Hammer Time

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

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