Worms turn, it seems, even for guys who never met a prosecution they didn’t adore. All it took was Conrad Black’s book and some serious rhetorical effort by National Review pundit, and former SDNY assistant Andrew McCarthy to come to the realization that he could still love the bomb while completely ignoring Lord Black’s message.
At the New Criterion, Andy works overtime to explain:
As Conrad Black has painfully learned, the tune in our Manichean legal theater is called by the progressive vanguard—the media, the academy, and, in particular, the Lawyer Left. A Matter of Principle is Black’s often gripping memoir of his nightmarish trek through America’s justice system and business governance culture—a system that can work grave injustice, a culture that is all government and no business. The nightmare endures: Lord Black of Crossharbour, international newspaper mogul, British peer, distinguished presidential biographer, and for most of his life a lover of the United States, sits for a few more months in a federal prison—convicted, he compellingly argues, of crimes he did not commit.
Finally, a defendant he could love as much as Scooter Libby and Whittacker Chambers. Never, never in my wildest imagination, would I expect to read these words from Andy’s fingers:
Black was convicted on three counts of this hopelessly vague offense. Tacked on for good measure was a bizarre obstruction of justice charge, involving his removal to his home of thirteen boxes out of a company office from which he’d been evicted. Inspectors and lawyers had had free reign to copy all relevant documents for three years, Black had permission from the acting company president to remove the materials, he was unaware there was any American investigation to obstruct, he was unaware of the contents of the boxes, and he had dutifully surrendered over 100,000 documents as demanded. The jury, however, was doubtless influenced by a prosecutor’s repeated false implication that the removal violated a Canadian court order.
When it comes to anyone else, you wouldn’t be able to find such pejorative language to describe the prosecution within a mile of Andy’s writing. If anything, his efforts would be put toward demanding more severe punishment, and a few more counts in the indictment, for some foreigner ignoring our laws and undermining our ability to put him in his place. But not for Conrad Black.
The jury acquitted the defendants on the fraud trumpeted by Breeden and echoed by the Justice Department. Yet the government had an escape hatch: the ever-elastic theory of denying “honest services.” Originally concocted to deal with the peculiar circumstance of bribery—e.g., a judge who takes money to fix a case, depriving the public of his expected probity—this doctrine was stretched by corporate governance activists to criminalize alleged ethical lapses. Though neither intending nor effecting a fraud, an official can find himself in the soup over loose allegations of self-dealing at the company’s apparent expense.
How delicious to read Andy call “honest services” fraud a “concocted” crime, while ripping “corporate governance activists” (and by “activists,” he means lefties) for the ills they impose on corporate society by raising ridiculous expectations that put defendants in “the soup over loose allegations,” Man, can you not help but love this guy?
Except Conrad Black wasn’t all about apologizing for the overbearing manner which which this nefarious legal system oppresses corporate CEOs. Andy touches on it to the extent it serves his politics:
We need not, at this point, trot out the inevitable allusions to Kafka, Job’s tribulations, or Tom Wolfe’s Bonfire of the Vanities. True, in shoring up the indomitable spirit that fairly leaps off every page, Black refreshed himself in their lessons, just as he did in the deep wells of his Catholic faith and the unstinting constancy of his family. Black, however, coins his own neologism to describe the dystopia he makes of modern America: a “prosecutocracy.”
The Mafiosi, the Colombian drug dealers, (including a senator with whom I had a special greeting as a fellow member of a parliamentary upper house), the American drug dealers, high and low, black, white, and Hispanic; the alleged swindlers, hackers, pornographers, credit card fraudsters, bank robbers, and even an accomplished airplane thief; the rehabilitated and unregenerate, the innocent and the guilty, and in almost all cases the grossly over-sentenced, streamed in steadily for hours, to make their farewells.
It had been an interesting experience, from which I developed a much greater practical knowledge than I had ever had before of those who had drawn a short straw from the system; of the realities of street level American race relations; of the pathology of incorrigible criminals; and of the wasted opportunities for the reintegration of many of these people into society. I saw at close range the failure of the U.S. War on Drugs, with absurd sentences, (including 20 years for marijuana offences, although 42% of Americans have used marijuana and it is the greatest cash crop in California.) A trillion dollars have been spent, a million easily replaceable small fry are in prison, and the targeted substances are more available and of better quality than ever, while producing countries such as Colombia and Mexico are in a state of civil war.
I had seen at close range the injustice of sentences one hundred times more severe for crack cocaine than for powder cocaine, a straight act of discrimination against African-Americans, that even the first black president and attorney general have only ameliorated with tepid support for a measure, still being debated, to reduce the disparity of sentence from 100 to one to 18 to one.
You won’t find anything kind about those “bad” criminals in Andy’s review. They don’t even exist in his screed against the system, which couldn’t convict enough, or sentence enough, until it came to Conrad Black. It’s not that I find anything with which I disagree with Andy this time. In fact, he’s my frigging hero, and I admire enormously the artfulness of his language as he shreds the prosecutocracy. He’s quite the writer, even if he never managed to connect his “lawyer left” phrase to any cognizable thought, leaving it dangling gratuitously.
The problem is that Lord Conrad Black’s epiphany was about the system as it worked its injustice on all who were so unfortunate as to come into its clutches, while Andy McCarthy’s fury and spittle is limited to the one fine man against whom this horrible system worked its magic. That would be the same system that he only criticizes for being insufficiently harsh when the target doesn’t fall into his good-guy pigeonhole.
I’m awfully proud of Andy McCarthy for coming to the realization that the legal system, the one in which he happily participated as an Assistant United States Attorney, the one which gave him the tools and weapons to convict for conspiracies where the proof was every bit as “concocted” as here, the one he applauds as a conservative pundit, the one he criticizes because it won’t impose the ultimate punishment on those he sees as sufficiently craven, is imperfect. If only that applied beyond the wealthy and powerful, to the rest of us.
Conrad Black understood how the system, the prosecutocracy, harmed every defendant. Andy McCarthy only sees how it harms corporate giants, and the rest can rot in hell. But at least Andy got a chance to blame the Lawyer Left, and that made reading Black’s book worth the effort.