A few weeks ago I wrote a column here about Dennis Hastert’s sentencing. Since then, I’ve received a lot of email about that piece. There are no longer comments on Above the Law, which means that some of the points people have made in emails to me that may be of interest to a broader set of people can’t be shared more broadly.
To remedy that, I’m bringing three points to your collective attention so that you, too, can enjoy these thoughtful comments or questions.
First, some readers thought I was suggesting Hastert should have gotten a pass because he’s the former Speaker of the House. That’s the opposite of my view. I think someone’s status or success should not be generally relevant in whether they are prosecuted for a crime.
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It seems clear, to me at least, that Hastert was prosecuted because he’s the former Speaker. Otherwise, a federal prosecutor’s office simply wouldn’t care about going out of its way to find a technical charge to try to get some punishment for a decades old time-barred offense.
There may just be a fundamental difference of opinion about the value of going after a famous person. It may be a failing of understanding on my part, but I just don’t get the psychology of someone who hears the story of Icarus and thinks to him or herself — “I want to play the part of the sun.”
Hastert would not have been prosecuted by the United States Department of Justice if he were simply another old retired wrestling coach with a bad past. He was prosecuted because he’s a famous and successful former politician. Just as success and fame shouldn’t get you out of jail, it shouldn’t get you in jail either.
Second, some folks challenged my discussion of whether Hastert had a Fifth Amendment privilege not to talk at sentencing.
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Joe Patrice, who edits my column, raised this first. The question is, basically, if the child abuse is past the statute of limitations, is there a Fifth Amendment privilege to not talk about it any more?
I see where that’s coming from, but I think that’s a cramped understanding of what the Fifth Amendment covers. There’s Fifth Amendment protection for any statement that could be a link in the chain of a prosecution or a tile in the mosaic of the government’s case against you. If you could, for example, be prosecuted for structuring financial transactions to cover up a time-barred other offense that explained why you engaged in the structuring, then you’ve got a Fifth Amendment right to not talk about that time-barred offense.
Though the narrower view of the Fifth Amendment does have some popular support at many components of the Department of Justice.
Third, what’s up with Hastert’s lawyer?
One person wrote in to ask why Hastert’s lawyer didn’t interrupt and shut down the judge’s questioning about the child sex allegations. If Hastert had a right not to talk about it, why let it go on? After all, making objections is what lawyers do.
I see the point this person is making, but I tend to disagree. Objecting in a deposition is one thing. But in a federal sentencing, you’re begging for mercy. Some judges come on the bench knowing what they’re going to do, some come on and make a call in the room. You rarely know which is which.
It’s difficult to make someone angry and then beg for mercy from them. It’s hard to tell someone you aren’t going to tell them the full story then expect them to give you the benefit of the doubt.
Judges have a lot of power at sentencing and the standards of review can be uncomfortably deferential. It may be the closest thing we have to begging for the King’s favor. So I don’t fault the lawyer for not wanting to anger the very person he’s on his knees asking for a break.
Earlier: What’s Wrong With The Criminal Justice System: Dennis Hastert Edition
Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.