Sunday, October 09, 2005

The Case against Tom DeLay

Tom DeLay has hired an outstanding defense team. And both DeLay and his attorneys have been in a full court PR spin campaign, even before a Judge has been appointed to the case.

Among other things, DeLay’s camp has professed that they intend to fight the charges head on, on the merits, and not trying to win on technicalities.

They have now filed two motions to quash the indictment. The first alleging that conspiracy involving the election statutes was not a crime until 2003, a year after the activities alleged occurred. It is a claim repeated without question by many news organizations. Is it true?

Ultimately a judge will have to decide the question, but the changes in law they cite simply add a specific reference to the conspiracy statutes relating to election law.

As a Texas criminal law expert notes:

George Dix, a professor at the University of Texas law school who is an expert in criminal law and procedure, said he doesn't believe changes made to the Texas election code by the 2003 Legislature have any effect on the conspiracy charge.
The penal code's conspiracy charge allows for the charge if the defendants allegedly conspired to commit any felony, including an election code felony.

So the rapid filing of a motion to quash the first indictment might not be sure fire evidence of a problem in Ronnie Earle’s case.

On Friday, the defense team filed another motion to quash the second indictment. That, too, might not be well founded. A judge must decide. But the New York Times got an admission from the defense team that I haven’t seen elsewhere:

Mr. White said the defense team based the claims in its motion on news accounts of the jury machinations and statements made by jurors, although they have not yet been deposed.

The filing was based on news stories? Seems that again, the defense is looking to generate headlines of their own, with the filing, with or without merit. So far they aren’t trying to win this case on the facts.

Tom DeLay’s defense in this case is:

First: It was legal.

Second: Everyone was doing it.

Third: There was no criminal intent because everything was reviewed by attorneys.

Fourth: I wasn’t consulted on any of it and didn’t know what was going on, until after it happened.

Point 1: The claim the transactions were legal, but one court has ALREADY found that the $190,000 political contribution was not “administrative expense” and should have been reported. The Judge awarded nearly $200,000 in damages in a civil case, where two candidates for office sued over the illegal use of corporate funds.

Recognizing that this is a civil proceeding, which has a lower standard, it is important to remember that a preponderance of evidence supported the plaintiff in this case. Any Judge considering whether to dismiss the case, would need even less evidence to allow it to go to trial.

The May trial is extremely instructive, given the testimony and work that went into the case, Delay might not want to go before a Jury on this issue:

The $190,000 transaction was at center stage of a civil trial in March.
Several Democratic candidates sued former Dallas Rep. Bill Ceverha, the treasurer of Texans for a Republican Majority, for failing to disclose the corporate money publicly. To test how it would resonate with a jury, Ceverha's lawyers tried legal defenses before focus groups, according to a source who has been briefed on the results. The source sought anonymity because of the scrutiny surrounding the DeLay investigation.

"No one bought the defense arguments," said the source. "They just didn't get it."
Ceverha's lawyer, Terry Scarborough of Austin, declined to discuss the findings of the focus groups. But he said the focus groups did not have anything to do with his decision to try the case before a judge instead of a jury.

"At the end of the day, we felt the real questions were questions of law, not of facts," he said. "There was no dispute about the facts."

State District Judge Joe Hart ruled against Ceverha, saying Texans for a Republican Majority violated state election laws.

The Judge’s finding that the $190,000 contribution to RNSEC didn’t qualify as administrative expenses puts the transaction outside election law.

Illegal, in other words.

Point two: Everyone was doing it.

Not exactly. According to the same article in the Austin Statesman:

He said that in 2002 there were large "money swaps" by Democrats and Republicans but that they typically involved state and national political parties not individual political committees. He said both parties moved money around the country to sidestep such restrictions as Texas' ban against corporate spending in campaigns.

Noble said such money swaps were considered legal by the Federal Election Commission. But he added that federal law prohibits "earmarking," which is when someone gives money to a political committee with instructions that it go to a specific candidate.

"It was considered illegal at the federal level if it happened with instructions to give it to a specific candidate," he said.

Noble said Earle's money-laundering case might rise or fall on the allegation that Ellis gave the Republican National Committee $190,000 in corporate donations as well as instructions to give the same amount to seven Texas candidates.
TRMPAC was an individual political committee rather than a national party committee. So this was an unusual transaction. Even more importantly is the earmarking issue. If, as Earle alleges in the indictment, there was a list of people who should receive contributions, not only would the transaction be a violation of state law, it would have violated federal law as well.

DeLay denies that there was a list. But Earle, specifically cites it in his latest indictment. This is a key point in the case.

Point three: We consulted with attorneys and as a result there was no criminal intent.

I guess I’ve learned over time that ignorance of the law is not a defense. I do know that an Attorney’s advice is only as good as the amount of information provided. If TRMPAC didn’t get a specific review of the transactions in controversy with complete details then they don’t have a defense here. For example, this opinion is worthless to the defense:

This opinion is limited to expenditures which meet the legal test of administrative expenses. In the case of political contributions, political ads, and a whole host of other checks, the court has ruled those must be reported and by extension are illegal. But the attorney was not asked to issue an opinion on political contributions made to a national party.

In my years of dealing with lawyers in matters very similar to this, I have found that their opinions never provided an affirmative defense unless they were sitting at your shoulder every moment of the day.

Fourth point of the defense: Delay didn’t know the facts until after the transaction had occurred:

This will be a point of dispute that will come down to testimony. Tom DeLay has already blown his own defense on part of this issue. Attorneys disagree on one point. Some believe he only need to have knowledge about the transaction. Others believe he had to actively participate in the process.

A briefing may – or – may not meet the test here. But ultimately, that is a matter for a judge or jury to decide. Meaning a trial is likely.

And, I believe that if this goes to trial, Tom Delay will not return to the Majority Leader position in the house.