The federal indictment of former U.S. House Speaker Dennis Hastert has raised a long list of puzzling legal questions, including why prosecutors filed banking charges in a case that, at its core, appears to involve extortion and sexual abuse. No defense attorney promptly came forward to publicly rebut the charges, and Hastert might have avoided some embarrassing details becoming public had he negotiated a plea agreement.
Some answers could come Tuesday, when the 73-year-old is scheduled to make his first court appearance since a May 28 indictment said he agreed to pay $3.5 million to someone from his days as high school teacher and wrestling coach not to reveal a secret about past misconduct. He's charged with violating banking laws and lying to the FBI, with each of those two counts carrying a maximum five-year prison term.
A look at the arraignment and some of the legal issues in the case:
Legal observers wonder if Hastert violated the old adage about never answering questions without a lawyer present when investigating authorities' approached him at the end of last year.
Usually, a lawyer emerges within hours of formal charges. In Hastert's case, one wasn't listed on the court docket until Monday afternoon: Prominent Washington, D.C.-based attorney Thomas C. Green.
The indictment says FBI investigators questioned Hastert on Dec. 8, 2014, about withdrawing hundreds of thousands of dollars in cash at a time. It was his answer — he said he was keeping it at home because he didn't trust banks — that led to the lying charge.
Any lawyer would almost certainly have advised Hastert in that FBI interview to keep his mouth shut. A high-powered legal team might also have tried to hammer out a deal immediately with prosecutors, perhaps proposing that Hastert plead guilty in exchange for dismissing a count. An agreement also could have avoided a formal indictment, potentially keeping some embarrassing allegations under wraps.
Green has decades of experience defending politicians and CEOs, and represented former Assistant Attorney General Robert Mardian during Watergate and several government officials during the Whitewater independent counsel investigations, according to Green's biography on the Sidley Austin website.
ENTERING A PLEA
Hastert is expected to step before U.S. District Judge Thomas M. Durkin on Tuesday and enter a plea. In the majority of cases, defendants enter not guilty pleas at arraignments.
Prosecutors haven't said if they will ask Durkin to recuse himself after Federal Election Commission records showed he donated $500 to the "Hastert for Congress" campaign in 2002 and $1,000 in 2004, but the arraignment gives them the opportunity to make that request. Durkin was an attorney at the Mayer Brown law firm in Chicago at the time of the contributions.
It's unclear whether government attorneys will speak Tuesday about the secret Hastert allegedly sought to conceal by paying the still-unidentified person the indictment refers to only as "Individual A." Prosecutors typically provide an overview of the charges at arraignments, occasionally adding some new details.
A person familiar with the allegations told The Associated Press that the payments were intended to conceal claims Hastert sexually molested someone decades ago. Prosecutors do not describe the act underlying the case in the indictment, which some legal observers said was peculiar. The indictment does hint at it, saying that whatever happened took place during Hastert's teaching and coaching years from 1965 to 1981 in Yorkville, a suburb of Chicago.
THE LAW AT ISSUE
The banking law that prosecutors have invoked was primarily designed to catch drug dealers and other underworld figures laundering illegal proceeds. Using it in a case of alleged extortion is novel, especially since authorities aren't targeting, at least publicly, the extorter but the one being extorted — Hastert. And no one in Hastert's case is alleging that the money the politician-turned-lobbyist withdrew was illegal or derived from some crime enterprise.
The indictment alleges Hastert first started taking out $50,000 at a time, but changed course when the huge withdrawals generated Currency Transaction Reports mandated under banking law, the indictment alleges. Hastert then began withdrawing increments of less than $10,000 to skirt the reporting ruling, according to prosecutors.
Hastert's lawyers could try to employ what's called "a compulsion defense" — that Hastert was compelled to break the banking rules and to lying to the FBI because he was being blackmailed, said Chicago defense attorney Joseph Lopez, who is not involved in the case.
The downside of that strategy, Lopez says: "Hastert would have to take the stand — and he would have to admit to everything in the past and reveal his secrets."