THE FACT THAT DAVID RADLER’S counsel had withdrawn from the joint defence group indicated that Anton Valukas, his lawyer, thought he could really do something with Radler in Chicago as Queen for a Day – the colloquial term for the procedure of exploring what deal a target might make with the prosecutors. I was disgusted and filled with revulsion that I had spent as long as I had in business with Radler. It was obvious that I could not trust him after the Todd Vogt affair. I should have been more suspicious of his endless grabbing for money and his disparagement of public companies. Once I had seen this, my plan was to let the private newspaper companies he had spun out of Hollinger International ripen and then trade some of my shareholdings in them for Radler’s Ravelston shares. I didn’t have the means to buy him out earlier without taking on debt I preferred to avoid. This was a mistake. Time had run out on that plan, as on much else.
Radler thought he was the sole architect of our financial success and the only one of us who had any idea how to run a business. He told anyone who would listen that I was the social face of our business while he was the real business brains. His fear, exposed by the ordeal of the legal crisis, for which he was largely responsible as head of the division where they originated, seemed to have produced a bitter and galling response that he smarmily concealed in discussion between us. I still doubted that he could promise the U.S. attorney anything useful and thought he would be back to us eventually, pretending that he had only been exploring alternatives, as Atkinson and Kipnis had. I would have to consider how to partition the private companies, disentangle our interests from his, and end the association.
WHEN WE RETURNED TO TORONTO in August 2005, David Radler’s lawyer had just given formal notice of his settlement talks with the U.S. attorney. I still couldn’t believe Radler would take the plunge, though I was well familiar with his pessimism, and nervosity. He had shown in 1986 at Dominion Stores (a derelict Argus Corporation supermarket company) that he had no staying power. Even though he had certainly not created the mess there, and had, in fact, helped to resolve it, he scurried out to Vancouver, leaving Peter White and me, on one day’s notice, to clean it up. His nerves could not take the pressure.
Having previously disparaged religion and occasionally expressed skepticism (though not in my presence; direct confrontations with me were not his métier) about my conversion to and practice of Roman Catholicism, he had become a Lubavitcher Jew. He had met the late Rabbi Schneerson in Brooklyn, the practising Lubavitcher leader. Radler shooed the press away from his office at times, claiming a prayer meeting was in progress, and told an interviewer that he considered the whole attack on us to be “Go for the Jewish guy.” This was an explanation that left my presence inexplicable in the public relations and litigious pogrom he claimed to detect, unless I was included because my wife is Jewish.
We had known each other for thirty-six years. There was no denying Radler’s hard work and his success in putting together the hundreds of small newspapers we acquired in both Canada and the United States. We had sat together in Montreal delicatessens the way young men and small businessmen do, dreaming and planning what we could next achieve with our company. Perhaps I did detect the envy and small-mindedness at times that now oozed all over the pages of the Special Committee reports and tried to ease it, but I never suspected it was festering on this scale. I knew he often mocked my vocabulary, speeches, or writing as vanity and affectation, but I took this in stride, and often he professed to be an admirer. We knew little of each other really. I have no idea who any of his close friends are, and in the seventeen years of our marriage, Barbara and I dined with the Radlers as a foursome only once or twice when business found us in the same city. But to chop me up like this for the delectation of criminal prosecutors, to destroy me – could the envy have been so great? And envy of what? He was prominent in the Jewish circles he cared about. He had made himself quite prominent in Vancouver and to some degree in Chicago. He was a wealthy man. His children are high achievers, and his family is close. I wondered if my fears that he really was caught red-handed in crimes were justified (American Trucker,* Horizon Operations, the Vogt matter, Sun-Times circulation), and Valukas scripted him toward a deal with the prosecutors.
His arrangement with the prosecutors would eliminate all complaints about the community newspapers, where he had seen his future, and which Breeden had set out to undo, and would trade a minimization of sentence for inculpation of the rest of us. He would prosper. The opprobrium of being branded a felon and a squealer and perjurer would not have been overly bothersome to him. This was a straight business decision, perhaps. But the David Radler with whom I had worked for most of our thirty-six years of association would not have entertained such a course. With his background as a Chicago U.S. attorney, Valukas would have convinced him of the tactical wisdom of this course. Even allowing for that, a great deal of Radler’s testimony to the Special Committee was inexcusably bilious. All Breeden had to do was turn on the spigot and a great sluice of mud and merde poured out.
In his three sessions with the Special Committee, I was referred to sarcastically as “Crossharbour,” and every mistake Radler ever made was explained as “Crossharbour strikes again.” According to Radler, I was extravagant; overly interested in Napoleon (a subject I had not referred to five times in my entire acquaintance with him); and a poseur who knew little about business, other than having good connections and some knowledge of deal making. Radler had “built our EBITDA [earnings before interest, taxes, depreciation and amortization – that is, operating profit] to $400 million,” he told the Special Committee, as if none of the rest of us had had anything to do with it. He had played a vital role in taking over the Daily Telegraph by “encouraging” me to do it, as if any encouragement from him were necessary.
There were also little outbursts of megalomania. Thus his statement, “You’ll have a hard time across the street if I am de-balled.” Across the street meant the Sun-Times, where his departure was greeted with stentorian glee, and where the escalators he had shut down because of their cost were restarted. Even before there were any suggestions of unapproved payments, he was urging Breeden, who, he conceded, now ran the company, not to emasculate him, for the sake of the morale of Sun-Times employees. The statement was both false and self-emasculating.
“I know how to handle Hamas,” he had grandly stated when explaining to the committee the management aircraft policy relating to the avoidance of terrorist threats. Such insights would doubtless have been gratefully received by the prime minister of Israel and by the Palestinian Authority.
All this material was released to us while I was in Europe, and when I read Radler’s comments on my return, it was obvious that he was cranking up to try to lay responsibility for perceived wrongdoing at my door, even though, at that point, the only wrongdoing there could have been was his.
All that was clear apart from that was the inattentiveness of the legal staff, which Mark Kipnis allegedly tried to sidestep by complaining to the Special Committee that a few of the non-compete payments were “silly,” though Kipnis later volunteered that he had said nothing of the kind. Atkinson’s testimony to the Special Committee was especially feeble, as he glazed over his own responsibilities to assure that all legalities were exactly in place, in inter-corporate transactions and elsewhere. Jack Boultbee, who, though impenetrably enigmatic and monosyllabic, is a man of principle, calmly rebutted every one of Breeden’s and his chief attack dog Jonathan Rosenberg’s questions.
A good deal more upsetting was the news that my son Jonathan, having located a hard lump on the top of his collarbone, had gone to an emergency room at a Toronto hospital and was told this needed further investigation. When I was advised of this by his mother, who was resigned to the leisurely timetable of Ontario socialized medicine, I managed to accelerate the timetable. Jonathan went promptly for a scan at Orchard Park, New York, at half the Canadian cost. He had Stage Two Hodgkins. This is distinctly treatable but a horrid setback just as he was starting to get his career going. Barbara asked if we had now been spared anything except the proverbial plagues of frogs and locusts. We were both full of admiration for Jonathan’s stoicism. He would come through the treatments with flying colours.
AUGUST IN TORONTO IS ALWAYS PLEASANT, whatever the distractions. We enjoyed our property, with the soothing sound of fountains in the walled library garden, and watched the deer and foxes and less graceful wildlife (raccoons, groundhogs, and skunks) from our terrace in the early evening, often with a glass of fine white wine in hand. I was continuing intensive research on Richard Nixon.
The massive and spurious Hollinger International case against us was getting to the point where discoveries were being demanded. The U.S. attorney’s office in Chicago had finally revealed in the spring that it was investigating, and it was assumed that if their investigation passed a certain point, they would demand a stay of civil proceedings.
The fact that they had not, and that no suspect or target letter had been received, together with Brendan Sullivan’s and Greg Craig’s civilized interview with Robert Kent and Eric Sussman in June, had provided some hope that charges were not a foregone conclusion, even eventually. In response to Hollinger International’s insolent and belligerent demands for week-long depositions, I told Baker Botts to carpet-bomb the other side with such demands and to emphasize we would be questioning Richard Breeden for at least two weeks. This would smoke out the Justice Department. They would not want us revealing Breeden’s shallow allegations if they were planning to prosecute us on his story. I was not prepared to dangle on a string like a hooked trout, awaiting the pleasure of the notoriously aggressive and devious U.S. prosecutors.
However vulnerable my position, I was still ahead of the wolves financially, I still had excellent counsel, and I was, in fact, innocent. I had been horribly defamed but had so far, though by a narrow margin at times, managed an orderly retreat from the extremely overexposed position I had held when the onslaught against me began, in November 2003.
However, the U.S. attorney soon demanded stays in all civil proceedings, which signalled imminent indictments. It also showed they would not bother with the niceties of suspect or target letters and implied they were getting what they thought would be effective evidence incriminating me from Radler. Unfortunately it shook loose my own counsel, as Greg Craig, while appearing in Chicago, told the press that it was not clear his firm would be acting for me in the event of a criminal trial. Brendan Sullivan’s evaluation was of my credit, not my case, but I needed strong counsel to make my case.
I made extensive summaries of all the evidence given to the Special Committee and was able to anticipate some of Radler’s inculpations. I felt that Radler was going to have to engage in a version that would be vulnerable under cross-examination. All our colleagues would side with me; there would be no corroborative evidence. And Radler, uncertain and inarticulate even when telling the truth, could be easily disembowelled under heavy and skillful questioning.
It turned out that Radler’s telephoned wedding anniversary greetings to us in London, on July 21, 2005, were the last contact I would have with him. It was shortly after this that his counsel had told us that they “were no longer pursuing the same objective” we were but were happy to continue in the joint defence agreement otherwise. The suggestion was extraordinary. Their participation in the joint defence group – an arrangement that has lawyers pooling information – had continued for some fifteen months while Radler and his lawyers played footsie with the prosecution. Surely that was a stretch of time that long surpassed the decency guidelines, even of the U.S. Bar. They had doubtlessly been relaying the thoughts of co-defendants’ counsel to the prosecutors. I had been bankrolling a data collection system, since one of the major burdens in the case was the hundreds of thousands of documents that were now “evidence,” and Radler had been getting a free ride on this. He also had the benefit of knowing some of the exculpatory evidence we had turned up. We expelled his counsel from the group.
On August 18, to put it in in Rooseveltese, “The hand that had for so long held the dagger, struck it into the back of its neighbor.” Dan Colson and Williams & Connolly both called to say that indictments were about to be handed down by the grand jury in Chicago. Lynda Schuler, Brendan Sullivan’s understudy, called back a few minutes later to say that Radler, Mark Kipnis, and Ravelston had been indicted on seven counts of fraud and that Radler would plead guilty to at least one of the charges and would be a cooperating witness.
At the customary press conference at which American prosecutors announce important indictments and try to conclude the first phase of the media pre-trial with a mass conviction and maximum sentence of public prejudice, the U.S. attorney, Patrick Fitzgerald, a notorious headline-seeking zealot, had two charts showing the “scheme.” As the New York Times wrote, “Lord Black was clearly identified on the top of one chart.” On the other chart was only the word “chairman.” Fitzgerald said: “I’m not going to say who the chairman was but you can check the public record.” Not since Groucho Marx used to ask guests on his quiz show, “Who’s buried in Grant’s tomb?” has there been a less challenging public guessing game. Fitzgerald continued: “The investing public has the right to expect that officers and directors of publicly traded companies are managing, not stealing the shareholders’ money. The insiders at Hollinger made it their job to steal and conceal. This was a systematic fraud on the shareholders.”
There was a scheme, but Breeden was the author of it. And to a degree, Fitzgerald, having been convinced by Breeden, was a victim of the real scheme too, as he was now formally throwing the authority of the U.S. Justice Department behind it. Sullivan and Craig had confirmed in their visit to Kent in the spring that the Breeden Report was all that Kent and Sussman knew of the case. Breeden had gone to the highest level of escalation and Fitzgerald had committed to convict on what he must have had some idea was very thin, and in fact, no, evidence. It was unnerving, but I was buoyed by the knowledge that every word and every letter of every word of Fitzgerald’s harangue were false. The spectacle of this mindless urge to lynch, to mock justice and due process, recklessly to deploy the power and credibility of the government to a flawed arraignment, and to destroy the innocent (Mark Kipnis is one of the least criminal personalities in the United States), would have been more shocking if I had not already been so well prepared for it. Breeden and I both knew how great was the risk he had just teased and tempted Fitzgerald into taking. And on the day, Radler was the ostensible winner, because he was the criminal and he had scurried out with a six month camping holiday courtesy of her Majesty the Queen in exchange for a story that I did not think could possibly hold under serious cross-examination. Cripsin’s day, the day of judgment, was in sight at last.
Kipnis had received no target letter and only sixteen hours’ notice of the charges against him. His counsel had flown from New York to Chicago to try to reason with the U.S. attorney’s office. My colleagues who had tried to fly under the radar were almost bound to be disappointed. While Kipnis had come in for settlement talks and had done his best to satisfy the prosecutors, he had, unlike Radler, committed no crimes and told no lies. Mark Kipnis was innocent, inoffensive, and utterly honest. He had not received a penny from either the non-competes or the management fees. The sole motivation the prosecution could offer at the trial for his participation in what they called the great “scheme” was the absurd formula that he wanted to be the next Peter Atkinson. I think that, since he had nothing to offer in the conviction of me, Kipnis must have been indicted as punishment for refusing to cooperate, and in the hopes that he could still be terrorized into rolling over.
As mentioned, Atkinson had started sending back his money from the contested non-competition payments even before I was made aware in November 2003 that there was any doubt about the approval of them. While the rest of us were carefully dismembered from all Hollinger associations, he had continued work for Hollinger International for $30,000 per month for about eighteen months, firing the company pilots and aircrews, on Paris’s orders. Atkinson negotiated lengthily with Chicago prosecutor Eric Sussman, and Atkinson’s counsel, Benito Romano, former U.S. attorney in New York, cold-shouldered Greg Craig. But these gestures had all proved futile.
Atkinson was not prepared to engage in pure invention, though he came close with his self-serving pieties about trying to curb the airplane use and reduce expenses. In fact, he had a mandate from me to produce drastic reductions in aircraft expenses but failed to do anything. Too conscientious not to recognize his own responsibility, too priggish to face up to it altogether, too frightened to fight it out from the start, he was doomed to a sad fate: seeking mercy through contrition, then vindication in court when cornered, and then pity when he declared himself “a broken man” and adopted a policy of total and righteous submission. He snapped like matchwood in the first forty-eight hours of Breeden’s takeover.
Atkinson is a proud and honourable lawyer. His life was the judges and senior lawyers in Toronto, where he had earned respect, and he was not going to plead to anything he had not done, or that would compromise his professional standing. He was defeated but proud and fundamentally honest, and in the end preferred to fight than lie. He was not a bad man, but no one could mistake him for a strong man.
The discussions between the prosecutors and Kipnis and Atkinson were dialogues of the deaf. The prosecutors did not understand a mentality that they could not intimidate, regardless of the facts, into pleading guilty and inculpating others, as the plea bargain system requires. And Atkinson and Kipnis could not understand a system uninterested in the truth.
Those talks collapsed, and because the prosecutors did not want to leave me with the option of blaming the alleged wrongdoing on the companies’ lawyers (whose negligence had, in fact, been responsible for what Radler’s own misconduct had not wrought), they determined to indict them too. It must be emphasized that these lawyers were men of principle in the end. Kipnis, especially, the mouse under the paw of the prosecution cat in Chicago, was a brave man. Jack Boultbee was a star throughout.
IN SEPTEMBER 2009, THE U.S. attorney’s office in Chicago released their sentence recommendation on Radler, made two years before to the trial judge. It detailed Radler’s very extensive co-operation, beginning in April 2004, a month after the Strine debacle, going through ten all-day meetings, the handing over of reams of documents, while he continued in our defence group for sixteen months, presumably transmitting information to the prosecutor. (There were endless threats from Eddie Greenspan to take this sleazy practice to some authority concerned with barristerial ethics, but, as is almost always the case in the legal fraternity, where in the end almost all lawyers hold hands to protect their guild, nothing came of it.) After his co-operation was confirmed in November 2004, there were “numerous” more meetings, all through our privatization efforts, when he professed to be fully on board with us (which makes Breeden’s easy roll-over of the OSC more understandable). After his plea bargain was announced in August 2005, the “numerous” meetings multiplied and continued through and after the trial. The government explained to the judge that it might not have been able to charge me at all without the co-operation of Radler. He apparently held himself out as an expert in all manner of matters of which, in fact, he was completely ignorant, and that were, in any case, innocuous, such as the workings of some private companies of mine. His imagination was clearly in a prolonged state of overdrive as he garrulously babbled on for the delectation of the Torquemadas for whom he had degraded himself, and who had bemusedly enslaved him. He advised on sales and other transactions in Canada to assist the U.S. prosecutors in urging tax liens and assessments on me by Canada Revenue, and purported to identify “attempted stock manipulation” by me, in concert with Brascan Corporation, years before. This was completely false. Some of the annoyances produced by the Canada Revenue Agency and their resolution have been referred to. They provided Sussman with his ammunition in badgering Canada Revenue to charge me, which it would have loved to do (it has audited me dozens of times in the envious Canadian official manner), but unlike American practice, the agency was not prepared to charge in the absence of any evidence.
The usual plea bargain requirement that the dominoes fall upward, from the middle management to the top, was not met, but with two thin lines of saliva curving downward from the corners of their mouths, the rabid prosecutors panted forward, fuelled by the inflammatory vapour of Breeden’s lies and what would soon be revealed as Radler’s fatuous conjurations of the “silent” scheme.
The prosecutors were noisily thrashing about in all directions, including trying to imply that I had had an extra-marital relationship with Barbara’s and my friend, radio and television news and talk-show personality Laura Ingraham. They pursued this even though it was clear from our many emails that that was not the nature of our relationship. They only desisted when she made it clear that she would not cease to object, to her seven million radio listeners, that the pursuit of me was unjust, and would respond vituperatively, as I would, to any effort to propagate this falsehood. That fact that the whole subject was irrelevant to the legal issues was, of course, irrelevant itself; the prosecutors I encountered were perversely, even dementedly nasty. They had dirty, as well as low, minds.
Ravelston was included in the indictment thus paralyzing the controlling shareholder of Hollinger Inc., and Breeden continued to use Hollinger International in what he represented to be the public service of pursuing me. It also assured the prosecutors’ complete domination of the receiver.
The game was already clear from their treatment of Walker at Hollinger Inc.: where there was a management, no matter how implausible and self-serving, they traded non-prosecution of the corporation – and the protection of the U.S. government for the ransacking of the company by those who were supposedly managing it – for the complete and servile cooperation of that management with the government’s assault on me. Where the management was a receiver or other official, the bargain was similar. The receiver, Richter, could remain in place and rifle Ravelston for whatever it could find, as long as it knuckled under to the U.S. prosecutor and co-operated in any way possible with prosecution battle plans.
Eddie Greenspan would indirectly completely fluster and distract the Chicago prosecutors by giving a tutorial to the Ravelston receiver’s counsel on how to avoid the service of the action on Ravelston. As that company had no presence or assets in the United States, it could only be served in that country if it chose to facilitate the prosecution. The American officials were reduced to huffing and puffing and threatening to treat Ravelston like a fugitive from justice. Since Farley, Toronto’s chief commercial judge, who had granted the receivership application, had stayed all proceedings against Ravelston, he now had his chance to bat down the Chicago bully boys.
I assumed he would roll over for the American prosecutors, though my absence from a direct involvement made this a more suspenseful issue than it would otherwise have been. One of the Canadian counsel asked the Americans what they were going to do. “Send up the Marines and put Ravelston’s corporate seal in prison?”
Predictably, the receiver and its counsel waffled and announced Ravelston would enter a plea of not guilty – a totally unnecessary thing to do – with Farley’s permission. They could simply have ignored the whole thing. Ravelston was my private company, holding shares and real estate in Canada. We all assumed (correctly, it turned out) that Richter would change the plea to guilty after the proverbial decent interval as long as they could take everything moveable out of Ravelston for themselves. Ravelston’s receiver was supported by Hollinger Inc. and Hollinger International, who presented themselves as stakeholders. However, the only involvement they could claim were spurious lawsuits.
Eddie Greenspan rose splendidly to the occasion in Farley’s court on October 3, 2005. He pointed out that Ravelston’s receiver’s counsel had no capacity to enter a plea and that the U.S. government had no standing to charge Ravelston. It was all very galling. The receiver was pledged to uphold the interest of the Ravelston stakeholders, of which I was the major one, but was appeasing the enemies of the stakeholders and was intimidated by the U.S. prosecutors. The receiver, the controllers of the Hollinger companies, Justices Farley and Campbell, and the Chicago prosecutors were all ostentatious partisans on the same side of this issue.
As I had assumed, Farley threw out Greenspan’s motion. He treated Greenspan respectfully, but took his usual free shots at me, referring sarcastically again to the “old guard.” He warned that I must not be seen to be dominating the receiver and associated me as closely as possible with Radler by alleging that “Black and Radler had been running Ravelston.”
Radler had nothing to do with running Ravelston; he had one-fifth of the shareholding in it that I had. Greenspan went at once to the Court of Appeal with an excellent motion pointing out the many legal errors in Farley’s finding. I had seen enough of Toronto’s courts to have a strong premonition of the result, and was not surprised when Farley’s misjudgment was upheld. The judicial deference system in and around Osgoode Hall seemed to immunize the lower court judges from having most findings of fact overturned. They visited a formidable variety of such unjust judicial divinations upon me, until, difficult years later, the fashion changed and piling on to me was less popular and less fun. It was never after this far from my thoughts that Ravelston need never have reported to the jurisdiction. I assumed that Farley, in his perverse judgment, understood it would penalize us financially, while Richter went happily along to receive their blank cheque from the prosecutors to transfer the whole value of the asset to themselves, from the stakeholders whose interests they were so richly rewarded for protecting.
SO MY BUSINESS PARTNER OF thirty-six years was a crook and a liar after all. From the start of this horror show, he told me that he would never have dreamt of doing anything illegal and that there had been errors of execution by Boultbee, Kipnis, and Atkinson. Early on, he had claimed to Peter White that after he had completed the negotiations with the buyers of our community newspapers, the financial instructions had come from Jack Boultbee and me. As has been recorded in his lawyer’s letter to Paris and Thompson of November 2003, he had claimed that I had “initiated” the payments in respect of the U.S. community newspaper transactions. He had acknowledged to me that what he meant was that I had said that he should be rewarded for such a brilliant disposition of assets. I did say that, and he should have been.
I had in mind, as he knew, a payment from Ravelston, not a non-compete payment, but when he told me non-compete payments had been approved by the Audit Committee for all of us and that nothing from Ravelston was necessary, and when Atkinson assured me that all was in good legal order, I did not intervene from London to have my Toronto office send back the non-compete cheque when it came in. For years afterward, the auditors and Audit Committee confirmed that everything had been done properly. Thus advised by an associate of more than thirty-five years, personal counsel of more than fifteen years, and the company’s overpaid accounting watchdogs, I can’t imagine anyone acting differently.
If we were successful in a criminal trial, the entire assault on me would collapse. The civil cases would be fallen soufflés and the public and press bias would shift. Nothing could restore the life Barbara and I had lost, nor take back the years Barbara and I, who were no longer young, would have squandered in this desperate defence against American persecution and its Canadian excrescences. But here, at last, was a possible victorious end to the nightmare.
In order to lay in a cash reserve sufficient to deal with the upcoming legal fees, I sold our New York cooperative apartment for a generous capital gain and gross consideration of more than $10 million. The closing kept being rolled back in a manner that made me uneasy. The buyer’s lawyer, the ubiquitous Skadden Arps (whose chairman, Ken Bialkin, was and remains a friend and supporter), had written up a title search that presented me as a virtual Al Capone figure and had presumed to contact the ineffable Sussman directly to ensure there was no problem with their clients’ acquisition of our unit at 635 Park Avenue.
Once again, and for the second time in four months, the gallant Barbara cleaned out a residence of ours and all the contents were moved to, and generally accommodated in, our Toronto home. The influx of paintings vastly lifted the quality of what was on our walls. She “hated giving up this apartment,” which was not large but was comfortable for our purposes, but she did it with pluck and thoroughness. I was still retreating to a defensible perimeter, as the most ominous storm signals yet were being hoisted daily.
The U.S. government was going to indict. My business associate of thirty-six years was not going to snitch and blow his whistle – that would not be possible, since I had not done anything illegal. What he was to swear to, however, was designed to bury me and release him. His lawyer, Valukas, was now seen and reported in ardent whispered debate, rising occasionally into button-holing and shouting, in the corridors of the courthouse, with the prosecutors. And Williams & Connolly, without actually having done anything useful or difficult, or even given correct advice, were still vibrating in public about whether they would really act for me. The legal front was wobbling before a shot of live ammunition had been fired. I was counting on the receding closing in the Park Avenue apartment to keep Brendan Sullivan in the firing line.
Radler finally made and announced his plea bargain in late September, reading his confession to the grand jury, of whose existence Williams & Connolly had been confidently unaware for many months. Radler’s statement was as preposterous as could be imagined, even from him. He told the performing bonzes on the grand jury, which the Fifth Amendment to the U.S. Constitution assures us is a solid defence against capricious prosecution, that there had been a “silent” scheme. The scheme had never been discussed, much less written about, as we simply did not tell the Audit Committee about these non-compete agreements I had supposedly told Radler to issue. This monstrous assertion, presented by such an ill-favoured witness, was not going to do it for The People, despite all the prosecution’s advantages, when they faced a serious defence, provided I could field competent lawyers.
Radler made his wretched court appearance in Chicago on September 20. He produced nothing useful for his new masters. He had been “tasked” by “Toronto” to get the non-compete payments for Hollinger Inc. and “surmised” that “the chairman” knew about it because only I had the authority to order such a step. In other words, he acknowledged I wasn’t on the call, if it occurred at all. This was the best Valukas could do. But so full of blood lust for me were the prosecutors, brainwashed by Breeden (a minimal laundering challenge, as I soon discovered), that they leaked Radler’s allegations endlessly to the press, who were at the edges of their chairs after a two-year tease before my indictment.
Hollinger International’s lawyer sat at the prosecutors’ table in the court. There was no longer even a pretense that it was not a common front against me. My former associate would receive a six-month sentence (twenty-nine months but with a transfer to Canada that would reduce it to six months). But I felt that no jury in the world could convict me on the basis of Radler’s evidence.
In the American manner, which bears a startling resemblance to the Stalinist formula of prisoners coming meekly into court and condemning themselves, Radler gave his “allocution,” confessing criminality, lies, and cowardice, and apologizing for his contemptible behaviour. This last part was the only accurate part of his presentation, though it is extremely unlikely that he was sincere in stating it.
He was, in fact, pleased that he had escaped the maelstrom, secure, he thought, in his shady swindling of me in the private newspaper company he had siphoned out of Hollinger International (where, again, although he had said we would be equal partners, he had twice as many shares as I did). He was assured of a sentence of six months, in a penal horse farm near Vancouver offering golf therapy, creative theatre arts, and equestrian diversions.
Obviously, the accused in this case was, in fact, a criminal, and he had not been tortured physically, as Stalin’s victims were. But the U.S. prosecution system does seize and immobilize assets, often on the basis of false affidavits and by exploiting laws of questionable constitutionality, designed to combat terrorists or organized crime; deluges a suspect with subpoenas, civil charges from regulators and ambulance-chasers, and relentless harassment from the IRS and SEC; and assures massive defamation. It is a form of mental torture.
Radler, unlike Stalin’s targets, did not demand to be executed as soon as possible for his crimes (as an opponent of capital punishment, I would object to such a fate for anyone, but such a demand from him would have been euphonious). The spectacle of this man, who in the thirty-six years of our acquaintance never admitted a mistake other than his harmless clumsiness with gadgets, confessing to criminal dishonesty and cowardice was almost refreshing.
Yet it was also repulsive, not only because it was untrue, like the absurd statement that followed it, but because it demonstrated the dishonesty of a man I had been closely commercially associated with for decades and the power of intimidation of the U.S. prosecutors.
The nature of the U.S. plea bargain system had been repellant to me for many years, and I was, as in so many other related matters, about to receive a bruising practical education in it. It is the exchange of testimony for varied sentences. It generally starts well down in an organization and brings irresistible pressures to bear on people unable to sustain themselves psychologically or defend themselves financially against such an onslaught – until that person promises to inculpate a higher-up.
The process goes through an organization until sometimes scores of intimidated or suborned people are accusing the chosen target. It is an evil and profoundly corrupt process. It is not reconcilable with traditional American notions of the rule of law. Every informed person in the country knows that the criminal justice system is based on officially sanctioned fraud and intimidation, that the courthouses are silent and the courts empty because almost no one can go the distance with the government, and that there are tens of thousands of innocent people in U.S. prisons because of the false confessions and accusations that are extorted. But almost no one says anything about it.
Once Breeden scared off private equity investors, and especially after he crossed me on the November 15, 2003, agreement that unearthed the opinionated, self-gratified hip-shooter Leo Strine, I was in a power dive. I knew the Breeden report would be murderous, and he held up the dividend of any proceeds from the Hollinger International sale of the Telegraph (having promised to sell the whole company and failed to do so) until it was very late for me to do anything with Hollinger Inc. The U.S. prosecutors got to the compliant Harvey Strosberg, Gordon Walker, Tony Kelly, and Bobby Kofman very quickly.
My sunset gun was the Hollinger Inc. privatization, but I hoped in vain that the OSC would not destroy the public shareholders and save Breeden’s fiefdom. As with the judges and tax collectors in Canada, who wrap themselves in the Maple Leaf at all other opportunities, the national parlour game to get me was too addictive. The proverbial widows and orphans who had invested in Hollinger Inc. could go to the wall.
Radler, skilled at tough talk to defenceless people and at the firing of superfluous employees (a necessary task but one that can be accomplished more humanely and stylishly than was his custom), watched as Ravelston went into receivership and as I was evicted from my own building, and noted my complete humiliation in the videotape affair.
I SUPPOSE IHAD SEEN FROM THE START that it could come to this, even without Radler’s defection. It was painfully ironic: I was a qualified U.S. historian; I had been denounced in the parliaments of Canada and the United Kingdom for my pro-U.S. sympathies – and now I was about to be assaulted by the U.S. government. This greatest of all countries was about to try to end the useful career and perhaps even the natural life of one of its most vociferous admirers, in the U.S. prison system, on the strength of baseless allegations.
My former career as a perceived media mogul, a London Fleet Street baron in that formidable tradition, which had been thirty-five years in the making, had been extinguished in a few days. I was realistic about the scale and speed of my reversal. I made no compromise with the objective collapse of my status and the gratuitous cataract of misfortunes that followed. Never had I appreciated so much Napoleon’s most brilliant aphorism as he began the retreat from Moscow, that “from the sublime to the ridiculous is a single step.” My position had never been sublime, but it quickly became ridiculous.
I was more afraid of the financial wars than of the legal ones. My financial condition was again becoming parlous. I was counting on the proceeds of our New York apartment sale to prevent Brendan Sullivan from deserting a ship from which he seemed to think all the valuable cargo had been removed.
Apart from the legal and financial challenges, which were constant and treacherous, the challenge was now to maintain personal dignity without appearing to be residing in a fantasyland of denial. My new vocation by necessity would be to resist the Goliath of the abusive American prosecution system and accomplices in Canadian middle officialdom and to fight the tendency of the Western media to rush to judgment in a presumption of guilt.
This would be a desperate game of chance. I had no reason to agonize over it, as there was no alternative. I would go to prison for life before I would plead guilty to crimes I had not committed, much less utter a Radlerian allocution and wrongly accuse others.
My Roman Catholicism required me to confess and repent improper conduct, and if I had committed a crime, I would have pleaded guilty and accepted a punishment that would enable me to atone and expiate, to redress society’s just grievances against me. I believe in the punishment of crimes. This was something else; it was the punishment of faults, attitudes, and public relations misperceptions, and of misfortune, especially having a crooked associate, but I was the victim, not the author, of crimes – Radler’s frauds, the U.S. government’s impending false accusations, widespread defamation, and, still to come in a torrent, Radler’s and others’ falsehoods in the court in Chicago, as eventually even prosecutors would confirm when they turned on their own witnesses. I do not believe in false, extorted, or unspontaneous allocutions, which demean the spirit of confession and repentance and reduce justice to corruptly procured self-humiliation. I regularly scoured my own conscience and was a more frequent confessant and penitent than usual, keeping my moral ramparts strong, but never attenuated by sanctimony.
It was an unsought honour, but it was about to come to me – to try to resist the decay of American justice, the degeneration of the grand jury into a prosecutor’s rubber stamp, the hollowing out of due process, and the suspension of the guaranty against uncompensated seizure of property (all in the Fifth Amendment, along with the rights against self-incrimination), and to uphold assurances of prompt justice, access to counsel, an impartial jury, and reasonable bail (in the Sixth and Eighth Amendments). Almost any task, no matter how raw, can be attempted if it has some grandeur, and especially if it is the only way to avoid a terrible fate.
I was very aware that the end might be imprisonment. This was in some respects an ennobling prospect; if I was to be completely humbled, in conventional and bourgeois terms, I hoped to be elevated in moral terms. I could certainly establish that I was innocent, even if an American jury could be cajoled or dragooned by rabid prosecutors into finding me guilty.
Up to a point, the greater the injustice, the more complete the revulsion would be when cant and emotionalism subsided and the degraded system was seen in the light, in its ghastly infirmity.
I had been attempting to privatize my company, retain the Telegraph and the Chicago assets, and reorient their brands into the Internet age. It was the only strategy that would have worked, but it collapsed, the companies were destroyed in the name of corporate governance, and the franchises atrophied in incapable hands. It wasn’t the exit strategy I had sought, or the successor occupation I would have chosen, but at least I had a mission, full of desperate purpose and some drama. The game was afoot, all could still be won, and victory and defeat both had their attractions: instant vindication or the vindication of aggravated injustice.
And I had already started to envision my strategy for dealing with legal defeat, should it occur: a strategic retreat to another jurisdiction. I could provoke a trial in the U.K. or Canada, on a side issue such as my Canadian libel cases where the Ontario courts have already indicated they might apply the test of whether a court in Canada would return a guilty verdict if seized of the same evidence. Of course, they would not; British or Canadian prosecutors would be disbarred for the routine conduct of American prosecutors, extorting and suborning perjury. I would never relent and I could not be silenced, as long as I remained alive and in funds. This was total war.
–
THE FINANCIAL SQUEEZE WOULD begin again if the Park Avenue sale weren’t completed fairly soon. I even entertained an overture from a Russian Canadian for our Toronto house. As usual in these times, it was not so much an offer as a proposal so miserly, it bordered on attempted theft.
I was awaiting the end of the cease-trade order on Barbara’s Hollinger International stock, which was dependent on International getting up to date on its quarterly filings. All present and previous officers and directors were under a cease-trade order until that was done. The enemy had dragged out the lawsuit for indemnification of my Williams & Connolly bills until near the end of the year. The endless press barrage and general conventional wisdom that I was about to be indicted complicated matters. Murdoch’s New York Post opened a column with: “Tick-tock, tick-tock, as the clock ticks toward Conrad Black’s imprisonment.” Normally one waits for the charge, if not the evidence, or even, in the case of extreme traditionalists, the verdict, but not my former friend Rupert Murdoch’s journalists.
Barbara and I went to Washington in late August 2005. The indictments of Radler et al. had caused the Justice Department to stay discovery in the civil proceedings, which spared me the unpleasant choice of testifying or, as was for me inevitable in these circumstances, exercising my Fifth Amendment rights, which is damaging in civil proceedings.
In my more suspicious moments, I wondered whether Breeden had organized the mini-bar inspectors in our hotel. The highlight of the visit was Barbara’s and my conversation with Brendan Sullivan. For the first time in my acquaintance with him, he showed some sense of humour, and he revealed with emotional eloquence how much he hated the “evil and repulsive system” we were fighting.
Elton John and David Furnish were in Toronto and came to lunch at our home. It was a generous gesture considering Elton’s tight schedule. When Elton came out on our terrace before lunch, his view was of the rolling lawns and hillocks, no flower beds or garden vanities to interfere with the prospect of grass and trees and the ravine. “It’s a good thing you have this place, to keep your sanity,” he said. This was true.
I managed to get around a bit. Sir Winston Churchill’s biographer Sir Martin Gilbert, speaking at a Jewish function, opened with a very warm commendation of my Roosevelt book and of me personally. My social outings were commented on in the press less breathlessly than they had been. I met and quickly became friendly with the brilliant and delightful Richard Bradshaw, who had turned the Canadian Opera Company orchestra into a first-class one and who had built the first opera house in Canada, one hundred and forty years after its founding as an independent country. Richard’s sudden death from a coronary two years later at the age of sixty-three was a terrible loss to everyone who knew him and to all of Canada. Barbara took his death very hard, in spite of knowing him relatively briefly. He had, she said, that kind of blazing personality that could bore into your soul in an instant. His being was so intimately tied up in her mind with music, and music in turn was so intimately a part of her being, that she felt it as an amputation.
Writing every other week in the National Post, and later every week, and then in Tina Brown’s online Daily Beast and Bill Buckley’s National Review as well, was an interesting diversion, and helped me focus on the great world beyond my own travails, including many humorous subjects. Barbara was asked back to Maclean’s by the new editor and publisher, Ken Whyte. She accepted. Those who had so brutally dismissed her were fired themselves. These were small portents, perhaps, but a start at regaining lost territory, and even a flickering of natural justice. We fought on in sober but stable spirits.
As the impasse over completion of the sale of our New York apartment dragged on, I didn’t unpack all the boxes that poured in from there. The Toronto house became very full. Every day at 7:15 a.m. I heard the plaintive beeping of an alarm clock inside one of the packing cases in my dressing room. I finally opened the carton and rummaged through it. It was a little red clock Bill and Pat Buckley had given us for having them as guests on a chartered yacht cruise along the Côte d’Azur in 1996. It had been emitting little squeaks of purposefulness every twelve hours since it was packed up in New York. I resettled it on the vanity of my bathroom.
Brian Mulroney, who was very supportive throughout this ordeal, volunteered to organize a group of wealthy friends who would help me with legal bills by subscribing a second mortgage on our Palm Beach house. I deferred this, though I was grateful, because I hoped to come through the nightmare beholden to no one, having been deserted once before by some from whom I had expected more.
While I was scrambling to find the means to defend myself, Breeden announced he was setting up a hedge fund. This was a man who acknowledged he had not made a success of his own $200 million business in his only foray into commerce. Breeden’s hedge fund has, at time of writing, been a failure. He is a plodding stickler, dogged, like a spider killing anything that touches its web. He does not have a personality that can be transported successfully outside exploitation of the inner strings of the official bureaucracy.
I WAS IN WASHINGTON IN OCTOBER, partly for the annual dinner of the Nixon Center, where I had a nice talk with the irrepressible Gordon Liddy, the only one of Nixon’s aides who didn’t break and run.
I met with an unshakably cheerful Greg Craig, who had assured me constantly that there was no possibility of an interruption of the sale of the New York apartment, which was now my big worry. I had breakfast the next morning with the author and journalist George Will, who could not have been more upbeat and supportive, some other appointments, and was preparing for lunch with another friend when, as Private Eye magazine used to write, “the telephone rang.”
Craig and John Warden and Ben Stapleton of Sullivan & Cromwell, the firm that had written up the closing in New York, telephoned to tell me that when contracts were exchanged and the cheque handed over at Skadden Arps’ offices, two palookas from the FBI rushed in and seized the money, brandishing a warrant issued ex parte by a magistrate under what was shortly proved to be a false affidavit, attesting that I had effectively stolen the apartment from Hollinger International. The prosecutors who would have put the FBI agent up to signing the affidavit should certainly have known that the allegations were untrue.
My ten million dollars had been seized by the FBI. The buyer had my apartment, the U.S. government had my money, I had nothing. I had asked repeatedly about the delays before the closing and was assured, with the same chipper confidence with which I had been told that the Barclay transaction was legally unassailable by different lawyers but with indistinguishable self-assurance, that there was no problem. The seizure was under the Civil Assets Forfeiture Reform Act, directed ostensibly against drug traffickers. I was given no notice of anything before the ex parte seizure. And it had nothing to do with justice. The FBI affidavit did not mention that I had personally spent $4.6 million on renovating and decorating the apartment, much less that Hollinger International, not I, had been obligated to make those expenditures.
A Tower of Babel of conflicting advice ensued. The lawyers of Sullivan & Cromwell, Williams & Connolly, and even Baker Botts, who were not directly involved, rivalled one another in their war cries of impending victory over this monstrous overreach. Brendan Sullivan himself, who had cost me almost $2 million per brief conversation, called to say that it could be undone.
Craig had thought that there might be some utility in a private talk with the assistant U.S. attorney in Chicago, Eric Sussman, who had orchestrated the seizure with Skadden Arps. The thought horrified me by its naïveté. Sullivan said there was no point having “friendly talks” with U.S. prosecutors, that we should go straight to court alleging a false affidavit, false facts, and false law, all employed for the discreditable and unconstitutional purpose of trying to deny me the means of self-defence. “Prosecutors,” he averred, “are like Pavlov’s dog.”
When I spoke to Sullivan again the following day, though cautious, he thought that “when the government acts this aggressively, it often makes mistakes, and seems to have done so this time. There may be a chance to get a New York court to slap them, hard.” Joan Maida had sent them all the supporting materials, showing the millions I had spent on the apartment, and Sullivan instructed his juniors to work through the weekend preparing the papers.
I returned home after dinner on October 11, to find that I had been poleaxed by my enemies again. Despite the fact that there were 380,000 Google entries on asset freezes and forfeitures, it took until that night for the aggregation of Brendan Sullivan, the vacationing Greg Craig (this week in Europe), and the rest of the well-paid Williams & Connolly team to figure out that the Civil Assets Forfeiture Reform Act of five years before ensured that there would be no quick recovery of anything. The freeze was in place, and as soon as we pointed out that their affidavit was fraudulent and the discovery procedure began, our suit would be stayed – delayed – with the other criminal-related civil actions.
The U.S. government was reduced to snooping around like a second-storey man, looking for a balcony door that had been left unlocked, and to mouthing threats in the hope of finding accomplices such as Radler. It put witless FBI agents up to signing false affidavits so rubber-stamp magistrates could conduct ex parte asset seizures and defendants could not defend themselves. The constitutional guarantees of due process and against uncompensated seizure and promising access to counsel had become fables, heirlooms of America’s past, like the legend of Rip Van Winkle, and George Washington and his cherry tree. In these matters the whole country had gone to sleep. And Sleepy Hollow is terrorized by vicious prosecutors.
Each week in my travails seemed to yield new evidence of the corruption of the system; the plea bargaining–intimidated perjury; the assault on the indemnity for legal costs; the abuse of obstruction of justice; the planted defamations; the threatened invocation of “racketeering” against people who were, as even Leo Strine said of me, anything but racketeers; illegal telephone intercepts (which sweeps revealed, as did bugs on our furniture in New York) – one day the monitor flipped the wrong switch and Barbara and I heard them chatting inconsequentially through their bugging device (which seemed to be concealed in one of her stereo speakers). Normal communication between potential defendants was interdicted. There were fiendish attempts at financial strangulation (asset freezes, fake tax liens, and threats made of unspecific prosecution against mortgagees, such as mine in Palm Beach who was told by the inimitable Sussman that if he renewed my mortgage his company would be prosecuted somehow in the Chicago area). As it arrested the payment side of our apartment sale, the IRS seized $700,000 of refundable tax. Five years later, it was still trying to deny it had the money which at time of writing after threatening to litigate to recover, and after obtained affidavits to prove that they received the money has just been returned to me. No one should invest any credence in the proposition that the U.S. government exhibits many traits of the rule of law that it purports endlessly to be upholding “among ourselves and with all nations.” It may do or it may not, and it certainly did not with me.
And there were the grasping lawyers. Most of the private sector counsel, prosecutors, and judges lock arms in a cartel to milk anyone who stumbles into the sticky official bouillabaisse behind the revered facade of the rule of law. They all love the system, they all think they are intellectually more elevated than almost all their clients, they are almost all more interested in being well paid than in the outcome of the case, and they are almost all friendlier with prosecutors and opposing counsel than with their clients. The lawyers had to be fed hundreds of thousands of dollars all the time or they would defect and join the serried ranks of those litigating against me, to collect unearned income. Brendan Sullivan, in the most famous statement of his career, told the Iran-Contra Committee of the U.S. Congress that “the American lawyer is not a potted plant.” Perhaps not, but he is watered like one.
Mercifully, there were a few exceptions, such as Sullivan & Cromwell and Eddie Greenspan, and later Andy Frey, Miguel Estrada, and many of our specialist lawyers. And some other lawyers were not exclusively rapacious self-seekers, but many were. Brendan Sullivan himself, whose barristerial talents are not at issue, is not at all a vain man, and he sincerely detests the corruption of the American justice system.
THERE WAS NO RELIEF TO THE terrible loneliness. Barbara and I went out into the world most days, and lived very comfortably in our splendid house in Toronto, yet we had no community of interest with any but a few people, sociable though I was. Others led normal lives, had normal jobs or professions, were not excessively or nastily referred to in the press, and did not fear that any day the police might be at their doors, carrying out search warrants or charging them with heinous crimes of which they were totally innocent.
I had Greenspan school my staff on how to deal with any such intrusion. I had tired of having my files purloined, deliberately misplaced, leaked in spliced excerpts to the press, and destroyed. The terrorist apparat was always with us. It was not, as I often mused, Kafka, Orwell, or Koestler, but it wasn’t America the beautiful or Canada the unblemished snow-maiden of the North either.
Every asset realization I made was so long delayed by official obstruction or equal-opportunity, imitative, private sector shilly-shallying that by the time the proceeds arrived, legal bills had grown like steroid-bloated rodents and devoured much of the funds, while the indemnified rebates were denied and had to be litigated endlessly, producing more bills and another round of the cycle. There was minimal due process, only an infernal machine to destroy designated targets and grind them to powder in the gears of the American justice system, while the free press cheered, before anything was adjudicated.
It was all couched in that pompous legalese that would lead the uninitiated to believe that it was an honourable system run by honourable people. In fact, once focused on a target, prosecutors would adapt their interpretations of the facts to produce the desired verdict. The absence of evidence was not indicative of possible innocence but merely of the fiendish ingenuity of the culprit in covering his tracks, and of the superior sleuthing of the prosecutor in continuing to pursue him.
Canada, though less vicious, being a smaller jungle with smaller beasts in it, was not appreciably better. In my experience, the Canadian procedural rules are fairer, the courts are less indulgent of runaway government, fewer judges and legislators are ex-prosecutors, but lawyers were generally not as competent, and the judges were more servile marionettes of the media faddists. As in many other spheres, Canada was a junior league for the colossal engine of injustice Americans know little of as they stand at public events, hands over their hearts, singing their splendid anthems. I wondered how could the country of Franklin and Jefferson, Madison and Lincoln, have come to this?
The Justice Department gleefully announced the New York seizure of my assets, so it was on the Friday late-evening news in Canada when I returned home and in the Saturday morning Canadian and American newspapers. The department intended this to be a show of strength. I thought the reverse. It wasn’t so much that the law was an ass, it was that the American state had become a gangster. For almost the first time, I was more disappointed in America than angry, more contemptuous than outraged.
By this time, I had no more faith in the Great Man theory of lawyering than the Great Man in question apparently had in my ability to pay him. Craig had the effrontery to ask me to sign a new retainer agreement before his firm would even appear on my behalf in this New York action. I signed it, but by this time, after a few days, the pep talks of moral and legal invincibility had moderated. It was a familiar pattern: lawyerly bellicosity, new retainer, new invoices, bellicosity gives way to sobriety and staying the course, and then it all fades away like the “lone and level sand” around Shelley’s monument to Ozymandias – except for the next Desert Storm of legal invoices.
Craig wrote up a good brief. He recited the omissions in the FBI affidavit and concluded that the government was trying to “take away David’s sling-shot just as he is about to meet Goliath.” It was a good line, and it was accurate. The government should have known perfectly well that its allegations were rubbish. The prosecutor’s sole motive was to strangle me financially just as the government was going to lay its indictment. Sussman cockily took Craig’s telephone call and emitted peals of laughter at what he thought to be his surpassing cunning.
Craig happily told me that in the indictment that was about to come, Sussman wanted me to live in my Florida house, presumably to facilitate his further harassments and oppressions (not that the Canadian authorities had been much of a breakwater against them up to this point). Craig, who had been pretty peppy about my chances in a trial, had suddenly become quite sombre and belatedly claimed to realize that the Audit Committee would be frog-marched into court in the same mendacious procession as Radler, and that it would be an “uphill fight.” He implied that I should consider Sussman’s wish that I move to Palm Beach. I dismissed the suggestion.
The worry about money was haunting me, as my tormentors intended it to do. My homes, all of which had greatly appreciated in value, had been fortresses, as subjects of mortgages and then of sales. Now they were to be turned into a trap, illiquid because of the U.S. government’s persecution of me, in response to the antlike movements of Breeden. As Joan Maida said, “People are screaming for money,” and I was down to $500,000 in cash, which sounds like a lot but isn’t when you have legal bills and houses to maintain and staff to pay, and have great difficulty raising a fair price for any asset. “Money, Money, Money” (from the musical Cabaret) was never far from my thoughts.
Months of work and worry and Barbara’s evacuation of our home on Park Avenue (during which she sprained her shoulder and developed a tennis elbow from the sorting and packing and unpacking) were snuffed out in a moment with the hippopotamus-walk of the two FBI agents through the closing room. Barbara was now being harassed and threatened by the IRS over her tax arrangements, undertaken on sound professional advice, and unexceptionable at that.
On the Sunday two days after the New York theft, October 9, I was on the upstairs landing of our main staircase, adjusting my sweater before going out for a bicycle ride, when a fine Franck Muller watch Barbara had given me flipped off my wrist, bounced onto the carpet and through the narrow opening between the balusters, and fell fifteen feet to the marble floor below.
To replicate this move, I would have had to get down on my hands and knees and feed it between the spars. It seemed to be the end of a valuable watch that I valued in the way people become sentimentally attached to timepieces. I wondered whether I could do nothing right, no matter how mundane or banal. (The watch was repaired, gratis, by a friendly and thoughtful jeweller.)
In what I am sure he considered a generous and thoughtful gesture, Brendan Sullivan called and said I could give my entire defence to a bright young lawyer. He named Joe Califano’s son and said $2 million would do it. (Califano Sr. had been Lyndon Johnson’s chief of staff.) Brendan was clearly heading for the tall grass, where so many in this dismal cavalcade had preceded him. His terms now were that if I put up $25 million in advance, he would take the case. If I put up $8 million, I could have Greg Craig. It was like taking the ride up to the observation deck on a high building. You pay on the ground and get on the elevator. Halfway up, the elevator stops, and you can pay again or come back down without having a panoramic view. Out of financial necessity as well as irritation at their behaviour, and at the ravenous practices of American law firms, I took the second of these options and ended relations with Williams & Connolly.
I had paid nearly $9 million for the deterrent and comforting power of Brendan Sullivan. He did not deter, his comfort did not last, and as a parting shot, Williams & Connolly told me that if I did not pay a $400,000 arrears to a data-collection business, for which I had been handsomely billed and on which the other co-defendants, including Radler, had been free-loading, the whole data base would be scrapped. It was very enervating. I retained cordial though distant relations with Brendan and Greg. They are good lawyers but weren’t really engaged with me. Greg went on to be White House counsel for President Barack Obama’s first year but departed somewhat acrimoniously, and not back to Brendan’s firm.
IT WAS A SAD KOL NIDRE night for Barbara, who, until the FBI stole our money in New York the previous Friday, had been planning to go to London and observe the High Holy days in her synagogue. Instead, she sat with me for a time listening to a recording of the cantor, and I read from her prayer book. I promised that, within my abilities: “Next year in London,” where all her friends had been looking forward to seeing her. The previous year she had been at synagogue with Neal Kozodoy, the editor of Commentary magazine, in New York. This year she was at home with me on the Days of Awe and Atonement, when she wished to be with her people. American notions of justice denied her even this, and she finished the evening gloomily trying to retrieve records to fend off the IRS witch hunt against her.
BILE CONTINUED TO OOZE and suppurate from some ancient, foul orifices, such as the mouth and pen of Peter C. Newman. The most obnoxious reflections of all, it seemed, were in his autobiography. He managed more than seven hundred pages, in which his principal claim for himself, and the one that was excerpted, was that he had “invented” Barbara and me. He therefore ironically confessed some responsibility for our supposedly wretched and pitiful demise as substantial people. He bought entirely into the “gutsy” Strine line and the imperishable virtue of “Dick” Breeden.
The section about Barbara was the lowest, nastiest, most revolting piece of journalistic sewage I have read. Newman purported to be the all-seeing connoisseur of our bedroom and from his lurid and neurotic imagination explained to readers and then to interviewers that Barbara hooked me with her sexual wiles, which he purported to detail, with a ghoulishly prurient imagination. Further, Barbara had incited me, credulous dupe as I was, to unsustainable extravagance. She had always publicly given Newman credit as the editor who gave her a chance as a columnist at Maclean’s in 1977 but had no social relationship with him and had no idea that his feelings were so bitter or so twisted. Both her former husband, George Jonas, and I urged her not to read the book, and she has not.
Barbara and I had both long since gone through the wall in terms of being much affected by such comment. But it was hard to believe that matters had sunk to such a point that a supposedly reputable writer could pen such vulgar drivel and that we should have to endure such abuse. Our condition was so strained that there was nothing to do but fight it out and rely on ultimate financial and legal vindication to resolve the public relations disaster – with the assistance of massive libel suits at the appropriate time, when they would not get in the way of more substantive litigation. I did eventually win a partial retraction from Newman, and in 2007 I emerged fully intact from a series of sharp exchanges with him in the National Post, where I debunked some of his more notorious statements on subjects having nothing to do with me. Later, when my imprisonment loomed, he delighted every Canadian television program, as he said, “except Bowling for Dollars” with speculation that I would be sentenced to fifteen years and would be raped in prison while Barbara would desert me and return to England in search of her fifth husband. This putrefied gossip’s preoccupation with such lurid public ruminations was apparently inexhaustible.
It was objectively sad; in addition to his talents, he had also often been a fairly agreeable dinner companion, but had an irrational compulsion to destroy relationships. He had had his moments, including some brilliant moments as a political columnist, author, and editor, but was outrun by events: the name died before the man, and his declining years have been nasty and disturbed.
Another champion of vicious mendacity, and without any redeeming quality or talent or mitigating excuse such as Newman’s bilious senescence, was the malodorous English pseudo-biographer Tom Bower. He was a minor pestilence who had festered and pustullated on the edges of journalism and trash books and emerged like the expectant undertaker whenever any prominent financier was under siege. His opening message in a personal email to me was not a surprise, in fact or in tenor. It was an earnest, hearty, old colleagues, jolly-hockey-sticks overture to set the record straight, at the request of unidentified people who felt that he as author and I as subject must be united.
I naturally invited him not to attempt such a pitiful deception. It shortly emerged that he had been put up to this by the Murdoch organization, HarperCollins. I had some friends whom he did not know were particularly friendly with me, ply him with drink (not much of a challenge, apparently), record their conversations, and provide me with the evidence that his book was to be a malicious assault in which he was just going through the motions before smearing everyone related to me.
His violent onslaught on Barbara again amazed me. He accused my father of being a chronic and almost catatonic drunkard, even during his active business career, which was exceedingly successful. I had never made a successful deal, operated an asset effectively, or written competently. This innumerate and venomous gossip claimed that for twenty-five years I had “slithered along Bay Street (Toronto’s financial district) on life support.” He could not accurately or even grammatically record that Jack and Jill went up the hill, yet he accused me of relying on too many secondary sources in my Roosevelt book. (His life’s published work possessed less genuine research than any one of my twenty-five chapters on Roosevelt.)
I assumed that News Corporation had indemnified him or HarperCollins would not have allowed such a contemptible and defamatory volume out under its imprimatur. There were more than one hundred and fifty distinct and major libels in it. And it was so ineptly written and edited, it contained many accidental non-sentences. I wrote a very extensive summary of the libels, and we did sue in Canada for $10 million. Almost all Bower’s reviews were negative. The New York Times called it “a sad little squeak” of a book and enunciated the rule that writers who write vitriolic attacks on other writers should be able to write as well as their targets, and that Bower had failed that test, in respect of both Barbara and me, and had managed the difficult feat of making us seem boring. The press are almost always a pretty job lot, but Bower is an unrecognizable mutation even of the journalist, much less of the authentic author.
IN MID-NOVEMBER CAME THE centenary dinner of Maclean’s magazine, which celebrated each ten years of its existence with a brief film on the decade. Barbara was one of the introducers of a decade. She looked even more beautiful than ever. At the dinner, Eddie Greenspan had the plea sure of handing Peter C. Newman a libel notice for calling me a criminal, for which we got a retraction. Three days after the dinner, I was formally accused of being a criminal. Barbara learned this from Report on Business TV in her bathroom shortly after getting up. There was no notice to us, though we had expected it any day. Peter Atkinson and the intrepid Jack Boultbee were indicted with me. We would be tried together with Mark Kipnis and Ravelston. “LORD BLACK INDICTED” was the headline on the banner of the Globe and Mail, with a fine picture of Barbara and me from the Maclean’s dinner.
So dreadful had the tension been that I was glad to be indicted and come face to face with my mortal enemy, who had been stalking me for two years, stirring up lesser beasts of the jungle to nip and snap at me. Finally, they would have to prove something.
With the disembarkation of Brendan Sullivan and Greg Craig, I now had no lawyer. I tried to engage a number of other American law firms, but they all seemed to have been spooked by fear that my finances were parlous and that the case was even more hopeless than most U.S. criminal defenses. Then I thought of Eddie Greenspan. Of course he was a Canadian lawyer, but I assumed the law was not that different in the United States and that he could recruit a compatible and competent American. Greenspan had been born in Niagara Falls and had told me that he had regretted that his father had not gone a little farther when he emigrated from Europe; then he might have been as famous in the United States as he was in Canada. He had a drawing of Clarence Darrow in his office and revered the bar of Chicago, where his daughter had practised.
I asked him if he was interested. He was. At this point, the relentless Eric Sussman was calling for $60 million bail, and the U.S. attorney, Patrick Fitzgerald, was threatening to extradite us. Obviously, the thought was to keep me in jail until the trial on grounds that I could not make bail and, if I did not surrender voluntarily, to label me a fugitive from justice – thus tripling any sentence I might receive. Craig had made no progress with Sussman, who would have gathered from the press, if not from Craig himself, that Craig and his boss were heading for the exit. Greenspan managed to get bond down to a still record-breaking $20 million, consisting in part of the money seized in New York, and the rest secured on a third mortgage, behind my mortgagee and the oversecured Canada Revenue, on the Palm Beach house.
Exorbitant though the sum was, it did not involve any more cash, which I did not have at this point anyway, after the government’s Park Avenue heist. Our houseman in Palm Beach had called Joan Maida and told her that there was $20.67 in the house account there, enough to operate the house for about fifteen minutes. These grand houses were mockeries of our former status; we rattled around in them, I thought, like the Romanovs in the Alexander palace, waiting for the Bolsheviks to take us away and execute us. Yet they now secured direct financing of $20 million, plus bail of $10 million. I believe the extent of bond, which was nearly $40 million as I cleared other encumbrances off Palm Beach and the value of that property went up, was the highest in the history of the United States up to that time.
A few days after the indictment, I went to an annual dinner of the Churchill Society, where Chris Matthews, the U.S. television commentator, gave the address. He generously referred to me, and I received a considerable ovation. There was speculation about not attorning to the jurisdiction, and Greenspan said that I could stonewall the Americans for up to six or seven years, but not longer, if I ignored the jurisdiction.
They would seize my house in Palm Beach, and although their antics in the New York seizure of my apartment sale proceeds had scandalized some, I couldn’t do it; non-appearance would be generally interpreted as a confession of my guilt. Besides, though I knew the prosecution had the advantage and was under no illusion about Sussman’s rabid aggressivity, I knew the facts. Radler’s confession was such bunk, I thought this was the place to give battle, after being struck unforeseeably, like a blind folded man running a gauntlet, for two years.
Greenspan recruited his daughter’s former employer, Eddie Genson, a colourful Chicago criminal lawyer, to be the co-counsel. He was large and overweight, and because of a physical disability moved with the aid of a motorized tricycle and was armed with a silver-handled cane. His bobbing head was covered on all sides and everywhere except his ears, forehead, nose, and just under and beside his eyes with scruffy, reddish-blond hair. He was a Damon Runyon figure, obfuscatory, stammering, almost incomprehensible in his repetitions and syntax and jangling accent – but clever. He had represented a huge number of thugs and scoundrels and celebrities, and he was a famous figure in the Chicago courthouse.
After the straightlaced playing by the book of Sullivan & Cromwell and high-priced impersonality of Williams & Connolly, I was ready for something altogether different, and in the two Eddies, I certainly had it. For a long time, I thought I had an ideal combination, a pair of streetwise alley cats, one a great traditional barrister and the other a Chicago courthouse roué. Their great advantage in my eyes was that they had never been prosecutors and had never settled a case.
They were both afflicted by the bug of the criminal lawyer, a misplaced reverence for, and amusement by, the hoods and low-lifes they had represented. I doubt if Genson, from his days accompanying his father as a bail bondsman, had ever represented a respectable client. Greenspan had, but they were not his specialty. He was, however, a serious lawyer, who had often appeared before the Supreme Court of Canada.
They proved not to be quite what I had expected, but at least, thanks to Greenspan, I had surmounted the original crisis: I had counsel and a survivable bail arrangement. Sussman tried to prevent my return to Canada after I appeared in Chicago to enter a plea, but Greenspan and his immigration counsel put a stop to that. This was not the first, and far from the last, of Sussman’s pestilential interventions with very suggestible, even eagerly complicit, Canadian officials. Addicts and converts to the persecution abounded.
WE APPEARED IN CHICAGO, attended by hundreds of journalists, in late November. The courthouse, a twenty-seven-storey building designed by Ludwig Mies van der Rohe, was a monument to the first Mayor Daley’s political influence.
Having so often seen in newsreels and dramatizations accused people mobbed by journalists in front of court houses, I didn’t find it such a novel experience. Like many other things, it is surprising how much it resembles the imagination of it. Genson had had no idea of how prominent a case this would be, and performed valorous service for me by clearing a path with his motorized tricycle and threatening to batter intrusive journalists with his silver-tipped cane. The press swarmed, but were not abusive or physically aggressive.
I was surprised by the judge. Amy St. Eve is diminutive and has a mane of well-kempt blonde hair, an intelligent face, bright eyes, and a clever, quick, mobile expression. She wore a U.S. flag pin on her robe (though a couple of times it was almost upside down, like a navy distress signal). She was courteous and rather amiable.
Some of the press called her, generally respectfully, Peppermint Patty, or Mighty Mouse, and she did somewhat fill the latter role when she stood with her hands behind her back and under her robe: a pleasant, pretty, clever mouse. As with Kimba Wood, the New York federal judge who was an Attorney General candidate with Bill Clinton but because of her domestic hiring practices was passed over for the terribly mediocre Janet Reno, Judge St. Eve communicated a scrubbed and groomed pride and authenticity, which indicated that she would be sensible. I was assured, and did not doubt, that compared with the generality of judges in the Dirksen Federal Building, she was a godsend of wisdom and fairness.
Genson entered my not-guilty plea to the many counts of mail and wire fraud, the charge of money laundering, and the inanity that I had obstructed U.S. justice when I removed those thirteen boxes from my office on Toronto Street. There would be superseding indictments for racketeering and tax fraud. I assumed they had delayed charging these because they were afraid I might not appear in the United States if I were aware of them and because Canada would have been reluctant to grant extradition against such a barrage of unfounded allegations.
They need not have entertained any such fear. I would not be a fugitive from justice, and I would not have counted on the Canadian courts for much either. Whatever legal advantage Canada has over the United States resides in the prosecutors and the procedures, including the limits on what is justiciable and what is publishable, and not, from what I had seen, in the judges. St. Eve would prove a better judge than any I had known in Canada since my friend, and eventually Hollinger Inc. director, Charles Dubin, if not my father’s friend and mine, Chief Justice Brian Dickson.
We were accused of the American federal offence of not paying taxes owed to a foreign power. The United States was charging me with a Canadian tax offence, as if Canada needed the assistance of a Sussman to collect its taxes. No such charge was ever laid against us in Canada. (The Canadian Justice Department sent two observers to the trial, who concluded there was no case against the defendants.)
The U.S. government, reduced by jurisdictional factors to invoking the mails and wire-links, would lay sixteen charges against me and seek the complete impoverishment of my family and my imprisonment for life. I found it somewhat invigorating, so surrealistically corrupt and dishonest was the process and the conduct of the prosecutors. (The trial was set for sixteen months later, March 2007, and there would be progress hearings every month or two.)
I was unimpressed by Kent and Sussman. Kent was an oaf, tall, slow, and monotonous. He left the case and went into private practice after a few weeks. Sussman had a crewcut top knot, with a pintail swoop to a point at the back, and his head looked like the flight deck of an Essex-class aircraft carrier: top-heavy and rectangular. He had compulsively darting eyes that would stop and then stare, with small pupils amid large, sallow whites, and a triangular nose, like an overly large spinnaker, capable of capsizing the vessel behind it. When he spoke, his wrists and hands moved jerkily, as if they were being manipulated by an amateur ventriloquist. When he stopped speaking, he went to a default countenance that was gape-mouthed, punctuated by his tongue bulging against the inside of his cheek like a lingual erection. He is a hollow-chested man who compensates with heavily padded shoulders and overlong jackets, a retrogression to the 1950s zoot suit. The overall effect was disturbing. He was all nose, mouth, and fake shoulders.
But just as nauseating was the even more mouthy co-prosecutor, a gargoyle. Jeffrey Cramer would soon be strutting in mid-address, shouting and pointing. Sussman and Cramer were a hideous pair.
The third prosecutor, Julie Ruder, had a pleasant face but a grating voice. Her sole manual gesture was putting both thumbs and forefingers together as if describing a recipe to a cooking class. The fourth prosecutor, Edward Siskel, seemed fairly unexceptionable and was completely forgettable, a distinction in such a horrifying quartet. In fact, he was there to familiarize himself with the trial in the event of an appeal.
I encountered Peter Atkinson for the first time in nearly two years as we were being processed, fingerprinted, photographed, and giving urine samples in the “lock-up.” We had a cordial chat. The whole ambiance was quite affable; the finger-printer was a very large man who loved camping and hunting trips in Canada and conversed very jovially with Peter and me. Waiting FBI officials were also very agreeable, reminiscing about their time in the Bureau and about FBI directors going back to J. Edgar Hoover. I was prepared to be handcuffed – I was curious about the sensation – but it didn’t happen.
The court appearance itself was uneventful. I told the massed and swarming press as I left that the charges were nonsense and that I had been a victim of a smear job, that all the accused were innocent of crimes they would never dream of committing. This was nothing but the truth. I was generally credited with a decorous performance in distasteful circumstances. I told the media that it was like the first day at university registration.
THERE IS A DRAMA IN NOTORIETY that is sanitized, even made wholesome, by being guiltless in fact. Let Breeden and his gullible accomplices in the U.S. attorney’s office in Chicago get on with it. My nerves, far from cracking as Radler’s had, became serene. I again dispensed with sleeping medicine and awaited events, confident that on Crispin’s Day, my innocence and the quality of my counsel would turn the battle. Barbara, family, and friends would help me through, just as sales of a home and some other assets had defeated, by a hand’s breadth, at least up to this point, the concerted effort to run me out of cash. In my parish church, the congregation extended their discreet friendship.
The mobs, still snarling with execration, would turn on my tormentors when they failed. I was ready for the fight of and for my life. So Barbara and I even joked about what was coming; what everyone knew was coming and wanted to come; and what, in a way, we, too, wanted to come: judgment, the supreme test, where my enemies would have to prove false charges beyond a reasonable doubt. I conserved what strength I had and awaited the prosecutor, slouching toward us from Chicago, the once “great, brave, heart of America.”
* I had done my part to encourage the sale of American Trucker to a KKR (Kravis) company, by sending Henry and Marie-Josée American Trucker windbreakers and caps (which, unsurprisingly, I never saw them wearing) and a free subscription to the magazine, which had no editorial content and contained only advertising of used truck cabs.