Yes, Tom DeLay is wretched. But does he deserve to be brought down by gotcha ethics laws?
LIVE BY THE HAMMER, die by the hammer: Tom DeLay had it coming. He flaunts his disdain for ethical proprieties. He lacks even a scintilla of self-restraint; not content with merely defeating his enemies, he wants to destroy them. And so he led the Republican drive to impeach Bill Clinton and, more recently, advocated the same remedy to rid the federal bench of judges whose rulings he disagreed with. One does not have to look the other way at Clinton’s dalliances or agree with those judicial rulings to appreciate the harm that DeLay’s zealotry could have done to the American political system.
Lest any ambiguity remain about my opinion of the defrocked majority leader of the U.S. House of Representatives—who faces two felony indictments, one for conspiring to facilitate the use of illegal corporate contributions in political campaigns and another for money laundering and conspiracy to commit money laundering—I will adopt as my own the viewpoint a friend expressed to me in an e-mail: “DeLay calls [Travis County district attorney Ronnie] Earle ‘an unabashed partisan zealot’ who engages in ‘blatant political partisanship.’ This from the lips of an unabashed partisan zealot who has founded his whole career on blatant political partisanship. Leaving his politics aside, isn’t this what is so smarmy about DeLay? All the rules run just one way; he can dish it out but he can’t take it; he’s the pot calling the kettle black. In fact, I wish Earle’s indictment was politically motivated. Then justice really would be poetic.” Indeed.
Inconveniently, however, Mr. DeLay will be judged according to more-contemporary notions of justice. Greek mythologists and dramatists could weave into their tales the moral that those whom the gods wish to destroy they first make proud, but poetry is not admissible evidence in the district courts of Travis County, Texas. As delicious as it is to contemplate the image of the Hammer in the slammer, and as much as I think DeLay shames the political system in which he operates with such venom, I’d feel a lot better if I knew exactly what he did that was wrong.
The first indictment alleges that DeLay and two aides, “with the intent that a felony be committed,” entered into an agreement that “one or more of them” would engage in conduct that would constitute the offense of “knowingly making a political contribution” in violation of the Texas election code. This amounts to a criminal conspiracy, which is the specific charge against DeLay and the two aides. The single mention of DeLay is the only time his name is linked with illegal activity. All of the actions described in the first indictment were taken by the two aides, John Colyandro and Jim Ellis. No action taken by DeLay himself is cited. The same is true for the second indictment.
The particular transaction that triggered the indictments has been widely reported. Colyandro, on behalf of DeLay’s political action committee, Texans for a Republican Majority (TRMPAC), accepted $190,000 from several corporations and signed a check for that amount made out to the Republican National State Elections Committee (RNSEC) on September 13, 2002. According to the indictment, Colyandro delivered the check to Ellis, who gave it to the RNSEC, along with a list of seven Republican candidates for the Texas Legislature and the amount of money each should receive.
That’s all there is to the first indictment. The second indictment picks up the narrative: Checks to the seven legislative candidates, totaling $190,000, were subsequently written from a separate Republican National Committee fund, which consisted of donations from individuals rather than corporations and thus could lawfully be used in political campaigns. So what was illegal? There are two possible answers. One is the date of TRMPAC’s contribution to the RNSEC, September 13. Texas law states that a corporation may not knowingly make a contribution to a political party within sixty days of a general election, which in 2002 occurred on November 5. The other is that corporate contributions can be used for administrative purposes only (for example, to help pay TRMPAC’s overhead), not political purposes. Earle obtained apologies—not guilty pleas—from several corporations, and they made substantial contributions to causes he considered appropriate. But this still leaves unanswered the essential question of what DeLay did wrong—if anything. Colyandro and Ellis were directly involved in the transaction. If DeLay was, neither indictment indicates how.
Of course, the crime of conspiracy doesn’t require an overt act by every conspirator. It simply requires that the conspirators knowingly conspired to break the law. For prosecutors, conspiracy, like perjury, is a charge of last resort, a means of ensnaring someone who is suspected of participating in a dastardly deed, perhaps even of ordering it, but can’t easily be implicated. It is hard to prosecute, because juries tend to be suspicious of it (as well they should) and because the damning evidence usually has to come from another conspirator. It is hard to defend, because how does one prove a negative—that the defendant, who has a relationship with lawbreakers, did not himself intend to break the law or have them do so? It will not be sufficient for DeLay to argue that he had no knowledge of the actual events that transpired at TRMPAC. In conspiracy cases, which typically target organized-crime kingpins and the manipulators of fraudulent schemes, the law does not allow the claim of “willful blindness” if the alleged perpetrator had even the slightest involvement in the illegal transaction.
DeLay has chosen to try his case in the court of public opinion by attacking Earle as “a rogue district attorney” whose pursuit of DeLay is motivated by “blatant political partisanship.” This strategy may turn out to be an unwise choice. His own reputation is considerably less than spotless, and Earle’s record as a prosecutor, as has been noted countless times, does not betray a partisan bias: twelve Democrats prosecuted (including a state attorney general and a Speaker), four Republicans (including then—state treasurer Kay Bailey Hutchison and DeLay). Far from being a “rogue” DA, Earle operates under authority granted by the Legislature, which created and funds his Public Integrity Unit as a watchdog over state officials.
For those who like to view politics as melodrama, it is possible to see the protagonists in this case as representing the two extremes of their respective approaches to politics: the realist and the idealist. DeLay is a master of realpolitik who wields power to get what he wants. Earle doesn’t care about power. The most important thing to understand about him is that he doesn’t fit the prosecutor mold. He doesn’t get up in the morning seeking to lock up criminals and throw away the key. The nearest thing to his heart isn’t politics; it’s his approach to crime and punishment, which he calls “community justice” and describes in terms like “holistic solutions.” Can you imagine a hard-boiled prosecutor like former Harris County DA Johnny Holmes talking about holistic solutions? Earle believes that prisons are factories that manufacture career criminals, and so he tries to keep young offenders out of jail with probation, community service, ankle bracelets, and twelve-step programs. A twelve-step program for Holmes would have been apprehension, booking, questioning, confession, indictment, trial, conviction, sentence, appeal, execution date, last meal, and the needle.
Earle’s approach to political prosecutions is likewise idiosyncratic, or would be anywhere but Travis County, where populism still thrives. Goodness knows there has always been plenty of corruption in state government for a prosecutor to root out, but in 28 years in office, he has seldom undertaken such cases. Rather, he is drawn to cases that he sees as involving abuses of power. His prosecutions of high state officials have involved filing a false financial statement (by former Speaker Gib Lewis), alleged destruction of documents on state computers (by Hutchison), and heavy-handed fund-raising tactics (by former attorney general Jim Mattox) that led to commercial bribery charges. Earle lost the latter two cases. He sees the DeLay case as the biggest abuse of power of all, not only because of DeLay but also because of the presence of illegal corporate money used to influence an election. “He compares the current case to abuses by robber barons a century ago,” read a recent story in the Detroit Free Press. “‘We prosecute abuses of power,’ he said. ‘You have to have power before you can abuse it.’”
DeLay’s immediate problem is that he is out of power at the moment, having been forced by Republican-caucus rules to give up his position as majority leader upon being indicted. Now his political future is in grave jeopardy. His Republican colleagues, already beset with the president’s sinking approval ratings and an investigation of Senate majority leader Bill Frist’s stock sales, must decide whether DeLay’s return to power would be a liability in the 2006 campaign. The longer DeLay’s “temporary” successor, Roy Blunt, of Missouri, holds the job, the less likely DeLay will be able to return to power. He would probably like to go to trial somewhere other than Travis County, which he carved into three districts during the 2003 congressional redistricting saga, but arguing for a change of venue will take precious time that he doesn’t have. He needs a quick victory: a judge who will toss out the indictments or a prompt trial and exoneration. On the other hand, the danger for DeLay in going to trial is that what appear to be rather flimsy indictments could turn out to be the tip of the iceberg if Earle has obtained e-mails from corporations indicating that there really was a scheme to evade the law or if someone is willing to step forward and testify against him.
I can’t help but feel that however this case comes out, the loser will be politics. The criminalization of ethics, designed to increase public respect for politics, has had the opposite effect. It has provided an incentive for political consultants and the media to try to put politicians in prison. The emphasis on gotcha ethics laws has shifted the emphasis on ethical issues from whether an action is right or wrong to whether it is legal or illegal. The case against DeLay is based on a crime—conspiracy—that is intended to be used against America’s most dangerous criminals. It shouldn’t be applied to campaign contributions. Unless DeLay knew exactly what was going on, it shouldn’t result in a felony charge against him. No one, not even the wretched Hammer, should go to jail or lose his position over such an offense. Let him pay a fine and be done with it.
Enough with the little-picture ethics. We need to get back to looking at big-picture ethics—whether public servants are acting on behalf of the public interest or private interests. In that regard, the evidence against Tom DeLay is clear.