In the United States, as in most other modern democratic regimes, one of the most important political issues today concerns the relation between the individual and the coercive power of the state, which is suddenly up for fundamental renegotiation. This is an odd turn of events, since one of the main points of being a modern democratic regime was to have worked out a way of securing the individual against arbitrary and intrusive state power. Did folks like James Madison and Alexander Hamilton labor in vain? No. They helped devise a splendid system of checks and balances. Human ingenuity, however, never rests, neither are the forces of despotism idle. Clever ways around those checks, new reasons to ignore the balances, are always being discovered, with the result that liberal-democratic societies are increasingly illiberal and non- if not anti-democratic.
The European Union is a case in point — is anything put to a popular vote there anymore? — but let’s draw a veil over that sorry invalid and concentrate our attention on the United States. It was not so long ago that we could call it “the land of the free.” Increasingly, though, it is the land of the regulated. Many commentators, myself included, have dragged out Tocqueville’s famous passages on “What Sort of Despotism Democratic Nations Have to Fear” to illustrate the problem. Primarily, it is despotism through infantilization, tyranny through dependence.
In our legal system, there are many facets to this spectacle of encroaching despotism. If you want an overview, allow me to recommend Harvey Silverglate’s Three Felonies a Day: How the Feds Target the Innocent, which I published at Encounter Books. If you want a detailed, pulse-rattling account of what happens to a prominent individual when the Feds target him, let me recommend Conrad Black’s A Matter of Principle, which I wish I had published at Encounter, but McClelland & Stewart got there before me.
Conrad Black — since 2001, Lord Black of Crossharbour — will be well known to readers of NR. He writes frequently and forcefully for the magazine and its online emanation. The Canadian-born historian is the author of magisterial biographies of FDR and Richard Nixon, among other books. In the 1990s he presided over Hollinger International, the world’s third-largest media empire, a complex enterprise that included plum publications in Canada, England (the London Telegraph, The Spectator), the U.S., Australia, and Israel. In the opening years of the present millennium, disgruntled minority shareholders of his company succeeded in enlisting the attention of overzealous regulators and, eventually, overzealous U.S. Attorneys. That yielded a highly publicized four-month trial in Chicago — that bastion of legal rectitude and fair play — which ended with Lord Black’s conviction on three counts of fraud and one of obstruction of justice. This fell a long way short of the laundry list of charges prosecutors initially had brought — they wanted him put away for some 30 years, a life sentence for a man in his early sixties — but it was enough to allow for a sentence of six and a half years in a federal penitentiary.
This book is Lord Black’s riveting account of this saga, from his first newspaper acquisition, for $500, when he was still at university, up through his legal travails, his incarceration, and his recent legal victories. He tells the fascinating story of his acquisition, in 1986, of the Telegraph — the event, he writes, from which “all else follows.” If getting an eight-page local paper for $500 seemed like a good deal, acquiring the Telegraph for $30 million (Can.) was even better. “Mr. Black,” said Robert Maxwell at the time, “has landed Britain’s largest fish with history’s smallest hook.”
There are two reasons to buy and read this book. One is its entertainment value, which is high. Black is a masterly stylist and engaging narrative historian. He sets out to tell his story and winds up telling the story of his, and our, times. The book bristles with illuminating anecdotes and character sketches, not to mention intelligent asides on matters historical and political. When the U.S. responded with military action to the terrorist attacks of 9/11, it was widely criticized by testosterone-challenged wets who insisted it seek “permission” from the U.N. But whence, Lord Black wonders, did the idea arise “that the armed forces of the United States could be deployed in response to successive acts of war against the United States only with the permission of the other permanent members of the United Nations Security Council”? I’ve often wondered that myself.
The book is also a gratifying trove of gossip. Did you know, for example, that the newspaper editor Max Hastings put it about that British prime minister John Major tucked his shirt inside his underpants? From his position as proprietor of the Telegraph, Lord Black knew, well, everyone. He was close to Margaret Thatcher, Henry Kissinger, and WFB, for starters. London and New York society was at his beck and call. (Speaking of knowing people, perhaps this is the place to note that I know and greatly admire Lord Black. I will not, however, let that deter me from praising his book. Even the picture captions are brilliant. I particularly liked the one about Judge Richard Posner. Of course, quandoque bonus Homerus dormitat: There are a few slips that will doubtless be corrected in one of the many future editions of this book. The Waugh who wrote Scoop was Evelyn, not Auberon; the Conservative leader was Alec Douglas-Home, not “Alec-Douglas,” etc.)
But what ensures A Matter of Principle an important place in the library of liberty is not its entertainment value but its careful anatomy of prosecutorial abuse, that triumphalist system whose end is not justice but intimidation (of us) and aggrandizement (of the government). File under the venerable principle: “Innocent until investigated.” “For the last six and a half years,” Lord Black writes, “I have been fighting for my financial life, physical freedom, and what remains of my reputation against the most powerful organization in the world, the U.S. government.”
A word about reputations and their fragility. A year or so ago, I was proud to publish in The New Criterion a long essay by Lord Black about the fate of newspapers in a digital world. I was at a party in upstate Connecticut with some early copies of the issue and, ever alert to enlist support for The New Criterion, I gave a copy to someone identified as a likely prospect. As he scanned the table of contents, his benevolent expression dissolved into one of glowering contempt. “Conrad Black! He’s a thief and a blackguard.” Really? I asked him what he knew about the case against Lord Black, which turned out to be what he’d read in organs such as the New York Times, i.e., nothing, or near enough for government work. The truth of the case didn’t matter, only the publicity, which I suppose is what reputation is all about.
Lord Black was not without resources; how would ordinary folk fare under such an onslaught? In part, the book is an admonitory tale about the nearly unfettered deployment of state power against individuals. When Lord Black sought to defend himself by engaging the storied Brendan Sullivan of Williams & Connolly, the government froze a large portion of his assets so he could not supply the required $25 million retainer. Deprive a chap of expert legal counsel, you deprive him of justice. It is a story of threats and harassment of Lord Black’s friends and associates by various government agencies from the FBI on down: Testify against Conrad Black, they insisted, so we can win a high-profile conviction, or else we’ll indict you, too. It’s a story of what Mark Steyn, who wrote a brilliant, near-daily account of Lord Black’s trial for the Canadian magazine Maclean’s, called “statute creep”: Take a law designed to combat racketeering, say, and apply it to a businessman who, whatever he may have done, has not engaged in racketeering. It’s the story, too, of a U.S. Attorney — the egregious Patrick Fitzgerald — run amok, and of a “special monitor,” former SEC chairman Richard Breeden, who began by claiming that Conrad Black was guilty of a “$500 million kleptocracy” but who went on to pocket over $25 million for his own “services” to Hollinger. When the case against Black began, Patrick Fitzgerald got up on his highest horse and declared that this was a case of “a systematic fraud of the shareholders.” His concern for Hollinger’s “shareholders” is rich: When Black was booted out of Hollinger in 2004, the stock was trading in the neighborhood of $18. It quickly collapsed, and now the company is no more. It was picked clean by those appointed to rescue it before being absorbed into the Sun-Times Media Group. How’s that for the shareholders?
A Matter of Principle is not really a “rise and fall” narrative, however. There is much heartache and loss chronicled in the book, but it ends on an upward arc. Lord Black, who acknowledges he may have been guilty of “misjudgment” but convincingly denies criminal wrongdoing, instantly appealed his conviction. His appeal was initially denied by a three-judge panel presided over by Richard Posner. But the case was heard by the Supreme Court, which decided that the “honest services law” that was used to convict him of fraud was too vague and ordered a federal court to review the decision. Lord Black was then, after two and a half years in prison, granted bail. But when Richard Posner “reviewed” his decision, he decided that if the fraud charges couldn’t stand, there was still the obstruction charge. That charge, in fact, provided the one Perry Mason moment of the trial. The prosecution gleefully played a security videotape of Lord Black and his chauffeur removing boxes from his Toronto office. How’s that for “Gotcha!”?
Not so good, actually. Lord Black’s secretary was packing up because he had been evicted from the premises. Two attorneys hired to deal with a U.S. Securities and Exchange Commission investigation into Hollinger’s affairs testified that they hadn’t notified him of the SEC’s interest in the documents he removed. When ordered to return them, he did so tout de suite. So where, pray tell, is the obstruction? Ask Judge Amy St. Eve. She must have discerned it somewhere, for she decided to send him back to prison for another seven months. He gets out in the spring and then, being a felon who is not a U.S. citizen, he must leave the country.
Meanwhile, though (this is the real upward bit of the arc), Conrad Black has not been idle. He recently won “substantial” damages — reportedly, a healthy seven-figure sum — in a libel suit against Richard Breeden and others. He has many other libel suits pending. On Christmas 2005, Lord Black reports, he read the Book of Job: “I discovered that while Job had endured more severe oppression than I had, he had been much less patient.” His patience, I am happy to say, is beginning to be rewarded. Long may it be.
– Mr. Kimball, editor and publisher of The New Criterion and publisher of Encounter Books, is the author of several books, including The Fortunes of Permanence: Culture and Anarchy in an Age of Amnesia, forthcoming from St. Augustine’s Press.