To the average citizen, the news that former House Speaker Dennis Hastert has been indicted by federal prosecutors for failing to file required reports for cash transactions in his own bank account and then allegedly making false statements to the FBI, may seem like just another case of a political corruption and scandal.
That is not the case.
On Tuesday, Hastert pleaded not guilty. The large amounts of cash that he withdrew were allegedly used to pay someone who may have alleged he was abused by Hastert when the Republican politician was a high school wrestling coach.
But that is not what Hastert has been indicted for, and on closer examination, there are serious questions to be raised about the legal basis for the charges as well as the proper exercise of prosecutorial discretion by federal officials. As a preliminary matter it must be pointed out that none of these charges has anything to do with Hastert's congressional service and the alleged abuse would have occurred many years before Hastert entered political life.
It is also not clear whether Hastert’s payments to the accuser represent an illicit demand -- extortion -- or were made as part of some private settlement of such claims.
What is clear is that the former speaker did not want the reports filed that banking laws require when withdrawing amounts in excess of $10,000. When he realized such reports needed to be filed, he made the withdrawals in amounts under the $10,000 threshold, constituting illegal structuring of financial transactions.
While a technical violation of these laws, the purpose of these statutes was to bar monetary transactions in "criminally derived property.” In other words, the means by which organized criminal activity such as illegal sale of weapons, human trafficking, financing terrorism or child pornography is conducted.
There is no hint that any of these activities were engaged in by Hastert. As to the reporting violation, that hardly seems to rise to the level of federal felony prosecution, especially if it was Hastert's intent to shield the payments from public view.
As to the false statements, these also seem suspect and manufactured by the government. It was apparently the FBI who suggested a reason to Hastert for withdrawing money and not Hastert himself. Defendants are often acquitted of these charges when a jury hears the full context of the question and the answer.
Rather than viewing this as a story of downfall over sexual allegations and money, the average American should be alarmed by the actual facts presented thus far: an overly aggressive prosecution based on withdrawing your own, legally-earned money for a legal, albeit sordid, purpose. Hastert, now a private citizen, was then surprised by the FBI and made the classic mistake of talking to agents before seeking legal advice.
This is not a public corruption case, but it is about expansive and overly broad interpretations of federal laws intended for other purposes.
Stanley Brand served as General Counsel to the U. S. House of Representatives from 1976-1983. He is a criminal defense lawyer who has represented dozens of public officials including former Rep. Dan Rostenkowski and former Sen. Larry Craig.