Hastert may be a perv, but the transcendent legal truth is that Denny dindu a damn thing

Dennis Hastert was sentenced to fifteen months in federal prison today for sex crimes that he has not and will never be convicted of committing. The crime to which he did in fact plead guilty was the structuring of bank withdrawals, a patently tyrannical statute that serves no legitimate public safety or welfare purpose but has been kept on the books as a dragnet that prosecutors can use to catch organized criminals, or disorganized ones, against whom they do not have evidence of genuine criminality. SCOTUS has failed to invalidate this and a number of similarly overbroad, overreaching federal criminal statutes on equity grounds, probably because the Canadian military occupation that a country desperately needs is never the Canadian military occupation that it enjoys. We sustained a brief proto-Canadian occupation just over two hundred years ago, and the main result was that some firebugs in uniform burned down the White House. Thanks a lot, friends.

Paying any attention to recent appellate cases and the sheer numbers of the incarcerated or court-supervised on both sides of the near frontier, it’s hard not to conclude that US criminal jurisprudence is a raging dumpster fire in a way that its Canuck counterpart probably is not. We’ve been left in the medieval dust by a legal system that does not have a protection against double jeopardy for criminal defendants. This doesn’t just happen. It requires a deep moral and spiritual malaise pervading the legislature and the judiciary, an executive branch too derelict or craven to push back against penal excess (e.g., presidents who gladly and without embarrassment pardon turkeys on national television but are scared to pardon more than a token number of convicts), and a public whipped into a fearful, vengeful lather by a hellishly irresponsible and self-dealing yellow press. All in all, this is an illegitimate regime, barely in compliance with the plain text of the US Constitution on numerous crucial matters of individual liberty, let alone with its spirit. Peter Jennings carried a copy of the Constitution–yes, our Constitution–in his pocket for years as a foreigner, before finally deciding to become one of us through naturalization, what the fuck, guess I might as well pledge this fraternity already, eh. That’s more American patriotism than you’re likely to run into in Congress these days, or in the courts.

Or, God help us, in our free press. Dennis Hastert’s rights as a defendant have been thrown to the wind because he’s presumably a pervert. Several of his former wrestling students have publicly accused him of molesting them under school auspices while they were minors. None of these guys had the presence of mind or the courage to press criminal charges against him before the relevant statutes of limitation expired, nor did any of them threaten or file suit against Hastert as an individual or against the Yorkville CUSD in its capacity as Hastert’s institutional employer. These young men did not receive legal redress because they did not have the courage to seek it. They did not have the courage to assert their rights. One can be sympathetic to their sense of great shame, intimidation, and distress at the time without absolving them of their responsibility to petition for any criminal or civil relief they wanted to obtain within the relevant statutes of limitation. As terrible as their circumstances were, they had options. They could have contacted attorneys and demanded immediate attorney-client privilege sealing their allegations pending any formal complaint. They could have gone to police. Given their fear that they’d be discredited for making inflammatory accusations against a respected local public figure, they could have contacted Illinois state troopers posted to an out-of-area barracks, say, in Springfield or East St. Louis or Carbondale. If they were afraid that Hastert had statewide juice, they could have gone to the FBI.

Instead, one of them pretty clearly blackmailed Hastert after the statute of limitations had expired. Hastert got into legal trouble for structuring bank withdrawals because he was trying to comply with a seven-figure blackmail demand. He would not have made these irregular, or, if the feds are to be believed (they aren’t), suspicious withdrawals had he not been the victim of ongoing blackmail. This is exactly what his former victim was doing to him in demanding “hush money.” He did not have the courage, or probably more accurately the patience, to seek compensation from Hastert through the courts. Instead he resorted to vigilante crime.

This shouldn’t have to be spelled out, but a free, competently self-governing society does not tolerate blackmail, and it certainly does not honor blackmailers. Hastert’s victim had legal avenues at his disposal, not only against Hastert but also against the school district. He chose instead to extort a payout from Hastert decades after the molestation incidents, after Hastert had risen to exceptional wealth and power as a former Speaker of the House and a major lobbyist. This victim did not try to protect other boys from Hastert’s abuse by quietly reporting him to school authorities, nor did he, apparently, make an anonymous public outcry for the purpose of exposing Hastert as a pervert. HastertPerv.wordpress.com, among others, remains available; name it and claim it, boys. Or girls. For what it’s worth, there was at least one anonymous public outcry against Jian Ghomeshi prior to his indictment, and the exquisite Twitter account @jianghotmesi has been active as recently as this month (“I got 99 problems….and bitches are like 7 of them. #FML”).

The federal judge who sentenced Dennis Hastert explicitly referred to the child sex abuse allegations as aggravating factors causing him to increase the sentence to a term more than twice as long as the six months requested by the prosecutors. The problem with this upward discretion by the judge, which should be obvious, is that Hastert was not in court to be sentenced for sex crimes. He had not been convicted of sex crimes, nor can be be convicted at this point, since the statutes of limitation have expired. He was being sentenced for frankly harmless financial crimes, themselves quite minor by the standards of federal criminal statutes, that had been exposed as a direct consequence of blackmail by a sex crime victim who had chosen not to seek Hastert’s prosecution when he had the opportunity. This must have been an excruciating decision to have to make, but the difficulty of such a decision for a crime victim in no way justifies the gross irregularities of Hastert’s sentencing.

This is a much worse violation of due process than O. J. Simpson’s modestly draconian sentencing for armed robbery in Nevada, but also for double murder in California. In that case, the crime under consideration was itself violent, and the sentencing judge took into consideration a credible history of prior violence by the defendant, including two homicides of which he had been acquitted but for which he had also subsequently been found civilly liable in a wrongful death trial. That’s a far cry from using sex crime allegations that have been neither prosecuted nor litigated as aggravating factors justifying an upward departure from sentencing guidelines for a financial crime that shouldn’t even be on the books and which, in the case in question, would not have been committed in the first place had the defendant not been paying off a blackmailer.

This same blackmailer, individual A, is now suing Hastert for breach of contract to force the payment of the outstanding amount of hush money. This takes a certain gall, even for a child molestation victim. This Individual A may have suffered a terrible crime, with lasting psychological consequences to this day, but this does not excuse what he has done to Hastert. Blackmailing perverts is lawless because blackmailing anyone is lawless. A nation under the rule of law doesn’t excuse vigilantes for extrajudicially killing or assaulting those who did them wrong, or for extorting them after the fact. A nation under the rule of law expects crime victims to use the legal system for redress and abide by its procedures. Of course, as I mentioned above, ours is pretty damned sick, to the point of encouraging Canada to party like it’s 1814, but preferably leaving its arsonists at home this time, maybe to burn down some Low Track squalor instead. What can we do when the judges themselves won’t abide by obvious protections for criminal defendants who have been subjected to prosecutorial fishing expeditions? I wish this were a rhetorical question.

The courts cannot be used to save crime victims from their own crippling fear and indecision. To do so breaches due process for defendants. This is intolerable to any truly free people. Judge Durkin took an oath to uphold the US Constitution, and frankly, he has publicly broken this oath in the Hastert case.

Yes, even Dennis Hastert deserves due process. Why the fuck does this even have to be said? This system is about a lot more than some congressional pervert who put the president on trial for having a mistress. It’s about all Americans because it has the potential to swallow up any American. There’s no telling who this metastatic carceral state will try to ruin next.

This is why Denny dindu nuffin deserving prison time. Not at this late juncture. His victims and their survivors deserve peace, maybe more peace than they will ever find in this life, but the entire legal system cannot be ordered to belatedly bringing peace and closure to victims who failed, for whatever reasons, to seek redress for crimes against them in the timely fashion explicitly stated in our laws. This is intolerable. RCMP revanchism on the southern front, however, becomes more tolerable every day. I hate to say this, but even Monty Robinson is sober enough for this job. Just look at the alternatives. Just look at who we have running this country today.


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