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The irony of Hastert's constitutional defense

Those who revel in the fall of Dennis Hastert might find sobering the notion of just how close he apparently came to entirely avoiding criminal prosecution. It could be that all he had to do to escape his entanglement with the law was to remember his constitutionally guaranteed right to remain silent.

It would indeed be ironic if someone who, per the U.S. Constitution, had been a couple of heartbeats away from becoming the most powerful person in the world, when confronted by authorities, apparently forgot that he didn't have to provide evidence against himself.

News accounts make it appear that from his mouth came words that led authorities to prosecute him. For avoiding government viewing of his bank transactions, not for any alleged sexual wrongdoing. It looks like he wasn't prosecuted for any sexual misconduct because the statute of limitations had expired, or the alleged victim's reported extortion ruined the alleged victim's credibility, or for any number of other potential reasons.

No, authorities decided to prosecute the former speaker of the House of Representatives for the way he handled his money, and for what federal officials said he said about how he handled his money. This stemmed from Hastert's decision, when he was approached by authorities about the reasons for his withdrawals, to not simply tell them something like "It's my money. I'm not going to tell you why I took it out of the bank." Instead, he told them a story they obviously chose not to believe.

Had he kept to himself his reasons for withdrawing money that was his, I question whether federal prosecutors could have proved that Hastert's intent was criminal when he made the withdrawals in the manner he did. The bank officials may have thought the amounts, sequences and frequency to be suspicious, but if Hastert had merely declined to provide an explanation, it would have required quite a jump to conclude that the withdrawals and their timing was circumstantial evidence of a crime.

Sure, if "Individual A" hadn't shared the former speaker's interest in "discretion," he could have provided prosecutors with testimony indicating the possibility that what Hastert did amounted to illegal structuring. But any acts in extorting money from Hastert would have given jurors ample reason to dismiss the claims, leaving the prosecution with nothing more than suspicion of wrongdoing.

If Hastert had declined to explain himself in response to initial scrutiny, maybe the FBI would not have jumped in. But even if the FBI still did come to his door, all the former speaker had to tell them was, "I'll talk to you about the Sox, the Cubs, the Bears, the Blackhawks, or why the sky is blue, but I'm not going to talk to you about my money."

For good reason, lying to the FBI, or otherwise obstructing justice, is a crime. People should never lie to the FBI, or to any police, or to anyone else for that matter.

But, also for good reason, it is not a crime to exercise your right to remain silent. And contrary to what you see on television, doing so doesn't make it appear as if you're guilty.

It is not a crime to decline to cooperate with police. Of course, a good citizen will cooperate with police when they witness a crime. However, you're still a good citizen if you do not cooperate with police when they come to you, asking you about your business.

That's because we live in a constitutional democracy. Not in a police state.

For transparency sake, I'll note that police officers take classes teaching them how to interrogate, how to achieve confessions. And we know from painful experience that while sometimes confessions are true, sometimes, they are false. Or that what one says to authorities gets lost in translation.

At the end of the day, if you're tempted to judge the former speaker, consider the possibility that if he had simply, consistently and unshakingly declined to talk to authorities, he might not today be a convicted felon.

Scott Slonim is a former journalist and retired public defender at the Cook County Rolling Meadows courthouse.

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