It is a scandal that there has been and will be no serious jail time in the matter of former Republican majority leader Tom DeLay — Ronnie Earle, the hyperpartisan Democratic prosecutor whose risible case against DeLay has just been finally thrown out by the Third District Texas Court of Appeals, richly deserves to be measured for an all-orange wardrobe.
After eleven years, the matter of Mr. DeLay’s fund-raising in the 2002 election cycle has been finally put to rest, with Mr. Earle’s case having been vivisected by Justice Melissa Goodwin, who in her quietly scathing opinion did not bother even to consider six of the eight points raised by Mr. DeLay’s defense, finding the first two sufficient to snuff out what is in theory a prosecution but is in fact a persecution.
To charge Mr. DeLay with money laundering and conspiracy to commit same was a desperate maneuver never destined to stand up to final judgment. That is because to be guilty of money laundering, one must be guilty of producing the money in question through some prior felony offense. There was never any serious evidence that Mr. DeLay had done so. His alleged wrongdoing under campaign-finance laws consisted of using corporate “soft money” donations to offset “hard money” campaign donations in order to circumvent the Texas law prohibiting direct corporate contributions to political candidates. Never mind that Mr. DeLay was never convicted of any such offense — indeed, never mind that such an offense is not criminal — there was never any evidence that he had even come close to committing such a violation. The court had just thrown our Mr. Earle’s first indictment alleging that he had.
As Justice Goodwin notes in her opinion, Mr. DeLay’s political-action committee followed standard practices, segregating soft money and hard money in separate accounts. Democratic PACs operating at the same time had followed exactly the same procedures in the handling of comparable sums of money, here $190,000. As the justice writes, Mr. DeLay’s organization “did not transfer funds between these two accounts. . . . There was no evidence that [DeLay’s PACs] treated the corporate funds as anything but what they were, corporate funds with limited uses under campaign finance law.” In the court’s most damning finding, the justice writes that DeLay was prosecuted not for attempting to circumvent the law but for trying to satisfy it: “The evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions.”
Mr. Earle, who was hot off an earlier failed attempt to use his office to engage in a similar political persecution of Senator Kay Bailey Hutchison, promptly put Mr. DeLay’s scalp at the end of his lance and began considering a run for governor or attorney general. In the event, he would run for lieutenant governor and be defeated in the Democratic primary. He has since lapsed into well-deserved obscurity.
There are many legitimate criticisms that may be made of Tom DeLay, from some of his political choices to his appearances on Dancing with the Stars. But he is not a criminal. On the other hand, his defense team’s complaint alleging criminal misconduct on the part of Mr. Earle is persuasive. Unhappily, the same Democratic single-party rule in Travis County (Austin and environs) that allowed Mr. Earle’s circus of a case against Tom DeLay to proceed in the first place ensured that he was never held to account for his gross and shameful abuse of the public trust. Mr. DeLay did not earn his nickname, “The Hammer,” for being a nice guy, but the attempt of Texas Democrats to criminalize politics, and the decade-plus persecution of Mr. DeLay that resulted from it, is an act of corruption in the most literal sense of that word, eroding the legal and political institutions that enable democratic self-rule in a constitutional republic. Mr. DeLay has cause to celebrate today, but for the rest of us this matter, even though properly resolved at last, is a cause for nothing but shame.