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Prosecutor's Hand Weakens on the Court's Draw

In Permitting The Money Laundering Charge To Stand, Judge Pat Priest Has Kept Former House Majority Leader Tom Delay From Returning To Power.  The Ruling Was Not Unexpected.

By Perry Hicks- Special to GCN

Outside of Texas and Washington, the unfolding drama in the Tom Delay case may seem too far away to matter. However, the outcome of this case will have profound effects on how future election campaigns are financed and managed.  As such, astute students of political science are following this case very closely.

As detailed last month in a GCN exclusive report, former Republican House Majority Leader, Tom Delay, was indicted for allegedly conspiring with 2 other defendants to break Texas campaign finance laws by illegally soliciting, receiving, laundering, and distributing corporate donations intended to be paid to Republican candidates.  In Texas, it is unlawful for corporations to contribute directly to candidates running for public office.

Texas is one of a handful of western states that require criminal prosecution be based on statute rather than common law.  In other words, in order to be found guilty of a crime, there must be a specific law defining it.  Hence, the arguments for and against Congressman Delay are very technical.

The prosecutor, Ronnie Earle, a highly partisan Democrat, has been charged by Delay’s attorney, Dick DeGuerin, of being guilty of prosecutorial misconduct, itself a violation of Texas law. DeGuerin claims that Earle indicted Delay without evidence and without a law in effect covering the alleged offense.

Supporting the accusations was the revelation that when Earle realized that there was no law in effect, he hastily changed the charge to money laundering. With the term of the original indicting grand jury expired, Earle went to a second grand jury who voted a “No Bill” forcing him to seek out still another (third) grand jury.

This third grand jury was so new it had only been impaneled for a matter of hours.  In voting an indictment almost immediately, this third grand jury could not have properly deliberated over Earle’s highly technical charges before acting.

As such, controversy swirls around how Earle interacted with the grand juries and perhaps unethically, if not illegally, manipulated their vote.  Even more shockingly, a movie company has been found to be documenting Earle’s efforts to bring down Delay, further making the charges look politically motivated.

The fact is, that unless DeGuerin can show Earle being present during grand jury deliberations, it is unlikely that Earle can be prosecuted for the quality, or even absence of evidence presented to the grand jury.

For DeGuerin to succeed against Earle’s ethics, he will have to show that Earle compromised grand jury secrecy (possible because of the film crew,) or committed “official oppression” by having subjected Delay to an arrest that Earle knew to be unlawful.

Otherwise, all DeGuerin can achieve by beating his breast about prosecutorial abuse is counter the negative publicity Delay received by Earle’s public statements regarding Delay’s indictment and arrest.

Prosecutorial License

As any defense attorney will complain to you, the defense is held to a far higher standard than prosecutors.  Regardless of their reputation, defense attorneys are indeed expected by courts to meet very high standards of ethical conduct.  Trial judges, on the other hand, too often allow prosecutors to bend the law.

Hence, it is not at all unexpected that Judge Pat Priest would throw out blatantly unsupportable charges but retain the one highly convoluted charge of money laundering. In this way, Earle is at least partly insulated from answering questions of misconduct.  At the same time, Delay could possibly see his legal problems disappear.

In permitting the money laundering count to stand, Judge Priest has set a very high bar that Earle must clear in order to prevail at trial.  In fact, the bar is so high that Democrats who were once exulting in Delay’s indictment are now dejected at the prospect of a total collapse.

Circular Logic

In regard to money laundering, Texas law reads that the funds being cleansed must have first come from a “criminal activity” defined as a felony by the Texas Penal Code.  Such activity can also be “preparatory,” a technical point of significance.

At the time of the alleged offense, funds were defined by Texas Penal Code 34.01 as “coin or paper money of the United States or other country that circulates and is legal tender and is customarily used and accepted as a medium of exchange…”  This definition was later changed to include checks in 2005.

John Colyandro, James Ellis, and Tom Delay are accused of laundering corporate checks by depositing them in the Texans for a Republican Majority (TRMPAC) bank account and then sending the collected funds forward in the form of a single $190 thousand check to the Republican National State Election Committee (RNSEC.) According to Earle, a like sum of money was to have been sent back to individual candidates in Texas.

However, Delay claims that in September and October alone, RNSEC sent $877 thousand dollars to Texas candidates of which the $190 thousand in question was just a part.

While the indictment does allege that Colyandro collected and sent funds forward to Washington and allege Ellis provided RNSEC with a list of candidates designated to receive the money, Delay’s supposed role is not explained at all.

The prosecution has admitted in open court this all critical candidates “list” is not actually in their possession. What the prosecution claims to have is a representative list.  In their own words, they “have a list, just not the list.”  This may prove to be a grievous error.  

Delay’s attorneys argue that money laundering cannot be charged in that the money donated by corporations to TRMPAC was legal and that the money, in check form, does not meet the technical definition of “funds” stated in the code as of 2002.  Checks were added by the legislature in 2005.

On the face of it, Judge Priest’s ruling seems to be based on circular logic.  Furthermore, it does not seem to meet the requirements of the statutes in force at the time.

Priest ruled that if the “state can prove that these defendants entered into an agreement to convert the monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an  agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered.”

In essence, Judge Priest is saying that for the money to have become “dirty,” a conspiracy had to have taken place- the very charge that he had thrown out.  Also, while Priest advances, in regard to the original count of conspiracy, the notion that legislatures do not enact changes unnecessarily,  Priest then ignores his own credo in regard to the 2005 addition of checks.

The ruling also highlights how preposterous the charges are that any of the corporations knowingly, willfully, and unlawfully donated money to individual candidates.  In his ruling, Judge Priest dismissively argues around the charge of illegal corporate donations by concentrating on how the funds could have been made “dirty” solely within the minds of the defendants.

Money Laundering Through Thought-crimes?

As argued in Judge Priest’s ruling, the “tainting” would have to have occurred just by Ellis’s and Colyandro’s intentions.  This is because the funds were likely to have been collected legally, and sent, not just lawfully, but as required by law, to the national level. There, it would have been deposited in specialized accounts keeping the various monies separate from one another.

Expect the defense to prove that the money donated back to Texas candidates came from just such a separate, legal account.

The question will then be: Can money be collected legally, sent forward in accordance by law, then kept in a separate, specialized account, but other money, sent from another account legally collected from individual donors, constitute money laundering?

At this point, it is questionable whether Earle will proceed with prosecution.  Although TRMPAC was founded by Tom Delay, it is highly unlikely Delay has continued to look to its day-to-day operations.  Thus, any money solicited, freely donated, or sent on to RNSEC from TRMPAC would have likely come and gone without Delay’s cognizance.

One scenario would be to drop the charges on Delay while continuing on with prosecuting Ellis and Colyandro.  If Earle could prevail against them, then a deal could possibly be cut reducing their prison terms in exchange for information leading to the re-indictment and conviction of the congressman.

Of course, this is a long shot.  Delay’s own argument contends that the corporate money in question was required to be sent forward by Federal law.  Thus, Priest’s standard of when and where the legal money became tainted is further complicated.

Justice Delayed Is Power Denied

Should Earle decide not to proceed with Delay’s prosecution, do not expect an announcement to be forthcoming.  By keeping Delay under a shadow of indictment for as long as possible, Earle could prevent Congressman Delay from resuming his House leadership post.

While it is untrue that such a change in leadership vote has been scheduled for sometime in January, 2006, the longer Delay is out of power the more difficult will it be for him to return. And facing a period of months before Delay could be brought to trial; Republicans could very well decide to execute just such a change of leadership.

In that way Earle could realize any legal loss as a political win.


Additional Information:

Judge's Ruling Dismissing Conspiracy Charges

Letter Asking for a Speedy Trial

Delay Indictment  pdf. file

Motion to Quash Count 1 of Indictment pdf. file

Motion to Quash Count 2 of Indictment pdf. file

Letter to Judge Priest  pdf.file

Kay Bailey Hutchison

Coming Soon: The Ronnie Earle Movie

About the Author.....

Perry Hicks is a former Mississippi Coast resident and was a correspondent for the old Gulfport Star Journal. He has appeared on Fox News Channel. Perry has also hosted his own radio talk show on the auto industry with a mix of politics. Perry is a former college professor and a frequent contributor to GCN writing on stories of national importance with local interests. His articles can be found in the GCN Archive.

Contact the Author: arielsquarefour@hotmail.com

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