So much secrecy.

Photographer: Mark Wilson/Getty Images

Why Are Prosecutors Keeping Hastert's Secret?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Dennis Hastert has a secret -- one he was willing to pay $3.5 million to keep quiet, and which the U.S. government is also now hiding. Federal prosecutors have indicted Hastert on charges of structuring cash withdrawals to avoid bank reporting and then lying to them about it. Yet even as the indictment paints an implicit picture of blackmail, the government has apparently agreed with Hastert’s lawyers to suppress whatever was so embarrassing that Hastert was willing to break the law to hush it up.

There's something very worrisome about the government secrecy here -- particularly in conjunction with the criminal prosecution on the morally mild charge of withdrawal structuring. I’d sum up the secrecy problem this way: Either Hastert did something terrible, in which case the government shouldn't be suppressing it, or Hastert was being unjustifiably blackmailed, in which case the government shouldn't be prosecuting him for breaking the withdrawal laws to avoid ruin.

To make sense of this bizarre situation, you have to read the indictment between the lines. It begins by saying that from 1965 to 1981, Hastert “was a high school teacher and coach in Yorkville, Illinois.” The indictment doesn't say so, but Hastert taught government and history at Yorkville High School. He also coached the school’s wrestling team to a state championship, which led to his being named Illinois coach of the year. The mention of the teaching and particularly the coaching seem intended raise the possibility of sex abuse. News reports on Friday seems to bear that out. 

The indictment then tells us that “individual A” is a resident of Yorkville who “has known [Hastert] most of individual A's life.” This awkward formulation draws attention to the indictment’s silence about A’s sex. And by saying that A has known Hastert most of his or her life, the indictment also seems calculated to make us think that A was a student of Hastert’s.

The indictment then says that in 2010, A met Hastert several times. The two “discussed past misconduct by defendant against individual A that had occurred years earlier.” The indictment could've said that A accused Hastert of misconduct, but it doesn't. Prosecutors know the difference between allegations and facts. The statement that Hastert and A “discussed past misconduct” is meant to imply that the misconduct in fact occurred.

The nature of the misconduct is never stated in the indictment. But again, the indictment implies that the misconduct must've been very serious. It states that Hastert agreed to pay A $3.5 million “in order to compensate for and conceal his prior misconduct.”

Here the legal background is murky. If you’ve harmed me by committing a tort, we don't have to hire lawyers to work it out. I can pay you what I owe you in damages, and that's perfectly legal. What's more, we can lawfully sign a nondisclosure agreement -- something that happens in tort suits all the time.

So if Hastert really had committed a wrong, the civil part of such an exchange of money for compensation and silence could in principle have been lawful. It need not have been blackmail, legally speaking. On the other hand, if the allegations were false, or if the accuser threatened to go to the police unless he or she was paid, then the whole transaction would've been illegal blackmail. From the indictment, we have no way of knowing.

The criminal conduct that Hastert is charged with followed. First, he made 15 withdrawals of $50,000 each from his own accounts. The withdrawals were not criminal, but they did trigger a federal law that requires a bank to report any transaction or series of transactions of more than $10,000. In April 2012, according to the indictment, bank officials questioned Hastert about the withdrawals.

Presumably, in those conversations or in conjunction with them, Hastert realized for the first time that he shouldn't be making withdrawals of more than $10,000 if he didn't want to trigger scrutiny. Beginning in July 2012, Hastert switched his withdrawals so that they were less than $10,000 each -- to a total of $952,000. That was a crime under the law that prohibits knowingly structuring transactions to avoid reporting. And it's a crime that seems easy to prove, given Hastert’s change in his withdrawal practices.

Unfortunately for Hastert, when the FBI and IRS questioned him about the structure of the transactions in December 2014, he lied to them, insisting that he “did not feel safe in the banking system.” When asked directly what he did with the money, he said, “Yeah, I kept the cash. ... That's what I'm doing.” The lie to federal officials was a crime, too.

Since the prosecution of Al Capone, it's been common for the government to prosecute an offender for a relatively minor crime if it can't get a conviction for a major one. There are plenty of reasons the government might not to be able to prosecute Hastert for the original misconduct: The crime would've been local, not federal; the statute of limitations might have passed; and above all, the accuser might not seem credible given his or her extraction of $3.5 million from Hastert.

But by maintaining secrecy around the nature of the accuser and the allegations, the government’s making it impossible for the public to know if in fact the government is going after Hastert because he's guilty of something that they can't otherwise prove.

If Hastert isn't in fact guilty of some bad prior act, but was being blackmailed unjustly, then the government's prosecution seems heartless to the point of being abusive. As things stand, we can't know, because the government has apparently agreed to keep silent just like Hastert's original accuser.

The upshot is that either we should know what happened or Hastert shouldn't be charged. We may eventually find out, of course -- that won't be thanks to the government.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net