Dennis Hastert notwithstanding, the structuring law is unjust

If Hastert’s secret had been his sexual orientation rather than his grave misconduct as a high school wrestling coach, the person demanding payoffs probably would have been charged with a crime, and the government probably would not be trying to lock Hastert up. “With this case,” the memo says, “the government seeks to hold defendant accountable for the crimes he committed that can still be prosecuted: defendant’s structuring of cash withdrawals and his lies to the government about that activity. But those crimes, while recent, have their origin in the defendant’s past. The actions at the core of this case took place not on the defendant’s national public stage but in his private one-on-one encounters in an empty locker room and a motel room with minors that violated the special trust between those young boys and their coach.”

The government argues that “all aspects of defendant’s conduct relating to the structuring activity, of which the sexual abuse is a core component,” should be considered in imposing a sentence. But federal sentencing guidelines recommend a prison term no longer than six months for Hastert, which is considerably lighter than the penalty he could have faced if he had been convicted of sexually abusing Individual A and other members of the wrestling team.

Although Hastert got off lightly in that sense, the crime for which he is officially being punished should not be a crime at all. Again, imagine that someone was threatening to reveal not that Hastert had sexually abused high school students but simply that he was gay. He might then have engaged in exactly the same conduct—big withdrawals, then smaller ones after bank employees started asking about them—that prompted the structuring charge in this case. Likewise if he had withdrawn money for other sensitive or embarrassing but entirely legal reasons: The pattern of withdrawals would still count as a crime under federal law, as the pamphlets that Hastert’s bank gave him explained.