Prosecutions and politics shouldn’t mix

In September, after years of living under the dark cloud of a possible three-year prison sentence, an appeals court cleared former House Majority Leader Tom DeLay (R-Texas) of violating Texas’ campaign finance laws. 

To refresh the memories the “Hammer”—as DeLay was once known -- and associates legally raised and then contributed corporate dollars, i.e., “soft” money, to a Republican National Committee soft money account; subsequently, a separate RNC  “hard” money account contributed an equal amount to seven candidates for the Texas legislature.   

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DeLay’s goal in doing so was to elect Republicans to the legislature who would then draw federal congressional districts that would send more Republicans to Washington. 

Texas does not permit candidates to accept corporate or soft money: DeLay was charged with knowingly contributing corporate money by exchanging it for hard money from the RNC.  He was also charged with money laundering based on the theory that the corporate money was laundered when it was swapped for the hard dollars.  He was convicted on both counts. 

On appeal, the court found that the contribution by DeLay to the RNC and their subsequent contributions were not illegal.  The money was never commingled; the corporate money was deposited into a soft money account; and the hard money was contributed from a separate account, holding only money that was legal to be contributed in Texas.

As for the money laundering count, the court found that without a predicate crime, there could be no conspiracy.  The court’s 22-page opinion was highly critical of the prosecution.  It pointed out that on two occasions, the jury asked the presiding judge if there can be money laundering if there was no illegal activity.  The prosecution argued to the judge that there could be; in each instance the judge simply referred the jury to the initial jury charge.  The appellate court said that the proper answer to the question was no.  One can only speculate if the result would have been different had the jury been told the correct answer.

The current Travis County District Attorney has pledged to appeal the decision to the Texas Court of Criminal Appeals.

What are we to make of all of this?  Clearly DeLay was a lightning rod for criticism. During his reign as second in command of the House Republican leadership, he was perhaps the single most controversial figure in Washington.    He was never content with the size of the Republican majority and was adept at developing new strategies to maintain and increase it.  Of course, at the same time Democrats were working feverishly to regain the majority and saw DeLay as standing in the way. 

He was relentless in his desire to win the political battle of the day and perhaps a little reckless in his prodigious fundraising.  His success put a large target on his back.  His political opponents scrutinized his every move in the same way that the enemies of Jim Wright and Newt Gingrich sought to run them out of Washington under allegations of scandal.  But up to this point, DeLay’s opponents had been unsuccessful, at least until they found a willing Texas prosecutor.     

Travis County District Attorney Ronnie Earle, a life-long Democrat, fueled by information provided by a Washington public interest group, charged DeLay with violating Texas’ campaign finance laws and money laundering.  But it wasn’t that easy.  Earle was forced to present his case to three grand juries before he could obtain an indictment.  In the end, he succeeded in doing what many in Washington could not do—bringing down Tom DeLay.  As a result of the indictment and subsequent conviction, DeLay resigned from the House. 

Prosecutors must exercise sound and fair judgment and make their decision to prosecute based on sound law and not a flawed legal theory. Most prosecutors do just that. It is not enough to believe the target is corrupt and should be removed from office.   Being charged puts a politician on political life support--a conviction is an execution.

It appears that is what happened to DeLay.  He was charged for doing something that wasn’t a crime, as the appellate court has ruled.  Perhaps he should have listened to the first two grand juries.  Back when soft money was permissible, the practice of raising and using both soft and hard money contributions where and when appropriate was wide-spread and utilized equally by Republicans and Democrats—in the 1990s, it was just part of the political playbook.

In this case, DeLay was targeted; a few years ago, it was then-Sen. Ted Stevens (R-Alaska).  Regrettably, in today’s politics of destruction, campaigns are mostly about destroying the opponent’s character and distorting their positions.  The courtroom, however, must be immune from those motivations.  Our system of checks and balances will not survive if political factors motivate prosecutors to bring charges based on tenuous legal theories to remove an officeholder.  That is a decision for voters.

Andrews served in Congress from 1983 to 1995, representing a Houston, Texas district. He was a member of the House Committee on Ways and Means.  He is now a counsel in King & Spalding’s Government Advocacy and Public Policy Practice Group.  Spulak is a King & Spalding partner and chair of its Government Advocacy and Public Policy Practice Group. He served as staff director and general counsel of the House Committee on Rules, and as general counsel to the House.