Conrad Black, my friend and my boss at what were then the best newspapers in the English-speaking world, currently sits in a Florida jail and has been reduced to the additional indignity of becoming an NR contributor. Throughout his appeals and mounting legal bills, I have not generally shared, as he well knows, his optimism that eventually he would be vindicated by the justice system of this great republic.
But amazingly his long shot may be about to pay off. Steven Skurka suggests that the revised Blagojevitch indictment by the same guys who did for Conrad indicates that his own prosecutors are considering the possibility of defeat before the Supreme Court, and that the days of the “honest services” law as an all-purpose cudgel to clobber anyone the feds take a fancy to may be numbered:
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.
One of the great problems with U.S. justice is that statutes that start out with narrow, explicit purposes metastasize into blunderbusses that can blast everything in sight. The court would be doing a great service to respect for the law by taking a stand against this malign ratchet. And Conrad Black would have won a great victory against all the odds.