The strange case of Denny Hastert: The other reason why his indictment is so disturbing

In America, we allow people to buy silence regarding their crimes — as long as the appropriate paperwork is filed

Published June 2, 2015 8:55PM (EDT)

  (AP/Lauren Victoria Burke)
(AP/Lauren Victoria Burke)

When does the demand that someone pay for the harm they’ve caused become extortion? The line between, on the one hand, seeking legal compensation for injuries, and, on the other, shaking someone down via threats of blackmail, turns out to be somewhat blurry.

Take the case of former Speaker of the House Dennis Hastert. According to a federal indictment, an unnamed person (“Individual A”) met with Hastert in 2010, and negotiated an agreement whereby Hastert would pay $3.5 million “in order to compensate for and conceal his prior misconduct against Individual A.” Media reports indicate that Individual A is a former student of Hastert’s, from his days as a high school teacher in Illinois between 1965 and 1981, and that the misconduct was some sort of sexual molestation.

It was Hastert's efforts to avoid disclosure rules on those payments, rather than the payments themselves, that have landed him in hot water. However, that hasn't stopped some media observers from suggesting that Hastert was the victim of an extortion plot.

To see how tricky this kind of situation can become, let’s first consider two straightforward hypotheticals: Suppose Individual A calls a lawyer, and tells the lawyer his story. The lawyer calls Hastert, and tells him he wants to talk to Hastert’s lawyer. The two lawyers then negotiate a settlement, in which, in exchange for a payment, Individual A agrees to sign a release, waiving any legal claims he has against Hastert. Such an agreement would certainly include a non-disclosure provision, making the payment contingent upon Individual A’s promise not to disclose the existence of the agreement. All this is perfectly legal, which means the agreement would be enforced by court orders if necessary. But of course the whole point of the agreement is to make it unnecessary for any legal action to ever be filed. In effect, Hastert and Individual A are entering into a contract to bury evidence of Hastert’s crime, in exchange for money.

Now suppose Individual A calls Hastert up and tells him, “if you don’t pay me $3.5 million, I’ll call a press conference and announce that you molested me when I was your student. But if you pay me, I promise to keep quiet.” This is extortion, which is a serious crime. (By the way, if Hastert agrees to this arrangement and then reneges, Individual A can’t go to court to enforce the agreement, because criminal contracts aren’t legally enforceable.)

On one level, the distinction between these two situations is perfectly clear, as Richard Nixon used to say. On another, it’s troubling that we allow people to buy silence regarding their crimes, as long as the appropriate paperwork is drawn up first.

Many potential intermediate points exist between these two straightforward hypotheticals. Suppose Individual A meets with Hastert and tells him he’s going to file a lawsuit if Hastert doesn’t pay him. Whether such a demand ends up being extortion or not may turn on something as simple as whether Hastert’s victim signs the appropriate release. (This form, like almost all other standard legal documents, can now be downloaded from the internet, which is one reason why it’s getting harder for lawyers to find work.)

Or suppose Hastert’s victim’s legal claims turn out to be barred by the statute of limitations. (This means too much time has passed and the victim no longer has an enforceable legal claim.) Is threatening to sue in those circumstances extortion? Threatening to reveal you had an affair with a candidate unless he pays up is extortion, because you can’t sue someone for having an affair with you. How is threatening to file a legally baseless lawsuit different?

(Answer: A lawyer can almost always find a halfway plausible argument for why a lawsuit wouldn’t be baseless in these particular circumstances, and a halfway plausible -- as opposed to a good -- argument is all the potential litigant needs).

If Hastert’s victim could have so easily extracted money from Hastert by threatening to sue, why didn’t he? We can’t know for certain, of course, but a good guess is that Individual A is legally unsophisticated, and/or he was trying to avoid paying lawyers or taxes (A legal settlement in these circumstances probably wouldn’t be taxable, but of course if Individual A were legally naïve he wouldn’t know that).

What’s surprising is Hastert’s evident naivete. Hastert was apparently so ashamed of his crime (or crimes?) that he didn’t bring in a lawyer to make his dark past go away, with a few strokes of a pen and a few discreet withdrawals from his well-stocked bank accounts. For that reason, perhaps, a kind of justice is being done after all.

By Paul Campos

Paul Campos is a professor of law at the University of Colorado at Boulder.

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Dennis Hastert Denny Hastert Speaker Of The House U.s. Congress