Partisanship Drives Delay's Case Once Again

J. Gerald Hebert
Sep 26, 2013
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In yet another display of the Texas judiciary's overt partisanship in the legal saga over Tom DeLay's alleged money laundering scheme during the 2002 Texas elections, a court of appeals overturned DeLay's conviction last Thursday.

Disappointingly -- yet perhaps unsurprisingly -- the court of appeals' decision split along partisan lines. The two Republican judges, Melissa Goodwin and David Gaultney, found that there was insufficient evidence to support the jury's 2010 guilty verdict. But as Chief Justice J. Woodfin Jones (a Democrat) noted in his dissent, there was evidence from which rational jurors could find that DeLay and two of his associates illegally funneled corporate funds to candidates for Texas offices and DeLay's guilt was a decision for the jury to decide.

The case revolved around a 2002 transaction. Texans for a Republican Majority (TRMPAC), a political committee with which DeLay was closely associated, received hundreds of thousands of dollars from corporations during the 2002 election cycle. Under state election laws, TRMPAC could use these corporate funds for limited purposes, such as supporting campaigns outside of the state. The funds could not, however, go to candidates for elected office in Texas because of a state ban on corporate contributions to candidates in the state.

In a money exchange that almost undoubtedly sought to circumvent the prohibition on corporate contributions, TRMPAC sent a $190,000 check to the Republican National State Elections Committee (RNSEC) in September 2002, using corporate funds. Less than three weeks later, RNSEC distributed exactly $190,000 to seven candidates in Texas. Christine Iverson, the Republican National Committee's spokeswoman, said in 2004 that it was merely a "coincidence" that the amount RNSEC received from TRMPAC was exactly the same amount RNSEC paid to Texas candidates.

Perhaps realizing this was not a credible claim, DeLay's attorneys argued in court that the transaction was legal because the $190,000 that RNSEC paid to Texas candidates came from a separate account than the one in which RNSEC deposited the corporate funds from TRMPAC, and the corporate funds were not transferred to TRMPAC with the intent that those funds would go to Texas candidates. But it isn't hard to see that, through this dollar-for-dollar exchange scheme, DeLay and his associates flagrantly disregarded the state's campaign finance laws and sought to make an end-run around the prohibition on corporate contributions to candidates for Texas office by accepting illegal contributions from corporations. If a jury found sufficient evidence that this is what happened, that's illegal under Texas law.

The twelve jurors selected to hear the case apparently did find such evidence. After a three-week trial, in which they heard from over forty witnesses, the jurors deliberated for nineteen hours before returning their guilty verdict. Despite their careful consideration of the case, however, the appeals court reversed the decision on Thursday.

In the majority opinion, the judges appeared to ignore the near-sacred role of juries in our criminal justice system -- the role of determining which witnesses to believe and how to weigh the facts. In doing so, the judges supplanted the jurors' judgment for their own. For instance, the judges suggested that there was no evidence that the corporations transferred the funds with the intent that they be used for Texas candidates' campaigns, noting that the corporations' representatives had all testified that they made their donations to TRMPAC with the intent that the money be used for lawful purposes. But it was up to the jury to decide what the corporations intended. It is not hard to fathom that a jury would be skeptical about the testimony of those who may have participated in an illegal transaction and there was other evidence from which the jury could have inferred an intent, on the part of corporations, to transfer the funds illegally.

Unfortunately, the partisan decision may not come as much of a surprise to those who have been following the case. Partisanship has permeated the case from its beginning. For instance, DeLay's attorneys fought hard in 2005 to oust Texas District Court trial judge Bob Perkins from the case because Perkins, a Democrat, had contributed to Democratic organizations. But Perkins' removal from the panel only meant that Judge B.B. Schraub, a Republican who had contributed to Republican organizations, would appoint Perkins' replacement. Thus, in a game of "judicial hot potato," the Democratic prosecutor then sought Schraub's removal. That left Chief Justice Wallace Jefferson, a Republican whose campaign treasurer in 2002 was also the treasurer for TRMPAC, the job of appointing a replacement. Jefferson ultimately appointed Pat Priest, a Democrat from San Antonio, to the case. (Despite all of the judicial hot potato, surprisingly no one has pointed out that appellate judge Melissa Goodwin, who wrote the decision overturning DeLay's conviction, agreed to a $2,050 civil penalty in 2011 after the Texas Ethics Commission found "credible evidence" that she had violated the Texas Election Code by accepting too much money from her parents-in-law.)

Perhaps more disappointing than the extreme partisanship involved in the court of appeals' decision, however, is some of the commentary that has followed it. Some have suggested that the court reached the proper decision, in part, because both Democrats and Republicans have engaged in "money swaps," in which corporate funds (or soft money) are swapped for individual funds (or hard money). The court of appeals' opinion even noted DeLay's contention that trading corporate funds for individual funds was "commonly done by both political parties at that time." Yet, while it may be true that "shady dealings happen all the time in both parties," the fact that both parties break a law does not make DeLay's scheme legal.

Our country's campaign finance laws exist to protect the integrity of our elections system and, consequently, the integrity of our democracy and our faith in our government. Those laws are significantly undermined when partisan politics prevent their enforcement. On Thursday, those laws took a major blow when the judges voted along partisan lines to overturn a jury's considered decision that DeLay was guilty of laundering illegal corporate contributions during the 2002 elections. The Travis County District Attorney's office should appeal that decision to the Texas Court of Criminal Appeals and that court should reinstate the jury's verdict and vindicate the public's interest in ensuring that politicians are not allowed to circumvent the law.

J. Gerald Hebert is executive director and director of litigation at the Campaign Legal Center. This opinion piece originally ran in The Huffington Post on September 26, 2013.

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