Sure, he’s an asshole, but stop and consider how they’re doing this.

So Denny Hastert is in trouble. Mostly, my reaction is as you’d expect: depressed amusement at the predictability of a scolding hack getting popped for misconduct like this. But there’s more here, and you should delve into it, because what’s happening to him is really kind of alarming.

The always-on-point Ken White over at Popehat has written up an examination of the charges against Hastert and how they came to be, and if you’re not a little freaked out by the process I don’t know what’s wrong with you. Basically, the Federal prosecutors can target just about anyone and take them down because of how “creative” they can get with astonishingly broad interpretations of federal law that are generally supported by the courts. Put simply, if they decide they want you, they can get you. After all, you very probably commit Three Felonies A Day (more here); the extremely broad laws and broader interpretations give Federal prosecutors enormous power that is basically unchecked by anyone. “Trust us” is a shitty insurance policy against power of this nature.

Hastert isn’t going down for diddling little boys or for bribery. He’s not going down for fraud. He’s being charged with structuring transactions –his withdrawals were all less than $!0,000 — and for lying to the Feds about the purpose of the cash:

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.


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. (Emph. added)

The takeaway is simple:

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.

It may or may not be the case that Hastert did something terrible. In a free society, though, law enforcement must work within limits. If it’s the case that he molested boys, but no complaint was made at the time, and the statute of limitations has passed, it may be tempting to endorse the actions of the FBI and the federal prosecutors here, but that’s a bad path. The tactics in question are downright scary to me, even when applied to someone like Hastert.

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