Tuesday, December 8, 2009

Black's "final" day in court

The law is a very convenient tool for those who make the laws, or shape opinion towards making it; and if courts nullify the laws then it is claimed that the judicial branch is usurping legislative power. Yet when the chips are down, the very same people want the laws they helped to write or promote to be tossed out by the courts saying the legislature has failed them. Or the courts become a refuge for bad behaviour, period. In brief -- the courts are the bad guy until the politicians or the media become the crooks.

Take today's hearing at the US Supreme Court regarding the "noble" Conrad Black, convicted some time back of abuse of power at the Hollinger Corporation -- specifically, that he and two other executives took $6.1 million in unearned bonuses and pocketed the money for themselves -- and sentenced to 6½ years in a federal prison cell. Nearly two years to the day he was sentenced, Black is challenging his conviction citing a 1988 law that makes it illegal for corporate officials "to commit fraud by depriving those they work for of 'the intangible right to honest services.'"
The claim? That the law is "void for vagueness." That is to say, the wording is so broad that it could be applied to any circumstance, therefore the law is unenforceable since it is not directed to a specific purpose and thus deprives a suspect of due process. Now, I've heard of the "void for vagueness" principle used to challenge anti-abortion laws and flag desecration statutues, but not to my knowledge has it been used for a white collar crime.
Both the conservative and liberal wings of SCOTUS appeared, at least on oral argument today, to be surprisingly empathetic to Black's claims. A decision will probably be delayed until it can hear a similar appeal from Jeffrey Skilling, one of the kingpins at ENRON. If this harebrained idea actually holds up, there are two possibilities -- at best, Black could get an outright acquittal; at worst, the case could be remanded back to Chicago where Judge Amy St. Eve would be forced to re sentence Black to a lesser term, possibly time served.
Two areas of concern bother me about that: First, there is no question that over $6 million disappeared. If it wasn't Black and his co-defendants, then who? And let's presume he is telling the truth and that he is actually innocent -- that doesn't change the fact he is one of the most hated men in Canada. Many haven't forgiven Black for what he did to Massey-Ferguson or Dominion Supermarkets, let alone how he changed the newspaper business (pretty much for the worse even by conservative standards).
Second, many people on both sides of the border still remember that incident where files were "borrowed" from Black's Toronto offices over a weekend, caught on camera. Were they photocopied? Shredded? Or simply made to disappear? We simply don't know -- and it seems securities regulators in Canada were quite content to let the SEC in the States do the dirty work for them in pursuing the case.
Regardless of the outcome of the appeal, there is one thing that is beyond question: Canada needs a national securities regulator, one with teeth and real law enforcement capabilities. Under the current situation, one can just take the alligator and run to another province and force investigators to start all over again -- not to mention our American neighbours need not one liaison here but thirteen (and there are thirteen of our people down there instead of just one).
Oh, yeah -- Black also wants his Canadian citizenship back. Sorry, Baron -- you picked your country and it's the United Kingdom. The US should deport him there; hopefully very quickly, with wifey Barbara Amiel in tow. Not that they should complain -- as UK citizens, they should take advantage of the right of abode in any other state in the EU they hate so much, while they can. Frankly, I don't think even the British and Northern Irish want them back.

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