September 20, 2013 | Commentary on Elections
The reversal by a Texas state appellate court in Austin of the unjustified conviction of former House majority leader Tom DeLay is the culmination of an undeserved political lynching. The abusive prosecution by local officials in Texas, as the editors of NRO said in 2011, “exemplifies the drive to criminalize politics and to make the ordinary and normal processes of raising and spending money for political campaigns a crime.”
DeLay was charged with “money laundering” for making perfectly legal political contributions in the 2002 election cycle. A Texas political committee associated with DeLay received $190,000 in political contributions from corporations. Those contributions complied fully with Texas law.
DeLay’s committee made a $190,000 contribution to the Republican National Committee’s State Elections Committee, a non-federal component of the RNC involved in state elections. That contribution was deposited in a “soft money” account that included corporate funds. It was completely legal, too, under both Texas state law and the federal law governing fundraising for federal campaigns.
The RNC’s state committee then issued checks to seven Texas candidates from a separate bank account that had no corporate funds in it — what is called a “hard money” account in campaign-finance terminology. As the Texas appellate court pointed out, and the local prosecutors knew before they ever tried to get an indictment, the RNC’s state committee never commingled or transferred any money between the two accounts.
All these transactions and contributions complied with state and federal law, and all were properly reported, as required. Yet DeLay and two other employees of the Texas PAC were indicted because prosecutors bizarrely argued that they had engaged in a conspiracy to engage in money laundering. Prosecutors claimed that the corporate donations to the Texas PAC and the RNC’s contributions to state candidates were a money “swap” that amounted to unlawful corporate political contributions.
But as DeLay correctly argued, all the contributions and transfers were legal, and they were not the proceeds of criminal activity, a requirement for a charge of money laundering. As the appeals court concluded, when the evidence was viewed in the light most favorable to the state, all the evidence showed was “an agreement to two legal monetary transfers. . . . Rather than supporting an agreement to violate the Election Code, the evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions.” The source of funds used by the RNC to make contributions to the Texas candidates was not “tainted.”
The deficiency of the prosecutors’ case was “illustrated by the confusion displayed by the jury during deliberations.” The jury asked the judge to clarify whether it can “constitute money laundering if the money wasn’t procured by illegal means originally?”
The obvious answer under the plain letter of Texas law, according to the appeals court, was “no,” but the prosecutor argued wrongly to the trial judge that money could be obtained legally and still be laundered. So the trial court didn’t answer the jury’s question, leaving them confused on “what the law is.” That question from the jury as well as the prosecutors’ mistaken arguments “point to the lack of evidence showing that funds involved in the transaction were the proceed[s] of criminal activity.”
The Texas appeals court has confirmed what NRO said in 2011, that “this was a phony prosecution from the very beginning.” It took Ronnie Earle, the Travis County prosecutor, three different tries to get an indictment, and he had a documentary-film crew follow him around to produce a film called The Big Buy about the prosecution of DeLay that he “used to try to win higher office in Texas.”
Back when the indictment was first released, I discussed it with a former U.S. Justice Department lawyer, now retired, who had investigated and prosecuted campaign-finance violations for 30 years. He told me that it was clearly a frivolous and unwarranted prosecution. Certainly no one at the RNC was ever prosecuted by the Federal Election Commission or the Justice Department for any of these contributions, because they were completely legal under federal law. Earle and all the other prosecutors involved in pursuing this case should be investigated by the Texas Bar for pursuing a case that has all of the hallmarks of a political vendetta.
Of course, the Texas court’s judgment that DeLay was wrongly convicted and its grant of an acquittal won’t do anything to remedy the ruination of his political and professional life, or reimburse the enormous financial cost of defending himself from unjustified charges filed against him. DeLay was pursued because he was politically effective, not because he broke the law; his opponents were “willing to do anything to bring him down,” as NRO has said. And his odyssey is not over — the current Travis County prosecutor has already announced that she intends to appeal, a senseless and injudicious decision.
While Tom DeLay is probably elated today at finally being vindicated, he no doubt understands the frustration once expressed by former Reagan secretary of labor Ray Donovan, who famously said after his acquittal, “Which office do I go to to get my reputation back?”
- Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation and a former member of the Federal Election Commission.
Originally appeared in National Review Online.