Not every bad act is a crime. Not every bad act that can technically be categorized as a crime should be pursued by prosecutors. And not every bad act that clearly amounts to a crime should be pursued by prosecutors in the United States.
Those thoughts are sparked by the recent indictments of international soccer officials on bribery and corruption charges and of former House speaker Dennis Hastert on charges of structuring hush money payments to avoid bank reporting laws and then lying to the FBI about his conduct.
For different reasons, I find both indictments unsettling — not necessarily wrong, but worth thinking through whether they ought to have been brought.
The indictment of FIFA officials raises questions about the exercise of U.S. authority to pursue international corruption whose chief harm does not seem to be to U.S. interests or citizens.
The Hastert indictment raises questions even more gut-wrenching: about the proper use of the criminal law; the degree to which technical statutes should be employed to punish alleged conduct that is offensive but uncharged; and the role that celebrity and prominence should play in making prosecutorial decisions.
FIFA first, although it is the less concerning of the two prosecutions. There are two levels on which to examine the 160-page indictment: whether as a technical legal matter the United States has jurisdiction over the acts alleged; and, more fundamentally, whether this is a wise use of U.S. power and prosecutorial resources.
Where does the United States get off charging international soccer officials over a bribe allegedly solicited by a Venezuelan citizen from the founder of a Brazilian company at a tournament in Argentina?
As a legal matter, there does seem to be enough of a U.S. nexus. (There’s a more nitpicky question about whether the charges were brought in the right venue, Brooklyn.) Two of the 14 defendants are U.S. citizens. Several of the companies allegedly involved have offices in the United States. The U.S. financial system was used extensively to route the payments.
And yet: FIFA itself is headquartered in Switzerland. The bulk of its business takes place outside the United States. So why does it fall to U.S. prosecutors to fix soccer’s problems?
One legitimate answer may be that no other country is willing to take on the task; the United States is the world’s anti-corruption policeman by default. Another is that U.S. companies are entitled to compete on a level global playing field; if FIFA officials took bribes to award sports marketing contracts, non-bribe-paying competitors were disadvantaged.
But another question, also legitimate, is whether this serves as the best use of scarce prosecutorial resources. White-collar cases such as this are complex and time-consuming. They win headlines, and future job prospects, for prosecutors. It’s a reasonable question what they do for U.S. citizens who aren’t rabid soccer fans.
The Hastert indictment strikes me as a significantly more questionable call. If Hastert sexually abused a student when he was a teacher and wrestling coach, that conduct is repugnant; it should have been reported and prosecuted decades ago.
Now, it is too late for that. Instead, Hastert was tripped up by bank reporting requirements intended to catch drug kingpins and organized crime bosses. His alleged crime is that he structured his hush money withdrawals to avoid triggering reporting rules and then — seemingly on a single occasion — lied to FBI agents about why he was making the withdrawals. Lying is bad. Lying to FBI agents is even worse.
But, really, wouldn’t that have been your first instinct, too? I’d feel differently if Hastert had stuck with the lie, in a second interview after he’d had time to think it over, or before a grand jury. (And, yes, I’m thinking about President Clinton’s impeachment here.)
Hastert did, it seems, a terrible thing. He is, or was, paying for it — literally. He shelled out $1.7 million “to compensate for and conceal his prior misconduct,” the indictment says. He is at once alleged perpetrator and victim of a shake-down scheme; his alleged victim is both prey and blackmailer.
Yes, but he’s also a former speaker of the House, two heartbeats away from the presidency. If this sordid scheme arose when Hastert were in office, not lobbying away, I might feel differently.
Now, though, I keep returning to the question: What, precisely, is the federal government’s interest — the public interest — at this point in prosecution and humiliation?