White-Collar Crime

Jeffrey Toobin Defends Hastert Prosecution, Proves How Stupid It Is

The Hastert prosecution, in other words, is a fight in our criminal courts about the government’s belief that it has a right to know more about us than we want the government to know.

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Dennis Hastert is being prosecuted for allegedly paying hush money to a person who is now dead about something that allegedly happened decades ago. Paying hush money isn’t a crime — it’s the way you do it that caused Hastert’s prosecution.

If you believe the stories, back in the day, well before Hastert was a politician, he was a high school wrestling coach. And someone from that time period threatened that unless Hastert handed over large sums of money, he’d go public and say that Hastert molested him as a student.

If that’s what happened, you could see why Hastert wouldn’t want to have to respond to the story, whether it’s true or not. It’s like the political story about the democratic politician in the South — I’ve heard it attributed to both Lyndon Johnson and Huey Long, though it could be both or either. When Johnson/Long proposed to an aide that they spread a story that their opponent liked to have sex with pigs, his aide said they didn’t have any evidence or reason to think that. Johnson/Long is reported to have said “I know that, I just want to hear him deny it.” (See, also, Episode 1 of Black Mirror).

For Hastert, even if the allegation was false but not completely disprovable — if, say, he did have a close relationship with the accuser and there were times they were alone together that could have been, but weren’t, problematic — merely having to deny the allegations would be a huge problem. If an accuser were savvy enough to realize that, and is one of those people who prefers to have money, you could see a hush money demand coming even if the thing being hushed actually didn’t happen.

But, in any event, the accuser is now dead. Resolving what actually happened back in the day is tricky, at least.

What the federal government believes is clear is that Hastert avoided Treasury’s reporting requirements when paying the accuser. You aren’t allowed to structure how you handle financial transfers in order to thwart a requirement that a report go to Treasury.

It’s a technical regulatory offense that can be very troubling. For example, the Seventh Circuit criticized a structuring prosecution relatively recently, calling DOJ’s decision to bring a structuring case “the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.”

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For those of us worried that the federal government now has the power to prosecute any one of us basically at will, structuring in the absence of an underlying crime worthy of prosecution is one place where the camel’s nose starts to peak inside that tent.

On that measure, Hastert’s prosecution is particularly troubling. The prosecution isn’t about the underlying conduct, and it isn’t about paying off the accuser. The case is about Hastert not wanting the federal government to know that he was paying off his accuser.

Why wouldn’t he want the government to know? Because that’s the point of paying off one’s accuser.

The Hastert prosecution, in other words, is a fight in our criminal courts about the government’s belief that it has a right to know more about us than we want the government to know.

Jeffrey Toobin, defending the prosecution, framed the issue essentially the same way:

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People dealing in large amounts of cash tend to fall, roughly, into two categories. First, there are the operators of legitimate businesses, like fast-food restaurants, who generally have no problem disclosing their identities to the authorities. Second, there are people who are up to no good — dealers in drugs or other illicit goods, money launderers, or tax evaders, for the most part. There’s little controversy that people involved in unlawful activities should be prosecuted if they structure their transactions to avoid the filing of C.T.R.s. The twist in the Hastert case is that he appears to have removed large amounts of cash for a legal, if distasteful, purpose — to pay off a person upon whom, according to the indictment, he had inflicted some unspecified misconduct many years earlier.

The question is whether the government should be in the business of prosecuting people who are not breaking a law we care about for breaking a law we don’t care about merely to keep the government out of their business.

Toobin recognizes this is a potentially troubling prosecution, but thinks it’s just fine:

Why should Hastert be prosecuted just because he paid Individual A in cash? The answer lies in the proper exercise of prosecutorial discretion. Some people are genuinely unaware of the C.T.R. requirement, and their cases might be ripe for an exercise of leniency. But Hastert was not ignorant of the law, as he proved when he allegedly began structuring his withdrawals to get around the requirement. And while the payments to Individual A are probably legal, no prosecutor in the world is going to give the benefit of the doubt to someone who is making a payoff based on an apparent gross abuse of trust by a teacher against a student. It is exactly this kind of underlying fact that would — and should — motivate a prosecutor to proceed in a close case.

So, on Toobin’s view, if you know of a stupid law (or, worse, one that really is threatening to the fabric of government/citizen interactions — doesn’t anyone remember or care about Griswold?) and you violate it, you “shouldn’t be given the benefit of the doubt” and should be prosecuted if the underlying facts relate to “gross abuse.”

Toobin’s view, basically, is that where the underlying facts can’t be prosecuted or proven, but are really icky, a prosecutor should go ahead with a case.

His defense is as illuminating as it is wrong. In this era of massively overbroad criminal statutes, what matters is not factual guilt but prosecutorial discretion. But what matters to prosecutorial discretion doesn’t need to be proven beyond a reasonable doubt — it doesn’t need to be proven at all. The burden has shifted from the prosecutor to the person suspected.

Toobin is right that a prosecutor isn’t going to give someone the benefit of the doubt if there are shady facts there. The turn of phrase he uses is helpful. In our world now — especially for someone who has a scalp that would look as nice on a prosecutor’s wall as Hastert’s — the burden is on a person targeted for prosecution to prove to the government beyond a reasonable doubt that he’s not shady.

And Toobin — and apparently the Department of Justice — are just fine with that.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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