Prosecutorial politics

Posted: Oct 03, 2005 12:00 AM

Tom DeLay has been indicted by a Travis County grand jury under the direction of District Attorney Ronnie Earle in Texas for conspiracy to violate Texas campaign finance laws and has stepped down, "temporarily," he says, as House majority leader, as required by House Republicans' rules.

 This is political dynamite. House Minority Leader Nancy Pelosi was quick to charge Republicans with a "climate of corruption," and other Democrats will point to the recent indictments of a White House procurement official and of Republican lobbyist Jack Abramoff, on unrelated charges, as further instances of such a climate.

 DeLay charged Earle with abuse of prosecutorial discretion. "These charges have no basis in the facts or the law. This is just another example of Ronnie Earle misusing his office for partisan vendettas." I am inclined to agree with DeLay, though I remain open to persuasion as more facts are produced and the law becomes clearer.

 In the first place, the brief indictment does not say that DeLay did anything to forward the conspiracy, only that he entered into it with two longtime aides who are then accused of violating Texas law. A conspiracy charge does not have to allege that the defendant did something to further the conspiracy, but such charges usually do.

 Second, it is by no means clear that DeLay's associates violated the Texas law. Texas campaign law prohibits corporate contributions to state candidates. The charge is that DeLay's associates collected corporate contributions, sent them to the Republican National State Elections Committee, "a nonfederal component of the Republican National Committee," and that the RNC or the RNSEC sent about the same sum of money back to Texas candidates -- "exchanged" the money, in Earle's words at his press conference. But, unless DeLay's aides proceeded without legal advice -- highly unlikely these days for operatives of either party -- they were contributing money to a committee entitled to take and spend corporate cash, and then a committee that took only individual contributions sent money back to Texas candidates.

 That's not illegal unless the Texas law expressly forbids it. It is a general legal rule that criminal laws are narrowly construed, against the government. If the government wants to criminalize conduct, then it must do so very clearly. Otherwise, a citizen could be sent to jail for doing things he had no way to know were criminal.

 Was Earle acting out of political malice? There's strong evidence for that proposition, including some of his own recent public statements. It's true, as Earle's defenders say, that he has prosecuted prominent Texas Democratic officials and has gotten convictions in many of these cases. But when he first came to office and for many years afterward, there were very few Republican public officials in Texas, and the main political conflict was between liberal Democrats like Earle and moderate and conservative Democrats.

 Also, the fact that a prosecutor has successfully brought valid prosecutions does not guarantee that he has never brought prosecutions in cases in which no one ever should have been charged.

 One such case, in my judgment, was brought by Earle against Sen. Kay Bailey Hutchison in 1993. Hutchison had just been elected to the seat held for years by Democrat Lloyd Bentsen and seemed set to win the race for a full term in 1994. Most of the charges against Hutchison were dismissed before trial, and Earle dropped the remaining charges. Earle may well have been serving the public interest by prosecuting other politicians. But the Hutchison case looked then and looks now very much like an abuse of prosecutorial discretion.

 In the short run, and quite possibly the long run, the DeLay indictment will hurt Republicans nationally and give the Democrats ammunition to charge the Republican Party with corruption. But if my tentative view of the case is right, it also raises serious questions about the place of local prosecutors in our politics.

 American prosecutors are mostly selected through the political process. Most state district attorneys are elected on partisan ballots -- United States attorneys are typically picked by the state's senior senator of the president's political party.

 I have known many prosecutors, state and federal, of both political parties, and have found them all to be very much aware of the huge power that they have in their discretion to bring criminal charges against people involved in politics and determined to wield that power impartially and fairly.

 Mostly, I think, American prosecutors have done so. Ronnie Earle seems to be an exception.