Conrad Black's fate was left in the hands of the United States Supreme Court this morning after a one-hour hearing that featured tough questioning from all nine justices.
Lord Black's lawyer Miguel Estrada argued that the law used to convict Lord Black was “vague, amorphous, and open-ended” and should be struck down.
“This case must be reversed” Mr. Estrada told the court. Referring to a 1987 Supreme Court ruling that tried to clarify this law Mr. Estrada said, “This court asked Congress to speak clearly and Congress did not.”
Lord Black's case and two others before the court deal with a legal theory known as “honest services.” That concept was introduced into the fraud statutes by Congress in 1988 in the wake of the court's 1987 ruling. However, critics have said the theory is vague and has allowed prosecutors to go after almost any conduct.
The broadness of the concept clearly troubled several justices during the morning's hearing and they grilled Michael Dreeben, deputy solicitor-general, who represented the government.
Justice Stephen Breyer asked Mr. Dreeben whether even innocuous actions by employees would qualify for prosecution. He gave the example of an employee offering his boss a compliment in order to be left alone to read the Racing Forum. Wouldn't that constitute a breach of honest services, the judge asked.
Mr. Dreeben argued that the law has clear boundaries, known as “materiality” which would limit prosecution on those grounds. He also said there are long-standing precedents that guide prosecutors and courts.
He added that the current law is sufficient to tackle cases like Lord Black's because Congress made it clear it was going after cases involving bribes, kickbacks and undisclosed conflicts of interest. Congress reinstituted a body of law that covers those actions when it added the honest services theory to the fraud statutes in 1988.
Lord Black was not at today's hearing. But his wife Barbara Amiel daughter Alana was there along with several lawyers representing Lord Black's co-defendants.
From the Globe archives:
During Conrad Black's trial, Reportonbusiness.com created a hub to collect all of our stories and features related to Lord Black's life, his business ventures and his trial. See the full collection of stories
