White-Collar Crime

What's Wrong With The Criminal Justice System: Dennis Hastert Edition

Dennis Hastert may not be a good guy, but his sentencing far exceeded the specific crime that landed him in court.

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Dennis_Hastert_2Dennis Hastert was sentenced yesterday to fifteen months in prison.

As everyone knows by now, when he was a wrestling coach and a high school teacher before he was a member of Congress, and then Speaker of the House, he touched kids he coached. They asked for money from him to keep quiet and he paid it. In the course of paying it, he structured the payments to avoid federal bank reporting laws.

At his sentencing hearing, one person who said that Hastert touched him testified, and another’s sister did. The prosecutors also submitted documentary evidence about others.

The prosecution of Dennis Hastert is the worst of the federal criminal justice system.

First, this case shows how federal sentencing law is procedurally offensive.

Look first at Hastert’s charge. He was prosecuted for structuring. The only question is whether he created financial transactions in order to avoid federal banking laws. If he knew the reporting was triggered at $10,000 and withdrew in $9,000 increments, then he’s guilty.

It doesn’t matter why he’s moving the money.

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Hastert has no meaningful defense to this charge — really his only option is a plea.

Once he pleads, he’s into sentencing. At sentencing, the government can bring up basically anything they want. Due process sets some outer limits on what can come in and under what circumstances, but courts have been slow to articulate boundaries around sentencing proceedings.

The government can — and here did — use hearsay and documents that insulate Hastert’s lawyer, or any defense counsel, from meaningfully questioning the government’s evidence.

Hastert was, in essence, tried for five decades old child sexual assaults based on some papers and a few hours in court. He didn’t have a presumption of innocence, the benefit of reasonable doubt, a meaningful opportunity to cross-examine those who were accusing him, rules of evidence on authenticity and admissibility to keep junk evidence out, or even the kinds of notice that you get in a normal criminal trial so that you can do a decent investigation. The government files the evidence against you shortly before the hearing; if you want to investigate and rebut it you best move fast or beg for more time. Some judges are good about giving that time. Others? Not so much.

I likely don’t agree with a lot that Dennis Hastert did as a politician. But to destroy his life and legacy with this thin reed of process is just wrong.

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Maybe he did the stuff decades ago. But why not give him a meaningful chance to defend himself? Are the efficiency gains in the criminal justice system so great that we are okay not caring about the procedural rights the Founders put in the constitution?

Due process constrains the power of prosecutors and judges. I get that people want power. But this end run around jury trials is just wrong.

Second, Hastert’s colloquy with the judge was seriously problematic.

Hastert wanted to express remorse at his sentencing hearing. He has a right to do that — if a judge doesn’t give him a shot at allocuting that’s reversible error.

And Hastert has a Fifth Amendment right not to answer questions at a sentencing hearing and a judge is not allowed to make an adverse inference based on a person refusing to answer those questions (the case is Mitchell v. United States).

Here, Hastert was in the middle of his allocution when the judge interrupted to cross-examine him about what happened.

Hastert answered his questions. Perhaps he didn’t realize he could refuse, but, more likely, he simply didn’t trust that the Court would follow Mitchell and not hold his silence against him. And, frankly, I’ve been with clients where I’ve told them I don’t think they can rationally trust a judge to follow Mitchell.

It’s a lousy world when you can’t trust the federal judiciary to follow the law.

Third, why was Hastert prosecuted again?

If Hastert had been anyone other than a former speaker, would this case have been brought? Can anyone identify any other 74 year-old men with severe health problems who have been prosecuted for a ticky-tack regulatory violation as a way of backdooring decades-old sexual abuse charges?

Of course not. Hastert was prosecuted because he was famous. And because prosecuting famous people is a way to become famous yourself.

This is a deeply troubling guide to what cases should be prosecuted.

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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