society the means are all important. In the sweep of history a nation that accepts indiscriminate practices as normal has no claim to a position of moral leadership among
REACTIONS TO “CONRAD BLACK AND THE POLITICS OF JUSTICE”
From: John O'Sullivan Subject: Re: "CONRAD BLACK AND THE POLITICS OF JUSTICE"
Dear Beryl, Bravo! This is powerful and right. I intend to jump in myself to say something along similar lines. It sounds like a violation of the separation of powers and states rights at first blush - but then so does a great deal of federal law these days.
Editor-at-Large, National Review
(O’Sullivan is author of “The President, The Pope & The Prime Minister)
From: Tyler N. Cavell Sent: Thursday, July 19, 2007 12:24 PM
Hi Beryl, I agree with your view on Conrad. He is confident that the truth will come out. With great people like you, the truth has a greater chance of surviving. Tyler
Tyler N. Cavell
Internet Broadcast Corp
From: Charles Coffey To: 'Institute for Public Affairs of Montreal'
Subject: - CONRAD BLACK AND THE POLITICS OF JUSTICE
Good evening Beryl. I would say this piece ranks in the top 3 of all of your thought provoking articles. Well done and congratulations. Best regards. Charlie
(Charles Coffey was Exec. VP for government relations and public affairs of RBC Financial)
From: Georgette Bensimon Sent: Thursday, July 19, 2007 12:09 PM
Beryl, Fantastic and very informative article on Conrad Black. You give a perspective that I (and I am sure many others) had not seen. You should send this to his lawyer. Better still, you should be on his team of lawyers.
Georgette Bensimon, Cote St. Luc
From: George Jonas Subject: Re: CONRAD BLACK AND THE POLITICS OF JUSTICE
Great stuff! - Best, G
(George Jonas is a columnist for the National Post and author of “Vengeance”)
From: Luciano Del Negro Sent: Thursday, July 19, 2007 11:10 AM
Very good article and more so given that I share your view on the trial and "conviction".
Luciano G. Del Negro B.A., LL.B., M.A.
Quebec Israel Committee / Comité Québec-Israël
From: Nicola Timmerman Sent: Thursday, July 19, 2007 9:19 AM
And now Harper is not going to help Black. I guess he is afraid of what the opposition would make of any intervention. I think that is shameful. Every serial killer, terrorist and illegal immigrant has all sorts of groups pleading their case, but someone who is rich and revels in it are beyond the pale.
(Mrs.) Nicola Timmerman, Dollard-des-Ormeaux
From: John F. Angus Sent: Thursday, July 19, 2007 10:50 AM
Loved your piece on my old pal Conrad. Well done indeed.
John Angus, Beaconsfield
From: Hustak, Alan (Montreal Gazette) To: Institute for Public Affairs of Montreal
Subject: "CONRAD BLACK AND THE POLITICS OF JUSTICE"
Great piece, Beryl....
From: George Lengvari To: 'Institute for Public Affairs of Montreal'
Cc: 'John Wordsworth'; firstname.lastname@example.org
Hi Beryl, Great article – I think Conrad got royally shafted. This is in fact the clearest and most concise article on this whole issue – you should team up with Eddie Greenspan for the appeal.
Chairman, Weider Health and Fitness
From: Stavros Daskos To: Institute for Public Affairs of Montreal
Subject: CONRAD BLACK
As always, well written and well done Mr. Wajsman!
Stavros Daskos, Westmount
From: Isaac Judah Sent: Thursday, July 19, 2007 7:59 AM
To: Institute for Public Affairs of Montreal
Subject: "CONRAD BLACK AND THE POLITICS OF JUSTICE"
Beryl, This is extremely well-written. Congratulations!!
Isaac Judah, Cote St. Luc
From: Peter March To: Institute for Public Affairs of Montreal
"CONRAD BLACK AND THE POLITICS OF JUSTICE"
Absolutely wonderful analysis. You've given exactly the information which all the news outlets failed to grasp - including Mark Steyn! I couldn't figure out why no one discussed the legal issues ... now I see why ... they would have revealed the rotten core of the prosecution.
Prof. Peter March, St. Mary’s University
From: Dan Romano Subject: Re: "CONRAD BLACK”
Thank you for a very fine article.
I was hoping you would apply you pen and your mind to the Conrad Black case.
Me. Daniel Romano
President, CAGE (Citizens Against Government Encroachment)
From: Michael Ross To: Institute for Public Affairs of Montreal
Well said. I'm no legal eagle but I am trying to figure out how the footage of Conrad Black moving boxes in Toronto applies in some way to a U.S. criminal proceeding? How the hell is that obstruction? I think there are holes big enough to drive a Humvee through that should lend themselves to the appeal process. You brought up an interesting point concerning the judge's instruction to an apparently hung jury. Greenspan has his work cut out for him!
(Michael is co-author with Jonathan Kay of “The Volunteer”)
From: Irving Ludmer Subject: Re: "CONRAD BLACK AND THE POLITICS OF JUSTICE"
Beryl, I agree with a lot of what you say re US procedural law in criminal trials. I also do not believe that a criminal trial was appropriate in Black's case. An opinion. Irving.
From: Hart Price Subject: CONRAD BLACK COVER STORY
Hart Price, Jr.
From: Machla Abramowitz To: email@example.com
Beryl, Thanks for explaining all this. Now you've gotten me very upset about what's happened to Black. I also didn't understand what in the world this mail fraud conviction was all about.
Marilyn Abramowitz, Cote St. Luc
From: James Morton Subject: “THE POLITICS OF JUSTICE"
This particular article is brilliant and should be circulated widely.
James C. Morton
(Morton is President of the Ontario Bar Association)
From: Careen Longhurst Subject: Conrad Black
Dear Beryl, I was immediately taken with your article. It is a keeper as you have nailed the situation, both with Mr. Fitzgerald and the way the US “Justice” system went after Conrad Black. I have followed the case and have read daily reports from Mark Steyn and others. Feeling that Mr. Black is innocent of all charges and offended by the especially egregious way the prosecution used a willing accomplice in David Radler. I was upset at the verdict. I was sure that when the jury went to the Judge and told her they were deadlocked her instructions were tantamount to telling them to go back and find him Guilty. That at least was my take on those instructions.
I do hope that there is reversible error for Mr. Black. The system hates to reverse court decisions and I know it is a hard row to hoe, but I was gratified to learn that Conrad Black plans to do so. I agree with every word of your article. I am glad others are around who see things as we do: The criminalization of business and politics is well in hand with the likes of Patrick Fitzgerald. He and others like him are content to use laws meant for something else as bludgeons against innocent people who have managed to achieve something in this life above and beyond the mundane and ordinary.
All the while there are real and dangerous criminals as well as corporate raiders like the Richard Breedens of this world who actually need prosecution and incarceration who run free laughing all the way to the bank with somebody else’s money. The stripping of Conrad’s company by the former SEC head has run into the hundreds of millions of dollars. Ruining the companies and running the share price from $20.00 to below $5.00. In comparison, the charges against Conrad Black are paltry indeed. In that comparison, Mr. Fitzgerald is in good company. millions upon millions of taxpayers dollars to prosecute the innocent and criminalize otherwise above board and productive activities is more than a waste, it is criminal in itself. Thank you once again for your article. It is excellent.
Regards, Careen Longhurst
From: Laura Petty Subject: "CONRAD BLACK AND THE POLITICS OF JUSTICE"
Great article Beryl.
Laura J. Petty, Westmount
From: John Miller Sent: Sunday, July 22, 2007 9:06 PM
Subject: Article on Conrad Black
After reading your excellent dissertation on the Conrad Black trial and conviction, I felt motivated to write to you to commend you for a job well done. Too quickly the media, and the people influenced by the media, are willing to pass judgment on others without having complete information or a solid understanding of the situation.
This court case in Chicago brings into question whether a person in Mr. Black’s position can get a fair trial. Acquitted of nine of the thirteen charges, your review of the remaining lesser ones, point by point, impressed me as you certainly went deeper into the situation and brought out salient details which should be considered by the judge when passing sentence.
Your article deserves to be read by a much wider audience than the readers of the Suburban. Regards, John Miller, Westmount
From: Maureen Tinsley Sent: Saturday, July 21, 2007 4:44 PM
I’ve read your article on Conrad Black. It’s the best article I’ve read anywhere, and I would like to congratulate you for your “voice of reason”, and great legal analysis. Thank you.
Maureen Tinsley, Dorval
From: Ed Binder Sent: Saturday, July 21, 2007 8:44 PM
Subject: Conrad Black
I entirely agree with Beryl Wajsman’s analysis of Conrad Black’s trial, with perhaps the exception of the passage in which he writes: “We salivate over the prospect of labelling someone—anyone—and enemy of the people…” Well, not quite anyone—just the ones whose successes in life make most of us realize how conventional our lives’ achievements are. In short, envy, frustration and resentment towards those who dared to reach out for excellence. Perhaps Conrad Black tried too hard, grasped more than he was able to handle. But that does not make him the villain a vengeful press is portraying him to be.
Funny thing, success. Wished for, coveted, dreamed about, relentlessly pursued, but when the elusive, slippery thing stays out of reach, with the bitterness of spurned lovers, it is generally maligned and viewed as the root of all evil. Shades of sour grapes. Hence, resentful court juries punish the successful by granting millions of dollars to little old ladies who hold cups of hot coffee between their knees in moving cars and hundreds of millions to those who knew that tobacco is hazardous to their health but continued to indulge in it. So why not also Conrad Black? The general consensus seems to be: no outstanding success shall go unpunished!
Personally, I feel safe. Even today, as a senior citizen, my father’s (may he rest in peace) wise words still ring in my ears: “Whatever you do in life, don’t make it a success. They won’t forgive you!” Words of advice which I have faithfully followed all my life.
Cote St. Luc, Que.
From: Demetrius Manolakos Sent: Friday, July 20, 2007 3:17 PM
Bravo and kudos to editor Beryl Wagsman for his objective and informative article about the politics of justice and Conrad Black. He calls a spade a spade and tells it as it is! The defense team need only submit a copy of this article to the Appeal Court, and it would be sufficient to do the job.
Me. Demetrius Manolakos
From: george scott Sent: Saturday, July 21, 2007 11:34 PM
Conrad Black and the politics of justice
My dear friend, I fully agree with you...some people love to condemn others...perplexing! If we are unable to "give", why do we hurry to take away? All associates of Black made money. None of them are poor. Why should anyone be offended by the courage and vocabulary of another? Why is society so bent on "condemnation"? Thank you for writing this.
From: reg dahl Sent: Tuesday, July 24, 2007 11:12 PM
Subject: RE: CONRAD BLACK
Hi Beryl, Great article! Great truth! Great effort! We NEED to inspire more and more people in this great Canada to Stand on Guard! Kind Regards, Reg Dahl
From: Steven Heritage Sent: Monday, July 30, 2007 11:32 AM
To: firstname.lastname@example.org Subject: Lord Black
I found your long and informative article, quite impressive in both scope and understanding. Too often prosecution is based on political considerations and not the "law". How is Black going to get justice, while the vultures pick at the remains of his once proud company.