AP, Kansas City Star
November 25, 2010
The conviction of Tom DeLay, once one of the most powerful Republican wheelers-and-dealers in Congress, marks the beginning of a lengthy and vehement appeals process that will seek to cleanse the name and record of the former House majority leader.
DeLay’s lead attorney, Dick DeGuerin, expressed confidence on Friday the Third Circuit Court of Appeals in Austin will rule in his favor because it has in the past. Add to that a varied assortment of available arguments, and DeGuerin and law experts say they’re convinced this is only the start of what will become a precedent-setting case.
“This is the first and only time that a prosecution like this has ever taken place in Texas. It’s totally unprecedented, and we believe we’re right,” DeGuerin said.
DeLay, once one of the most powerful and feared Republicans of the House, was convicted Wednesday of illegally funneling corporate money to Texas candidates in 2002. He faces up to life in prison on the money laundering conviction, and two to 20 years for the charge of conspiracy to commit money laundering. The sentencing is tentatively set to begin Dec. 20.
DeLay resigned due to the indictment and a separate federal investigation into his ties to former disgraced lobbyist Jack Abramoff, a probe that ended without any charges.
Some legal experts argue that such unprecedented cases immediately raise the interest of the appellate courts. Others, however, note that Texas’ conservative, largely Republican appellate courts do not have a strong record of siding with defendants.
“Statistically, he is going to be fighting an uphill battle,” said Philip H. Hilder, a former prosecutor who is now a Houston-based criminal attorney concentrating on white-collar cases.
The courts could see it as a “partisan fight” though, Hilder said.
“Then the courts are of his political persuasion,” he added. “But still, they would have to rely on precedent and they will have to really do back flips to do any favor to him.”
DeLay’s legal team had argued to change the venue of the trial from Austin, the most liberal city in one of the most Republican states, but DeGuerin indicated he will not likely rely on that in the appeals process.
The appellate court in Austin has previously ruled in DeLay’s favor – striking down the first indictment and parts of the second, an indication the court thinks DeLay had a valid argument, DeGuerin said. So while the criminal court of appeals overturned that decision saying the issues first had to be brought to trial, DeGuerin says the court’s previous ruling paved the way for support now that the trial is over.
“There was no crime. There was no crime,” DeGuerin insisted, explaining the legal argument he will make. “It was not criminal for there to be a money swap – that is for lawful money, collected from corporations for the national Republican party, and for the Republican Party to send money collected from individuals to the Texas Republican Party. That was not unlawful.”
Barry Pollack, a Washington-based white-collar criminal defense attorney, agreed this is the best argument, even though it didn’t convince the jury. Money collected by the national party is segregated between corporate contributions and individual donations, then redistributed to Texas candidates from the pot of money donated by individuals, Pollack explained.
“Typically, in money laundering, you can trace the laundered money directly back to the illicit money. Here, you can’t. What they’ve done is they’ve used different moneys,” Pollack said. “The way the government looks at that is that it’s very effective money laundering because you’ve managed to make it into a different set of money, but what you’ve done in effect, is complied with the law.”
DeGuerin is also looking to a U.S. Supreme Court decision from January that increased the political clout of corporations by ruling laws barring them from making political donations to candidates violate the First Amendment. He may argue the Texas law is unconstitutional and infringes on free speech.
Pollack agreed there could be an appeal based on the high court’s ruling, but said it would be more difficult to argue. If he had to make an argument, Pollack said he would focus on the idea that DeLay could not have known he was in danger of violating the law since he – and other Texas politicians – were confident the “party had carefully set up a system that would keep them in line with the law.”
“Without question, this was a very creative and aggressive prosecution,” Pollack said. “Any time a prosecution pushes the envelope and tests the boundaries as to how far the government can go in prosecuting particular conduct – that is exactly the type of situation that is going to grab the attention of an appeals court.”
Associated Press Writers Jeffrey McMurray in Chicago and Terry Wallace in Dallas contributed to this report.