The decision by the 3rd Court of Appeals exonerating former U.S. House Republican Majority Leader Tom DeLay of all wrongdoing likely brings closure to a shameful prosecution that should never have happened. It would not have happened had Ronnie Earle not stretched, twisted and contorted the law as he pursued DeLay with an obsession like that of Police Inspector Javert in Les Miserables.
Why did he do it? Perhaps Earle, the former Travis County district attorney, actually believed his soaring rhetoric about corporate money corrupting America’s political system. The cynic would say it was something more crass or devious … political partisanship, the national spotlight or personal ambition. Whatever his motives, all he ultimately accomplished was destruction of the political career and finances of an innocent man.
Earle was pushed and prodded by Craig McDonald, director of Texans for Public Justice, a one-man operation funded by personal injury lawyers and George Soros. McDonald’s sole function is to expose anything he thinks might be an ethical lapse by a Republican. He was no stranger to Earle’s office.
The facts in the case are generally uncontested. In August 2001, DeLay helped organize a general purpose political committee named Texans for a Republican Majority, or TRMPAC, with the stated purpose of helping finance Republican candidates for public office. TRMPAC received both corporate and individual checks and kept them in segregated accounts.
Texas political committees keep these accounts separate because Texas limits the use of corporate money. Corporate donations can be used for many purposes, but a direct corporate donation to a candidate is prohibited.
In September 2002, TRMPAC legally sent $190,000 from their corporate account to a national political committee. Over the next two months, the committee legally sent non-corporate checks totaling more than $400,000 to various Texas candidates. Although this was a common practice of groups affiliated with both political parties, McDonald filed a complaint against DeLay with Earle.
Three years passed, and just days before the statute of limitations would have expired, Earle presented his case to a grand jury, but it failed to act. He took it to another grand jury, and they “no-billed” DeLay. Earle finally convinced a third grand jury to indict DeLay for money laundering.
Almost five years later, the case went to trial, and a jury found DeLay guilty. On Sept. 19, the 3rd Court of Appeals in a clear, well-reasoned opinion set aside the verdict and rendered judgment of acquittal. But for the political overtones, the decision was neither groundbreaking nor legally significant.
Fans of the television program “Breaking Bad” know what constitutes money laundering. Walt manufactures crystal meth and is paid for his illegal activity. His wife, Skyler, declares the money as income on the books of their car wash business, which is then transferred to them as profits of that legitimate business.
To be illegal, the laundered money must be obtained illegally. If a friend gives Skyler money for Walt’s cancer treatment and she deposits it into the business, there is no crime. Since TRMPAC’S money was legally obtained, there was no crime.
The jury struggled with that issue. During deliberations they twice asked the judge if a person could be guilty of money laundering if the money wasn’t originally procured by illegal means. At the urging of the prosecutor, the judge declined to directly answer their question.
The appeals court noted that the answer was clearly no and the judge should have properly advised them. The jurors were confused about the law, attempted to gain clarification and were denied the information.
District Attorney Rosemary Lehmberg has publicly criticized the court’s decision, claiming the justices substituted their opinion of the facts for the jury’s. Like so many of the public pronouncements coming out of the DA’s office throughout this case, the statement is wrong, misleading and disingenuous.
Earle prosecuted DeLay for violating what Earle thought the law should be, not what the law is. The facts he proved did not constitute a crime. He produced smoke, but no fire.
Reasonable people can believe that transactions like these between political committees should be illegal, but that is a legislative decision, not a prosecutor’s decision. We are a nation of laws, and it is prosecutorial misconduct for a district attorney to target a politician he dislikes, accuse him of a crime that doesn’t exist and use the powers of his office to professionally and financially destroy him.
When the next Legislature convenes and considers the funding and governance of the Public Integrity Unit, Earle and Lehmberg will have much to explain.
Smith, an Austin lawyer, is a former Texas legislator and worked on the gubernatorial staff of Gov. George W. Bush and for former House Speaker Tom Craddick.