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Texas Judge Pat Priest threw out one of the three indictments against Tom DeLay Monday, but he let the two other charges stand. The two remaining charges are just as weak and politically motivated as the charge that Priest dismissed, and DeLay is likely to prevail eventually. Still, Monday’s ruling is widely seen as a political setback for the House Majority Leader, which it will be if DeLay’s Republican colleagues hand the partisan Texas prosecutor Ronnie Earle a victory he can’t win in court.

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DeLay was forced to step down as House Majority Leader after Earle charged him with conspiracy to violate the Texas election code. In Texas, it is a violation of the election code to use corporate campaign donations in political campaigns. However, corporations can contribute to political action committees if the money goes for overhead or administrative operations. This indictment alleged that the Texans for a Republican Majority PAC (TRMPAC), which DeLay founded, accepted corporate money, and then sent $190,000 of it to a branch of the Republican National Committee in Washington with the intent that the RNC would then send $190,000 in checks from a separate account to candidates for the Texas legislature in the fall of 2002.

Prior to McCain-Feingold, which took effect after the 2002 elections, both parties often took advantage of the fungibility of soft money and hard money in national and state campaigns. According to the Institute on Money in State Politics, the Texas Democratic party did the same thing DeLay is charged with. In October of 2002, it sent $75,000 to the DNC and received $75,000 back from the DNC on the same day.

But Earle argued, based on his own interpretation of the law, that this transaction violated the election code’s ban on corporate money. In August 2005, DeLay met with Earle to discuss Earle’s investigation of the transaction. According to news reports, DeLay told Earle that he knew about the transaction, but that he thought it was fine because it was legal.

Earle considered this statement evidence that DeLay conspired to break the law, and got a grand jury to issue the first indictment on September 28. But shortly thereafter, DeLay’s legal team filed a motion to dismiss the indictment, on the grounds that the Texas conspiracy statute did not apply to the election code in 2002.

This brings us to the second indictment. When Ronnie Earle realized that his conspiracy indictment wouldn’t withstand pre-trial scrutiny, he rushed to a second grand jury and presented the same case. Only this time, Earle asked the grand jury to return charges of money laundering and conspiracy to commit money laundering. Money laundering is defined as a financial transaction involving the proceeds of criminal activity. Earle alleged that DeLay engaged in money laundering because he knew the corporate money TRMPAC sent to the RNC was intended to end up in Texas political campaigns.

“DeLay has earned
his colleagues’ patience,
at least through early
next year.”

Earle offered as proof a list of names of Texas state legislative candidates with dollar amounts beside their names (view it here). But the list has no authors or dates on it. Neither the number of candidates nor the dollar amounts on the list match the numbers allegedly involved in the scheme. The list came from a document dump that TRMPAC provided to Earle early in the investigation. Earle has no evidence that DeLay or any of DeLay’s co-defendants authored this list or even saw it, thus he has no evidence of any criminal intent. Based on the weakness of Earle’s evidence, the second grand jury refused to indict DeLay.

Monday, Oct. 3, Earle’s team was facing a crisis. But by appearing on numerous talk shows after the first indictment, DeLay had done Earle a favor. Even though DeLay’s appearances produced no new substantial evidence against him, Earle gathered the transcripts and used this “new evidence” as an excuse to take his case before a third grand jury. At this point, DeLay’s legal team alleges that Earle pressured the grand jury to indict DeLay on the money-laundering charges, even though the evidentiary picture had not changed. After only four hours of listening to Earle present his case, the third grand jury indicted DeLay for money laundering and conspiracy to commit money laundering.

Judge Priest threw out the first indictment–conspiracy to violate the election code–on the grounds that DeLay’s lawyers provided. But he let the money-laundering charges stand, pending a hearing to determine whether Earle acted improperly. Priest has expressed hostility to the idea of allowing DeLay’s defense a free hand in investigating Earle’s conduct. The case, then, will most likely make it to trial. DeLay’s legal team had hoped to have the case over with one way or the other before the end of January when some nervous Republicans might want to replace him permanently with new leadership elections. Now it looks like the case might drag on beyond that point.

If DeLay wins his case and is acquitted–a highly probable outcome given Earle’s stilted legal reasoning and dearth of hard evidence–he still must disentangle himself from the burgeoning Jack Abramoff scandal. But the list of people connected to Abramoff is ever-growing, most recently including Democratic Sens. Byron Dorgan and Harry Reid. The conventional wisdom about DeLay’s future will come to pass only if enough Republicans are willing to throw him overboard preemptively. That would hand Democrats a major political victory. If DeLay is guilty of crimes or if there are more damning Abramoff revelations, a permanent change in leadership might be warranted. In the meantime, he has earned his colleagues’ patience, at least through early next year.

Earle’s case is a travesty. The only thing worse would be for a vindicated DeLay to be relegated to the backbenches because his acquittal was a couple of weeks late.



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