Conrad Black received some welcome news in his prison residence in Florida and it wasn't that his columns for the National Post were nominated for a national journalism award.
The important development related to his chances of winning his appeal in the U.S. Supreme Court and it came from a surprising source. Falling just short of waving a white surrender flag, the same United State Attorneys Office for the Northern District of Illinois that launched Black's prosecution signalled its shaken belief that his fraud convictions might be vacated.
The prosecution's wavering confidence in the Conrad Black verdict was exposed by the case of another celebrity defendant. Former Illinois Gov. Rod Blagojevich appeared in court last week to plead not guilty to a superseding 24-count indictment of political corruption charges.
Had the former governor engaged in some fresh allegation of misconduct to merit the revised charges? Or had new evidence materialized that required a reassessment of his case? The answer to both questions is a resounding no.
It was purely a function of legal realpolitik. The windy city prosecutors of the impeached governor were trial shy to proceed with an indictment riddled with references to the honest services fraud statute.
'Honest services'
If the term "honest services" seems familiar it is because it is the identical fraud statute that Conrad Black's lawyer criticized on the steps of the Supreme Court building of failing "by a country mile" of allowing a citizen "to know by simply looking at the law whether his conduct is in or out".
The alarm bell has been sounded in prosecutors' offices across America that the honest services fraud statute may be on life support. An anti-corruption law deeming it a crime to deprive shareholders or the public of honest services has been an essential tool in the government's courtroom arsenal for 22 years. It isn't a daunting challenge for a prosecutor to win a criminal case by relying on a statute that casts a net wide enough to capture both criminal conduct and lawful activity.
Mike Robinson, a legal affairs writer who covered both the Black and Blagojevich cases, described the collateral effect caused by Conrad Black's recent hearing:
"Prosecutors have been concerned that the U.S. Supreme Court, which is currently reviewing the law, could erase it from the books or limit it to the point that it might not be useful in prosecuting Blagojevich." (The Washington Post 02/10)
A contingency plan had to be quickly devised by Blagojevich's industrious prosecutors to rescue their case. Eight counts were added to the former governor's original indictment that could withstand a withering blow from the Supreme Court decision in the Black appeal. Jacob Frenkel, a lawyer specializing in white collar crime, outlined the precautionary strategy:
"The second superseding indictment appears to be a prophylactic step to prepare for the United States Supreme Court gutting the honest services fraud statute."
Frenkel added that if Black's position prevails and the Supreme Court rules that the statute is unconstitutional or significantly narrows the applicability of honest services fraud, then Blagojevich's prosecutors can simply dismiss those counts from his indictment "without missing a beat".
A rare positive sign
The tepid optimism of prosecutors isn't the only positive sign to emerge recently in Conrad Black's favour.
The United States Supreme Court released the Citizens United v. F.E.C. decision last month striking down limits on corporate spending in political and judicial elections. The game changing decision in Citizens United overturned two of the Supreme Court's precedents. President Obama maintained in a weekly address that the decision represented a devastating blow to democracy.
The current court, led by Chief Justice John Roberts, has demonstrated that it is capable of being an activist court and won't be reticent to make bold decisions. Conrad Black will need to depend on a bold court to declare a fraud statute passed by Congress to be unconstitutionally vague.
There were clear indications during Conrad Black's hearing and a related appeal on the same day for a former Alaskan state legislator, Bruce Weyhrauch, that across the spectrum the Supreme Court was reluctant to save the statute. Justice Stephen Breyer criticized a fraud statute "that picks up 80 to 100 million people" and observed that a "citizen is supposed to be able to understand the criminal law."
Justice Antonin Scalia described the law as "mush" and "inherently vague" and engaged in a number of raucous exchanges with the Deputy Solicitor General during his argument. Justice Scalia decried giving the law meaning that Congress failed to provide:
"You speak as though it's up to us to write the statute. But that's not our job."
Justice Ruth Bader Ginsburg pointed to the massive confusion the fraud statute created in the lower courts. Chief Justice Roberts noted that if a person is not able to understand what is legal and what is not, the law is invalid.
Conrad Black has circled the date of March 1 in his prison diary. On that day the full constitutionality of the honest services fraud will be placed squarely before the U.S.Supreme Court in the appeal of Jeffrey Skilling, a former executive at Enron.
The hearing was moved up by several weeks at the court's request. In the written brief Skilling's counsel argue that "...it is beyond the judicial function to identify...the crime that Congress failed to define."
Honest services fraud is referred to as a "made-up crime" that "facilitates opportunistic and arbitrary prosecutions." Conrad Black would echo the sentiment of made up crimes to describe his own legal entanglement.
Unprecedented move
The court will likely rule on the Skilling, Black and Weyhrauch appeals by this summer. For avid Supreme Court watchers, the fact that the court decided to consider three appeals on the same ground is unprecedented. A similar point can be made that both the conservative Chamber of Commerce and The National Association of Criminal Defense Lawyers supported the petitioners.
If the fraud statute is ruled to be unconstitutional, Black's remaining three fraud counts will invariably fall. And what of the obstruction of justice charge that would remain? The court might be persuaded that if it isn't vacated, Conrad Black will be left with a single conviction for a crime committed in another country in relation to a set of circumstances that were determined by the court to be non-criminal. The absurdity of that logic leading to a dubious conviction could possibly lead the Supreme Court to vacate the charge of obstruction of justice as well.
Conrad Black's book tour in Canada will then begin in earnest. The fight of his life (the book's title) would end with a bang and not a whimper. Such a result suits a man who never whimpered about his legal fate.
Next week: Omar Khadr's Legal Odyssey
