Many readers will recall some of the episodes in the lengthy battle I have had with the U.S. Justice Department and those who aroused it, over the last eight years. In 2003, I agreed to the setting up of a special committee, at Hollinger International — our newspaper company that we built into one of the largest newspaper companies in the world — as a greenmailing shareholder, trying to force the immediate sale of the company, demanded; I was happy to do it, as I had nothing to hide. One of my associates was soon discovered, in 2003, to have made some illegal transactions (of which I was the principal victim). I made a co-management agreement with the Special Committee counsel, Richard Breeden, former SEC chairman, while matters were sorted out. Breeden violated every part of the agreement, eliminated my functions and my income, and began feeding the press the unfounded claim that I was a thief. We were in the midst of “substantive discussions” for a resolution of our differences, sponsored by my co-director and friend (who remains my friend), Henry Kissinger, when we learned from the press that Breeden had sued us for $200 million, and then caused me to be fired as chairman. I sold the company, with the promise of a follow-up offer to all shareholders at $18 per share, and Breeden caused the offer to be rejected and convinced a gullible Delaware equity judge that he would do better for the shareholders.
The Special Committee report, in September 2004, made fantastic allegations against my associates and me, and generated a massive criminal prosecution against us, and the largest libel suit in Canadian history by me against Breeden and his accomplices. All counts in the prosecution were abandoned, rejected by the jurors, or vacated unanimously by the U.S. Supreme Court, though not before I spent 29 months in a federal prison (in very satisfying work tutoring secondary-school matriculation candidates — all passed, more than 100 of them). In the unique American manner, after excoriating the appellate-court panel chairman for misinterpreting the statute under which the prosecutors mainly charged, the Supreme Court invited that notoriously opinionated and idiosyncratic judge (who once proposed that adoption of children be by auction and has described himself as “callous” and “cruel”), to assess the gravity of his own errors. In an epic feat of casuistry, as mentioned below, he managed to salvage some tatters of supposed dignity for himself and the government by resurrecting two counts (of the 17 with which the prosecutors began). Breeden and the others are settling my libel case with by far the biggest payment to anyone in the history of Canadian defamation law, and the trial judge sawed the baby in half, pretended there was something left of the prosecution case, jettisoned half my original sentence, and will send me back to prison for a victory lap of seven and a half months.
My dear American friends, I will leave the United States at the end of my sentence in March and will not be eligible to return. The unlimited power of an unaccountable and often lawless prosecution is gnawing at the bowels of this democracy. On behalf of all foreigners who love America, as I have loved it, I implore you to address this terrible problem.
The following are my remarks at the resentencing hearing in Chicago, at the Federal District Court, Northern Division of Illinois, on June 24.
On the occasion corresponding to this four years ago, the fact that the counts that had survived the trial were under appeal spoke for itself, and I didn’t think it appropriate to say much more. As we are now back, one last time, in your court, at the weary end of this very long and fiercely contested proceeding, there are a few things that I think should be said.
The prosecutors have never ceased to accuse me of being defiant of the law, of disrespecting the courts, and of being an antagonistic critic of the American justice system. Nothing could be further from the truth. I have obeyed every order of this and other courts, every requirement of the United States Probation Office, in this and other cities, and while I was its guest, every rule and regulation of the Bureau of Prisons, no matter how authoritarian. I have been and remain completely and unwaveringly submissive to legal authority, yours in particular.
What I have done is exercise my absolute right to legal self-defense, a right guaranteed to everyone who is drawn into the court system of this and every other civilized country. All my adult life I have been a member of the moderate section of what is commonly called the law-and-order community, and I shall remain in it, whatever sentence you impose on me today. I always keep a firewall between my own travails and my perception of public-policy issues; otherwise I would retain no credibility as a commentator.
Your Honor, many years ago when I was a student and licensee in law in Quebec, I read a large number of cases from British and French courts, including the one in which the principle was enunciated by the eminent British jurist, Lord Denning, that “parties coming to court must be prepared to practise what they are asking the court to approve.” The prosecutors have never ceased in this case to advocate respect for the law, and to accuse me of lacking it.
But since that is an unfounded complaint, the real source of their irritation must be that as chief defendant, I have led the destruction of most of their case, and have successfully protested my innocence of charges of which I have, in fact, been found not to have been guilty. I understand their disconcertion that of the 17 counts they originally threatened or actually launched against me, all were either not proceeded with, abandoned, rejected by the jurors, or vacated by a unanimous Supreme Court of the United States. But the problem is not my lawlessness, it is the weakness of their case. I have done nothing but uphold and respect the rule of law and the system of justice, in which my faith has never flagged.
This entire prosecution, and a number of civil suits as well, were based on the report of the Special Committee of the board of Hollinger International, directed by its counsel, Richard Breeden, and published in September 2004. That report accused me of having led a “$500-million corporate kleptocracy.” The non-competition payments almost entirely legitimized in this case were described as “thefts.” And the authors of the report promised to lead the company back to unheard-of levels of profitability. They did, but not in the direction indicated. I launched the largest libel suit in Canadian history against Breeden and the others responsible for writing and publishing this infamous report.
My libel suit, and several other lawsuits around this case, are being settled, including a sizable payment to me on the libel claim. This is the ultimate collapse of the Breeden Special Committee report, whatever other interpretation the defendants in the case may, consistent with their notions of accuracy throughout these proceedings, seek to place on it.
The authors of the report were not prepared to defend it where they would not have an immunity for perjury as most of the government witnesses did here. Nor were they prepared to defend their self-directed largesse of $300 million, as they drove the company into bankruptcy, taking down $2 billion of shareholder value with it. Over 80 percent of that value belonged to ordinary people throughout the U.S. and Canada, the type of people Mr. [Jeffrey] Cramer [the prosecutor] spoke about at the opening of the trial when he likened us to masked and violent bank robbers who stole depositors’ money at gunpoint, because we had supposedly rifled the shareholders’ family college funds. And Breeden’s original action of January 2004, containing the false charge that I had threatened the Special Committee, repeated just last month by the government in its presentence filings on May 27, has also been abandoned.
Mark Twain famously said that “a lie gets half way round the world before the truth gets its trousers on.” It is very late in this case, Your Honor, but the truth has almost caught up with the original allegations. I have at times expressed concern about the ethics of some of the prosecutors in this case, Your Honor, but never of the role of prosecutors, or of the necessity to convict criminals and protect society. I must emphasize that I consider that the prosecutors too are victims. If they had not believed Breeden’s lies, now effectively abandoned in the face of my libel suit, the U.S. attorney would surely not have launched such a fantastic assault on us.
And I can assure the assistant U.S. Attorney that I did not say on Canadian television last week that I was like the person checking his own expense account. I said that for the appellate panel that had been excoriated by Madame Justice Ginsburg on behalf of a unanimous Supreme Court, when assigned the task of assessing the gravity of its own errors, to resurrect these two counts after a gymnastic distortion, suppression, and fabrication of evidence, was like someone reviewing his own expense account.
Your Honor, these are, in any case, very threadbare counts. Is it really conceivable to you that if I were inexplicably seized with the ambition to embezzle $285,000 I would have it ratified by a committee and then, after what the minutes of the meeting described as “ extensive discussion,” by the whole board? I would have to have been mad.
And obstruction — it is clear from the evidence that I had nothing to do with selecting or packing the contents of the boxes, had no knowledge of any SEC interest in them after complying completely with five of its subpoenas, and after being assured by Mrs. Maida that it did not violate the Canadian document-retention order, and checking with the acting president of the company, whose letter you have, I helped to carry out the boxes under the gaze of security cameras that I had installed. When these boxes arrived here, they were very full, so if I had taken anything out of them, why would I not have put them at any time over many weeks in my pockets or a briefcase? Your Honor, again, to remove documents improperly in this way, I would have had to be barking, raving mad, and insanity is almost the only failing of which the prosecutors have not accused me.
I would like to express here my gratitude to you, Your Honor, for sending me to a prison with e-mail access, where I was able to stay in touch with supporters and with readers of my newspaper and magazine columns. And I must also express my gratitude to the originally small but distinguished and often intellectually brave group of friends, but also of total strangers, who never believed I was guilty, when that was a less fashionable position, harder to argue, than it has become. Their numbers grew to be an army that now includes many people in every American state and Canadian province, and region of the United Kingdom, and people in many other countries. And my gratitude to the many friends I made, inmates and correctional personnel, at the Coleman Low Security Prison, whom I shall not forget, is beyond my ability to express today.
I am of the tradition that tends not to speak publicly of personal matters, but Your Honor, I hope it is acceptable to you if I vary that practice slightly, and briefly, in concluding, today. As you would know, or could surmise from many letters that have been sent to you by people qualified to comment, and as is mentioned in our presentencing submission of May 27, quoting a column of mine about prison reform in Canada, I believe in the confession and repentance of misconduct and in the punishment of crime. I don’t believe in false or opportunistic confessions.
It is not the case, as has been endlessly alleged by the prosecutors, that I have no remorse. I regret that my skepticism about corporate-governance zealotry, though it was objectively correct and has been demonstrated to have been so in the destruction of these companies, became so identified with the companies themselves that the shareholders all suffered from it. I regret that I was too trusting of the honesty of one associate and of the thoroughness of some others, and the buck has stopped with me. I repent those and other tactical errors and mistakes of attitude, Your Honor, and I do not resent paying for those errors, because it is right, and in any case inevitable, that people should pay for their mistakes.
I concluded many years ago in my brief stint as a candidate psychoanalyst that it is practically impossible to repress conscientious remorse. And I concluded some years later in reading some of the works of the recently beatified Cardinal Newman, that I agreed with his opinion that our consciences are a divine impulse speaking within us, as Newman wrote, “powerful, peremptory, and definitive.” My conscience functions like that of other people, and I respond to it, if not precisely as my accusers would wish. But they are prosecutors, not custodians of the consciences of those whom they accuse.
Your Honor, please do not doubt that even though I don’t much speak of it, my family and I have suffered deeply from the onslaught of these eight years. I agree with the late pope who said “Life is cruciform.” All people suffer. It is a stern message, but need not be a grim one. We rarely know why we suffer, and only those who have faith even believe there is a reason. No one can plausibly explain in moral terms a natural disaster, or a personal tragedy. I see life as a privilege and almost all challenges as opportunities, and have always tried to take success like a gentleman, and disappointment like a man.
Whatever the reason my family and I have had to endure this ordeal, for our purposes today, in these personal questions, I only ask that you take into account the messages you have received about collateral medical problems in my family. I do not worry about myself, and I will not speak further in open court of the worries I do have for my family. But I most earnestly request, Your Honor, that as someone who has shown and expressed family sensibilities several times in this case, that they too be taken into account in your sentence.
And I believe that even if a reasonable person still concludes that I am guilty of these two surviving, resurrected, counts, tortuously arrived at and threadbare though their evidentiary basis now is, that the same reasonable person would conclude that I have been adequately punished. I only ask you to recall the criterion you eloquently invoked near the end of the trial that the justice system not be brought into disrepute by an unjust sentence.
I conclude by quoting parts of a famous poem by Kipling, with which I’m sure many in the court are familiar, and which I had known too, but not as well as I knew it after it was sent to me by well-wishers from every continent except Antarctica. And to the extent I was able, I tried to keep in mind throughout these difficult years, what Kipling wrote, which was, in part and as memory serves:
If you can keep your head while all about you
Are losing theirs and blaming it on you,
If you can trust your own counsel though all men doubt you,
But make allowance for their doubting too;
If you wait but are not tired of waiting,
Are lied about, but don’t deal in lies,
If some men hate you but you don’t stoop to hating;
And don’t look too good or talk too wise;
If you can talk but don’t make words your master,
Can think but don’t make thoughts your aim,
If you can meet with Triumph and Disaster,
But treat both those impostors just the same. . . .
And I address this directly to the prosecutors and some of the media:
If you can bear to hear the truths you’ve spoken
Twisted by knaves to make a trap for fools,
And see the work you gave your life to broken,
And stoop to fix it up with worn-out tools;
If you can make a pile of all your winnings,
And risk it on a turn of pitch-and-toss,
And lose, and start again at your beginning,
And never say a word about your loss. . . .
And Kipling goes on to say that the reader will then be a man. Your Honor, when I first appeared in your court six years ago and you asked me my age, it was 61. If I’m not a man now, I never will be.
I never ask for mercy and seek no one’s sympathy. I would never, as was once needlessly feared in this court, be a fugitive from justice in this country, only a seeker of it. It is now too late to ask for justice. But with undimmed respect for this country, this court, and if I may say so, for you personally, I do ask you now to avoid injustice, which it is now in your gift alone to do.
I apologize for the length of my remarks, and thank you, for hearing me out, Your Honor.