Texas Hold 'em
The Prosecution Of Congressman Tom Delay Has Become A High Stakes Game Of Poker. On The Line Is Lone Star Justice, Futures Of Two Partisan Politicians, And Quite Possibly, The Way The Political Game Is Played Itself.
By Perry Hicks- Special to Gulf Coast News
The average citizen yawned big when the news first broke of Congressman Tom Delay’s indictment. To those disenchanted with government, he was just another corrupt politician who was about to be put away.
However, the true importance of the event could be heard in the voices of radio talk show hosts all across the AM dial. In particular, Rush Limbaugh’s and Sean Hannity’s banter rose in both speed and pitch as they nervously tried to explain the dirty politics and injustice of Earle’s indictment. .
Over at the near (if not actually) bankrupt Air America, Delay’s indictment was reported with glee. Renowned for his partisan Democrat politics, Travis County, Texas prosecutor Ronnie Earle (photo right) was lauded for his ballsy move in charging Delay with Texas election code violations. As the House Majority Leader, Delay was the force that drove through Congress hated conservative legislation.
To the Left, the indictment alone was a huge victory because a Republican Party ethics rule would force Delay to step down from his House leadership position. Hopefully, Republican discipline would fall apart without Delay’s firm hand.
However, all hasn’t gone so well for Earle. According to legal documents, Delay’s legal team, lead by Attorney Dick DeGuerin, are counter-charging Earle with prosecutorial misconduct for indicting without having a law in effect making the charges of money laundering and conspiracy, well, money laundering and conspiracy. In fact, the indictment doesn’t specify what, if anything, Delay is alleged to have done.
In everyday parlance, there is no “there” there.
Targeting individuals for prosecution without evidence, without supporting law, but more importantly, without the intention of proceeding with trial, is a serious ethical infraction. There is also a Texas law specifically prohibiting this kind of “official oppression.” Delay’s case would not be the first time Earle has been accused.
In 1993, Earle sought to prosecute U.S. Senator Kay Bailey Hutchison ostensibly for winning her first term in office by repeatedly indicting her on charges ranging from abusing her employees to using her office (State Treasurer) to aid her election.
A point of interest is that Hutchison’s team back then included Republican political consultant Karl Rove and attorney Dick DeGuerin.
As the case came to trial, Earle moved to withdraw the charges because of his concerns over what would be allowed as evidence and the fact the jury selection had not gone well for the prosecution. If the charges were withdrawn, there would have been nothing to stop Earle from prosecuting Hutchison later- hopefully with a friendlier judge and a jury more to his liking.
However, the presiding judge, John Onion, denied the withdrawal, and when Earle refused to present his case, Onion ordered the jury to return a verdict of Not Guilty. Thus, Earle was prevented from ever prosecuting Hutchison for the very same charges again.
Earle Deals the Cards
In 2001, Delay launched a Political Action Committee (PAC) with the specific purpose of raising money to win a Republican majority in the Texas legislature. The PAC was to be called “Texans for a Republican Majority,” or TRMPAC.
The new organization performed beautifully. TRMPAC was able to raise more than enough money to win a majority in the Texas House. In fact, so much money rolled into its coffers, Earle alleges TRMPAC illegally sent a single $190,000 check comprised of direct corporate money to the Republican National Committee, payable to the Republican National State Election Committee (RNSEC.)
According to Earle- and this is the salient point- the check is alleged to have been accompanied by a list of state candidates to receive money back from RNSEC. Hence, Earle paints the entire series of transactions as a money laundering scheme.
Texas election law prohibits corporations from giving money directly to candidates and Earle has charged that 6 corporations illegally donated to candidates by donating money to TRMPAC.
Complicating the matters are two other individuals indicted along with Delay: John Colyandro, head of TRMPAC, and Jim Ellis, head of Americans for Republican Majority (ARMPAC,) also founded by Delay.
Upping the Ante
Regardless of what Air America’s pundits would have you believe, Earle’s is far from holding all of the aces.
Unlike all but a handful of western states, Texas convictions must be based on statute, not common law. In other words, in order for an action to be a crime, there must be a law codifying it.
According to DeGuerin, Earle’s original indictment alleged the charges of election code violations and conspiracy occurred in 2002, a year before the legislature changed the election code to make corporate donations punishable. To correct his error, Earle then sought a second indictment based on money laundering and conspiracy from a second grand jury. However, DeGuerin points out that Earle has still failed to cite an underlying felony required to make money laundering and conspiracy crimes.
When the second grand jury refused to indict by returning a “No Bill,” Earle went to still a third grand jury that had just been impaneled and was reportedly so new, they had not yet received their orientation.
Earle did not publish or otherwise announce the No Bill until after the third grand jury indicted. Earle may have broken Texas law himself by pushing the jury to vote by revealing prior grand jury testimony and claiming a jury had wanted to indict but ran out of time before their term expired.
Another interesting side is that over the last 2 years, Earle has allowed a documentary film crew to shoot footage of him working to bring down Delay. The film is titled The Big Buy.
This is a very technical case and so will be very difficult to prosecute. Earle’s entire presentation must link corporate donations (that would normally be legal) to a conspiracy to break election law that was not well written at the time of the alleged infractions. Furthermore, conspiracy is not easily proven.
Indeed, the indictment goes into some detail in how the $190,000 check written to RNSEC came from the same account to which donations from the 6 corporations had been deposited. And while Ellis and Colyandro’s roles are also detailed, there is no linkage of Delay in the alleged commissions at all. The only time Delay is mentioned, it is as a defendant and that he supposedly waived the 3 year statute of limitations.
Furthermore, while the indictment alleges conspiracy, no evidence or explanation is given to support the charges. The sole evidence in the indictment is a photocopy of the $190,000 check.
DeGuerin asserts that:
· Delay did not waive the 3 year statute of limitations for a felony but for a misdemeanor which was withdrawn on Sept 29th forcing Earle to seek the second grand jury.
· The indictment does not say what corporation made a donation(s) to be given to a specific candidate or candidates. According to DeGuerin’s written statement, in order for any donation to be unlawful, “the State is required to plead and prove a person, acting as an officer or duly authorized agent or representative, knowingly made a corporate political contribution to a state candidate for elective office.”
· Without an illegal donation, conspiracy and money laundering are not applicable.
· The indictment does not specify what action or omission Delay is alleged to have committed.
As the election code and penal statutes are highly technical, any defect in Earle’s case could result in a dismissal. The critical link is the list of candidates Earle alleges accompanied the check. If Earle does not have a copy of the list, then his case is in big trouble.
What would have been expected in such a situation is for Earle to get convictions for Ellis and Colyandro and then squeeze them to testify against Delay. Instead, Earle indicted them all together.
DeGuerin has filed a motion to sever Delay’s trial from Ellis and Colyandro. However, even if Ellis and Colyandro were somehow found to be guilty, their convictions would in no way make a legal inference that Delay himself is guilty.
Shuffling the Deck
With such a weak, if not nonexistent, case, Earle’s success hinges on the presiding judge, and a venue hostile to Republicans. In the first judge, Bob Perkins, Earle may well have had that.
Perkins, had donated to not only Democrat candidates, but also the radically left-wing, George Soros financed, Move-on dot org. DeGuerin went on the offensive and petitioned Perkins to recuse himself.
Earle then objected that the assigning judge, B.B. Schraub, was a Republican. The assignment was then given to the state’s chief justice, Wallace B. Jefferson, who not only was a Republican and the first African American on the high Texas court, but who had been endorsed by TRMPAC back in 2002. However, before Earle could file still another motion asking Jefferson to recuse himself and give the case to the next available Travis County judge, Jefferson had made the assignment.
The duty fell to Pat Priest, a Democrat, who though an active judge, was technically in retirement. Priest was only mildly political and so was acceptable to both DeGuerin and Earle.
DeGuerin has complained to Judge Priest that Earle has refused to respond to his requests for disclosure. This refusal to cooperate could be merely because Earle wants to give DeGuerin the least time possible to absorb the material before making the case for quashing the indictments. Then, again, Earle could have no material to disclose.
It is not likely that Earle will be able to show that any of the corporations knew they were making “illegal” donations, much less conspired to do so. Furthermore, even if Earle did have that critical candidate list, he would still have to prove that Delay drafted the list and then contacted the 6 corporations to solicit donations. This is unlikely to happen.
Whether this case goes to trial or not depends on how Judge Priest reads the effected statutes and in particular, the change to election law that occurred in 2003. DeGuerin would argue this was an all new law. Earle and others would say the changes only clarified the existing law.
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
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: firstname.lastname@example.org