Friday, May 29, 2015
Former Speaker of the House Dennis Hastert has been indicted for structuring and lying to the FBI, two crimes that many reasonable people, including me, are not certain should be crimes. Structuring involves, as alleged here, limiting deposits and other financial arrangements so as not to trigger a bank report to the IRS. Lying to the FBI includes a denial of wrongful activity, a natural human response by those confronted (although a mere "exculpatory no" without more is no longer generally prosecuted).
The indictment states that Hastert had paid off a fellow Yorkville, Illinois resident he had known most of that person's life $1.7 million, and promised a total of 3.5 million, "in order to compensate for and conceal...misconduct" committed "years earlier" against that person. The indictment mentions that Hastert was a teacher and wrestling coach at a local high school from 1965-1981.
Reading between the lines of this deliberately vague and unspecific indictment, my guess is that the alleged underlying misdeeds are sexual in nature. I also wonder whether the considerable payment mentioned in the indictment "to compensate for and conceal misconduct " resulted from extortion and, if so, whether as a matter of prosecutorial discretion and perhaps even as a matter of law Hastert should be prosecuted for such relatively minor crimes, and whether Hastert is really being punished for wrongs done decades ago (and probably beyond a statute of limitations). These thoughts, let me be clear, are based on speculation and surmise, with only preliminary knowledge of the facts.
Tuesday, May 26, 2015
According to CNN, the U.S. Department of Justice is preparing to bring corruption charges against up to 14 senior officials at FIFA, the world's soccer governing body. The reports from CNN come from "law enforcement officials." According to the New York Times, several FIFA officials have already been arrested in Switzerland in a "extraordinary early-morning operation."
FIFA has been under investigation for some time, including with regards to the bidding process for the 2018 and 2022 World Cups, which will occur in Russia and Qatar. FIFA conducted an internal investigation of the selection process for each event. The investigation was led by Michael Garcia of Kirkland & Ellis. Garcia submitted his report to FIFA in September 2014. FIFA then released a "summary" of the report's findings, which summary Garcia alleged was "erroneous." Garcia resigned as independent chair of the FIFA Ethics Committee's Investigatory Chamber in December 2014.
One issue that will be interesting to watch in this case is the manner by which the U.S. alleges jurisdiction over the senior FIFA officials despite the fact that alleged corruption occurred overseas and FIFA is an association governed by Swiss law. According to CNN, the U.S. will allege jurisdiction exists because of the breadth of U.S. tax and banking regulations. Further, the government will reportedly rely in part on the fact that significant revenue is generated by the U.S. television market. This is certainly a case we will be hearing a lot about in the coming months.
My friend Kimberly Brown used to invite me once a year to address her Administrative Law class at University of Baltimore Law School. The topic was always the pros and cons of an Independent Counsel, operating under the auspices of the Independent Counsel Act, and a Special Counsel, appointed by the Attorney General. This was in the early years of the Obama Administration when Independent Counsel Ken Starr's Whitewater/Madison Guaranty/Lewinsky Investigation, Special Counsel Jack Danforth's Waco Obstruction Investigation, and Special Counsel Patrick Fitzgerald's Plame Leak Investigation were matters of recent history.
I knew something about each of these investigations, having worked for Starr, served as an AUSA in the Western District of Texas during the Branch Davidian siege and prosecution, and closely followed the Plame story. At the close of class I wound up comparing the Independent Counsel and Special Counsel regimes and concluding that a Special Counsel was better suited to lead a thorough investigation of what are inevitably highly charged, politicaly tinged allegations. Why?
A Special Counsel, appointed by the party running the Executive Branch, is far less subject to political attack by the ruling government's fellow travelers in the media and Congress. They look foolish attacking a person put in place by the very government being investigated. This is especially true if the Special Counsel is a person of acknowledged prestige, such as Danforth, a retired Senator, and Fitzgerald, a sitting U.S. Attorney with an impeccable reputation at the time.
And for the same reason, firing such a person is likely to bring down scorn on the Attorney General and President. Can you imagine the firestorm that would have ensued had President Bush fired Patrick Fitzgerald? Witnesses and lawyers who interacted with Danforth's Waco Investigation considered his staff to be over-the-top aggressive. But they had nobody to complain to, and Danforth and his people were insulated and protected from effective criticism.
So, the Special Counsel enjoys far less theoretical and statutory independence than did the Independent Counsel under both prior statutes, but in practice can be quite independent.
But if what if a President and Attorney General come along who never appoint a Special Counsel, even when one is called for, and what if the mainstream media outlets give them a free pass? That is essentially what happened in the first six years of President Obama's reign, with Eric Holder as Attorney General.
To my knowledge not one DOJ Special Counsel has been appointed during President Obama's tenure. And yet there are/were at least three scandals justifying an independent, professional Executive Branch criminal investigation, free from political interference. These three are: Fast and Furious and alleged cover-up; Benghazi and alleged cover-up; and alleged IRS political targeting and cover-up.
It is hard to believe that a Republican President and Attorney General would be able to get away with such inaction, without an incessant drumbeat of opposition and media invective. The failure to appoint a Special Counsel to probe IRS' alleged targeting of conservative groups is particularly troubling, given the confirmed interaction between IRS officials such as Lois Lerner and DOJ Public Integrity attorneys regarding potential prosecution of targeted groups. I cannot imagine a more glaring conflict of interest on DOJ's part.
This is a lesson not likely to be lost on future Republican Administrations.