Denny Hastert is Contemptible, But His Indictment Exemplifies America’s Over-Criminalization

[jberryhill]

14. Insufficient evidence

It was apparently not clear to investigators of what, precisely, the deal consisted.

If you have a civil claim against me, then I can certainly agree to pay you in settlement of that claim and we can further agree that you will not make any public statements about that claim.

In general, if I agree not to report a crime you have committed in exchange for payment, then that would be a form of illegal extortion.

For example, this is the federal blackmail statute:

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18 U.S. Code § 873

Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.
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Okay, so here's the scenario.

You kill your spouse and you are driving down the road with the body in the trunk, on your way to hide the body somewhere. You blow through a stop sign, hit my car, and your trunk lid flies open. I get out of my car to inspect the damage, and I see the dead body in your trunk before you hastily close it.

One of these things now happens:

1. I look at you, smile, and say, "Looks like you did some damage to my car, and I think my neck hurts. I'll tell you what, though, I think $100,000 ought to take care of it, that will be the end of it, and I will agree not to make any claims about what happened." You agree to pay me the $100,000

2. I look at you, smile, and say, "If you give me $100,000, I won't tell the police about the dead body in your trunk." You agree to pay me the $100,000.

#1 is perfectly legal. #2 is not.

Now, of course, where it gets fuzzy is the implied understanding in situation #1. But in order to prove that I made an illegal proposition, you need evidence that just isn't there. There is no general duty to report crimes to the police.

In the Hastert situation, there is also the problem of when the deal was made. My limited understanding is that the statute of limitations is long past for prosecution of the offense underlying the whole thing, and so reporting that crime would be of no effect.

Clearly, Hastert was probably not forthcoming in the particulars of whatever deal was made, and just as clearly the person receiving the payments has a 5th Amendment right not to answer questions about it (which is what Hastert should have asserted when asked about the withdrawals in the first place - he had no obligation to tell them what he was doing with the money, but he lied instead).

The takeaway is this - if you are being questioned by law enforcement about something you've done, even when you know what you've done is perfectly legal (and it is not illegal to withdraw money from your own bank account), then answering questions does not help you. They are not asking you questions in order to help you. They are asking questions in order to obtain statements to be used against you. If you don't want to answer a question, you are much better off saying that you don't want to answer the question than to make something up. Because, and again, even if you are doing nothing illegal in the first place, you will be doing something illegal when you lie to them.

But while it is possible that the recipient of the payments was doing something illegal, there's no good way to get sufficient evidence to show that here.