Justice for Conrad
If the ferocity of questioning indicates which side faces greater skepticism from the justices of the U.S. Supreme Court, then Conrad Black just had himself a very good morning.
Conrad Black is the former media tycoon convicted of fraud in a Chicago court room in 2007. He owned Britain's Telegraph and Canada's National Post. He is the author of four books: historically outstanding biographies of Franklin Roosevelt, Richard Nixon and Quebec premier Maurice Dupleissis, as well as an autobiography. He is also my dear friend, and between 1998 and 2001, I worked for him as a columnist and sometime consultant. Patrick Fitzgerald, U.S. attorney in Chicago, charged Black with 13 counts of fraud and obstruction. Black was acquitted on 9, convicted on 4. He has served a year and a half in Florida prison.
Today, attorney Miguel Estrada argued that the statute under which Conrad Black received his heaviest sentence was unconstitutionally vague.
If Black wins, his time already served should more than satisfy the courts that sentenced him.
The law at issue in the Supreme Court requires public and corporate officials to provide "honest services." Enacted in 1988 to replace a statute struck down by the court as unconstitutional the year before, the substitute law remains as controversial as its predecessor. The New York Times has a good write-up of the problems of the statute here, quoting from an amicus brief the sarcastic question whether a minister could be prosecuted for delivering an insincere Sunday sermon.
Those doubts were aired by the nine justices this morning.
How many of the 150 million employees in the United States are providing honest services all the time asked Stephen Breyer. Is it a crime to read the Racing Form when at work?
The attorney for the U.S. government argued that such prosecutions would never be brought, but Breyer pressed him that such reassurances did not much reassure. It's like the old brain-teaser about the law that reduces the entire criminal code to one line: "It shall be illegal to do anything that is wrong in the opinion of the attorney general."
Justice Sotomayor insisted that there was no ambiguity in the actions intended to be prohibited: bribery, kickbacks, and undisclosed self-dealing. Breyer pointed out that an employee who slips out of work an hour early to sell real estate is engaged in undisclosed self-dealing. Is that worth 20 years in prison?
The government argued that these possibilities were constrained by an understanding that employee derelictions had to be material. But what did that mean? Justice Scalia, famously skeptical of the statute, suggested that the government was inviting the Court to make the statute mean whatever the Court would like it to mean in order to preserve it. "That's not our job."
When the government argued that the law was undergirded by a well-developed understanding from the core of a long line of cases, Scalia scoffed: How is a lawyer supposed to advise a client based on that? Anyway, the cases the government was invoking were a mess, a mess that had already led the Supreme Court to strike down one previous attempt to codify an honest services doctrine.
One of the most incisive questions was asked by the chief justice. "Is honest services a legal doctrine or a moral one?" He continued: Suppose state corporate law required a corporate officer to disclose any dealings that might benefit his wife or children. He then engaged in dealings that benefited a niece or nephew. He had complied with the letter of the state law. Could the United States now prosecute him for a federal crime? And how was this then different from that prohibited thing, a criminal common law?
To that, the U.S. had no good answer. The attorney conceded: the federal rules would differ from state rules. We were all on notice. Avoid doing what was wrong in the opinion of the attorney general.
Estrada offered the court an alternative to invalidating the statute. They could save it by understanding the honest services doctrine to include an intent to do economic harm. An employee who disappeared from work to watch a ballgame - and caused his employer to miss a huge economic opportunity - may deserve to be fired, but should not go to jail. Unsaid but hanging in the air was the argument that Conrad Black never intended harm to Hollinger shareholders - indeed that their ruin occurred after he was forced out.
Estrada, who argued first and last, got a generally sympathetic hearing, helped by his amazing marshalling of case law - and his deft recollections of which justices had written which previous opinion. "As Justice Kennedy wrote for a unanimous court ... " "As Justice Stevens wrote in another unanimous opinion ..."
As we waited for entry, I fell into talk with a group of Black well-wishers who had traveled from Toronto to line up on the courthouse steps before opening hours. Conrad Black's beautiful daughter Alana tapped me on the shoulder on her way to the family seats for another round of the litigation that has consumed her father's life. This is not a case of concern only to one man and his family - not only to the many admirers of Conrad Black who think it is long past time that he was returned to home, freedom, and creative work. It's a case of concern to all Americans who might be caught in the toils of a law that blurs the very concept of what is criminal and what is not.