Baseball Crank
Covering the Front and Back Pages of the Newspaper
December 6, 2005
LAW: "Technicality"

Charges that Tom DeLay conspired to violate the Texas campaign finance statute are dismissed on the grounds that what he allegedly did wasn't a crime at the time, and Kos, displaying his usual grasp of factual and legal nuances, calls this "a technicality," pronouncing - in a phrase that would make George Orwell cringe - that this mere technicality is "that what is illegal now wasn't illegal under state law when DeLay committed his crimes."

Um, if they weren't illegal then, they weren't crimes. Now, some rules of criminal procedure, even ones with obvious constitutional roots, are technicalities, in the sense that they have nothing to do with guilt or innocence. The notion that you can't be prosecuted for something that wasn't against the law when you did it is not one of them, least of all in an area as heavily regulated as campaign finance law.

UPDATE: The decision dismissing the conspiracy indictment and upholding DeLay's indictment on money laundering charges is here. The court's decision seems persuasive on both grounds, that conspiracy to violate the Election Code was not a crime in 2002, and that the term "funds" in the money laundering statute can include funds paid by check.

The nutshell of what charge remains against DeLay is described thus:

If the state can prove that funds were obtained from corporate contributors by these defendants with the express intent of converting those funds to the use of individual candidates, or if the state can prove that these defendants entered into an agreement to convert monies already on hand, though originally received for lawful purposes, to that use by sending the money to the Republican National State Elections Committee with an agreement that funds of the same amount would then be made available by that committee to individual candidates for Texas political office, and can prove that funds in the same amount were in fact contributed to individual candidates by the Republican National State Elections Committee, then they will have established that money was laundered. The money would have become "dirty money" at the point it began to be held with the prohibited intent.

Correct me if I'm wrong, but on my understanding of the evidence, this framing of the issues is very, very bad news for DeLay, particularly the latter standard - while it may well be that DeLay wasn't particularly involved in the specifics of receipt and routing of particular funds, it seems pretty clear that he's the kind of guy who would be intensely involved in controlling where and to which candidates funds would end up being disbursed.

Posted by Baseball Crank at 7:19 AM | Law 2005 | Comments (13) | TrackBack (0)
Comments

It's an old story of course, and one that will never change. Americans believe that lawmakers, and politicians in general are corrupt, but loe their own incumbents, and constantly send them back to DC or wherever.

Delay gets a charge dropped because his shady activity wasn't a crime at the time. Fine. It wasn't a crime, but was, at the least, an enormous ethics loss (assuming he has any ethics to lose).

Shouldn't our representatives, senators and all others be held to, if not the highest standard (or no one could get elected dog-catcher), how about a reasonable set of ethical standards. Or just as revolutionary, how about any standards at all?

Posted by: Daryl Rosenblatt at December 6, 2005 11:51 AM

DeLay's ethics (or lack thereof) are a political issue, not a legal one. If something wasn't against the law at the time, but was unethical, it's up to the voters to punish him.

Posted by: Jerry at December 6, 2005 1:05 PM

Daryl, you may owe the voters of Delay's Texas district an apology. As reported in today's USA Today:

"A Thursday-Sunday poll of registered voters in DeLay's suburban Houston district found that if an election for his seat was held today he would lose to an unnamed Democrat 49%-36%. DeLay was returned to Congress last year by a 55%-41% margin. The poll showed he now has a favorable rating of 37% among registered voters in his district."

Now how unctuous and odorous must a man with access to as much pork and campaign dollars as Tom Delay be to poll this poorly?

Posted by: pat_rick at December 6, 2005 1:41 PM

What's with the font in which this decision is typed? I mean, maybe he should just go all out and type it in wing-dings?

Posted by: Al at December 6, 2005 2:36 PM

I'm not so sure DeLay did anything in this case that was unethical except to the extent it was illegal. The whole case turns on whether corporate contributions were intended to go to individual candidates, but there's nothing inherently unethical about that.

That said, it's clearly time for DeLay to permanently leave the House leadership and probably time for him to retire, for reasons unrelated to the particular controversy for which he was indicted.

Posted by: The Crank at December 6, 2005 2:58 PM

Crank-

Pretty funky word-twisting for an Orwell fan, wouldn't you say: "I'm not so sure DeLay did anything in this case that was unethical except to the extent it was illegal."

Posted by: Mike at December 6, 2005 3:40 PM

Let me add that I don't quite understand the money laundering charge. The judge writes that laundering may only occur where there is a "transaction involving the proceeds of criminal activity." But where are the "proceeds of criminal activity"? The criminal activity alleged in this case is the money laundering transaction itself.

That is, money laundering has two steps: the defendant must first obtain proceeds of criminal activity. Second, he must engage in a transaction with those proceeds. But to say that ther transaction itself makes certain funds "proceeds of criminal activity" makes this circular.

Posted by: Al at December 6, 2005 3:41 PM

I'm with Al. That and the fact that the statute clearly, literally defines money as currency and coins with no provision for the checks involved. But that's for the lawyers to decide and I'm not one. Might be grounds for an appeal, of course.

Mr. Crank, I can't agree that the terms the judge used to define money laundering are bad news for DeLay, not with what we've seen of the the evidence so far. In the second and third grand juries, Ronnie Earle's sole evidence was an acknowledgement by DeLay that he knew what the PAC was doing. DeLay contends that all he knew was what it was doing in general, not these transactions the only ones that are allegedly illegal.

The other evidence that's made the papers down here is that the Prosecutor's office has not been able to produce a list of what money was supposed to go to which politicians they say was prepared by the RNC. They say the have a similar list, but are not clear on its origins and offered nothing connecting it to DeLay or any of his co-defendents.

Since that second indictment, Earle's gotten supoenas that were clearly fishing expeditions, searches of phone calls (including cellphones that didn't exist in 2003 or belonged to a 13 year old girl) and emails. No evidence appears to have come from those efforts.

It looks like Earle may not have much of a case.

A question. The statute offers a positive defense that the accused believed the money was legally obtained. How does that tie to DeLay's claim that the transactions that occured were vetted by lawyers and declared legal? It should at least suggest that the PAC was attempting to find a legal way to deal with the money even if they wound up getting bad advice.

Posted by: Strick at December 6, 2005 4:00 PM

Crank,

I think some people are confused by the meanings of the two words "unethical" and "illegal."

unethical

adj 1: not conforming to approved standards of social or professional behavior; "unethical business practices" [ant: ethical] 2: not adhering to ethical or moral principles; "base and unpatriotic motives"; "a base, degrading way of life"; "cheating is dishonorable"; "they considered colonialism immoral"; "unethical practices in handling public funds" [syn: base, dishonorable, dishonourable, immoral]
il·le·gal Pronunciation Key (-lgl)
adj.

1. Prohibited by law.
2. Prohibited by official rules: an illegal pass in football.
3. Unacceptable to or not performable by a computer: an illegal operation.

Many things people do can fit both definitions. However, many more things fit only one of the two definitions. If I'm playing a game of cards and cheat that would be unethical but not necessarily illegal. If I slow down but roll through a Stop sign after seeing there was no other traffic around that would be illegal but not necessarily unethical. Based on the whims of the electorate some behaviors considered unethical by some has shifted from legal to illegal to legal over time (abortion, gambling, drinking, etc). Unethical is often a subjective value judgment where illegal is usually defined by statute.
Bill

Posted by: LargeBill at December 6, 2005 7:42 PM

Bill-

"If I'm playing a game of cards and cheat that would be unethical but not necessarily illegal."

Oh? Republican definitions, I guess.

Posted by: Mike at December 6, 2005 9:25 PM

Mike,

No, dictionary definitions.

Posted by: LargeBill at December 6, 2005 10:36 PM

In what card game is cheating permitted under the rules, Bill? Or are we playing cards under "Strict Constructionist" principals, whereby anything not explicitly forbidden is thereby permitted? Unless one's opponent wants to do it; then it's illegal because the rules don't explicitly permit it.

Them's Republican definitions.

Posted by: Mike at December 7, 2005 5:33 AM


uhhh Mike - I think LB's point was it wasn't against the Law - as in Local, State or Federal.

....and please, it wasn't a Republican parsing the meaning of "is" a few years ago.....

Posted by: Trusader at December 9, 2005 11:57 AM
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