An Abusive Federal Law and the Indictment of Dennis Hastert

If you want to deposit, transfer, or withdraw your own money that you earned legally from your own bank account, should it really be a federal crime -- punishable by five to ten years in a federal prison, no less -- if you don’t report to our federal overlord a complete description of when, how, why, and who was involved in that transaction?

That is what former House speaker Dennis Hastert is accused of doing: not reporting withdrawals of his own funds, and lying to FBI agents when they asked him the reason for it.

Most Americans would no doubt agree that unless you are involved in illegal activities, it is none of the government’s business what you do with your money. They would think that if FBI agents show up to ask you about it, that it is none of their damn business, either. Most importantly, they would agree that if the government wants to get detailed information about your financial transactions, the Justice Department should be required to comply with the Fourth Amendment to the U.S. Constitution and get a search warrant from a federal judge.

According to the U.S. Supreme Court, that requires the government to present evidence that probable cause exists to believe a criminal offense has been committed or is about to take place.

Of course, the FBI apparently had no evidence of a real crime before it started investigating Hastert. Instead, he is accused in the indictment issued against him of violating a federal law (31 U.S.C. §5313) that requires the reporting of financial transactions over $10,000, and a corollary provision (31 U.S.C. §5324) that makes it a criminal offense to structure your transactions in such a way as to avoid the $10,000 reporting requirement.

In a seven-page indictment, the government accuses Hastert of violating these provisions by withdrawing almost a million dollars from his bank account as part of an agreement to pay an unnamed individual $3.5 million “to compensate for and conceal his prior misconduct against Individual A.”

Individual A is never identified other than as a “resident of Yorkville, Illinois” who has known Hastert “most of Individual A’s life.” Of course, “misconduct” is a loaded word. Note that no information is given as to what that supposed misconduct was, although various news reports are now claiming that it was sexual misconduct (which is a state issue, not a federal one).

The little bit we know from the indictment is that Individual A was apparently blackmailing Hastert into paying him a very large amount of money. One would assume that if Hastert had done something illegal, the Justice Department would have said so. Instead, it uses the word “misconduct,” which could describe a whole host of sins, many of which could be considered immoral, distasteful, or embarrassing without being a violation of federal law.

The point, however, is that there is absolutely nothing in the indictment that indicates that a single penny of the money withdrawn by Hastert was the result of, or derived from, any past or current illegal activity by Hastert. And yet Hastert is being charged with a federal crime not for any alleged “misconduct” with the unknown and unidentified “Individual A,” but for not reporting to the government his personal transactions in his personal bank account. And for then not telling the FBI truthfully what he was doing with the money.

If the Justice Department has evidence that this money was being paid to hush up a prior crime committed by Hastert, it has an obligation to say so, and to explain why it is not charging Hastert for that violation as opposed to this financial reporting “crime.” Also, since the indictment is clearly written to give the impression that Hastert was paying off a blackmailer, Justice has a further obligation to explain why it is not charging Individual A with violating the federal blackmail statute (18 U.S.C. §873).