On Monday, Tom DeLay was issued a second indictment (PDF copy courtesy of the Jurist), this time for money laundering and conspiracy to commit money laundering (the first was for conspiracy to circumvent Texas campaign finance laws). The maximum penalty this time is life imprisonment. This closely followed DeLay's motion to dismiss the first indictment (PDF copy again courtesy of the Jurist), on the grounds that the element of conspiracy may only be illegal under a 2003 amendment to the campaign finance laws, and the transaction occurred in 2002. Some legal academics disagree, however, noting that the 2003 amendment was really nothing more than an explicit notation that existing law allowed prosecution of all felonies, including ones involving campaign finance.
George Dix, a professor at the University of Texas law school who is an expert in criminal law and procedure, said he doesn't believe changes made to the Texas election code by the 2003 Legislature have any effect on the conspiracy charge.The penal code's conspiracy charge allows for the charge if the defendants allegedly conspired to commit any felony, including an election code felony.
This is a natural outgrowth of the first indictment, and both revolve around the treatment of the same $190,000. While the first indictment focused on the fact that the donors were corporate, the second one focuses on the way the money was transferred; the corporate donations were brought into DeLay's political action committee 'Texans for a Republican Majority'(TRMPAC), which then forwarded them to the Republican National Committee (RNC) along with a list of seven individual Texan Republican political candidates, who then received that money from the RNC (down to the dollar amount), concealing (albeit poorly) the source of the funds.
The grand jury alleges that Mr. Colyandro provided Mr. Ellis with a $190,000 check drawn entirely from corporate contributions. Because that money couldn't be put in key statehouse races, the two sent the check to the Republican National Committee with a list of seven Texas candidates that needed contributions.Within two weeks, on Oct. 4, 2002, the RNC issued checks, numbered in sequence, to the seven candidates for a total of $190,000. Mr. Earle said the act constituted money laundering and is a felony under Texas law.
The only fact even remotely contested about the facts of this transaction stated so far is whether or not the TRMPAC actually dictated the list of candidates to be funded at the time it sent the money — but it seems to me that it wouldn't matter if the list was explicitly stated or not, as the names of the major candidates must have been well known in advance anyway.
Given that corporate funding of political candidates is illegal, that's pretty much the definition of money laundering:
§ 34.02. MONEY LAUNDERING. (a) A person commits an offense if the person knowingly(1) acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity
(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; or
(3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity.
In fact, DeLay is not the first to be so charged over this matter: executive director John Colyandro was indicted last year for money laundering over exactly this exchange.
DeLay's defense to this (other than continued attacks on the prosecutor, with continuing rebuttals by both the prosecutor and the grand jury foreman) appears to be coming in two parts, first that the money does not constitute "proceeds of criminal activity" despite the fact that it was disbursed for criminal ends (illegal corporate funding of politicians) because the corporations from which the money was collected were not involved in criminal activity when they donated it. The case may therefore hinge on what the definition of "proceeds" is. (I am suddenly reminded of the Clinton lawyering over the definition of "sex".) It is somewhat strange logic, however, and if accepted, might have strange repercussions on things like drug prosecutions, as it would block charges of money laundering against people who were responsible for funneling money to dealers purchasing from suppliers, as long as the money came from "legitimate sources" before it was used to purchase drugs, even if the obvious intent was for the money to be used for a drug purchase.
The second part of DeLay's defense is that he wasn't actually involved in the day-to-day activities of TRMPAC, and thus wasn't involved in the transaction. This claim is rather weakened by the fact that DeLay has admitted on Fox News that he 1) reviewed the lists of attendees for TRMPAC events, and 2) reviewed checks that TRMPAC sent. The exchange about that last was particularly intriguing:
WALLACE: All right. Let me give you one last one. This is from October 1, 2002, the period in question, that says, "I finally have the two checks from Reliant, will deliver to T.D." — I assume that's Tom DeLay — "next week probably."So the question really is, when you're finding out who's at meetings when you're getting checks delivered to you, you're making phone calls, you're helping with strategists — it sounds like you were more than just an observer of TRMPAC.
DELAY: I want to know what was going on. My name was being used. And one of the first things I did in putting this together was insist that every decision that Colyandro made had to be made with lawyers' approvals.
(Emphasis added.) Common Cause also documented back in May other indications of tight ties between DeLay and TRMPAC, right after State District Judge Joe Hart of Austin blasted TRMPAC for trying to be "cute" with the state campaign finance laws, and fined them almost $200,000 for it.
DeLay is also claiming that this second indictment is a sign that prosecutor Ronnie Earle knew that the first indictment was meritless, but it is being speculated by some that it is actually an immediate response to an attempt by DeLay to renege on a deal waiving the statute of limitations.
His claims that this is nothing more than a partisan witch hunt are also somewhat undercut by his recent admission on the Rush Limbaugh show that the indictment may not be based on politics after all, but rather on a statement he personally made to Ronnie Earle — a statement that he now, of course, retracts, claiming that he misspoke. This hasn't stopped him from pressing the attack on Ronnie Earle; far right wing blogs such as The Captain's Quarters have noted that DeLay is now claiming that a $250 donation that Ronnie Earle accepted from the AFL-CIO in 2000 makes him guilty of exactly the same crime. Setting aside for the moment that it strains credulity to believe that you can use a $250 donation to help rig an election in the same way that you can use $190,000 to do so, even similarly right-wing blog Houblog, in the course of attacking that same $250 donation, was forced to admit that such transactions are legal as long as they are used for administrative purposes. Houblog's problem with them? That "administrative expenses" are whatever you call them, so if Ronnie Earle's $250 donation used to buy office supplies is okay, then TRMPAC's $190,000 donation to buy politicians is likewise okay, and if TRMPAC and DeLay are corrupt, then so is Ronnie Earle.
Er, no. Judge Hart noted that TRMPAC's "administrative expenses" included "political fund raising, polling, staff salary for political activity, political conferences and candidate meetings, political direct mail, a corporate campaign contribution to the national party, political research and political printing." The Texas Ethics Committee has also been fairly clear on this point. Administrative expenses are expenses "that would be incurred in the normal course of business by any active organization, whether or not it engaged in political activity", and the TEC has given examples of office rent, utilities and general office supplies.
The admissions of the defenders, inside and outside DeLay's legal team, seem to be a major problem for them. DeLay in particular has been a touch careless about what he says; Think Progress is noting that the list of things he is explicitly admitting to on television while defending himself isn't exactly helpful to his case.
It seems fitting to end this with a link to WikiPedia's entry on 'Petard'.
