Conrad Black’s Persistence May Assure The Fed’s Catch 22 Never Sees Its 23rd Birthday

Justice Stephen Breyer criticized the statute as ambiguous, observing that a “citizen is supposed to be able to understand the criminal law.” How could a foreign person like Conrad Black follow this law if even U.S. citizens cannot understand it. Chief Justice John Roberts noted that if a person is not able to understand what is legal and what is not, the law is invalid. The broad wording of the statute makes it difficult to know with certainty what conduct runs afoul of the law.

Conrad Black

Three cases concerning honest services made it to the Supreme Court this year. Perhaps the most famous, and most fundamental, challenge to the statute stems from Black v. United States. Here Conrad Black’s attorneys, including the world-famous Alan Dershowitz, have crafted arguments that the government failed to prove that Black’s actions actually did any harm to Hollinger International, and that honest services fraud constitutes little more than attempting to penalize unethical, but entirely legal, behavior.

Conrad Black, a native Canadian, was not well known in the United States (despite controlling one of the largest print media empires in North America) until he was brought up on a mountain of fraud charges in Chicago. Most of the charges the federal prosecutors leveled at him were ultimately found to be baseless by the jury, but three counts of honest services fraud stuck in the end. Mr. Black has spent the last few years fighting to have those charges dismissed as well, and his fight has taken him all the way to the highest court in the land. Conrad Black’s lawyers have argued that, “the government has stretched this malleable phrase, unknown in the common law, far beyond the public corruption context that gave rise to its enactment, treating the statute as ‘nothing more than an invitation for federal courts to develop a common-law crime of unethical conduct.’”