Let It All Hang Out Or Cover It Up?

The summer kicked off with a blockbuster: the unveiling of the new Caitlyn Jenner on the cover of Vanity Fair. Washington, a locale suitable for a magazine more aptly called “Vanity Affair,” is abuzz over another cover story: who was Dennis Hastert paying off and for what?

Hastert, 73, the former Speaker of the House, was arraigned this week in a United States federal court in Illinois on a two count indictment. The indictment, rather short on details, alleges that Hastert lied to the F.B.I. about why he withdrew $3.5 million from a bank account. The Justice Department claims Hastert was paying off a yet-to-named (the mysterious “Individual ‘A’”) to cover-up some “past-misconduct.”

Dennis Hastert Appears In Federal Court. Photo Courtesy of Reuters.

Dennis Hastert Appears In Federal Court. Photo Courtesy of Reuters.

Hastert was a high school teacher and wrestling coach in Yorkville, Illinois from 1965 to 1981 and the news media is off to the races attempting to make a case that the payoffs went to a former student to pay restitution for sexual misconduct. None of that has been corroborated yet, but the sister of one of Hastert’s former students has come forward with allegations of a sexual relationship with Hastert. According to the indictment an F.B.I. agent asked Hastert if he withdrew the money from the bank simply because he “didn’t trust the banking system,” and Hastert agreed, which was false. Whatever “misconduct” Hastert did to cause him to pay-off almost a million dollars to the mystery person happened too long ago to bring criminal charges today. But the government claims Hastert’s lies to the F.B.I. were recent, and a banking cover-up concluded only in 2014.

Lying to the police is always a bad idea. It happens all the time. When it happens in a typical roadside automobile search that turns up a stash of illegal drugs or guns, police or prosecutors might tack on an extra charge (like obstruction of justice) but the drug or gun charges are usually what cause the person to get convicted. In federal white- collar offenses, like the Hastert case, so often it’s the lies to the F.B.I. or other federal agents that are at the heart of the government’s case. Just think back to Martha Stewart. Charged with insider trading, it was lying to the F.B.I. (and S.E.C.) that ultimately sent her off to a federal prison in West Virginia.

Judges and juries, though, don’t always go along when the Justice Department targets the cover-ups of celebrities. A long time government target for steroid drug abuse, it was lying to a grand jury that got baseball slugger Barry Bonds in trouble. In 2011 Bonds was convicted of lying to a San Fransisco federal grand jury. The Federal appellate court overturned his conviction, believing Bonds’ answer to a question was not an intentional lie, but more typical of a squirrely, squirming witness on the stand not really want to answer a lawyer’s probing questions.

Questioning suspects is a rough and tumble business and much rougher than television makes it out to be. Regardless of level of intellect or education, it’s easy to get tricked into answering and far harder to keep your mouth shut than people think. That’s why the go-to strategy for criminal lawyers is to build a fire-wall between clients and police, and why police rush to talk to suspects before they “lawyer-up.”

When representing clients charged with lying to the police my clients are always furious when they learn that while they could end up in prison for lying to the police, it’s perfectly legal for the police to lie to them to get them to confess. Imagine an unrepresented murder suspect being grilled in a police interrogation room by a team of detectives. The detectives ask you, “why are you protecting your so-called buddy, Joe? Joe’s in the next room, and he just confessed to the shooting and said you are the trigger-man.” Joe could still be on the loose, and the pressure tactics from the detective totally false, yet the police can lie like that and it can lead to your conviction. In the current atmosphere, as the nation reviews the relationship police have with the policed, this uneven and unfair policy is something for legislatures and the courts to reconsider.

Meanwhile, as the summer progresses maybe we’ll learn the identity of the mysterious “Individual ‘A’” and why Hastert paid him off. And nobody will be surprised, when “A” ends up telling it all to Diane Sawyer or Vanity Fair. Some days it’s all about the cover-up and some days it’s about letting it all hang out.

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