The top five things to know about Speaker Hastert's arraignment: The Players; Can Hastert avoid prison? Hastert overcharged by Feds? A Hastert trial? Judge Durkin disqualified?

1. The man who put Yorkville, IL, population 18,000, on the map--  The Coach and accidental Speaker, Denny Hastert-- was  flanked in Court by his lawyers: local counsel John Gallo, 55,  (Senior Litigation /White Collar Partner at Sidley Austin's Chicago office; 24 federal jury trials to his credit; sent six Chicago Aldermen to prison in Operation Silver Shovel ) and lead counsel Thomas Green, 74 (Senior Counsel, based in DC /For many years, headed  Sidley's entire white collar practice, "countless" complex civil and criminal trials to his credit, and represented clients in Watergate, Whitewater and Iran Contra).

With all of that high-priced legal talent at his side, Speaker Hastert plead innocent to the Fed's charges yesterday at 2:03 pm in Judge Durkin's federal court room.

When Hastert, in his gray pin striped suit (w/tie) spoke, he was barely audible, saying yes and yes, sir.  Not the loud, confident voice he had used to guide legislation through the House of Representatives.

On the other hand, he had to feel good about having attorneys Green and Gallo at his side. If those guys can't get get you out of a pickle with the Feds, nobody can.

To Thomas Green's right, the plaintiff's side of the courtroom, also standing in front of Judge Durkin, were Assistant U. S. Attorneys Carrie Hamilton and Steven Block (from the Chicago /Northern District of Illinois-- U. S. Attorney's office,  Zack Fardon presiding.

U. S. Attorney Fardon, a former partner from Latham & Watkins' Chicago office, oversees a vast army of more than 100 prosecutors.  And two more of those attorneys were seated at Government counsel's table, chomping at the bit to wrestle, so to speak, with Coach Hastert.

Watching intently in the courtroom, taking notes (no recorders or cameras are allowed) were about 70 spectators, mostly media members, including about 14, or so, members of the 4th Estate, sitting in the best seats in the house,  the jury box, to the audience right.   These folks are known for their courtroom or political media work, and included such luminaries as WTTW/NBC-5's Carol Marin, Chicago Tribune's John Kass, NBC-5's Mary Ann Ahearn, WTTW's Paris Schutz, ABC-7's Paul Meincke and Local Fox's Larry Yellen.

2.  Can Speaker Hastert somehow avoid doing prison time? Maybe probation and a suspended sentence?  After all, he is not charged in court with sexual child abuse/predatory actions when he was a high school wrestling coach and government teacher.

Those are simply allegations by three of Hastert's former students, as leaked to the press recently by the Feds, apparently-- or in one instance, as told to the nation, via ABC-7's Brian Ross,  by the sister of one of Hastert's now dead, former students.

These are matters that would arise-- if they came up at all-- in state court, not federal court, and the Statute of Limitations barred them from being brought, as of a quarter of a century ago. Nobody can come close to filing them now.

Hastert is 73, looking a bit frail, although carrying a little less weight than he did when he was the longest serving Republican Speaker of the House, from 1998 to 2006.

The government has charged Hastert with hyper technical violations of a law intended to get at mobsters and drug sellers.

The feds, by passing that law, wanted to stop (or detect) professional criminals from laundering their ill gotten assets by depositing and withdrawing cash from banks.  The law was never intended to be used to go after a guy, like Hastert, who was simply taking his own money out of the bank, giving it to someone else-- and didn't want the world to know about that money transfer.

Can't a guy have a little privacy?  I mean if he transferred the money to individual A by writing a check-- no problem.  And, if he had retained a lawyer who told him not to speak tot he FBI, no problem.

3. What does an expert have to say about Coach Hastert being able to avoid time in the Big House or with the Media?

Richard Kling, Chicago Kent Law School Professor: I think Speaker Hastert will want to get away from the media as soon as he can.  And the way to do that is to resolve the case other than by trial. That  shortens how many times he will be at the federal building and see the media and it probably means the laundry with respect to Individual A will stay under the bed. [Kling made himself available for interviews at the federal courthouse after Hastert's arraignment].

Berkowitz: If Hastert eventually cops a guilty plea, will the U. S. Attorney take a plea agreement with no prison time?

Richard Kling, Chicago Kent Law School Professor: The problem [for Speaker Hastert] is that judges don't like people who lie to the FBI. They don't like the fact that people lie to the FBI  and the way to stop it, in the judges' perception,  is to send out a message-- with at least some time in prison.

Berkowitz: Maybe nine months or a year in prison?

Professor Kling: Maybe nine months.

Berkowitz: If you were Hastert's attorney, would you advise him to take that?

Kling: If I were the attorney, I would advise him to do whatever it takes to get him out of this building. If the evidence is what it supposedly is, he is going to get convicted. And, if he is going to get convicted, why go to trial?

4. What are the odds that Hastert says "No, I want to fight and I an going to trial?

Professor Kling: Again, they are probably small. Because if he fights and goes to trial, he is going to be facing you guys [the media] for months and months and his dirty laundry gets disclosed.

Berkowitz: Are you sure the dirty laundry [the alleged stuff about abusing his students and wrestling team members] comes out if he goes to trial?

Kling: If he goes to trial, they are going to have to prove something about where the money [he withdrew from his bank] was going and that it was restructured. Unless Mr. Hastert testifies-which I doubt will happen--

Berkowitz:  So, the Feds are going to have to bring someone in to testify about where the money was going--- but then do all the allegations about sexual abuse come in?

Kling: If it were in front of me as a judge or jury, I would move or rule to keep all of that stuff out of the trial.

Berkowitz: Well,  then, if all of that sexual stuff is kept out of the trial, why should Hastert worry about going to trial?

Kling: Well, until the Judge rules, there is a chance that stuff is coming in.

5. Will the parties each waive Judge Durkin's disqualification from the Hastert case?

Most of yesterday's 15 minute hearing was used by Judge Durkin to list his relatively minor prior connections with each party, at which time he said the standard for him to disqualify himself from this matter was to ask: Could a reasonable person conclude that Judge Durkin might not be impartial as a judge?

Judge Durkin said that standard was met and  he disqualified himself from this matter, but he said if both parties were to waive their right to have him disqualified by notifying Clerk of the Court Thomas Bruton by 4:00 pm this Thursday of their waiver, he would stay on as the judge. If a waiver is submitted, it must be signed both by the party and the counsel.

If one or both parties do not submit a waiver to Clerk Bruton, Judge Durkin will know only that that he is disqualified. If only one party gives him a waiver, Judge Durkin will not learn which party declined to give him a waiver.

The factors listed by Judge Durkin as possibly forming the basis for his disqualification from the Hastert criminal matter were as follows: his request to Cong. Hastert in the  mid-90s to consider Tom Durkin for a Judgeship-- nothing came of it.

Durkin's request to Senator Durbin to have his committee consider him in 2010 for a judgeship.  Durkin was subsequently recommended by Senator Durbin's judicial appointments committee to Senators Kirk and Durbin for a judicial appointment.

Tom Durkin gave a $500 and $2000 campaign contribution to Cong. Hastert in 2002 and 2004, respectively.

Durkin worked as an Assistant U. S. Attorney in the Northern District of IL U. S. Attorney's office from 1980 to 1993.  While in that office, Durkin supervised then prosecutor John Gallo. Durkin does not consider Gallo and himself to be personal friends.

Durkin previously worked for Mayor Brown, where Hastert's son,  Ethan Hastert, now continues to work as an attorney. While at Mayer Brown, Tom Durkin once traveled and worked together for about a week on a specific legal matter with Ethan Hastert.  Durkin considers himself to have been a legal colleague of Ethan's but he does not consider Ethan Hastert to be a personal firiend of his.

State Rep. Jim Durkin, Republican State House Leader, is Tom Durkin's brother.

The general consensus at the courthouse, which included Professor Kling and this reporter, was that both parties will grant Judge Durkin a waiver from disqualification in the Hastert matter. 

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  • As I noted yesterday, the only intent is to evade money laundering requirements. The speculation that he would plead indicates that the indictment states an offense, or otherwise the talk would be about filing a motion to dismiss (sort of what Blago tried to do with the "honest services" charge after the Conrad Black and Jeff Skilling cases).

    The "sixth thing" is why "The... folks ....known for their courtroom or political media work" were in the rugby scrum they predicted outside the Dirksen Building. They knew that,unlike Blago, Denny wasn't going to say anything. But maybe it is real important for Carol or Mary Ann to get a microphone with a peacock logo in front of a FoxChicago camera.

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