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June 9, 2015

You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?

I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence.  But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries.  This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts: 

After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.

Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.

Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”

Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....

At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.

Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.

A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.

One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.

The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.

Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.

June 9, 2015 at 07:42 PM | Permalink

Comments

Isn't there a materiality requirement for conviction on false-statement charges? If so, how can a broad declaration of mistrust in big banks amount to a material lie capable of blocking investigators from pursuing facts and evidence in Hastert's case? To me Hastert's comment seems little more than an unresponsive comment tantamount to a refusal to incriminate himself.

The charge of skirting the $10,000 withdrawal-reporting requirement in Hastert's case seems pretty thin, too. The only deal I'd advise him to take would be one involving no prison time.

Posted by: John K | Jun 10, 2015 3:44:47 PM

Let's see:

Structuring, lying to a federal agent, perhaps obstruction of justice, you know, make believe crimes where there is no victim, a US attorney's (and C&C's blog darling's) favorite types of crime. I just wonder why all of the money in the account was not "Civilly Forfeited" because it was used improperly?

Karma's a b-tch! Let him fry for being part of the gang that brought this government madness and tyranny on all of us.

Posted by: albeed | Jun 10, 2015 4:31:50 PM

Ironic that the sex molestation charge, ironically more draconian with its harsh sentencing combined with public registration, seem to be taking a back burner to the lesser issue. Janice Bellucci has a poignant entry on her journal at CA RSOL titled Two heart beats away from president.

Posted by: Eric Knight | Jun 11, 2015 4:47:16 PM

Once again the crimes are lawyer garbage, structuring cash withdrawals and lying to government officials. Government officials may deceive and lie to the defendant, as affirmed at the highest level. The public may not carry out its patriotic duty to stymie the tyrannical agents of the prosecution. The FBI are agents of the prosecution, and lying is a patriotic duty.

They are the ones that allowed 9/11 to proceed out of misguided PC, taking out $7 trillion from our economy at a total cost of $500,000 to the enemy, or at an actual profit, as Saudi financiers shorted airline stocks the month before. They are the ones harassing business men, while doing nothing about government sponsored hackers causing $billions in damage per year. They are the doughnut chomping, coffee drinking buffoons wasting years on investigation organized crime to ride the rent seeking train. Thee are useless government make work tax sucking parasites.

That is, once again, not a real crime, but a lawyer invented malum prohibitum, a false, just made up crime.

Martha Stewart, who also went to prison, not for the crime of insider trading but for lying about her phone calls, to an FBI agent. Insider trading is, naturally, not a real crime, since it is highly beneficial tour economy, and a highly reliable forward looking indicator of real profits in a company. These trades are reported to the SEC, and listed in inside trading newsletters.

Stewart then made $billion profit. Her shares dropped, as she reported to prison. She bought them up cheap. They rebounded upon her release. So these morons, these lawyer dumbass mentally retarded traitors to the nation rewarded her crime with $billion pay day. Meanwhile, the lawyer dumbass prosecutor likely spent $2 million prosecuting a $40,000 transaction, carrying a $100 fine. The public always pays for the idiocy of the lawyer dumbass rent seeking.

Posted by: Supremacy Claus | Jun 11, 2015 5:34:01 PM

I agree it seems a bit surprising that they didn't just use civil forfeiture to get $ (but there wouldn't have been the public "splash" of the big name...and the humiliation it seems is intended) There may be something else (criminal) here...given the few facts we're given...but for certain, civil forfeiture would be a viable way for the Gov to obtain the structured funds (and other funds they "touched" as well).
That said...it could be difficult to beat the "strict liability" structuring laws before a jury. As defense, I wouldn't want to cut a deal...but would beg for the charges to be dropped. But that's also difficult...given the publicity.
The law's standards for structuring and money laundering can be quite unfair.

Posted by: folly | Jun 12, 2015 7:15:32 AM

I agree it seems a bit surprising that they didn't just use civil forfeiture to get $ (but there wouldn't have been the public "splash" of the big name...and the humiliation it seems is intended) There may be something else (criminal) here...given the few facts we're given...but for certain, civil forfeiture would be a viable way for the Gov to obtain the structured funds (and other funds they "touched" as well).
That said...it could be difficult to beat the "strict liability" structuring laws before a jury. As defense, I wouldn't want to cut a deal...but would beg for the charges to be dropped. But that's also difficult...given the publicity.
The law's standards for structuring and money laundering can be quite unfair.

Posted by: folly | Jun 12, 2015 7:16:08 AM

"The law's standards for structuring and money laundering can be quite unfair."

No folly, they are not unfair, they are criminal, and this is blindly accepted as a matter of law.

No wonder lawyers and SC judges are held in contempt.

Johnny, what do you want to be when you grow up?

"I want to be a Supreme Court Judge!"

Johnny, no son of mind is going to be a g-d d--n criminal!

Posted by: albeed | Jun 12, 2015 7:54:31 AM

I would go to trial. In picking the jury I would ask some questions which would cause the jury to question the nature of the so called crimes.
"Have any of you folks here on the panel ever spent money at the Five and Dime and not told your spouse?"
"Do any of you think that big government has a right to know how much money you gave to your nephew for his college tuition?"

At closing argument:
"My client participated in some same sex activity with a fellow who claims mental illness. My client has been paying some money to redeem this poor guy's soul and perhaps his own. As I said in opening statement, I do not believe that one has to pour one's soul out to the FBI when one is asked about how much money I spent at the repense table or how much I gave at the church. If they were to ask such questions of pedophile priests perhaps there would be a level playing field."

Posted by: Liberty1st | Jun 13, 2015 4:52:57 PM

To SC's point, its usually conservatives who often rally against rights for criminal defendants, and usually give prosecutors and police a blind eye.

Posted by: Alex | Jun 15, 2015 4:16:10 AM

Alex, you mentioned that conservatives typically favor the rights of criminal defendants, and to a degree, I agree with that statement. Most often, conservatives rally behind the people's rights, and this falls into that generalization. Overall, I think your point was very helpful. On a different note, what would you say is the habit of liberals and independents in a case such like this, involving criminal law?

Posted by: Albie Cardew | Sep 2, 2015 10:23:00 AM

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