Famed Harvard Law Professor Alan Dershowitz joined Chicago's Morning Answer to discuss the Denny Hastert case after federal prosecutors described Hastert's "victims" (plural) in arguing against a delay in Hastert's sentencing which was ultimately granted (April 8). Proft and Dershowitz spared over the quality of justice in this case, whether Hastert should have to allocute to the underlying conduct that prompted his illegal financial transactions as well as to the quality of the deal (and the associated sentencing recommendation) struck by U.S. Attorney Zach Fardon's office.
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Dan: Dan, and sitting in for Amy this morning, [inaudible] Chicago Tribune column is John Kass and [inaudible] yesterday. A judge delayed the sentencing of one former U.S. House Speaker, Denny Hastert. It was supposed to be the end of next month, now it would be April 8th. Reports that Denny Hastert nearly died at the end of last year when he suffered a I guess a minor stroke. John Kass: You can't say this [inaudible]. Okay? Dan: Yeah. Well, the other thing that's interesting about this, it's not just kind of a pro forma extension of delay in the sentencing. The federal government, for the first time, used the plural of victim. There are victims plural in this case said Assistant U.S. Attorney Steven Block. They deserve closure in arguing against the delay in sentencing. Victims, plural. And not victims in terms of multiple banks where he was making structured withdrawals, victims in terms of those people that were potentially getting paid or those people that weren't getting paid that Denny Hastert apparently, it seems from what the federal government has intimated to this point John Kass: [inaudible]. Dan: Abused. Abused. Abused. John Kass: Sexually. Dan: Yes. John Kass: Look. I was cured of Republicanism in Illinois with Bill Cellini who is [inaudible] money guy. Bob Kjellander, Hastert, Thompson, Edgar. Okay? I'm done with them. Just the whole crew. This is sickening. Dan: Well, that's part of it. There's no question. But the other question is what's the U.S. Attorney's Office doing? Why are they recommending six months in prison? Why not if you can't get him for what you know he did because the statute has [inaudible] because one alleged victim is deceased, then why not go for the max on the charges, those structure bank withdrawal charges that you do have [inaudible] [the rights on?], that he is pleading out to because each of those charges comes with a 10-year prison sentence. Why not go for the max for this guy to send a message about what you know is the underlying truth. To answer that question and help us make sense of what the U.S. Attorney's Office is doing, we're now joined by famed Harvard Law Professor, Alan Dershowitz. Prof. Dershowitz, thanks again for joining us. Appreciate it. Prof. Dershowitz: Oh, thank you for having me on. Dan: So to my question about the U.S. Attorney's Office in the Hastert case again, if you can't get him for what you know he did, why not take the approach of getting Al Capone for tax evasion and go for the max and what you can get him on? Prof. Dershowitz: Well, [I think?] that a lot of people are inclined to think that way. Certainly, O.J. Simpson probably got an excessive sentence for a relatively minor crime because the judge and the others thought he had gotten away with a double murder. The Al Capone story. But we have statutes of limitations for a reason and I don't think it would be right to misuse the federal structure and laws in order to try to undo the statute of limitation. So. He's an old man and he's a sick man. There are probably multiple victims here in [three sentences?]. Anybody who's a victim of abuse, obviously, is a victim. But [it's] in fact, they were trying to blackmail him and extort him. And he paid hush money to prevent that then you have to ask yourself whether he, too, is a victim of an extortion. That doesn't justify or excuse what he did, what he's alleged to have done, what he'd pleaded guilty to. Let me explain why the sentence seems to [inaudible]. Also, his age is a factor. His health [inaudible] crime that serves essentially the death penalty or life imprisonment or should a person at his age be able to see the light at the end of the tunnel? Compassion does play a role. Now, you have to have compassion for his victims as well. But right now [inaudible] on trial and he [inaudible] being sentenced. So. I don't think anything surprising about six months sentence. John Kass: So you think [inaudible] testify? Prof. Dershowitz: Hm? John Kass: Is this some sort of he gets a low sentence and then he's flipped on people who may have ever extorted him? Is that where [inaudible]? Prof. Dershowitz: I doubt that. John Kass: I heard you say [inaudible] Prof. Dershowitz: Yeah, I think he's pleading guilty in order to avoid having to bringing some of the victims out and having to redo some of the old allegations. I think it's an attempt to bring closure. The government knows who it was he paid. John Kass: Right. Prof. Dershowitz: So they probably have whatever information they may want to have about any extortion. It's very complicated. Also, I get concerned when I hear about criminalization of policy differences. Whenever politicians are indicted, people cheer because there are so many politicians that are corrupt. But we have to make sure that we're not punishing them because we disagree with their politics. We're not punishing them because we don't like what they did while they're in office. I think it's very important that we punish people precisely for what they are accused of. In this case, it's [inaudible]. Yes, we know there's a history, but why [inaudible]? But in general, I think the Al Capone approach is not the best approach to justice. John Krass: Come to Chicago. I'd like you to stay here for about 30 years, and let's see. Prof. Dershowitz: Wait a minute. I live in Florida now, and let me John Krass: That's like Chicago in South West. Prof. Dershowitz: What goes on down here. I come from Boston, and I was right near at Providence, Rhode Island. [inaudible] claims no monopoly on corruption. We have plenty of it. Dan: We're talking to Prof. Alan Dershowitz, of course, the famed Harvard Law professor. Prof. Dershowitz, let me pursue this line a little bit in terms of not prosecuting politicians for policy difference. Agreed. But he is a former U.S. Speaker of the House. The longest serving Republican Speaker of the House. He is a public official. What about the idea okay, if you don't want to go for 20 years to be punitive on the structuring charges that he's pleading out to, what about the idea that as part of the plea bargain, a part of his six-month sentence, that he allocutes to the underlying extortion that was going on why he was paying the $3.5M, why he was making those illegal structured withdrawals? What about that? Prof. Dershowitz: You have to ask the following question: what do you remember, he had the option of going to trial. [inaudible] with lawyer. And people win cases all the time. And generally, when the U.S. attorney strikes a plea bargain, it doesn't do it out of compassion, it does it by balancing the chances of winning against the chances of losing. If they had said, "We're giving you 20 years." No way. He would've pleaded. Dan: No, but I'm not talking about the 20 years. I'm saying six months, but here's the other thing: you have to allocute. Prof. Dershowitz: And he might've said no. He might have said, "If I had to allocute then I might as well go to trial because worse comes to worst. They will be able to prove what the reason was and I'll be horribly embarrassed but I'm being embarrassed by allocuting anyway." So you have to ask yourself the question: what is the most the prosecution could've gotten while getting into plea? Maybe they could've gotten into allocute. I don't know the answer to that question. But when you ask the question why the prosecutor didn't seek more, you'll always have to ask: did they have enough evidence [inaudible] to win the case? [inaudible] plea bargain [inaudible] thing from the prosecution. Dan: Wow. I mean, I think this is the path of least resistance. I mean, you know better than I do. The conviction rate of federal prosecutors, it's north of 95%. They have Prof. Dershowitz: And the reason Dan: [inaudible] the rights. Prof. Dershowitz: And the reason it is with north of 95% is because they get people to plead all the time. If they were threatening 20 years sentences, they wouldn't get as many pleas and they wouldn't have the 95%. So in order to keep the 95%, you have to have a reasonable plea bargain in which both sides get something out of the deal. You walk away from a plea bargain. I've done many of them in my life. You walk away from a plea bargain, [inaudible] satisfied. [inaudible] we probably could've done a little better. But it's a bargain that's struck and it's struck based on the comparative strength of both sides. John Krass: He's connected and he was the Speaker of the House and he was going to do six months for this, right? Dan: If he lasted. [cross-talk] Prof. Dershowitz: I don't think very many people do more than six months to structuring. It's not regarded as it's a relatively new crime. The basic crime is you can't deposit more than a certain amount of money without reporting it. And so structuring is an adjunct to that. That if you begin to deposit lots of smaller checks in effort to avoid that, then you're guilty of the crime. It's not Al Capone. Dan: No, no, no. I Prof. Dershowitz: It's not. That's the point. Dan: I think the issue is, for a lot of us here, and people who are Republicans, by the way, is that part of justice is the truth and we don't have the truth. And it leaves people, myself included, unsatisfied. Prof. Dershowitz: Yeah. But that's part of the role of the media. The media's role is to bring out the truth, journalists do the investigation, the criminal justice system its relationship with the truth is very ambiguous. John Krass: Right. Exactly. Dan: Yes. Prof. Dershowitz: [inaudible] interested only in truth, we wouldn't have [inaudible] self-incrimination, we wouldn't have the exclusionary rule, we wouldn't have better [inaudible]. Dan: No, no. Prof. Dershowitz: If criminal justice system balances truth, privacy, fairness the media is interested only in truth. So you guys do your job. Find the truth, publish it, and then let the criminal justices system operate in its [inaudible]. Dan: All right. Alan Dershowitz, before we let you go, I have to ask you this question: I saw you a couple cycles back when you came to town to do a fundraiser for Jill Pollack who is running for Congress. Prof. Dershowitz: Yup. Dan: Against Jan Schakowsky, you said one of your best law students ever. And then I've heard you refer to Ted Cruz as one of your if not your most your brightest law student ever Prof. Dershowitz: One of my Dan: One of your best law students. I mean, when do you just say, "You know what? I'm a Conservative. I'm with Ted Cruz and Jill Pollack and all my great law students." What's up? Prof. Dershowitz: I'm not with Ted Cruz, I'm with Hilary Clinton. I'm a Liberal Democrat. I just don't like Jan Schakowsky, I think she is a pretender. I think she claims to be pro-Israel, for example, and virtually, don't seem to move in that direction. She supports J Street, which is an anti-Israel organization, so I [thought?] Jill Pollack would make a much better [inaudible] person than Jan Schakowsky. I have supported Republicans on occasion, but I'm a Liberal Democrat, I'm a Ted Kennedy Democrat, I was very close to him. I'm going to support Hilary Clinton and I'm hoping the Republicans [inaudible] a good candidate. I would not vote for Ted Cruz. I introduced him not so long ago to the [inaudible] and I said, "Ted, the [inaudible] senate United States needs one senator Ted Cruz." Not more than one. One senator Ted Cruz. And that's where he belongs in the United States senate. I would not vote for him for president. Dan: Okay. Well Prof. Dershowitz: I'm still a Liberal. Dan: We'll agree. I'm sorry to hear we'll agree to disagree but I do appreciate how outspoken you are about the totalitarianism on college campuses. Prof. Dershowitz: It's horrible. What's going on Dan: Keep speaking about that. Prof. Dershowitz: I will. Thank you. Dan: Alen Dershowitz, Harvard Law Professor, thanks always for joining us. Appreciate your time. Prof. Dershowitz: Oh, sure. [So have I?]. Dan: And he joined us on the [inaudible].