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Hastert, FIFA, and a Four-Year-Old’s Defense

The recent U.S. indictments against Hastert and FIFA (inclusive of informations filed without grand jury review) illustrate the usefulness of financial forensics and investigative fact-finding RE: Financial accounts as a tool of federal law enforcement agencies. These cases implicate limitations on the use of private property by individuals and organizations associated with the U.S. and/or its financial institutions. Specifically, money, whether in the form of currency / coin or in the form of electronic deposits cannot be lawfully transferred for some purposes (e.g., to effect improper and illicit decision-making on behalf of the transferee). The fact-finding encompasses the flows of funds into and out of financial accounts and the real (and not superficial) explanations for these transactions. State of mind is as relevant as amount of U.S. dollars.

Though Hastert is not charged with bribery, the U.S. indictment’s allegations about his purported conduct and statements are similar to bribery schemes; i.e., the payor compensates the payee for favorable decision-making on the part of the payee for the benefit of the payor (e.g., keeping quiet RE: Bad acts). The similarity to FIFA cases seems clear, with the primary and presumptive moral wrong comprised of corrupting decision-making for ill-gotten personal benefit.

These cases illustrate significant factors in fact-finding: Quality of computer-based record keeping and credibility of individual testimonies. In both cases extensive bank records are necessary to demonstrate the financial flows in the accounts, as well as testimonial accounts from witnesses / victims to explain these flows.

In the Hastert case he purportedly responded to FBI agents’ question in December 2014 about the purpose of the withdrawals (apparently, Hastert had allegedly told bank representatives in April 2012 that he didn’t trust the banking system) with the statements: “Yeah… I kept the cash. That’s what I’m doing.” According to indictment this statement is false. Given the context it may be materially misleading and incomplete, however standing alone it is not false. Seemingly, he accepted custody of his cash and kept it, at least until he purportedly gave it to Individual A.

Without concluding about the truthfulness of the indictment’s allegations against Hastert, I note that this type of evasiveness is common in white-collar (and other) crimes. I call it the four-year-old’s defense in honor of the justification / excuse / rationalization that my daughter gave me when we sent her to her bedroom for misbehaving when she was four-years-old. She was instructed not to leave her bedroom, however approx. 30 minutes later when I went to her room to check on her, I observed that she had only her toes carefully aligned across the imaginary line separating the bedroom from the hallway. She was lying down, reading a book, with all but her straddling toes outside of her bedroom. Asked I thought I told you not to leave your room, she replied, “I am in my room.” This defense of denial scores high on cuteness but low on credibility, notwithstanding the strictly verbal ambiguity of ‘being in the bedroom.’

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