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Fox News And The Victimization Of Dennis Hastert

CREDIT: AP
CREDIT: AP

Last week, former House Speaker Dennis Hastert was indicted on charges that he illegally structured millions in payments to a man — reportedly to cover up sexual abuse when Hastert was a high school teacher and the man was a student.

On Sunday, Fox News’ Brit Hume sought to underscore that Hastert was actually a victim. “There’s, evidently, a blackmailer, extortionist…and all indications seem to be no charges will be brought against the person who was blackmailing the former speaker,” Hume said.

Hume’s comments mirror other Fox News commentators. Geraldo Rivera tweeted: “Sex misconduct from yrs ago was gross but Speaker Hastert is now a victim who should be given pass in exchange for testimony vs blackmailer.”

Was Hastert the victim of blackmail? The real answer is we don’t know. Prominent civil rights attorney Lisa Bloom explained on Twitter:

The federal extortion statute is known as the Hobbs Act. Under that law, extortion can involve instilling fear to obtain money. But “extortion requires more than fear.” Rather, “the use of the fear must be ‘wrongful.’”

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If the payments were made as part of an agreement not to pursue legal action against Hastert, it is not likely that the man committed a crime. Interpreting extortion under the Hobbs Act, federal courts have excluded “threats of litigation where the asserted claims do not rise to the level of a sham.” The legal exclusion for threats of litigation is broad and would likely hold even if statute of limitations would make a successful suit against Hastert difficult. Courts have held that extortion statutes do not apply to threats of litigation “even where supported by false testimony and fabricated evidence.”

Even if prosecutors cleared this bar, it would still be difficult to prosecute Hastert’s alleged victim under federal law. The Hobbs Act deals with extortion that, in one way or another, impacts interstate commerce. An extortionist who targets another individual is generally seen by courts as too “attenuated” to interstate commerce to qualify.

It is possible that Hastert was extorted by the individual he allegedly sexual abused as a boy, at least under state law. It depends on what was said between Hastert and his alleged victim before the payments started. But Brit Hume and Geraldo aren’t privy to that information. The people who are in a position to know, the federal investigators, have thus far declined to charge the man with extortion.