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October 29, 2015

Did former House Speaker Hastert get a sweetheart sentencing deal from federal prosecutors?

The question in this post is prompted by this lengthy new Politico article headlined "Hastert's sweet deal: Lawyers question whether federal prosecutors are following guidelines." Here are excerpts:

House Speaker Dennis Hastert’s guilty plea in a hush-money case has some lawyers asking whether the former speaker is getting a sweetheart deal.

At a court hearing in Chicago Wednesday, the prosecution and defense unveiled Hastert’s plea bargain under which he admitted to a felony charge of structuring $952,000 into 106 separate bank withdrawals to avoid federal reporting requirements. The two sides agreed that sentencing guidelines call for Hastert to receive between zero and six months in jail.

But legal experts say those guidelines arguably call for a much longer sentence—closer to two to three years or more, including a potential enhancement for obstruction of justice. And some lawyers say they’re baffled that prosecutors would buy into a calculation that opens the door to Hastert getting a sentence of probation. “It seems like a sweet deal,” University of Richmond law professor Carl Tobias said. “It’s just hard to understand.”

The indictment in the case also charged Hastert with lying to the FBI about what he did with the money, concealing that he paid it to a longtime associate in an effort to hide past misconduct. In the plea deal, Hastert admitted to misleading the FBI, but prosecutors agreed to drop the false statement charge....

The agreement between prosecutors and Hastert’s defense that the zero-to-six-month sentencing range is applicable to his case is not the end of the matter. A probation officer will also calculate the range and could disagree with the parties. Durkin will ultimately decide what the guidelines call for. Under the plea deal, Hastert retains the right to appeal the sentence to the 7th Circuit.

Under a 2005 Supreme Court decision, the judge is required to consult the guidelines but he can impose a more or less severe sentence. Experts in structuring cases say judges often sentence below the guidelines, especially in so-called “clean money” cases where the government does not allege that the funds were the product of illegal activity like drug dealing or were being used to avoid taxes.

"The sentencing guidelines for clean-source money cases are totally out of whack," the ex-prosecutor said. "It's insane to sentence someone for a purely regulatory violation as severely if not more severely than someone who defrauded someone out of $952,000. Having said that, there are a good measure of bad acts here, so maybe there would be some rough justice in it."

Prosecutors have alleged that Hastert paid the $952,000 in illegally structured withdrawals to a longtime associate because of Hastert’s past misconduct against that person, identified in court filings only as “Individual A.” Sources have alleged the behavior involved sexual contact with a male student while Hastert was a coach and high school teacher several decades ago, but the indictment does not mention any sexual aspect to the charges.

Experts say Hastert could not be charged or sued today over such acts years ago because the relevant statutes of limitations have expired. Lawyers say a key factor in Hastert's ultimate sentence could be whether Durkin decides Hastert's underlying misconduct is relevant for the purpose of sentencing on the bank reporting charge.

Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.

"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."

October 29, 2015 at 03:11 PM | Permalink

Comments

"Criminal defense attorney Michael Monico, who co-authored a handbook on federal court practices in Illinois and the greater Midwest, said Durkin will want to know Hastert's motivation for paying out the $3.5 million and the exact nature of the behavior he was trying to hide.

"If I were the judge I would ask about it, I would want to know. I would want to know, what was he hiding?" Monico said. "I think that’s the number one question in the case: Is it relevant to his sentencing what Hastert did to this fellow decades ago? If it isn’t relevant, then probation is OK. If the conduct was despicable then it’s not an appropriate sentence. It seems to me that’s a question the judge has to answer."


wait wait wait...how is this any different than acquitted conduct? If it is wrong for sentencing to factor in acquitted conduct--as so many defense attorney's beat their breasts about--then it must be even more wrong to factor into sentencing conduct that was never even charged! I can't believe a defense attorney would say what I just quoted and I can't believe that Doug sits here passively and accepts it.

Posted by: Daniel | Oct 29, 2015 3:21:10 PM

Not to beat a dead horse, but his payments to a person who claimed criminal, statutory sex abuse would normally be looked at in a completely different manner. He would be investigated, and most probably charged, for the sex offense that he's being blackmailed for, and with the prevalent attitude toward sex offenders, he would be indicted, convicted, and sentenced to a long prison term with lifetime sex offender registration status. The actual blackmail wouldn't even be a blip on the radar of the entire sequence. California RSOL has many such registrants in their organizations.

Posted by: Eric Knight | Oct 29, 2015 3:37:11 PM

I concur, Daniel, that sentencing Hastert for sex crimes he never was charged with is disconcerting. But, I would be even more troubled if Hastert had been charged with these sex crimes, acquitted by a jury, and then still sentenced based on allegations that were rejected by a jury. In other words, I think sentencing based on acquitted conduct is MUCH worse than sentencing based on uncharged conduct: with acquitted conduct, a constitutionally significant decision-maker (the jury) has formally rejected the allegations and then a judge still enhances the sentence; with uncharged conduct, nobody has formally considered the allegations before a judge is asked to consider them.

In the end, this kind of case highlights how some (in my view, far too many) federal crimes are not really punishing truly harmful conduct, but rather punish relatively innocent conduct that might be readily connected to harmful conduct. Is there really anything harmful about withdrawing one's own money in small amounts so as not to fill out paperwork? Of course, we worry people are doing this to hide other harmful/illegal behavior. But, in my view, we ought not punish someone until we can actually discover AND prove to a jury the underlying harmful/illegal behavior.

So, in keeping with Eric's comment, I would like Hastert to be investigated and charged (and punished if convicted after a procedurally sound trial) for the alleged sex offenses here, not merely for his quirky way he decided to pay hush money. But, for reasons that will be subject to the black-box of prosecutorial/police discretion, it seems the feds are content now just to slam him for the technical money offense. In light of these sorted and distorted realities, I am not surprised even a defense attorney is inclined to suggest that finding out what was being hushed up is germane to figuring out an appropriate sentence for a hush-money offense.

Posted by: Doug B. | Oct 29, 2015 3:57:51 PM

There is an separation of powers problem that exists with uncharged conduct that does not happen with acquitted conduct. By what power does the Court reach out and grab a person as a witness to testify about an alleged crime that is not formally before the court? With acquitted conduct the charges were formally before the court. But here the executive has made a decision not to charge and the defense attorney(!) is saying, "to hell with that, call him anyway, let us hear the salacious gossip." Fundamentally, the decision to charge or not to charge belongs to the executive; the court should not be allowed to do an end run around that by calling someone as a witness in an attempt to embarrass the executive for exercising its sound discretion in a direction that the court doesn't like. The judiciary in this country does not serve as an independent investigator.

Posted by: Daniel | Oct 29, 2015 5:00:46 PM

In general, sentencing is about the defendant's conduct. The rules of evidence do not apply at sentencing. In layman's terms, it's pretty much open season. Under this sentencing regime, then, all of Hastert's relevant conduct would be in play. The purpose underlying the illegal conduct is relevant. The defense team will have ample opportunity to object to any findings in the PSR which would have an effect on the advisory guideline range. I'm betting the USPO will endeavor to turn over that rock to see what's under the illegal conduct, and the judge would most likely consider that evidence to be important for any departure or variance from the advisory guidelines.

Posted by: Mark M. | Oct 29, 2015 8:55:14 PM

"The purpose underlying the illegal conduct is relevant"

Sure but we already know the purpose--it was to structure financial transactions. To the extent the individual wants to testify to that, sure, assuming that he or she has knowledge.

But the abuse or lack thereof is relevant to structuring financial transactions how? The inquiry has to be cabined somehow and cannot be "open season". I recognize that there is a line drawing exercise here but that by definition cannot mean that anything goes. Again, I'll repeat that the judge is hauling a person into court and quizzing them about conduct that the executive has specifically and deliberately chosen not to peruse. I don't buy that one can get around the separation of powers problem by going "oh, this is related to sentencing and not guilt".

Posted by: Daniel | Oct 29, 2015 9:39:42 PM

I will agree with you, Daniel, as to how federal sentencing hearing ought to be. However, in an arena where references to "relevance" and "more prejudicial than probative" are met with wry smiles, whatever the judge deems important will have an impact on the sentence the judge chooses within his wide discretion.

Posted by: Mark M. | Oct 30, 2015 2:35:56 AM

Hastert abused his position in government to get rich--I don't particularly feel sorry for him when the government turns around and plays rough.

I would like to know how Eliott Spitzer got out of a structuring prosecution. I bet the "D" at the end of his name had something to do with it.

Posted by: federalist | Oct 30, 2015 7:52:55 AM

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