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My Rahm Reunion
May 16, 2013 | 16 comments
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The Left Hates Us
May 9, 2013 | 143 comments
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Such a Dynamic Duo
May 2, 2013 | 49 comments
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The Continuing Crisis
May 1, 2013 | 0 comments
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Calvin Coolidge: His Times Are Our Times
April 26, 2013 | 22 comments
The Current Crisis
Dishonest Services
Judge Richard Posner’s derelictions in the Conrad Black case.
WASHINGTON — Late Friday Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit set himself up as both judge and jury and found Conrad Black, once the head one of the most illustrious publishing chains in the world, guilty of fraud and obstruction of justice in running his newspapers. That is somewhat of a comedown for our criminal justice system. Years ago the Department of Justice had arrayed some thirteen charges against him including tax evasion, racketeering, various types of fraud and that lonely obstruction of justice. Black beat them back on nine of thirteen charges, leaving only three fraud charges and the obstruction charge against him. He was sentenced to six and one half years in prison. Then sanity intruded.
This past summer the Supreme Court decided to take up the so-called “honest services” law at the request of Black’s lawyer. The law as applied to Black was, in the view of the Court, unconstitutional. It further found the law unconstitutionally vague, except when bribes or kickbacks are involved—there were no allegations of bribes or kickbacks in Black’s case. The Court’s judgment was unanimous. It sent Black’s case back to Posner for further adjudication. Posner and his associates unanimously threw out two of Black’s fraud counts but stood by one and also that obstruction charge.
Judge Posner is actually very fortunate that the Supreme Court has found the honest services law unconstitutional. By it, if one did not provide what was deemed honest services to his shareholders or presumably to his boss, one was guilty of fraud. Posner despite his obligations to the U.S. Court of Appeals for the Seventh Circuit is given to popping off on all manner of public issues about which he knows very little. For instance he recently popped off on the Catholic Church and on “public intellectuals.” In the first case he sounded about as knowledgeable regarding the Church as an erudite member of the Ku Klux Klan. In the second he was a mere philistine. But in taking such time to write his drivel he clearly is not providing the Court with honest services. I believe solitary confinement would do him just fine.
I think Black’s lawyer, Miguel Estrada, put Posner’s derelictions just right — and again the cloud of honest services hovers over Posner’s glabrous head. Estrada was critical of the information on which Judge Posner based his opinion, saying it “did not accurately reflect the facts, misapplied the test for harmless error review, is inconsistent with the Sixth Amendment, and did not remotely respond adequately to the Supreme Court’s instructions.” Judge Posner took it upon himself to decide matters that Black had the right to have made by a jury.
Estrada goes on, “Instead, the panel [the Court] recounted the government’s spin on its supposed evidence, trivialized the strong defense case, and all but ignored the jury’s rejection of any proof of a real crime with the sweeping acquittals on most of the counts in the original case.” Estrada will appeal to the Supreme Court.
This proceeding has been a travesty from the beginning to its unhappy denouement last Friday. A vindictive government went after a publisher for a sensational amount of booty. Initially it was $400 million. The government had arrayed thirteen charges against him and his loyal associates. It spoke of golden bathroom fixtures, prodigal use of the corporate jet, and a party in Bora Bora—not to be confused with Tora Bora and Osama bin Laden. Now it is down to a few hundred thousand dollars and the golden pipes were forgotten long ago. The government of the United States has destroyed a great publishing empire, providing intelligence to a reading audience of millions of people on four continents. It has left Black practically penniless, though as his defense continues his reputation grows as one of the great defenders of a free press and a valiant fighter. He has shown exceptional grace under the fire of bullies, writing regularly and now coming out for prison reform.
I have had my innings with Conrad Black in the past and know what a formidable journalistic competitor he can be. But all of that is long ago and far away. I have come to admire him and his fight for both his good name and the First Amendment. The irony is that he, a Canadian by birth and now a British Lord, has been a friend of America. He has written biographies of Franklin Roosevelt and Richard Nixon that should give every thoughtful reader cause to reappraise both men. He thought of America as a haven for freedom and excellence. Now his faith is wobbling. But there is always the Supreme Court, which acted admirably in its consideration of the honest services law. And there is Judge Amy St. Eve whose duty it is to resentence Black. She is a sensible judge and can surely discern when we have reached the point in the criminal justice system when enough is enough.
About the Author
R. Emmett Tyrrell, Jr. is the founder and editor in chief of The American Spectator. He is the author of The Death of Liberalism, published by Thomas Nelson Inc. His previous books include the New York Times bestseller Boy Clinton: the Political Biography; The Impeachment of William Jefferson Clinton; The Liberal Crack-Up; The Conservative Crack-Up; Public Nuisances; The Future that Doesn’t Work: Social Democracy’s Failure in Britain; Madame Hillary: The Dark Road to the White House; The Clinton Crack-Up; and After the Hangover: The Conservatives’ Road to Recovery.
Richard Baker| 12.23.10 @ 9:44AM
Posner is a legend in his own mind. That blasted Supreme Court, what do they know, anyway?
drudge ette obama| 12.23.10 @ 10:03AM
Federal judge are safe from the cruel elements and once appointed need not catch their own food, unlike the lawyers who appear before them.
There are always one or two who hold you captive to their liberal diatribes. Federal judges vary greatly in quality. Lawyers in any given federal court system can tell you the names of the worst.
I witnessed one judge lambast WalMart for creating a decrease in a debtor's hourly wage - he was a trucker. WalMart had no connection in the case.
Another required a lender to seek state court pre-approval of a foreclosure in a nonjudicial foreclosure state. This judge holds a bias against lenders and capitalism that predates the housing collapse.
Still another federal judge spends more time correcting errors or minor points of grammar to the point of unhealthy obsessivity, often correcting herself from prior rulings which the lawyers recycle. If you are fortunate, you get a phone call about gerunds.
Posner is one of these judges that all the lawyers know is diseased and pompous. When he's gone, jurisprudence will take a deep sigh of relief.
societyis2blame| 12.24.10 @ 8:17AM
"(D)iseased and pompous... ?" Please provide an example of either in his jurisprudence. The phrasing of your anti-judical diatribe suggests you aren't speaking of anything he did, but rather decisions that went against you in some way - without mention of who ruled on the matter(s).
How, then, is he "diseased" unless you define anyone who disagrees with you as such ?
Present some substantive facts or be dismissed as an anti-fan-boy hater.
Jack Bauer| 12.26.10 @ 4:15PM
"The phrasing of your anti-judical diatribe suggests you aren't speaking of anything he did, but rather decisions that went against you in some way -"
Says who? You? Some little wanker?
Extraordinary claims demand extraordinary evidence, and you have done nothing sufficient to support your pompous arseolery level claims.
mames| 12.23.10 @ 9:58AM
Jefferson was right, minimize the size of the Federal court and place term limits on all the Judges including the Supreme Court. At least then we have a fighting chance of undoing the mess of unconstitutional judges who call the document "living" when they really mean maluable by judges..
Occam's Tool| 12.23.10 @ 10:38AM
Conrad Black is a Great Man. He deserves to be left alone by lawyers without the brains to avoid urinating on fireplugs.
DCD-in-Indiana| 12.23.10 @ 11:01AM
I was for many years a newspaper publisher for Hollinger (Conrad Black's chain). Like many others, I bought stock during the company's IPO. Despite ever-increasing revenues and profits, I never saw a dividend. Years later -- as I was leaving the company -- I sold the stock for almost exactly what I paid for it. I never once had the feeling that Mr. Black was providing "honest services" to his shareholders; whether that rises to the level of fraud or merits jail time, I'm not qualified to say. All I can say is that I certainly felt like I'd been snookered.
Kevin Gutzman | 12.23.10 @ 1:05PM
Reagan appointee Judge Richard Posner is one of the ornaments of the federal judiciary, and of the American legal profession. His qualifications for judicial office are without peer, and his scholarship is extremely weighty and highly variegated. He is responsible for, among other things, inventing the Law & Economics movement -- the chief conservative/libertarian beachhead in the elite law schools -- almost single-handedly. Besides that, he was one of the original leaders of The Federalist Society, which has revivified Jefferson's idea that the US Constitution should be applied according to the original understanding; his own writing provides a very interesting approach to the question of constitutional hermeneutics. He knows what a "public intellectual" is, as he has long been one -- and a stunningly prolific one.
The short of it is, then, that I can't help but think that there must be more to what Judge Posner held than the cartoon Mr. Tyrrell has presented here. One supposes that when higher authority takes up the question again, it will produce a range of evaluations of Posner's latest handiwork.
Phil Manger | 12.23.10 @ 1:35PM
The Law & Economics movement was founded by Aaron Director (Milton Friedman's brother-in-law) and the British-born economist and Nobel laureate, Ronald Coase. Richard Posner did not "invent" it, although he was a member of it and a prolific contributor to its literature. I, too, am surprised to find Posner under attack in a conservative publication. I'm not familiar with the case at issue, but from DCD-in-Indiana's comment, it appears that this involved something more than freedom of the press.
Stuart (Austin, TX)| 12.24.10 @ 12:46PM
Posner has been a stalwart for conservative, contemplative, reasoned jurisprudence. But he has also recently evinced that Keynesian economic "solutions" are unavoidable in our current crisis. So he has moments of idiocy, too.
PattyMor| 12.23.10 @ 4:35PM
Its the lastest fad among liberals, persecution by lawsuit. They flog business people and conservatives with law suits.
Remember the gaggle of reporters that went up to Alaska to investigate Sarah Palin. Then the liberals flooded her with lawsuits. After she resigns, the law suit magically disappear.
Westie| 12.28.10 @ 4:28PM
Remember the DOJ attack on Senator Ted Stevens that allowed the left to grab the AK Senate seat....the DOJ was forced to void the suit, fwir.
Brian| 12.23.10 @ 6:01PM
As our society degenerates it becomes necessary for the government to have the ability to jail anyone it so chooses. The byzantine like rules and regulations are integral to the system.
Dixie Pixie| 12.23.10 @ 7:32PM
OK, I will admit it.
I am not a lawyer nor do I play one on the pundit circuit.
So I am a little confused about how a obstruction of justice charge can stand when the original charges are proven to be false.
If one is accused of 10 criminal counts of "Piffle" and one count of resisting the accusation of "Piffle" and the 10 counts of "Piffle" are dismissed, how can the "Obstruction of Justice" charge stand.
After all the original "crimes" never existed how can any actions henceforth based on those dismissed "crimes" be criminal?
It looks like the Political Elite grew irritated Conrad Black and squashed him by using the Law.
It this point the whole prosecution of Conrad Black was looks purely political.
Publius| 12.23.10 @ 11:20PM
When will Congress stand up to its duty of policing the Courts? Posner should be impeached. Let him explain the lunacy of his "decisions."
societyis2blame| 12.24.10 @ 8:10AM
While it's clear that the author is personally piqued at Posner's decision, he provides precious little evidence to back up his conclusions.
While it's certainly within his rights to question Posner's judgement, the manner in which he has done so (basically questioning his philosphical and ideological credentials) demands a better explanation than he has provided, to say the least.
Extraordinary claims demand extraordinary evidence, and the author has done nothing sufficient to support his claims.
WTF| 12.25.10 @ 6:45AM
Security tape footage of Black destroying evidence after being told to leave the documents alone is available to one and all. The fool didn't know he was starring in his own conviction.
chris haynes| 12.26.10 @ 5:15PM
anti-judical diatribe?
These judegs decreed legal abortion. 55,000,000, the greatest holocaust in history. That condemns the American judiciary.
Pat Hickey | 12.28.10 @ 11:15AM
Judge Posner leaps where angels wear no parachutes, because he is an American Progressive Brahmin.
Posner, the Larry David of the Laws, shoots his yap off and gets a free pass, it seems to me, because he helped make money for powerful people. Posnser's cottage industry - the anti-trust ( well, kinda), intellectual property ambulance chasers -Compass Lexecon helped spread the protected moolah for the 'the right people." Yet, Judge Posner will rail against fellow black robes and their decisions - as in the case of Ed Vrdolyak.
It's good to be a Brahmin - you can whack a Lord.
weddingdress | 7.15.11 @ 5:16AM
While it's certainly within his rights to question Posner's judgement, the manner in which he has done so (basically questioning his philosphical and ideological credentials) demands a better explanation than he has provided, to say the least.