I haven’t really gotten into the current Denny Hastert flap here because AP has been on top of it, but the narrative of the story seems to be shifting pretty rapidly on the social media front. I think one of the biggest areas of confusion – leading to some difficulty in discussing what is probably a very disturbing story – is the need to separate two very different alleged crimes on the part of Hastert and potentially at least one by Person of Interest A. (The former student in the alleged incident.)

The first story is the one that nobody seems to want to talk about and, at least at this point, is of no interest to prosecutors. If the various hints and allusions are factual, Hastert is being accused of something awful of a sexual nature with a child who was a student at the school where Hastert worked as a teacher. If this story is true (and it remains an “if” even though Hastert’s willingness to shell out that kind of money and his lack of a denial to date make it a fairly convincing story) then the former speaker did something monstrous and should be rightly condemned even if he can’t be prosecuted due to the statute of limitations. But apparently we can’t all even agree on that. Enter Red State diarist streiff.

To be clear, I don’t really care what Hastert did to be blackmailed. As society has embraced homosexual marriage and a mutilated and mildly deranged Bruce Jenner we have moved past the point where we should be outraged about a teacher diddling a student. It is really a mark of Hastert losing touch with the zeitgeist that he agreed to pay blackmail rather than pitching the story as a reality show.

Call me old fashioned, but that’s just plain wrong. There is no parallel between Bruce Jenner decided he’s a woman and an adult (allegedly) raping a child. I’d thought that was something we could all agree on even if everything else in the social spectrum is up for grabs. And as horrible as such a crime is, it is compounded and becomes even worse when the crime takes place between a teacher and a student or a doctor and a patient or a prison guard and an inmate. People placed in positions of authority, power and influence over children are correctly held to an even higher standard.

As I said before, we still don’t know precisely what did or didn’t happen at that school and perhaps we never will. But if proven, it was a Very Bad Thing.

But with that out of the way, we can focus on the second question which has to do with the charges which are actually being brought against Denny Hastert. They have nothing to do with the long ago incident at school, but with his withdrawing large sums of his own money out of his bank account and then lying to the feds about it. This has some people – including some Democrats who would normally be dancing in the streets over news of a Republican being taken down – feeling a bit queasy on Hastert’s behalf. And on this score, streiff raises a few important questions.

Under federal law, Hastert could literally have been indicted for telling FBI agents “it is none of your business” when asked why he was withdrawing money because it is their business.

This is basically the same strategy followed in the persecution of former Alaska Senator Ted Stevens. The feds started out with the theory that Ted Stevens had violated the law and then set out to prove it is the case. Eventually, far too late to be of interest to anyone, Stevens was exonerated based on prosecutorial misconduct. But the two ruthless, amoral assclowns who conspired to send Stevens to prison were cleared of misconduct.

We are pointed to Ken White at Popehat who goes into a bit more detail on why these charges seem sketchy.

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?

Perhaps this is a case of a prosecution in search of a crime, and it might be a tricky case to get a conviction on, but I think it’s for different reasons than are being stated here. The rules about withdrawing money from (or depositing into) the bank when large sums of cash are involved are fairly insulting to the citizen, it’s true. It’s your money and if you want to stuff it in your mattress, that’s your business. But nobody gets prosecuted for the actual deposits or withdrawals. That’s just the trigger which gets the feds interested in whether you’re paying all of your taxes. And if you’re not, then they go after you for tax evasion or whatever else they can find. The whole “lying to the feds” thing is fairly insulting as well if you aren’t under oath in a court of law, though that’s a matter for another day.

But the prosecutors would still have to win at trial and I’m unsure how easy of a time they’ll have if a jury gets hold of it. Hastert may indeed have lied to them about what the money was for, but if that’s going to become an issue in the trial they will have to allow the jury to hear what the money was actually for. And if they find out that the guy was in the process of being blackmailed, your average fellow citizen off the street might be able to understand how you wouldn’t want to reveal that information to the FBI. Of course, going to the next level, if they also hear that it was because of him allegedly raping a child, that could backfire as well and have the jury ready to convict him of anything as long as they can slap him down.

There is discussion taking place which hints that this somehow “wasn’t blackmail” if there was an agreement between the former student and Hastert, but that makes no sense to me. There’s an “agreement” between a kidnapper and his hostage’s family if they drop off a bag of money, but that doesn’t mean that a crime isn’t taking place. But that’s yet another question I’ll have to leave for the lawyers. Lots of things happen in our courts which make no sense to me these days.