Tom DeLay Is Still Guilty

Just not in the way that matters most.

Newly elected House Speaker Newt Gingrich of Georgia, left, talks with future House Majority Leader Dick Armey of Texas, right, and future House Majority Whip Tom DeLay of Texas, before meeting reporters on Capitol Hill on Tuesday, Dec. 6, 1994. The Republican congressional leaders announced the members of the Republican Steering Committee. (AP Photo/John Duricka)
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Alex Seitz Wald
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Alex Seitz-Wald
Sept. 19, 2013, 11:35 a.m.

The real scan­dal, as the ad­age goes, is what’s leg­al, and the fact that an Ap­pel­late Court in Texas on Thursday over­turned the con­vic­tion of former House Ma­jor­ity Lead­er Tom DeLay doesn’t mean that what he did was kosh­er.

DeLay was found guilty of money laun­der­ing in 2010 for tak­ing cor­por­ate “soft-money” dona­tions and swap­ping them for un­res­tric­ted “hard money” be­fore dis­trib­ut­ing the cash to state le­gis­lat­ive can­did­ates in Texas. Cor­por­a­tions are not al­lowed to donate dir­ectly to can­did­ates un­der state law.

But Thursday, the Texas Third Court of Ap­peals in Aus­tin ruled “the evid­ence was leg­ally in­suf­fi­cient to sus­tain DeLay’s con­vic­tions.” Es­sen­tially, the ma­jor­ity ruled, pro­sec­utors hadn’t proved bey­ond a reas­on­able doubt that the dona­tions were in­ten­ded to be used for im­prop­er pur­poses, so the money wasn’t dirty to be­gin with and thus wasn’t laundered.

From the opin­ion over­turn­ing the con­vic­tion:

DeLay did not dis­pute any of the trans­fer-of-funds trans­ac­tions or that the Elec­tion Code pro­hib­ited cor­por­a­tions from mak­ing cam­paign con­tri­bu­tions to Texas can­did­ates. DeLay’s de­fens­ive the­ory, among oth­ers, was that none of the trans­fers was il­leg­al—that they were struc­tured to com­ply with the cam­paign fin­ance laws—and, there­fore, there were no pro­ceeds of crim­in­al activ­ity to sup­port money laun­der­ing or the con­spir­acy to com­mit money laun­der­ing. He con­ten­ded that trad­ing soft money for hard money was leg­al and com­monly done by both polit­ic­al parties at that time.

In oth­er words, DeLay doesn’t dis­pute the fact that he laundered money in the col­lo­qui­al sense of the word, only that he laundered money in the crim­in­al sense. The law was clearly in­ten­ded to pro­hib­it cor­por­ate dona­tions to can­did­ates, but it was writ­ten in such a way that it left a loop­hole DeLay was able to use to turn il­leg­al con­tri­bu­tions in­to leg­al ones through a few quick bank trans­fers.

And even that con­ten­tion is dis­put­able, as Chief Justice Wood­fin Jones noted in his dis­sent. It’s easy to con­clude that “rel­ev­ant cor­por­ate con­tri­bu­tions to [DeLay’s PAC] were made with the in­tent that they be used to sup­port in­di­vidu­al can­did­ates or be put to oth­er pur­poses not au­thor­ized [by the law],” Jones wrote. For in­stance, bro­chures and mar­ket­ing ma­ter­i­als used to so­li­cit dona­tions for the PAC in­cluded state­ments such as: Tex­ans for a Re­pub­lic­an Ma­jor­ity “is fo­cused on rais­ing and giv­ing funds dir­ectly to Re­pub­lic­an can­did­ates for state house, state sen­ate, and po­ten­tially all statewide of­fices.”

The truth is, DeLay is right—shady deal­ings hap­pen all the time in both parties, and the vast ma­jor­ity of those in­volved will nev­er go to pris­on or even get in­vest­ig­ated. And now, after the Su­preme Court’s rul­ing in the Cit­izens United case, most of the re­stric­tions on cor­por­ate con­tri­bu­tions have been lif­ted any­way.

But for cam­paign fin­ance re­formers, DeLay’s con­vic­tion was a rare ex­ample of a broken sys­tem ac­tu­ally hold­ing someone ac­count­able, an im­port­ant ex­ample to every­one in polit­ics that even one of the most power­ful men in Wash­ing­ton was not above the law.

“Dur­ing his time in Con­gress, no one did more to un­der­mine fed­er­al and state cam­paign fin­ance laws than Tom DeLay. It is de­plor­able that an Ap­pel­late Court has over­turned Mr. DeLay’s fair and just con­vic­tion on money-laun­der­ing charges,” Melanie Sloan, the ex­ec­ut­ive dir­ect­or of the good gov­ern­ment group Cit­izens for Re­spons­ib­il­ity and Eth­ics in Wash­ing­ton said in a state­ment. “It is a sad day for all Amer­ic­ans when Tom DeLay—one of the most cor­rupt politi­cians to ever walk the halls of the Cap­it­ol—once again slith­ers away.”

Now, DeLay serves as an ex­ample of what $12 mil­lion in leg­al fees can buy you.

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