Congratulations flooded in from around the world: thousands of messages, and astoundingly supportive press comments. As fortune had fled totally, so it returned in a flood. In a mighty back-flip by Rupert Murdoch, for such an editorial could not have been written without his authority, the Wall Street Journal ran a lead opinion piece entitled “Conrad Black’s Revenge,” and apologized prominently and unequivocally for not having realized earlier the righteousness of my cause. They then ran a signed piece by my friend Seth Lipsky, former editor of the New York Sun, that was entirely laudatory. There were many similar comments, with George Jonas and Jonathan Kay in the National Post among the most gratefully appreciated.
Wonderful moment though it was, we were not clear of it all yet. My fellow residents at Coleman Low were heart-warming, even heart-rending, in their solidarity. Complete strangers arrived in droves to wish me well, and all those hundreds whom I did know were unanimous in treating my success as their own. I was invited to prayer meetings in my honour. It was deeply affecting, and inexpressibly reassuring that decency survives, even against such odds, in such battered souls, and in such an unremitting place.
Counsel thought we had won the frauds, meaning the complete collapse of the entire Breeden allegations and the swift counter-advance of my civil and libel suits. Obstruction was still a problem and if Posner was determined to give the government something, he could give them that.
I spent several weeks replying to emails, writing articles that I had previously agreed to, and concerting strategy with various counsel. Then in a new, unforeseen bombshell on Monday, July 19, I called Barbara as usual at 11:00 p.m. and she said: “Have you heard?” “I haven’t heard anything worth remembering.” “You have bail.” Without trying to puzzle out what this might mean in terms of Posner’s thinking, it was an immense relief and an event impossible to think of negatively. I offered Miguel the thought that Posner was just creating the appearance of liberality in order to cover his next outrage. Miguel thought he might have the impulse, but that he would not try it after a pasting from the Supreme Court and with the entire legal community and much of the media watching.
Judge St. Eve approved the bail terms on the morning of July 21. My dear friend Roger Hertog flew to Chicago and pledged $2 million, which I was able to guaranty without violating Mareva requirements so he was neither out of pocket nor at risk; it was an immensely gracious gesture from an extremely distinguished and valued friend in all seasons.
I shortly became the subject of respectfully formulated messages over the compound public address system, which had been the source of so much ear-splitting annoyance, almost ceaselessly from 6:00 a.m. to 9:00 p.m. every day for twenty-eight months. My alien status was waived, as I was informed by my unit manager, who said that it would require me to be taken to solitary confinement. I replied that “Not one cent of bail will be pledged to send me over to the Special Housing Unit.” Off it came, as I spoke. Barbara was in Toronto, but managed to get a chartered plane to fly her to Palm Beach that night, so we could celebrate our eighteenth wedding anniversary.
She arranged for a car to collect me. The driver was besieged by the media at the gate, waiting to enter, as she watched on television. Over a hundred of my friends had asked to accompany me to the gate, but I was rushed out while the compound was generally shut down, and only one friend was able to bring back the cart on which my books and other belongings were piled up. I took just one piece of government property: the shirt bequeathed by the former don of a New York underworld family. When I declared it to an amiable correctional officer who processed me, he said he did not wish to incur the rancour of both of us, and on I went.
There were cordial farewells with as many as ten officials but I exchanged no words with the dour lieutenant present. The compound counsel had arranged for my departure via a padlocked gate, avoiding the press, and with remarkable swiftness and lack of ceremony, jovial waves and salutations, I passed back through the gates and had a very pleasant three-hour drive to my fiercely disputed home in Palm Beach. I called Barbara and Joan and Miguel, watched the nondescript Florida scenery and townscapes as we passed, and reflected on the unevenness of my blessings.
Our devoted and talented houseman, Domenico, who had previously worked for the Wrightsmans; and the Bruces, and the Annenbergs in the U.S. embassy in London, greeted me as I arrived in my track suit, past a knot of cameramen indistinguishable from those that had filmed my departure. We had a glass of wine, as I had so often dreamt of doing, overlooking the ocean. We reminisced a bit, and then he withdrew, and I breathed free in the sunny, salted breeze, and the absence of any noise except the sea.
Barbara arrived about midnight. It was one of the very most exquisite moments I have known; her constancy, resolve, and affection, and my gratitude for her is beyond words, and we were finally able to go beyond words to express them.
We returned to Chicago the next day, and to St. Eve’s court the following day. Again, St. Eve would not hear of allowing me to return to Canada. It was utter nonsense, of course, because the Canadians would admit me again without a passport, and no one would extradite me back to the U.S. after this turn of events. However, it was irrelevant because I would in no circumstances consider being a fugitive from justice. The U.S. must either release me unconvicted or compound its injustices, even if that meant St. Eve, as she clearly wished, sending me back, however briefly, to prison. Withal, it was a much more relaxed appearance, opposite the judge and the press, than previous occasions. I greeted some of the marshals cordially, and even some of the journalists, then Barbara and I departed for New York.
After two weeks in holiday mode, and many agreeable reunions, particularly with, as Barbara calls them, the cubs (Jonathan, Alana, and James), we returned to Palm Beach. There were no tropical storms, the weather was warm but not insufferable, and we had the most spontaneous and carefree days in many years with Barbara’s delightful Kuvaszok, splendid large, eccentric white Hungarian livestock-guardian (but not shepherding) dogs. There were thousands of emails for reply, this manuscript to get into shape, friends to receive, medical and dental work to be done, and generally, a world to rediscover.
The Ontario Court of Appeal threw out the Breeden group’s (from Kissinger all the way down to Healy) suddenly urgent effort to resist the inexorable approach of my libel suits. The exchange of briefs on the Circuit Court re-hearing, and the supplementary briefs, were the now traditional mismatch. The government’s feeble efforts to keep the Breeden demonology alive were now a pathetic wail to Posner to stick to his guns, without a mention of the 9-0 immolation from the U.S. Supreme Court.
The fact that the government had no argument left did not mean that justice would finally, unambiguously be done. That had never been the nature of these proceedings. In the terrible early defeats, I had yet salvaged enough to fight on and now all 17 counts had been abandoned, rejected by the jurors, or unanimously vacated by the Supreme Court, the evil spirit of injustice flourished yet. I told many prison friends as I left that I expected to be back, (though for less than my current full sentence), and was too wary of the wickedness and official advantages of my enemies to be free of that concern. Posner reviewing Posner’s own errors was a most unpromising forum.
Barbara and I, despite Miguel’s view that Posner couldn’t just ignore the Supreme Court opinion, continued to think that, contrary to our expectations, he had granted bail in order to incite, and then brutally extinguish, false hopes of an early end to the persecution. He could have rejected bail and left me in prison, as I and most observers expected, but that would have accelerated the end of my punishment. Letting me out of prison to live a half-life seemed a way to extend it, and with a touch of sadistic destruction that would please this, as he acknowledged himself (to Larissa MacFarquhar in the New Yorker), “callous and cruel” man. He and his co-panellists could take as long as they wanted to issue their opinion.
I had done a slight bit of research on Posner, and recalled Milton Friedman
telling me once that he was “a serious intelligence.” I suppose he was, once. In the famous sketch in the New Yorker in 2001, Posner was portrayed as having “a limp hand … eyes pale as a fish … the distant, omniscient, ectoplasmic air of the butler in the haunted house.” Posner on Posner: “If someone is obviously guilty, why do you have to have all this rigmarole?” So he doesn’t; he just assumes guilt and reasons backwards. “I am cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty … I’m like an imperfectly house-broken pet,” he explained to the interviewer with evident pride. I could see why Fitzgerald and Ruder were so cocky (in separate conversations with Miguel Estrada), that he would protect something of their false and vacated convictions, but I was at a complete loss for a theological explanation why, after all this, my fate was in the hands of such a mutation of the bench. Elsewhere in the same article, Posner acknowledged that he was neurotic because his cat, Dinah, preferred Mrs. Posner to him, not a difficult conclusion to imagine, cats being legendarily intelligent.
Posner proclaims himself a Nietzschean, and despised his parents in the infirmity of their eighties. When Larissa MacFarquhar asked him what he felt when his parents died, “he looked puzzled, as though the question didn’t make sense to him. ‘I don’t have any feeling about it,’ he said.” He had not wanted doctors to prolong the lives of his debilitated parents. “I’d like to choose my own time of exit.” I was tempted by unchristian thoughts.
He became famous for emphasizing the economic consequences of laws and urging these as criteria in determining their application. He professes to believe that he has not been elevated to the U.S. Supreme Court because he favours the legalization of marijuana. But his proposal to deal with child adoption by public auction, and his sociopathic personality, are generally thought to have more to do with it. However and why ever, I was stuck with him, a dreary, unreasoning pustule of animus, infesting my path on the way to the judicial summit of America, and on the way back down.
Miguel and David Debold again overwhelmed the government in written arguments for the Circuit Court rehearing, and atomized the four vacated counts all over again. The government again had recourse to lies and evasions, pretended that Fitzgerald’s scheme had survived the trial, that I had snuck documents out of my office, and pretended that the APC payments were not with money that had already been voted to us, and that the Forum and Paxton payments had not been voted by the Executive Committee and ratified by the directors.
They remained on autocue at the Circuit Court rehearing in October, as they had been for the last five years, as if their case had not been shot to pieces again and again. Posner was almost as argumentative, querulous, and overbearing and obnoxious as he had been with poor Andy Frey in 2008, but Estrada wasn’t having it and insisted on his right to complete a few consecutive sentences. It seemed to us, hearing the audio of the arguments, that while Posner would like to retain all four counts, he was going to have to let the APC counts go, but that obstruction was likely to remain and the Forum-Paxton count was a toss-up, not because the slightest credence could still be attached to either, but that Posner probably possessed the conceit to claim some colour of right to retain them. On the law and the facts, as always, we had won easily, but we were dealing with a judge who seemed determined to send me back to prison for as long as possible, and whose ego would accommodate almost any decision that gave effect to that wish.
Miguel Estrada knew a lot of people in and around the Seventh Circuit and heard a lot, and so did some other contacts. In the aftermath of the hearing, we thought that the other two panelists would be less sanguine about being rebuked by the Supreme Court than Posner was, and that they would probably help to resist Posner’s desire to reimpose all four vacated counts. This was what happened. On December 17, Posner produced another false and shameful judgment, allowing the APC counts to fall, but fabricating, ignoring and distorting evidence to keep the Paxton-Forum and obstruction counts.
He accomplished this end by interpreting Radler’s jokily worded advice to the rest of us that the buyers (Forum-Paxton), wanted non-compete agreements as an admission that they did not; by ignoring that the payments had been ratified and approved, and by ignoring the fact that the defendants had absolutely nothing to do with the arrangements. On obstruction, all the relevant facts were ignored, such as that I knew nothing of the contents or of any continuing SEC interest in my files, had not been accused of violating a Canadian document retention order, had spoken with the interim president of the company before acting, made sure that the removals were recorded by the security cameras so there could be no thought of trying to avoid them, and could have taken anything I wanted out at any time in brief cases or coat pockets for weeks before and after without any review or incident.
For good measure, Posner urged the trial judge to ignore, for sentencing purposes, the fall of the APC counts, and to send me back to prison for the entire original sentence. This was what Barbara and I had suspected was his game all along, but we all doubted that St. Eve was going to buy into anything so Draconian and dishonest. We were, however, quite certain that she would send me back to prison and it became a matter of trying to hold that to the lightest possible renewed sentence, and setting matters up as well as possible before I surrendered to custody. Though we were prepared for this setback, Barbara and I were still very disappointed.
Miguel Estrada’s statement on December 17 on our behalf promised a further appeal to the Supreme Court, and said that “Posner’s opinion for the panel 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. Instead, the panel recounted the government’s spin on its supposed evidence, trivialized the strong defence 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.” The charge of fraud alone had led to acquittals. The only convictions had Honest Services attached to them. That statute had gone, but Posner had in effect still managed to impale me on it. We asked for an en banc hearing, the whole Circuit Court sure that Posner would not be rebuked by his colleagues, and were not surprised when he even denied the right of a reply (after we had filed it). The profligate jurist was approving his own judicial expense account.
We had no practical expectation that the Supreme Court would take the case back again. It had no interest in the equity of lower court decisions, and had rewritten the Honest Services Statute to assure uniformity of interpretation throughout the country. But it only chose to be insulted by being flipped the bird by a lower court if it actually wanted to notice it. Miguel and David crafted a clever and brilliantly worded demolition of Posner’s reasoning and the tatters of the government’s case, hanging it constitutionally on Posner’s violation of the Sixth Amendment by usurping the role of the jury for himself and denying trial by jury to me, with the subtext of trying to incite what must have been a temptation by the high court to wallop this impudent and much-talking judge about his glabrous head once and for all.
The confidence of the prosecutors that I would be sent back to prison made them complacent about asking revocation of bail, as they subscribed to the Posner timetable of stretching out my time roasting on the spit for as long as possible, preferably, though they would never publicly say so, until the undertakers removed me from the prison medical facility.
A considerable race ensued to get as many things cleared up as possible and to do everything we could to eliminate or at least minimize the remaining sentence. Since the retention of any felony count would make me persona non grata in the United States, (a country that was in any case, patria non grata with me), there was no longer any argument for retaining the Palm Beach house. If I were still the owner when the Supreme Court declined to hear our appeal again, the value of it would again crash as the bottomfeeders would be out in their former numbers, avarice, and abrasiveness. After deli
cate negotiation with a number of people, a sale was negotiated for $25 million, not a miraculous price, but not a risible one either, and the entire contents were evacuated hastily to Toronto. The utmost discretion was maintained, with unmarked small trucks and larger vans only coming in at night, and on completion of conditions the proceeds were wired out of the country at once, to avoid any replication of the outrage that stalked and befell the New York transaction, though the circumstances now, with no prospect of further criminal proceedings, would make any such intervention much more difficult and this time we would be prepared for it.
It was time to complete the drastic deconstruction of our former lives, but now with a clear timetable, a practical certainty of financial survival, and in a planned and not desperately reactive way. At least, unlike in London and New York, I was present to help Barbara pack up the house. I had come to Palm Beach from Cuba in 1969, and was influenced by the legacy of my former senior partner, Bud McDougald, the long-serving president of the Everglades Club, and had seen Palm Beach, through the decades, as a fine monument to the appetites and attainments of American capitalism. After the economic debacle of 2008 and the humbling and collapse of Wall Street, I no longer had much respect for American capitalism, and did not feel that Barbara had been very generously supported by many of the people we knew in Palm Beach, when she was alone there. We left on April 26, and I do not expect to return. Barbara’s splendid dogs preceded us in a van to Toronto (heavy-coated Hungarian kuvaszok, they intensely disliked the heat). I flew to New York and checked into the Mark Hotel, and remained for over four months.
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