September 28, 2005
POLITICS: Time For DeLay To Step Aside
Now, unlike Bill Frist, Tom DeLay has now reportedly been indicted. [Report confirmed]. We shall see what merit there is to the charges, given the history of partisan prosecutions here, but either way, an indictment does warrant DeLay stepping down as Majority Leader until and unless he is aquitted or charges are otherwise dropped or dismissed.
UPDATE: Here's the indictment in PDF form, via CNN; you can read the whole thing yourself, as it's only four pages. You will notice that DeLay is not charged with any violations of law in his own right, nor with having committed any "overt act" in furtherance of the conspiracy. In other words, he's not accused of doing anything.
Of course, in the context of an elected official's role in his subordinates' raising of campaign funds, that's not surprising. Under conspiracy law, what is unlawful is the act of agreeing that the other conspirators will seek an unlawful objective. Thus, whether there's any basis for this indictment depends almost entirely on what DeLay knew about what these guys were doing, when he knew it, and whether there is any proof that he agreed to it. The indictment, rather typically of conspiracy indictments, gives almost no indication of what that proof might consist of. It does, however, allege that the unlawful agreement was formed "on or about the thirteenth day of September, A.D., 2002," the date on which the Texans for a Republican Majority PAC delivered a check for $190,000 to the Republican National State Elections Committee (RNSEC). One would ordinarily expect proof of some meeting or other contact by DeLay on or about that date, although with whom is left a bit vague, since he is alleged to have conspired with "one or more of" John Colyandro, James Ellis, "or with . . . Texans for a Republican Majority PAC," so that the charge could be satisfied by proof that DeLay agreed with some person affiliated with Texans for a Republican Majority PAC other than Colyandro or Ellis.
More on this another day, and of course, while I'm familiar with federal conspiracy law, I can't say I know anything offhand about any peculiarities of conspiracy law in Texas. If Texas is like federal law, the jury would be instructed that it needs to find that DeLay personally knew he was breaking the law and had the specific intent to violate the law. But the bottom line here is that a charge of this nature will have to go to trial to determine what DeLay's personal involvement was.
Legally, unless he cops a plea, it'll take quite a while to learn the whole deal. I'm not a republican or a democrat, so while I'm no DeLay fan I'm not going to yap about "what this means" or what "should happen."
But from a Realpolitik standpoint, I really can't see the GOP letting him remain majority leader OR even stay in office. With the political climate in DC growing toxic as far as the GOP goes (DeLay, Frist, The Torture Allegations which will end up pointing at Rumsfeld & Cheney, the Mike Brown fiasco, a heated confirmation hearing coming up for O'Connor's seat, serious economic woes), a major player getting charged with a felony is gonna mean his head.
I'm confused. State law puts the venue for making this kind illegal contribution in Travis County unless the person accused is a resident of Texas in which case the venue is the county of residence.
Any idea how that affects the venue of the conspiracy since Delay is officially a resident of Fort Bend County some 200 miles from Austin (though he does have an apartment in Austin).? Of the three, only Colyandro is a resident of Austin and within the Travis County DA's juridiction.
Ellis must have an alleged co-conspirator who will testify that Delay knew about this. With the effects of Delay's gerrymandering the GOP may yet control the House for awhile. Otherwise, though, this is beginning to look like deja vue, except that now the GOP is the corrupt, clueless, arrogant majority riding for a fall.
I'd agree that Earle would be insane to hand down this indictment without some witness who's going to testify against DeLay. We shall see, on that score.
The GOP Congressional leadership really does need to get back in touch with grassroots concerns, like excessive spending. If they can't, they're going to deserve to lose.
And no, I have no idea what the answer to the venue question is.
Is conspiracy law different than other types? I always had heard that "ignorance is no excuse for the law" which I always presumed meant stuff like you could not claim to not know the posted speed limit and have it be a valid excuse for speeding. Is it different in this circumstance? On that point would be that there really is only one campaign finance law in Texas and the idea that DeLay did not know what it was or that these actions were in violation of it seems a pretty Texas-sized stretch.
It is "different" in one respect: the mental state the prosecution must prove is intent to violate the law.
Interestingly -- and I'd like to hear Crank's take on this -- if "conspirators" agree to do something that's illegal without knowledge of its illegality, it is by definition not "conspiracy." Nonetheless, the "conspirator" who ultimately commits the "overt act" contemplated may very well be guilty of that underlying crime.
Other bloggers have pointed out that these transactons were duly recorded and are in the public record. Just as a number of nearly identical transactions between the DNC and their local PACs are, several of which are within the 60 day limit on corporate donations.
If it was against the law in 2002, apparently no one knew it, because no one was doing anything to hide what they were doing with the transactions.
Crank, another attorney pointed out that determined venue was the act of conspiracy, not the underlying crime (if there really was one). Thanks.