Delay Update

There’s much news in this AP story

Here are the highlights without comment

AUSTIN, Texas (AP) - Attorneys for two co-defendants of Rep. Tom DeLay made it clear Friday they're not in the same rush to get to trial as the former House majority leader and they want to distance themselves in other ways as well.

The defense team for Jim Ellis and John Colyandro is hoping to persuade appeals courts to dismiss the charges. DeLay has said he wants to get to trial as quickly as possible.

SNIP

Pauerstein and attorney Joe Turner, who represents Colyandro, also said they had no part in television ads that a national conservative organization began running this week criticizing the prosecution of DeLay. Turner said the ads were inappropriate and should be stopped.

"If there was money out there for those kind of ads, we'd ask that it be given to the defense fund and not for some attack ads," Turner said. "We don't think that has any place over here."

SNIP

Also Friday, defense attorneys asked Perkins to rule on their motion seeking proof of an alleged document detailing the names of Texas legislative candidates who were to receive contributions from the Republican National Committee. Defense attorneys questioned whether the document exists.

Earle left the courtroom without talking to news reporters.

Perkins said he would consider the motion at a Nov. 8 hearing.

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Fact check: the DeLay Case

It is important to test the claims of lawyers who make their case in the media rather than in court.

Tom DeLay and his attorneys have engaged in a major publicity campaign – and now DeLay is going beyond press conferences and interview shows. He’s spending his campaign funds in the effort to fight a battle that won’t be decided in the court of public opinion.

"Help Tom fight back," reads one of the solicitations on the http://www.TomDelay.com Web site that voters are being directed to as part of an Internet-based campaign paid for by DeLay's re-election committee.

Contributors, voters and others who sign up can get regular e-mails and an electronic "toolkit" from DeLay's campaign with the latest disparaging information his legal team has prepared on Texas prosecutor Ronnie Earle.

SNIP

Legal experts said DeLay's use of congressional campaign donations to attack Earle probably was permissible, though it could lead to legal questions about whether he was trying to influence potential jurors for his trial.

"He clearly is aiming at the jury pool and aiming at voters, hoping to generate as much sympathy as he can," said Larry Noble, the government's former chief election enforcement lawyer. "And it shows DeLay never misses a beat when it comes to fundraising — no matter how dark things get."

Whether DeLay is attempting to influence the jury pool, or possibly contaminate the pool either can be beneficial to his defense. Early chatter was that DeLay will want a change of venue because Travis County is heavily Democratic in a Republican state.

If the Jury pool thinks bad things about Ronnie Earle? DeLay wins. Jury members found to be biased for or against Tom DeLay? New Venue. That's a Win-Win for the defense.

Pure speculation on my part, but it is odd to have a defendant in a case who almost never talks to the media to be doing 40 interview shows, and building a major communications effort on the web. There’s a reason for that.

By the way –

One of the mantra’s of the defense in this case that the Prosecutor had sought an indictment for a crime that did not exist at the time the alleged actions occurred. There’s a flaw in that argument. The Austin Statesman looked behind the laws in question and the claim might be a stretch. Read for yourself, right here.

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The Rail on Tom DeLay

Over the course of the last few weeks, The Rail has written extensively on the Tom DeLay issue: Because those posts are not organized in any particular fashion and are now hard to find, I’ve listed them here in a summary page.

Posts are listed from first to most recent:

9/28/2005 DeLay is History
9/29/2005 One Question for Tom DeLay
9/30/2005 The waiver of the statute of limitations is important
9/30/2005 An Attorney's take on the DeLay waiver
9/30/2005 DeLay addresses the waiver
10/1/2005 Tom DeLay's explanation
10/5/2005 DeLay's Hail Mary
10/6/2005 More on the DeLay indictments
10/7/2005 Did Fox News provide the new evidence?
10/9/2005 The case against Tom DeLay
10/9/2005 Thoughts from others on Tom Delay
10/10/2005 Connecting money to political power: Tom DeLay


Warts and all, unedited. That’s my Tom DeLay collection for the moment.

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Blogs VS Journalism

I’ve opined on this issue. But couldn’t resist further exploration of the contrast of Blogging and Journalism.

It appears that Yahoo is moving to elevate Blogging as a news source.

Yahoo News, the world's most popular Internet media destination, is set to begin testing on Tuesday an expanded news search system that includes not only news stories and blogs but also user-contributed photos and related Web links. The move will further stoke the debate between media traditionalists who want to maintain strict walls between news and commentary and those who argue such boundaries are elitist and undervalue the work of "citizen journalists."

Predictably, there is push back from the theoretical world:

Robert Thompson, a media studies professor at Syracuse University, said it was important to preserve the distinctions between professional journalism and personal commentary.

He defined professional journalism as reporting which adheres to standards of accuracy and writing subjected to an editorial process, and all done with an eye to journalistic ethics, although he said journalism often falls short of these goals.

But media critic Jeff Jarvis (www.buzzmachine.com) disagrees:

Jarvis, who is a former TV critic for TV Guide and People magazines, mocked the notion that journalists live by a shared set of professional standards, that they are better trained or more trustworthy than the anyone-can-join blog movement.

"What made the voice of the people somehow less important than the paid professional journalist?" he asked. "You don't need to have a degree, you don't need to have a paycheck, you don't need to have a byline," Jarvis said.

"If you inform the public, you are committing an act of journalism," he declared.

Exactly!

In the marketplace of ideas, do we really need arbitrary definitions in a form of “the good journalism seal of approval?”

I know BS when I see it. The world of information is being transformed as we sit. I called Dan Rather “Tyrannosaurus Rather” because of his inability to recognize the inevitable.

Embrace the inevitable.

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What is a journalist, if not a blogger?

My training is journalism. My profession is political. I am also a blogger.

When I write my blog, am I acting as a journalist?

Richard Lugar doesn't think so.

As currently written, a proposed Federal Shield Law would not apply to Bloggers, or other writers, unless they are affiliated with:

“a newspaper, book, magazine, or other periodical in print or electronic form; operates a radio or television station (or network of such stations), cable system, or satellite carrier, or channel or programming service for any such station, network, system, or carrier; or operates a news agency or wire service."

Lugar leaves open the possibility of modifying his definition, but the no matter how he writes it, the statute will attempt to define, for legal purposes, what a journalist is. And that is a problem.

No matter where you draw the line, you will create a special class of people for protection under the law. That special class will be above the law in certain circumstances. Attempting to draw that line is a mistake. It ignores the history of publication by the unincorporated masses – like pamphlets during the Revolutionary War.

By defining a journalist, and extending a protected status to that defined group you are at the boundary of licensing journalists.

Does freedom of the press suddenly become freedom of the licensed press?

It may create a bastion of freedom for the mainstream media, but does it serve the public discourse.

Are shield laws important? I have always opposed special access for reporters. I have always argued that the history of journalism is one of activist citizen, not privileged class.

If providing shield laws opens this can of worms, we aren’t well served by it.

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The Miers nomination

I admit to have been pretty buried in the Tom DeLay indictment issue, to the extent of ignoring most if not all other news. The reaction of the more strident members of the conservative right, and increasingly not-so-strident factions to the nomination is fascinating.

I am a Conservative Republican, though some may question me on my DeLay opinions, who leans toward pragmatic efforts to achieve the desired outcomes. I did my time in the politics, and earned my stripes having been described by my friends and enemies as “to the right of Attila the Hun.”

That said, I want successful outcomes not necessarily an “in your face battle” that could fail. I am still studying Miers and her nomination. But I find analysis by Varifrank to be compelling.

There are times that the Conservative movement, in an effort to make a decisive statement, loses sight of the outcome desired.

Do you want to change the court? Or do you want to “Stick it to the Liberals?”

You may not be able to achieve the first objective by pursuing the second.

At one point in my political career, I found myself at odds with the “true believers” of the conservative movement in my state. It wasn’t because of my voting record, or my position on the issues. It was because I didn’t step forward an join a public effort on a particularly controversial issue. In politics, you pick your fights to win in the end.

It is outcomes that matter, not the rhetoric of the moment.

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Connecting Money to Political Power: Tom DeLay

The Tom DeLay—TRMPAC indictments tell a very interesting story about Money and Political Power. I believe, whether convicted or not, the indictment of Tom DeLay spells the end of his political power franchise. And that fall will likely take down others who have been using the same tactics as DeLay Inc.

Today’s Austin-Statesman has an Op-Ed, which provided an opening for a discussion of Money and Political power in the context of Tom DeLay.

Royal Masset, a Republican political consultant, maintains in his Op-Ed that Tom DeLay and TRMPAC had “Zero Impact” on the 2002 Texas Legislature election in which Republicans took control of the Texas House.

And even DeLay's personal lawyer, Dick DeGuerin, said, "Tom DeLay changed the face of Texas politics — nobody can deny that."

Well, I do deny that. In fact, DeLay and his committee, Texans for a Republican Majority, or TRMPAC, had no impact on the elections for the Texas House. Their efforts won no state representative his or her seat. None. Zero. Zip. And if TRMPAC did not exist, the Republicans still would have won the same 88 seats in 2002.

This is not an attempt to exonerate DeLay, who has been indicted on criminal charges of money-laundering related to the 2002 election. But his alleged violation has absolutely nothing to do with whether TRMPAC had any impact on the outcome of that election.

You should read the whole analysis. It is excellent. But, Tom Delay’s whole Texas operation was about political power in Washington and the Texas Speaker’s race, not helping individuals win state legislative races.

Tom DeLay’s amalgamation of political funds and committees is all about raising his stature on the national stage through success at increasing the Republican majority in Congress.

He already gives millions of dollars directly to campaigns of Republicans who toe the line in his efforts. Those dollars though don’t do much for increasing the party majority in Congress. They maintain it.

In Texas, DeLay had an opportunity to swing a number of Democrat seats to the Republicans through redistricting. Redistricting takes more than majority control of the chamber, it also takes a Speaker who will pursue and enforce the effort to succeed. TRMPAC was more about Tom Craddick’s effort to become Speaker of the Texas House and Tom DeLay’s ability to claim the success that occurred in Texas in Washington.

In Washington, the increase of Republican control in the House was a clear demonstration of DeLay’s political power. That success solidified the “Hammer” grip on the chamber. Each and every new Republican Congressman from Texas was another vote in the DeLay camp.

For other Congressional Republicans, Tom DeLay looked invincible in intra-party battles because of those additional votes. That kind of invincibility is the stuff of legends, and ultimate political power.

Tom DeLay took political money and power to the next level when he went beyond Federal leadership PACs and national soft money. The big players, those who seek higher leadership offices in D.C. and those who seek to run for national office, have taken note. Being an 800-pound gorilla in your home state politics is considered important, and many presidential candidates and others who aspire to lead Congress have already followed suit. You’ll find many-many leader wannabe’s who are dabbling in Speaker’s races and Governor’s races in the home state for the very same reason.

A month ago, I started a blog, Money in Politics. I was sidetracked by Katrina and Rita, and CNN and Fox over the past few weeks and have not updated that site recently. The site is intends to explore in more detail political power and money. I will restart my postings on that site shortly. But here is a post that summarizes Capitol Junkie’s theory of money and political power.

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Thoughts from others on the DeLay indictment

Resonant Information does a nice job breaking down the second indictment of Tom DeLay.

The Austin Statesman runs through the evidence with two attorneys directly involved in the TRMPAC litigation.

And maybe Ronnie Earle isn’t the only thorn in Tom DeLay's life.

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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.

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Did Fox News provide new evidence against Tom DeLay?

Today’s Washington Post details information about a meeting between Tom DeLay and one of his alleged co-conspirators on October 2, 2002, the same day the Republican National State Committee authorized checks for Texas Republicans that “coincided” with payments received from TRMPAC.

They note a difference between DeLay’s explanation of that meeting and the explanation provided Jim Ellis. DeLay’s explanation came from the “Exclusive” Fox News Sunday interview:

DeLay and Ellis have so far given slightly different accounts of the substance of their discussion. Ellis's attorney, Jonathan D. Pauerstein, said that Ellis recalls that their Oct. 2 discussion did not concern or involve Texas or Texas candidates. But DeLay, interviewed last weekend on "Fox News Sunday," said that during a "scheduling meeting" with Ellis in October, Ellis said while they were leaving his office that "by the way, we sent money" to Washington.

I watched that program. In fact, I Tivo’d it because I couldn’t believe what I was seeing. Attorneys representing people under investigation in high profile cases almost always advise their clients to refuse public comment on matters relating to their actions, especially if the person has been interviewed by authorities or have given a written statement. The reason for that advice is that investigators will review your statements in the media, and any quotes to see if there are any inconsistencies or new information. It also provides the prosecution and investigators additional information to use in questioning other parties in the investigation. In other words, anything you say in the media can be used against you – even if it is a misquote.

In Tom DeLay’s case, there have already been “mis-statements” that his attorneys had to correct. And, though not under oath, DeLay had already met with prosecutors and answered questions.

Beside’s DeLay’s acknowledgment that he had been told of the transfer of funds to RNSEC, the Fox News interview also included a rather interesting exchange about the alleged list of names given to the RNC with the check outlining which candidate should get the funds.

Chris Wallace: “If they sent a 190-thousand dollar check with banned corporate money, banned to go to state races and sent that along with a list of seven candidates and give this one 20 and this one 10-thousand dollars isn’t that in effect a form of money laundering? You’re taking money that’s banned from state races and funneling it through the Republican National Committee to get it back to the Texas state candidates?

DeLay: “It hasn’t been proved that there was a list provided along with the check.”

Wallace: “let’s say there was a list”

DeLay: “I can’t speculate. All I know is John Colyandro and Jim Ellis did everything with lawyers checking and accountants checking everything. All these organizations have lawyers watching this money to make sure that it is raised properly and legally and that it is dispensed properly and legally.”

I’ve transcribed this because DeLay’s answer seemed odd. He didn’t deny that a list existed; he said that it hasn’t been proved that a list was provided along with the check. For a man who professed that he didn’t know what his alleged co-conspirators did, he seems pretty certain that there wasn’t a list with the check. That list exists, and Ronnie Earle has it. He’s referenced it in the indictment. At issue, and possibly crucial to the case, is how the list was delivered to RNSEC.

The Fox News Sunday program aired the day before Earle asked the third grand jury for an indictment. Earle maintained after the indictment that he had received new evidence over the weekend. A statement that DeLay’s attorneys ridiculed.

Between the acknowledging that he was told of the $190,000 check and exhibition of some familiarity with information transmitted with the check, Delay may have provided the new evidence himself.

Today’s Washington Times may have even more “evidence for prosecutors.”

I think it is time for Republicans and Conservatives to recognize that Tom DeLay hurts them more than helps them. And it is time to move forward without his shadow. The Democrats love having Tom DeLay hanging around the Republican Party’s collective neck like an albatross.

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More on DeLay's Indictment(s)

The Statute of Limitations issue surfaces again

For the first time, there is an acknowledgment that a deal existed between Ronnie Earle and Tom DeLay involving the waiver of the statute of limitations.

The Dallas Morning News quotes Earle about the effort to add charges of money laundering against DeLay. To me the notable information in the statement from Earle is that the waiver of the statute of limitations was signed on September 12, 2005.

I wrote about the timing of the motion to quash the indictment, and the withdrawal of the waiver of statute of limitations yesterday.

With all the spin from DeLay’s attorneys, and limitations on what can and can not be discussed regarding grand jury proceedings, it is hard to cipher the truth right now.  It’s probably not as bad for Earle as it looks.

In the meantime, the Associated Press has been looking into other money swaps involve DeLay and Roy Blunt.  May not be illegal, but as you will see, it sure looks bad.

A specific breakdown of the transactions referenced in the AP article.

Whether DeLay is convicted or not, I continue to believe he is finished as Majority leader.

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