Former U.S. Speaker of the House Dennis Hastert has been indicted. He was being blackmailed and allegedly violated federal banking laws in the process.
According to the Washington Post, Blackmail is a bizarre crime of relatively recent vintage. When blackmailers are successful — unlike, say, bank robbers — no one but their victims know; when blackmailers fail, their intended victims, whose dirty laundry is aired, are humiliated anyway.
“Blackmail, a wonderfully curious offense, is the favorite of clever criminal law theorists,” according to a 2009 academic paper, “Competing Theories of Blackmail: An Empirical Research Critique of Criminal Law Theory.” “It criminalizes the threat to do something that would not be criminal if one did it.” That is, it would be perfectly legal for Individual A to stand up and accuse Hastert of misconduct, but it’s illegal to demand hush money as a condition of keeping quiet.
Blackmail couldn’t really exist until the rise of capitalism and modern social mores. A king was always a king, whether or not he behaved badly, but a businessman or politician who lost his reputation could face ruin — as Josh Duggar is finding out.
“It was a crime that only emerged in the 19th century,” Angus McLaren, a professor emeritus of history at the University of Victoria and the author of “Sexual Blackmail: A Modern History,” told the New York Times in 2009 after David Letterman was blackmailed for his extramarital affairs. “If one was an aristocrat, say, you couldn’t lose your position because of trifling with the housemaids.”
How to respond to a blackmailer is always a conundrum. Pay and cover up — and maybe pay again later — or admit misdeeds and face the music? Letterman’s response was, arguably, masterful: He called the authorities, foiled the $2 million plot, confessed on national television and played the incident for laughs.
Had Letterman had sex with women who worked for him? “My response to that is: ‘Yes, I have,'” the host said to laughter and applause. ” … Would it be embarrassing if it were made public? Perhaps it would, perhaps it would — especially for the women.” Cue more laughter and applause.
Letterman added: “But that’s a decision for them to make, if they want to go public … What you don’t want is a guy saying, ‘Well, I know you had sex with women, so I would like $2 million or I’m going to make trouble for you.'”
Depending on what Hastert’s alleged misconduct was, he may not have had the option of ‘fessing up, Letterman-style. An affair between consenting adults? No big deal — society’s changing attitudes toward sex permitted Letterman to bare all. America would not have chuckled had, say, Johnny Carson made a similiar mea culpa in the 1960s. And gay public figures, long considered targets for blackmail, couldn’t simply walk out of the closet in the decades before Stonewall. Many feel they still can’t.
When it comes to sex, blackmail is sometimes a crime with an expiration date. “After a spike during the moralistic years between the world wars, sexual blackmail has lost some of its zing and sting,” the New York Times wrote.
If Hastert committed a crime, however, the zing and sting of publicly revealing what he was blackmailed for may be as painful as federal charges. Whatever his next move is, it will demand legal creativity to keep alleged misconduct from becoming public. If Hastert chooses to go to trial, the government will presumably have to explain who Individual A is. If Hastert negotiates a deal and a plea, the information could still come out in the criminal information document that usually accompanies a plea, or in a sentencing memorandum later.
As Daniel Ellsberg — he of the Pentagon Papers — explained in a 1959 paper on the crime while an economist at Harvard University: “The answer to successful blackmail is not within the scope of logic: it is an art.”
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Michael Gargiulo, Pretrial Hearing 45
4 weeks ago