Is Dennis Hastert being unfairly prosecuted?
Hastert, the former speaker of the House, was indicted on Thursday for crimes related to something he supposedly did long ago. The indictment says that in 2010 Hastert and somebody he knew back in Illinois, described as Individual A, “discussed past misconduct” by Hastert against that person. According to prosecutors, Hastert agreed to pay $3.5 million “to compensate for and conceal his prior misconduct against Individual A.”
Numerous leaks suggest that the alleged misconduct was sexual and that Individual A was one of Hastert’s students. But the indictment doesn’t charge Hastert with any of that. Instead, it charges him with trying to cover up payments to Individual A. Count 1 says that last year, when FBI agents asked Hastert about his bank withdrawals, Hastert gave them “false, fictitious and fraudulent” answers by claiming he had “kept the cash,” when in fact he had used the money to pay Individual A. Count 2 says that after Hastert’s bank asked him about some large withdrawals, Hastert withdrew nearly $1 million “in amounts under $10,000 in separate transactions”—a tactic known as structuring—“for the purpose of evading the reporting requirements” of U.S. banking laws.
The charges for lying and structuring—but not for the underlying crime Hastert was supposedly covering up—have puzzled many people. The indictment indicates that the bank transactions attracted the attention of the IRS and FBI, and that these agencies tried to find out whether Hastert was “using the cash … for a criminal purpose” and whether the transactions were related to extortion involving Hastert’s “prior positions in government.” But it turned out, according to the leaks, that the transactions weren’t related to Hastert’s years in office. They were related to sexual misconduct decades ago. Either the FBI couldn’t prove the misconduct, or, more likely, the statute of limitations had expired.
The government, having found no public corruption and no prosecutable underlying crime, could have dropped the case. Instead, it went after Hastert for the lying and structuring. This decision troubles many critics. They see the indictment as an abuse of laws that were designed to catch corrupt officeholders, tax dodgers, and major drug dealers, not to expose moral turpitude. The Wall Street Journal wonders “why federal prosecutors are bringing charges,” since “lying and attempting to avoid money-laundering laws” are considered “relatively minor” violations. The Federalist says laws against structuring, applied to people like Hastert by “busybody agencies” such as the FBI and IRS, “violate banking privacy and are a great demonstration of over-criminalization of American life.” Noah Feldman, a Harvard law professor, objects to the government’s silence about the underlying offense while it prosecutes Hastert “on the morally mild charge of withdrawal structuring.”
This weekend, on the Sunday talk shows, moderators and reporters raked the prosecution over the coals. NBC News correspondent Pete Williams called the charges against Hastert purely “technical.” George Stephanopoulos and ABC News legal correspondent Dan Abrams challenged the government’s case:
Abrams: These crimes that we’re talking about—lying to the FBI, and this structuring financial crime—are not crimes that are typically charged without more. Usually you charge these crimes because you’re trying to bring someone down for something larger.
Stephanopoulos: So, is this a form of … celebrity prosecution?
Abrams: I think this is a gotcha prosecution. I don’t think if he was Dennis Higgins, as opposed to Dennis Hastert, they would have charged him here. Because once you investigate, once you realize that this isn’t about drugs, this isn’t about terrorism, this isn’t about money laundering—they typically drop these.
On Fox News, Brit Hume agreed:
This is a peculiar prosecution. The alleged offense here is under a law that was designed to capture racketeering, drug money, and so forth. That’s obviously not in play here. … You have to ask this question: Were they investigating the crime? [Or] were they investigating the former speaker?
The critics have a point. Lying under oath and evading transaction surveillance are derivative crimes. Usually, they’re prosecuted only if the underlying offense is serious and demonstrably true. You can argue that if the core allegation hasn’t been proved, or if the core issue isn’t grave enough, it’s cheap and abusive to proceed with prosecution based purely on derivative charges.
But Hastert can’t make that argument, because he made the opposite argument 17 years ago. He threw the book at President Clinton for lying about sex.
Clinton’s case was complex, and the allegations were different. The initial claim against him was sexual harassment of Paula Jones. But the charges on which Clinton faced possible impeachment—perjury and obstruction of justice—involved consensual sex with Monica Lewinsky. Democrats said the prosecution of Clinton, first by Independent Counsel Ken Starr and later by House Republicans, was really about sex. They complained that the perjury and obstruction charges were derivative, technical, and unworthy of impeachment.
Republicans disagreed. They said derivative crimes were important, regardless of context, because no one was above the law. Hastert, who was then the House deputy majority whip, affirmed this position. On Oct. 8, 1998, he voted to authorize the House Judiciary Committee to investigate Clinton for possible impeachment. The committee must “uncover the truth” and “uphold the rule of law,” said Hastert. “Sweeping the matter under the rug just won’t work.”
On Dec. 18, 1998, the day before he launched his campaign to become House speaker, Hastert announced on the House floor that he would vote to impeach Clinton on all four counts. “The president lied under oath, obstructed justice, and abused the powers of his office in an attempt to cover up his wrongdoing,” said Hastert. He emphasized that the president was not “above the law.”
The House impeached Clinton the next day. The Senate tried Clinton and acquitted him on Feb. 12, 1999. Hastert, the new House speaker, was unapologetic. “Republicans in the Congress can be proud that they stood by the principles that have made this nation strong,” Hastert declared. The first principle he cited was “respect for the rule of law.”
Sixteen years later, Hastert is in the dock for trying to sweep his own shameful past under the rug. He’s charged with lying under oath and orchestrating transactions to evade justice. Does the rule of law apply to him, too? I’m sure he’d like us to forget what he said in 1998. He’d like us to give him a pass because his crimes, if true, were derivative. But there’s no statute of limitations on principle.
