Dennis Hastert, the former Republican Speaker of the House, was indicted last week on federal charges. First he was indicted for “structuring” bank cash withdrawals so as to evade bank reporting requirements. Federal banking regulations require banks to report cash deposits or withdrawals in excess of $10,000. Second he was indicted for lying to a federal official (an FBI agent) as to the reason for these withdrawals.
Hastert has always had a reputation for being personally squeaky clean, so when the indictment was unsealed and it stated that the money — totaling $1.7 million — had been used as hush money to prevent “past misconduct” with “individual A” from becoming public, it was front-page news around the country. And while the indictment was very carefully gender-neutral, it was very soon leaked that “individual A” was male and had been “inappropriately touched” by Hastert when he had been a high school teacher and wrestling coach decades ago.
There are a lot of questions here. Did a former Speaker of the House really not know that banks report large cash withdrawals to the feds and that evading those reporting requirements is a crime? Did he not know that lying to federal agents is also a crime? That strains credulity. On the other hand, the bank reporting requirements are intended to prevent, or at least deter, such serious crimes as money laundering, racketeering, drug dealing, and tax evasion. Paying hush money is not a crime. (Blackmailing someone, however, most certainly is, but at the state level. Is Illinois looking into the conduct of “individual A”? And did he pay taxes on the money he “earned” in this affair? And while lying to a federal official is also against the law, there was no underlying crime to be investigated here. Hastert was desperately trying to preserve his reputation, not evade justice.
It seems to me that here, for once, was a genuine reason for the Justice Department to exercise prosecutorial discretion in order to prevent a miscarriage of justice. Dennis Hastert may or may not have behaved very badly decades ago, but that is a matter for the state of Illinois to deal with, not the federal government. His clumsy attempts to make private retribution in recent years may have, technically, broken the law, but there is an ancient principle in common law that holds that “actus reus non facit reum nisi mens sit rea,” (“the act is not culpable unless the mind is guilty.”) It doesn’t seem to me that there was a mens rea here, just an all-too-human desire to prevent something dishonorable from becoming common knowledge.
