The spin coming from Tom Delay and his allies suggests that his indictment is a hollow sham. The reality is that the case is strong, and “the Hammer” may end up in the Slammer.

Delay had the motive: He wanted a Republican takeover of the state legislature so he could engineer a GOP-friendly re-districting, replacing several Democratic Congressmen with Republicans.

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   A defendant-friendly judge has ruled in a civil suit that the treasurer of TRMPAC, Delay’s state PAC, had violated the law by failing to disclose more than $600,000 in corporate money.

Delay had the opportunity: He had the ability to collect and launder corporate contributions (illegal under Texas law) through his national PAC into his state PAC for redistribution to GOP candidates for the state legislature.

And District Attorney Ronnie Earle has the evidence: Thanks largely to an under-reported civil suit won by Democratic lawmakers who lost their seats to the now well-financed Republicans. Their suit led to a judicial finding that Delay’s scheme violated state law, and it uncovered documents directly implicating Delay in the conspiracy.

Delay charged that “this is one of the weakest, most baseless indictments in American history,” and he called Earle an “unabashed partisan zealot.” He added, “Let me be very, very clear. I have done nothing wrong. I have violated no law, no regulation, no rule of the House.”

Despite the bravado, a civil case litigated earlier this year in Texas must worry Delay and his supporters. Although Delay was not a defendant, the guilty verdict and the found documents portend a less than happy outcome.

BELOW . . . Has someone turned?

WHY ONLY THE CONSPIRACY CHARGE?

D.A. Ronnie Earle has come under fire for charging Delay with conspiracy, a tactic sometimes used by prosecutors who lack a solid criminal case. But a lack of county jurisdiction prevented Travis County prosecutors from claiming that Delay violated state election code. The district attorney in Delay’s home county is a Republican who expressed no interest in pursuing Delay. The conspiracy charge falls under criminal rather than election statutes, and may be brought in another county.

THE CIVIL SUIT’S TROUBLING IMPLICATIONS FOR DELAY

On May 27, 2005, Texas State District Judge Joe Hart issued a ruling that received scant attention in the national media but that now could result in harsh consequences for Tom Delay.

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   Perhaps more troubling for Delay than the negative verdict in the civil case is the volume of documents it produced, some clearly contradicting his claim that he was never involved with the day-to-day operations of TRMPAC or in soliciting corporate contributions for it.

Judge Hart — requested by the defendant to hear the case — declared that Bill Ceverha, TRMPAC’s treasurer, had violated the law by failing to disclose more than $600,000 in corporate money spent to help elect state GOP legislators. He ordered Ceverha to pay $196,660 in damages plus legal fees to five defeated Democratic candidates who brought the suit. Technically, this case has no bearing on the pending criminal indictment, but underlying issues presented in the civil suit are the same as those that form Ronnie Earle’s criminal prosecution.


A former Democratic congressman, targeted and defeated by Delay last year, said that “a highly respected judge has now confirmed what most of us know already. Tom DeLay’s TRMPAC enterprise was corrupt and illegal at its core.” Martin Frost added, “[T]he trail to illegal and unethical activity starts and ends with Tom DeLay.”

The Austin-American Statesman summarized the case:

… State law generally prohibits corporate or union money from being spent in connection with a campaign, though it can be spent to establish a political action committee and pay for its overhead.

Texans for a Republican Majority raised more than $600,000 in corporate money, most of it from Washington lobbyists, and spent it on consultants, fundraisers, pollsters and phone banks. Ceverha’s lawyer, Terry Scarborough of Austin, argued that none of that money had to be reported to the Texas Ethics Commission because it wasn’t used to “expressly advocate” the election or defeat of candidates.

Hart rejected the free speech argument. He said a political action committee, regulated by the state, must report its money because it is created to raise and spend political donations to support or oppose candidates.

The defense for Ceverha also had argued that there was no direct evidence — paper records, for example — to prove that the intent of the corporate donors was to spend their money directly on political races.

But Hart wrote that there is “overwhelming evidence” that allowed him to infer the intent of donors. He cited the committee’s own written promises to donors that “every dollar you contribute will go directly toward helping win the tough races in November…”

Former Gov. Bill Clements, a Republican, appointed Democrat Hart to the bench in 1982. Hart, who took senior status in 1999, hears cases only on special assignment. Ceverha’s lawyers had requested that he hear the lawsuit….

Attorney Dave Richards believes that “the Delay indictment … flows directly out of the civil case [that] Joe Crews, Chris Feldman and I tried in Travis County earlier this year against TRMPAC. I feel reasonably confident that the ruling we obtained encouraged the district attorney to go after Delay.”

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   Two of the indicted corporations, Sears Roebuck, Co. and DCS Inc. have “flipped,” and cooperated with the District Attorney.

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Ronnie Earle dismissed charges against DCS — and other corporations — after they agreed that Texas prohibits corporate political donations because “they constitute a genuine threat to democracy.”

“One of the core allegations in the civil suit against TRMPAC, Colyandro, Ellis and Cerveha,” continues Richards, “was the laundering of $190,000 of corporate dollars through TRMPAC to the Republican National Committee, and back to GOP legislative candidates in Texas. This $190,000 forms the basis of the DeLay indictment. TRMPAC was created by Delay as a mirror of his national organization. It was run by his aide Ellis. Its sole purpose was to elect GOP legislators who would enable Texas congressional redistricting. Judge Hart in our civil case found that the $190,000 was indeed returned to Texas and placed into Republican legislative races”

An attorney friend points out that “the burdens of proof are different in civil cases than they are in criminal cases.” He says that “the civil standard is ‘preponderance of evidence’ versus ‘beyond a reasonable doubt’ in a criminal case. The prosecution is going to have to prove its case anew.” But, he adds, “Obviously, it’s a no-brainer. “When you see someone else winning the same type of claim that you’re planning to litigate, it’s a happy time.”

Perhaps more troubling for Delay than the civil verdict are the documents the case produced, some contradicting his claim that he wasn’t involved in day-to-day operations of TRMPAC or didn’t solicit corporate contributions.

Several documents were described in the August 26, 2005 issue of The Texas Observer, including e-mails from Drew Maloney, a former DeLay legislative director turned lobbyist:

[Maloney writes] that he will be delivering “2 checks from Reliant” to “TD” (Tom DeLay). The circumstances under which DeLay sealed the Reliant deal earned him a rebuke from the U.S. House ethics committee in 2004. In early June 2002, DeLay held a two-day golf tournament at the Homestead resort in Hot Springs, Virginia. The cost of attending the event was a corporate contribution of $25,000 to $50,000. Five energy companies were invited by Maloney to attend: El Paso Corp., Mirant, Reliant Energy, Westar Energy, and Williams Companies. (DeLay’s dealings with Westar would earn a separate rebuke from the committee.]

The Texas Observer also cites an August 2002 document subpoenaed from indicted fundraiser Warren RoBold:

Mr. RoBold asked for a list of 10 major donors to the committee, saying, “I would then decide from response who Tom DeLay” and others should call to help the committee in seeking a “large contribution.”

Another document is a printout of a July 2002 e-mail message to Mr. RoBold from a political ally of Mr. Delay, requesting a list of corporate lobbyists who would attend a fund-raising event for the committee, adding that “DeLay will want to see a list of attendees” and that the list should be available “on the ground in Austin for T.D. upon his arrival.”

A letter from Deborah H. Lawrence, vice president of Government Affairs for the Williams Co., was addressed specifically to Tom Delay at TRMPAC: “On behalf of the Williams Companies, Inc. I am pleased to forward our contribution of $25,000 for the TRMPAC that we pledged at the June 2, 2002 fundraiser.”

TRMPAC is very much Tom Delay’s creation. From The New York Times:

… According to published reports, Mr. DeLay envisioned Trmpac while driving around Texas with a colleague in 2001, at a time when the Democratically controlled Legislature was beginning to consider redrawing the state’s Congressional districts. Mr. DeLay decided then to begin a smaller-scale version of his successful national political action committee, known as the Americans for a Republican Majority, or Armpac, only the purpose of Trmpac would be to reverse the flow of power and money back to Texas. …

IS THAT ALL THERE IS? HAS SOMEONE TURNED?

A Texas attorney who knows his way around state politics said that Ronnie Earle “has a reputation for being a pretty straight shooter.” But, he continued, “I’d be shocked if he indicted Delay without having gotten someone to turn.” He pointed out that Earle had dropped charges against four of the indicted corporations and suggested this might signal that some, or all, had “turned” and are prepared to testify against Delay.

That view seems to be gaining acceptance. The New York Times reported that “lawyers and law enforcement officials in Austin speculated Wednesday that he must have obtained the cooperation of an important witness in deciding to bring charges.”

Thursday’s American Progress Report reported that the “addition of DeLay to the conspiracy charge yesterday suggests that some crucial piece of information or testimony may have come into Earle’s possession in recent weeks.” David Berg, a Houston-based trial lawyer said, “I can’t imagine somebody is not going to testify against [DeLay].”

And, significantly, The Los Angeles Times reported as far back as January 12th that two of the indicted corporations, Sears Roebuck, Co. and DCS Inc. have “flipped,” and were cooperating with the District Attorney. The Times reported that other deals were in the works:

…“Prosecutors in Travis County are building a case, with the newly found cooperation of some of the corporations, to press those already indicted to turn on those who gave them their marching orders probably in exchange for leniency.” “One legal source with knowledge of the investigation said the agreements with the companies could help target ‘big fish’ in the Republican Party by persuading the three DeLay aides to cooperate with prosecutors in exchange for leniency or dismissal of their cases. The aides face 10-year prison sentences if convicted.” ‘If you are looking at 10 … years in jail, are you going to take the hit for Tom DeLay?’ the source asked.”

INDICTED CORPORATIONS: CONTRITION DULY NOTED

There is indeed mounting evidence that at least a few of those indicted corporations are having serious second thoughts, and are not about to take a rap for Tom Delay. According to The New York Times, quoting Fred Wertheimer, an advocate of strict campaign finance laws, “This was a classic example of the DeLay system at work, because you had corporations who really weren’t interested in Texas politics giving large sums to Trmpac because they were interested in the power of House Majority Leader DeLay,”

When Ronnie Earle dismissed charges against Diversified Collection Services last December the company agreed that Texas prohibits corporate political donations because “they constitute a genuine threat to democracy.” Sears, Cracker Barrel, and Questerra all made similar stipulations when their indictments were dropped. (Still under indictment are Westar Energy which made a $25,000 contribution to TRMPAC; the Williams Company: $25,000; Bacardi: $20,000; and The Alliance for Quality Nursing Home Care Corp: $100,000).

THE GEORGE W. BUSH CONNECTION:

The New York Times points out an aspect of the indictment that might directly implicate the White House in Delay’s money-laundering scheme.

The indictment of Representative Tom DeLay on Wednesday put the Republican National Committee in an uncomfortable spotlight, saying a top political aide to President Bush was the funnel through which $190,000 in improper donations passed in 2002.

According to the indictment, Terry Nelson, the political director in the 2004 Bush re-election campaign, was the individual who received the $190,000 check, which was made out to a division of the R.N.C. That check is alleged to have included money illegally accepted from corporations

Mr. Nelson, the indictment says, simultaneously received a list of Republican candidates for the Texas State Legislature for whom the money was intended….

At the foundation of the criminal case is a fact stipulated by all sides: Mr. DeLay was …determined to win Republican control of the Texas House of Representatives in 2002. And he succeeded.

STAY TUNED

Only time will tell how this prosecution will turn out in the end, but one cannot help but wonder if Tom Delay is quite as confident as he claims to be about his prospects for acquittal. Unlike George Tenet’s assurances to George W. Bush about WMD, this is no “slam dunk” for Tom Delay.

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