This week, federal prosecutors indicted former Speaker of the House Dennis Hastert.
Hastert is charged with two federal crimes: structuring financial transactions to evade IRS reporting requirements in violation of 31 U.S.C. section 5324(a)(3) and lying to the FBI in violation of the notorious 18 U.S.C. section 1001. Both charges reflect the breadth of federal prosecutorial power.
The indictment has mostly inspired chatter about what it doesn't say. Hastert is charged with structuring withdrawals of less than $10,000 (so that they would not be reported to the IRS) so that he could pay off an unidentified person for Hastert's unidentified past misconduct. What past misconduct, or threatened accusation of misconduct, could lead Hastert to pay $3.5 million? The indictment doesn't say, but it has been drafted to imply that the allegation of past misconduct relates to Hastert's job as a teacher and coach in Yorkville, Illinois. Hastert isn't charged with doing anything to the accuser, and the accuser isn't charged with extortion.
As Radley Balko has pointed out, structuring (or "smurfing") charges are extremely flexible. They demonstrate the reality of how Americans targeted by the Department of Justice can be charged. We imagine law enforcement operating like we see on TV: someone commits a crime, everyone knows what the crime is, law enforcement reacts by charging them with that crime. But that's not how federal prosecution always works. Particularly with high-profile targets, federal prosecution is often an exercise in searching for a theory to prosecute someone that the feds would like to prosecute. There is an element of creativity: what federal statute can we find to prosecute this person?
We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him). I suspect we'll find that the investigation happened like this: the feds heard that Hastert was paying someone off based on an accusation of old misconduct, determined that the misconduct was too old (or out of their jurisdiction) to prosecute, and started subpoenaing records and interviewing witnesses until they found some element of what he was doing that was a federal crime. In other words, they targeted the man, and then looked for the crime.
The problem with this scenario is that federal criminal law is extremely broad. Practically speaking, it gives federal prosecutors vast discretion to determine who among us faces criminal charges. If you think that you're safe because you've never committed a crime, you may learn to your surprise that you're wrong.
The rational response to this situation is clear: don't trust the feds, don't talk to the feds. But Dennis Hastert, like many accomplished people, believed he could talk his way out of the situation. When the FBI came to interview him, he didn't refuse to answer and call his lawyer. According to the indictment, he confirmed in response to an FBI agent's question that he was withdrawing cash in order to store it because he didn't feel the banking system was safe. For that, he's been charged with lying to federal agents.
This is another aspect of the federal government's vast prosecutorial discretion. Hastert's alleged false statement happened in December 2014. When agents interviewed him, I guarantee you that the feds had already made their case. They had already put witnesses before the grand jury, they had already used grand jury subpoenas to get Hastert's bank records, they already knew exactly how they would charge and prove up the structuring charge. When they went to interview Hastert, there were only three possible outcomes: he would refuse to talk, he would confess, or he would lie in a way they could easily disprove. They were looking either for the confession, which would make their case easier, or the lie, that would give them a new theory on which to charge him with a crime. Under Section 1001 a lie must be material to be criminal. But the materiality element is weak. It only requires the government to show that the lie is the sort of statement that could conceivably influence the FBI. It doesn't require the government to show that the lie actually had any impact whatsoever. Thus the FBI can show up with its case ready to indict, fish for a lie that they know is a lie, and pile that charge on top of whatever the substantive charge is. That's why I bring up Section 1001 so often and explain why it means you must shut up. You can be prosecuted for as little as saying "no, I didn't" in response to a already-documented accusation.
The criminal justice system needs to be able to prosecute perjury — lies under oath before a tribunal. And I can see why it needs to be able to punish false statements to the federal government that represent an attempt to commit fraud (say, false statements to get a passport) or that impact an investigation (say, a false accusation that triggers an inquiry).
But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?
From the federal government's perspective, the basis is clear: it's a tool to help them charge people they want to charge.
From the citizen's perspective, this situation points to one obvious conclusion: shut up. Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first.
Last 5 posts by Ken White
- The Elaborate Pantomime of The Federal Guilty Plea - May 8th, 2017
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Hastert was Speaker of the House when Congress strengthened anti-smurfing and structuring laws, including striking back against Supreme Court decisions (like Ratzlaf v. US) that upheld mens rea. The phrase "hoist by his own petard" comes to mind.
Still, it is a bullshit charge. Hopefully (in my dreams) it will lead to reform, now that another important (in the past) person with powerful friends has been targeted. (Though that didn't happen with the former Senator from Alaska, did it?)
Structuring sits up near the top of the list of things that can get you in trouble only because the government is often an asshole
@John Thacker
Pesky prepositions. I had mostly heard the phrase as "hoist on his own petard", so your "hoist by his own petard" inspired me to check. Shakespeare used "with".
Hello Al Capone and tax evasion.
Guarantee you this came to the Feds attention because of a SAR. Suspicious activity reports are the real dirty little secret of law enforcement.
A petard was a make-shift bomb, stereotypically made with an old church bell stuffed with gunpowder and then plugged. You would run it up to a castle wall or door, then run away before it goes boom. If you made the wick too small or you didn't run fast enough, it may blow you sky high too.
Hence, hoisted on, by or with your own petard could all work, although I prefer "by."
Radley Balko has pointed out also that if what you're doing just looks like structuring, then LEOs and prosecutors assume you're a drug dealer, and they'll take all your money through civil forfeiture. They don't (or they claim not to) consider the possibility that your insurance carrier won't cover losses due to robbery from your bodega if you keep more than $10,000 on site, forcing you routinely to make cash deposits into your bank account in amounts that are close to, but under, $10,000.
From what I read of the indictment, the bank felt the need to discuss with him his withdrawals of over $10000, after which he switched to the lower withdrawals. I would love to know exactly what was said in that discussion and whether the bank induced him to do this.
I would also like to know the purpose of this law in an electronic age where the bank very easily can calculate your total withdrawals in a particular month. Just change the reporting requirements, instead of making people criminals for going around them. People should not have to conduct their affairs in a manner which makes it easy for the government to track them via a third party. What's next, making it a crime to take the battery out of your your cell phone so the government can't track you with it?
And next, watch for an unfavorable plea bargain as the feds threaten him with revealing the details of what the underlying payments were for in a trial.
The more I think about this the more ridiculous it seems. He's charged with structuring withdrawals in a way that was never going to stop the bank from reporting them, and with lying to investigators in a way that was never going to impede their investigation. And both of those actions were pretty much caused by the other party saying something. He changed his withdrawals only after the bank questioned him about them. He lied only after the FBI provided him with a seemingly plausible lie.
And why on earth is this other guy not being charged with extortion? The payments were ongoing so the statute of limitations wouldn't come into effect, right?
Because My Mind Goes in Strange Ways.
Considering that the Charge is Lying to a Federal Official (Not just to Federal Law Enforcement).
Considering that Law Enforcement generally thinks it is alright to Lie to you to trap you.
If a FBI agent is interviewing a Federal Park Ranger for say stealing sandwiches out of a picnic basket, can they lie to him (without technically breaking the law) and say they have it on film when they don't?
@WDS: It doesn't even matter that they're interviewing a federal official. The statute reads like this:
"Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully… makes any materially false, fictitious, or fraudulent statement or representation…"
By the plain letter of the law, it looks like the FBI could be charged each time they lie to someone about a case, because it doesn't specify who is lying to whom. Do not expect it to be used in that way ever, though.
Seems like a good time to post this old but entertaining video:
From reports, Hastert originally withdrew amounts of ~ $50K each. The law requires banks to report w/d's above $10K to the Feds, but they are NOT criminal.
Had he kept up making those withdrawals and had he NOT lied to the FBI, there would have been zero case per se.
The reports may have triggered—apparently DID trigger—an investigation, but giving in to extortion is not a crime. Hastert might have, at some point, signaled his unwillingness to bring up an extortion case against “Individual A,” or perhaps as is indicated, it wasn't in the DoJ's remit. Either way, no sweat.
But Hastert, apparently after being reminded “you know, we have to report these big transfers,” decided to structure withdrawals. Obviously, w/d's of less than $10K are commonplace and not against the law. But structuring them so as to evade reporting *IS* and apparently Hastert was unhappy enough with the reporting that he panicked. Even if his teller was friendly at first, that banker is *ALSO* required to report the structuring, at pain of being charged with abetting, being banned from banking for life, or being fired by his management that can't afford to risk the huge fines from breaking the reporting law. Banks have essentially zero discretion on the point; approximately 100.0% of banks have software to detect and flag it so the bank isn't denied the presumption of collaboration in illegal acts.
Occam's Razor pretty much demands this case be seen as it is on the surface: laws passed to support the War on Drugs (the AML was passed in 1970) and the War On Terror got applied to all the citizenry. Too bad for Hastert that, in some bind, he panicked & broke the law. But these laws have been used for decades, often to the great detriment of poor people who can't defend themselves after their savings have been confiscated, and Libertarians have murmured only slightly about prosecutorial discretion in who's charged; suggestions that the War On X mentality makes for horrible peacetime government rise to the 3% level of support by the politicians who created them…politicians such as Hastert.
I harbor no ill will to Mr Hastert; wouldn't call this misfortune his being hoisted on his own petard. But the claim that the DoJ went after him for political effect is BS, given the direct evidence of illegal actions and strong Congressional plus middle- and upper-class support for strict enforcement of these laws.
@DavidC, perhaps you are familiar with the notion that Congress writes laws and Courts read both the letter of the law and its intent. (The ACA case now before SCOTUS, clearly hinges on intent.) The clear intent of the law was to prohibit lying to government agents, not to hamstring investigations.
Go ahead & pretend that some legalisms, isolated from the real world, are all that matters. But you won't score any points with the non-delusional crowd.
Speaking of petards, as Balko alluded to, Spitzer also used smurfing laws to apply pressure to a bunch of people on Wall Street, and then got caught by the same smurfing law himself.
Walt, I'm sure he was not quite thinking straight. Being the target of extortion can put you under a lot of stress and, had he thought it through, he would have realized that the he could have just withdrawn the money in $50K segments. But he was probably still hoping to keep the feds from looking at whatever it was, legal or not, that some stranger was blackmailing him for.
The plan of "I'll just want to stay off of their radar" probably works many times. This time it didn't.
We'll learn more about the reasons for Hastert's payments in the course of the case (or through Department of Justice leaks calculated to harm him).
It didn't take long: http://www.nytimes.com/2015/05/30/us/politics/hastert-indictment.html?_r=0
The way the article is written, given that the name of the payee isn't even known, it's almost assured to have come from the prosecution.
Walt, isn't "some legalisms, isolated from the real world," precisely what Hastert is being charged via? Hence the general annoyance and/or shadenfreude.
@Walt: It was my impression that intent only matters when the law is ambiguous. "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there." "When the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.'"
This law is not ambiguous. It says "Whoever". It lists exceptions and this is not one of them. Although I admit it would be unjust to spring this on the FBI without giving them a warning first, and I already said that it's never going to actually happen.
And it would hardly "hamstring" an investigation if the FBI couldn't lie, any more than it "hamstrings" the suspect. It would be something they deal with, like needing to inform suspects of their Miranda rights or needing a warrant to search a house, both of which they wouldn't do if the courts didn't make them. I think it's fundamentally unfair to have a conversation where one side can lie with no consequences whatsoever and the other side is charged with a felony if they lie – even if the first side suggests the lie and was never fooled by it.
Given prosecutorial discretion, and the fact that this looks a lot like piling on to a guy who had already been blackmailed out of $3.5 million, and that the Dept of Justice is now completely politicized (as opposed to just badly politicized a decade ago), yes. This is being done purely for political effect.
The way the laws against lying to a federal officer are, where what the officer writes down in a report is the record of what you say, the best policy is no never answer questions from them.
If an FBI agent asks you for the time, don't answer.
I think this is clear from Ken's article, but I think I should emphasize this. The federal government can convict you of perjury for making a statement that you honestly believe is true. I don't think Hastert was stupid enough to think he could lie to federal agents and get away with it, but he was definitely stupid enough to believe that he was in no danger of making an innocuous statement that he believed to be true. People on the opposite side of the political fence need to learn this lesson. because they are delusional if they think that they are in no danger because they voted for Obama, and even more delusional if they think Democrats will control the White House forever.
Shawn L. May 29, 2015 at 4:02 pm:
You have presumed they are at least partly honest. They can write down whatever they want, whether you answer or not. Saying nothing won't stop them from writing down that you said something incriminating.
Sounds like a child molester escaped justice by paying off his victims and the government decided to prosecute him for whatever they could since the statute of limitations had long expired. I won't lose any sleep over it.
The law worked the way it was supposed to. It caught a bagman laundering bribes. That it was Hastert's own money and that it was hush money for his own misconduct, instead of someone trying to buy a government official, are matters to be considered by the judge in imposing sentence.
To anyone/everyone: this sounds an awful lot like the current "debate" over the extension of the authority of the government to collect phone metadata. Given that modern "big data" analysis makes it possible for the government to make all kinds of inferences about the behavior of its citizens, doesn't it make sense as a general rule to require a warrant before any business data is turned over?
It may be bullshit, but it's still a law, and yes, Hastert was of some instrumentality in it, so it's his petard.
Ken, you need to update the post on the basic "why." It's clear this was payout for Hastert's silence over his child sexual abuse of his extorter. Child sex abuse is horrendous, of course. But, it doesn't excuse or justify extortion, either.
Mikee May 30, 2015 at 12:17 am:
Because Truth, Justice and The American Way™ demands that if we ever suspect anybody of committing any crime so long ago we can't prove it, we must find something else to prosecute them for now!
Not saying you actually did it, but what if in first grade you fought back against a bully and gave him a bloody nose. We don't know what really happened, so maybe you actually committed assault and battery with great bodily injury. So, now government should audit your tax return and, if you made an error, prosecute you for tax evasion?
nk May 30, 2015 at 5:09 am:
Not saying you did it, but what if you gave your impoverished nephew a few thousand dollars cash several times one year, to help him pay for unforeseen college expenses. It adds up to more than $10,000. DOJ decides you should have known your nephew would need more than $10,000 that year when you gave him money the first time, because any reasonable person could see that he would never find a part time job in this economy.
Congratulations! You have just committed the crime of structuring. But don't worry, the judge will consider your beneficent motives when he sentences you.
Laws that allow government to prosecute arbitrarily chosen people for acts that most people don't even realize are crimes, and many commit in ignorance with the best of motives, look great when they're used against your perceived enemies. But not so good when they're used against you.
And nothing guarantees that your most deadly enemy won't someday be in a position of government power to use them against you.
RE: En Passant
Kinda disturbing you're equating an adult molesting a child with a child beating up a child, I'm guessing you're grasping for an analogy because there just aren't any that properly fit the situation. But yes, if I made an error on my taxes I should be prosecuted for it, regardless of what happened in the past.
Hastert broke the law, he was prosecuted for it, and since he broke the law in order to cover up another even more heinous crime, I really don't care that he's in trouble. It's like someone said up above with Al Capone, the government had to prosecute him for tax evasion because they couldn't prove that he murdered dozens of people. I'm not losing any sleep over him either.
While Ken is accurate that the government CAN abuse these powers and go after "innocent" civilians, the link from the story ("may learn to your surprise that you're wrong") just doesn't bare out that claim.
1. Violation of Foreign Law (The Lacey Act)
Didn't have much to do with plastic bags, actually had more to do with illegal fishing in Honduran waters.
2. Federal Wilderness Act
Oh no. A famous and rich person was fined $75? Ouch, right?
3. Honest Services Fraud
No real life example.
4. Espionage Act
No real life example.
5. Obstruction of Justice
Lawyer destroyed evidence instead of reporting it to authorities. We get super pissed when churches cover up child abuse, but when lawyers do it we're supposed to be mad at the government?
6. Computer Fraud and Abuse Act
Whistleblower or spammer? I guess I missed when Snowden and Manning were spamming the government instead of providing information they acquired to the public.
7. Wire Fraud
I'm of the opinion that cyber-bullying should be prosecutable, just like real life bullying is when it goes too far. And when an adult tortures a minor into suicide, I don't see any violation of the 1st Amendment when the government decides to prosecute.
8. Providing Material Support for Terrorists
A webmaster claims they didn't know their linked sites would lead users to violent terrorists? Then they shouldn't have been a webmaster in the first place.
9. False Statements to a Federal Official
I live in an area surrounded by camping spots, I wish more people were prosecuted for leaving their trash behind.
9 examples of how innocent people can be prosecuted for things they didn't actually do, and yet not one example of an innocent person being prosecuted for things they didn't actually do.
Next?
En Passant
May 30, 2015 at 11:29 am
Not saying you did it, but what if you gave your impoverished nephew a few thousand dollars cash several times one year, to help him pay for unforeseen college expenses. It adds up to more than $10,000. DOJ decides you should have known your nephew would need more than $10,000 that year when you gave him money the first time, because any reasonable person could see that he would never find a part time job in this economy.
Nope. The government has to prove the specific intent to avoid the CTR requirement. (And it's more like $10,000.00 within 25 days, but it's not the only red flag so don't rely on just the amount.)
The payments started about 30 years after he stopped being the coach. Any statute of limitations had long expired, criminal or civil. So he didn't escape "justice" by making the payments, he merely kept the allegations from becoming public – at least until now.
This would be more convincing if they had any interest in prosecuting any underlying crimes. But they can't or won't. So there's nothing left except the structuring and the lie which they conveniently suggested to him.
En Passant, per others, your analogy is a total fail. Not only, as they note, does some sort of intent need to be shown, on the psychological grounds of the matter, the uncle wouldn't "structure" payments in such a way, or else he'd pay the full amount at start and just tell the IRS and/or FBI or whomever why he did what he did when they asked.
#BadAnalogyOfTheDa
DavidC, we don't yet know if the victim-cum-extorter will be charged or not. All we know is that they have not CURRENTLY been charged.
And, outside of your own say-so, I've heard nobody "conveniently suggested to (Hastert)" some specific lie. Per Ken, he should have just shut up.
#ConspiracyTheoryFail
This doesn't mean I like the law, at least as currently written, myself. It just means it's the law on the books and Hastert was dumb enough to break it, without the FBI going Clockwork Orange on him or something.
From the indictment:
Now that I think about it, the "he" that previously indicated probably refers to Hastert and not the agent, so I take it back.
Mikee May 30, 2015 at 12:14 pm
Perhaps you have double-secret inside information about those cases that Harvey Silverglate doesn't have. Please inform him. It's his website, not mine.
How do we know beyond reasonable doubt that Mr. Hastert actually committed "even more heinous crime" years ago? Because some prosecutor said he did. Apparently that's enough to overcome any reasonable doubt.
May you never be charged with any the average three felonies per day that some prosecutor might decide to charge you with if they wish to.
nk May 30, 2015 at 12:15 pm:
Since you just admitted to knowing the reporting and structuring laws, you must have had specific intent to avoid reporting when you committed the (hypothetical) acts.
But maybe, by spending money you don't have, or would rather spend on your (hypothetical) nephew's education, you could hire a defense lawyer who could get you acquitted, or at least convicted of a lesser charge. If the government doesn't decide to use forfeiture to seize all your assets because they claim they were used in the structuring.
If some prosecutor who hates you (whether personally or just because he doesn't like your looks) decides to use bad laws that many people violate unknowingly, just to show you who's boss, you might beat the rap. But you'll never beat the ride.
But skeptics about government power and bad laws are often made, not born.
That said, I'm sure that nothing I could say here would persuade anyone who believes government is always right that there is any reason to think otherwise. So, I'll leave you both with best wishes and hopes that experience's dear school never enrolls you for persuasion.
Shelby: "and that the Dept of Justice is now completely politicized (as opposed to just badly politicized a decade ago), yes. This is being done purely for political effect."
I am not sure which is more pathetic, the fact that some people make up these comments to troll or that others really believe it.
Just be careful what you say and what you do, En Passant. You probably should not have made these comments. Your IP address and computer ID may already on an NSA list for possible enemies of the state.
I have always suspected that the First Amendment is a device to trick people into revealing themselves by allowing them to talk freely. Then the secret police move in. Like an FSB (that's the successor to the KGB) officer once said about freedom of speech in post-Soviet Russia, "They say what they want and we do what we want".
We get it Mikee, you love the state….justice would have the state get involved in your business without any reason. It may not work out so well when it's your turn.
"The government has to prove the specific intent to avoid the CTR requirement."
That's true, but the government doesn't have to prove that the intent was anything other than not wanting to fill out some paperwork. If you have a small business and make regular cash deposits from proceeds at your store, and the teller mentions to you that "oh, if you deposit over $10,000 you have to fill out all these forms," so you respond by going to the bank shortly before the cash in the store gets up to that amount every month, you have committed a crime, and you are liable to have your money taken from you by the government. You have no legal defense, though US Attorneys will offer to give you some of your money back if you don't make a stink. It happened to Lyndon McLellan, it happened to South Mountain Creamery in Maryland, it happened to Schott's Supermarket in Fraser, Michigan.
That "specific intent" requirement doesn't mean much at all. The DOJ has promised to stop bringing such cases, but that's only a promise that US Attorneys can violate, it has no legal authority.
Hastert's not being especially singled out for political reasons; this happens to apolitical people all the time.
As someone who lives adjacent to Hasterts hometown(where this happened) and lives in the town where his family business was at the time, it's obvious around here what the underlying 'indiscretion' is.
I guess molesting children during high school wrestling practice is A-OK.
It's entirely possible the person who initiated this process to finally take him down was also once a child in Yorkville, and has since grown up to work in federal law enforcement. Diddling little boys can come back to bite you in the ass(and not in a way you would like) if they grow up and now have the power to seek justice for what you did to them in the past. It's not like something like that gets forgotten over time.
Come on, Hastert is a wealthy individual who has, or at least should have, sophistication with regard to how to comport himself with an investigation. Moreover, he can easily afford good counsel who he should have been consulting. He got caught because, like all folks who have money and power, he thought laws only applied to "the little people."
You can argue that these laws are heavy handed and ad hoc, but I have no sympathy for Hastert or any similar white collar type on this.
@TheInvisibleMan: I cannot condone prosecuting someone because you think he committed some other crime 30+ years ago and got away with it. Maybe he did and maybe he didn't. I highly doubt there's any actual evidence, and any alibi he might have had is long lost by now. Someone who was a teacher or supervisor back then could well be dead by now.
@surlybastard: I agree that Hastert is more unsympathetic a defendant than most, since he actually helped pass the law in question and is rich and was a politician and a lobbyist and now because of what he's accused of doing to the guy (even though that shouldn't have been leaked), but that has no impact on whether withdrawing your own money the wrong way is worth 5 years in prison, or whether telling the FBI you didn't do it is worth another 5.
RE: En Passant
You think that the statute of limitations is going to allow anyone to ever know (besides he and his victims) that he is guilty beyond a reasonable doubt? So in your view all a criminal has to do it pay off his victims until that statute runs out and you will never, ever consider the possibility that they're guilty? Do I, as a citizen, really need the standard of reasonable doubt even when the circumstantial evidence of guilt is overwhelming, and again, there will never, ever be a trial over those crimes?
I have been charged with a felony at the hands of an aggressive prosecutor that ignored common sense and decided to go ahead with the case anyway. Have you?
RE: Mike Engleson
We get it, you have nothing more to add to the discussion than personal attack. *yawn* Let me know when you get out of middle school and you're ready to have an adult discussion, kid.
RE: David C
You seem to be forgetting that he is not being prosecuted for diddling kids, he is being prosecuted for avoiding financial reporting rules and lying to an agent and there appears to be plenty of evidence to support that prosecution.
David C:
"From what I read of the indictment, the bank felt the need to discuss with him his withdrawals of over $10000, after which he switched to the lower withdrawals. I would love to know exactly what was said in that discussion and whether the bank induced him to do this."
It would be very easy for a bank employee to say "We shall report you to the IRS if you withdraw more than $10,000." or similar and leave someone with the impression that withdrawing over 10k+ is bad or makes you look bad. If they make the person help fill out paper work they could get a lot of people to break the law.
And the entire idea of structuring is insane regardless. First off, its a natural and reasonable impulse to want to minimize reports to the government. Second its a completely invented crime that we could completely prevent by having better reporting requirements! Its only purpose is to put people who have otherwise broken no law into jail. Its sickening.
Whether Hastert molested anybody is not known publicly at this time. But paying blackmail is not an admission of guilt; it looks bad, but maybe Hastert wanted to avoid any public scandal and so decided to pay instead of fight.
None of this changes the fundamental point that bad laws are bad laws, and malicious prosecution is malicious prosecution, even when people we don't like get caught up in them.
I know little about this Hastert guy, but the point of the article is the particular laws used.
My shaky analogy for the week: Its like there was a law making it illegal to drive under the speed limit to avoid being stopped and searched by the police.
Even if that hypothetical bad law is used to discover a terrorist driving carefully in a car full of explosives, that still wouldn't make it a good law. And the TV news would all be about the terrorist.
The other point is about the lying. The asymmetry of who is allowed to lie to who looks unjust. If citizens are not allowed to lie to their government while their government is allowed to lie to them, that has to erode the credibility of the government generally. It's a self inflicted wound.
It becomes totally reasonable to speculate that Hastert was paying back a 'political contribution' that didn't work out, rather than any blackmail for sex offenses. There may have been rumors of sex offenses, but Hastert isn't going to sue the Department of Justice for defamation either way, even if he is absolutely sure they have no idea where the money went.
The Justice Department can say whatever they think will get the public on side most to distract from how nutty that law is. Being a suspect should not be what the crime is.
Unless you live in a cave, you know that there are millions of cash businesses who make daily cash deposits (and withdrawals for change) every single day. Banks who serve these business know how to deal with the cash reporting requirement. (It used to be a one-time form filled out and signed by the business with the bank's assistance upon opening an account back when I dealt with it, but I haven't kept up.) When you have SNAFUs like John Thacker mentioned above, it's very likely a combination of the business, the bank, and the government not knowing what they are doing.
Another SNAFU is treating a personal account like a business account. It could be totally innocent in your case, but you wouldn't believe how many dummies get caught depositing part of the day's receipts in the business account and part in their personal NOW account. They really believe they are hiding the business's income. The IRS is especially on the lookout for that and make banks be also. "Senor nk's Bodega and Pony Rendering, Inc." should have no problem with daily drops of cash at 8:30 p.m. every day. Mr. and Mrs. nk's Personal Checking or Savings will.
And since I'm feeling generous on this June 1st, here's another easy trick that could save you thousands in attorneys fees, and IRS and Department of Employment penalties: Jorge, your busboy, asks you to pay him in cash because his credit will not allow him to have a bank account and Western Union charges him a day's wages to cash his paycheck. That is a very reasonable explanation — many people are in that predicament and that is why currency exchanges flourish in poor neighborhoods. What you do is that you, or your payroll service, issue him a paycheck complete with stub showing all earnings and withholdings. Then he endorses the check on the back to you and you"cash" it for him. And hold on to it in your payroll records, along with the checks cashed normally that your bank sends you with your monthly statement. If your devil-may-care personality allows it, have him sign a receipt for the cash too.
This was a little bit afield, but I want to make the point that America is a mercantile society; US currency is still the legal tender; and gazillions of dollars in cash circulate every day. Despite what the Eeyores may say, doing business in cash, within the law, is neither difficult nor a cause for anxiety.
Out of curiosity, what makes you claim this has anything to do with the IRS? Reporting requirements under Title 31 are an AML issue that's only tangentally related to the IRS, in the sense that some reports are forwarded to them. They don't set or control anything to do with the requirements, are not the primary enforcers, and do not appear to be the intended primary beneficiaries of the requirement.
It's kind of frightening how many people seem to have already made up their mind based on the government leaks, while simultaneously getting the timeline of key events as leaked by the government wrong.
Mikee May 31, 2015 at 12:42 pm:
No. But so what? I'm not a prosecutor exercising the power of the state. I can't say "I just know he did a crime the statute of lims has run on, so you boys check the fine print and see if we can sucker him into something completely unrelated to nail him for now. Because I just know he did something wrong long ago."
Government should not be in the business of deciding that some people are just bad and should be punished by any means necessary just because government says so.
You, or I, can believe the moon is made of green cheese. What anybody but a prosecutor thinks is irrelevant to whether anybody is prosecuted for anything.
Nope. But I once defended someone who was. I pissed off a lying cop, pissed off a jerk prosecutor, pissed off a prosecutorial handmaiden judge. But got a dismissal and they never refiled.
I read Mike Engleson's post (May 31, 2015 at 12:55 am), and he made no personal attack. He simply said that your words here indicate that you think you think it's acceptable, maybe even praiseworthy, for the state to get into anybody's business for any old reason, just because some prosecutor thinks he's a bad person. He added that experience keeps a dear school.
I agree with him on both points. And if what you say above about being prosecuted yourself is true, the views you expressed here appear bereft of any learning from that school.
In the absence of a mens rea standard being given by the majority, What impact, if any, does Alito's dissent actually have on the probability of lower courts adopting a recklessness standard.
Also, to clarify, is "scienter" a separate mens rea standard than accident, negligence, recklessness, knowledge, or intent? (yes, everything I know about mens rea I learned from a webcomic…) It sounds like it is equivalent to knowledge.
Years ago when I was buying gold, I went to my bank to get $10K. I had to wait about 30 minutes for the person who was authorized to interview me (apparently, not just any teller is allowed to ask you what you want your money for, it has to be a higher-up) to get back from lunch. When I asked what the reason was for the delay, she told me about the law. So, I asked, if I had only pulled out $9999 there'd have been no wait and no questions asked? Yep. But structuring to avoid the hassle is illegal, she said. And besides, we might need some time to get the cash for you. A measly $10K? Yep.
And people wonder why some prefer cash in their own fireproof safe to .01% checking account interest.
The bank has a significant amount of paperwork to do when you withdraw more than $10k. In fact I've heard from numerous people that unless you have millions stored in the bank if you make a habit of routine withdrawals over $10k you can expect to lose your bank account because the paperwork cost to the bank quickly brings their costs above what it's worth to keep you as a customer.
This is what's so egregious about the structuring law, people are forced into structuring because their bank tells them if they do the $10k+ withdrawals too often the bank will tell them to bank elsewhere. I pray for the day we repeal the laws that created the war on drugs and all the follow on laws that were built on top (structuring, civil forfeiture, and the list goes on) to make it easier to prosecute drug related activity. Outlawing consensual activity between adults is stupid.
"Never answer a federal agent's questions without a thorough debriefing with a qualified lawyer first."
But how exactly does that work? I mean, say the feds come to my door and claim to want to ask me some questions about my neighbor. I, being prudent, say "Not without a lawyer present." "But we aren't investigating you, you don't need a lawyer." "Nonetheless I must insist on having a lawyer present." "Fine, call your lawyer." "I don't have a lawyer."
At that point do they put me in touch with a Public Defender? Or do I just grab a phonebook and call lawyers at random? What do I say to them? "Hey I'm not in trouble but some law guys want to talk to me, how much would you charge to be there when they do?" To me that sounds weird.
Or do I need to – just as a general life rule – already have made contact with a lawyer just in case I ever need one? if so what do I do now, just grab a phone book and call lawyers at random? And what do I say to them?
I keep seeing "ask the people you know for references" but I don't know a single person anywhere near where I live who has a per-existing relationship with a lawyer. Can anyone here recommend one in Houston, TX? And if so, what do I say to them when I call?
but I don't know a single person anywhere near where I live who has a per-existing relationship with a lawyer
Do you say this because you assume they don't have lawyers, or have you asked them and they don't have any?
I'm privileged (is that the word?) to have three lawyers on speed dial but they are family members who aren't in state. They would probably remind me to SHUT UP, though.
If they come to your door, to ask about your activities or your neighbors, they aren't arresting you yet. Ask for their card, tell them you will contact an attorney and decline to speak without one present, and ask them to leave. Either they arrest you, or they complain and leave or just leave.
Unless you have reason to believe you're threatened in an immediate fashion by the incident they're asking about, leave it at that, and ask Ken to ask around for good attorneys at the appropriate level (state, federal) depending on who asked, in your area. If you're not doing anything you suspect might be wrong hopefully it will be a short conversation with the attorney and he can ask them what they want to know about and you and he can figure out what to do then.
"Do you say this because you assume they don't have lawyers, or have you asked them and they don't have any?"
For some I assume, but for most I've asked just because of posts like this one. The closest I've found so far is one guy that knows a guy that has a brother that went to law school for one semester. For my family everyone is a teacher or otherwise in the educational field, as are most of the people they know. Not many law breakers in there.
And thank you, GWH, that sounds all too reasonable when you put it like that. I can do that.
I'm still baffled that attempting to structure your transactions so that they comply with the regulations is considered evading them. If my son had many things he wanted to do, but I told my son he had to be home by 9:00, and he structured those things so that he could come home be 8:59 each day, I'd say he's complying with the curfew, not cleverly evading it by structuring his tasks.
"But ask yourself: what is the legitimate basis for giving the feds the power to prosecute people for exculpatory lies that have no impact whatsoever on their operation?"
So who gave these scumbags "the power," and where did the people who gave them "the power" get the power from themselves in the first place?
Another, "You will be beaten and caged by your government" article with absolutely no solution. That's what America has become, a nation of pseudo-intellectuals who espouse and document the incredibly horrible violations of their rights … with no solution except to endure that pain. So … they deserve no freedoms when the most respected of them tend to simply reinforce the notion that we will tolerate any of the abuses our government sets upon our backs. It's pitiful. The vast population looks up in supplication, mouths slightly open, tongues lolling out, eyes wide while the preachers say "The Devil Will BEAT you and ROAST you and LOCK YOU UP in a cage …" And the vastness of a sea of people nod their heads and say … yeah … yeah … change the channel, let's get burgers … x-tra large fries please, pass the joint, let's go party …
Sorry if this is a stupid question but I don't get why Hastert told investigators "he was withdrawing cash in order to store it because he didn't feel the banking system was safe" …
Would something prevent them from demanding he show them all the cash he'd withdrawn??
This is the first I'm hearing that a former Republican Speaker of the House was packing underage fudge, and I watch Fox News religiously. Something is rotten in Illinois.