On Wednesday, September 28th, a Travis County, Texas grand jury, at the behest of county prosecutor Ronnie Earle, indicted House Majority Leader Tom DeLay (R-Tex.) on a conspiracy charge. The indictment alleged that DeLay, along with two others, conspired to violate a Texas election law that generally prohibits corporate contributions to the campaigns of candidates for state offices.

The gist of the charge alleges that the Texans for a Republican Majority PAC (TRMPAC) accepted $155,000 in corporate contributions and then sent a check, payable to RNSEC (the Republican National State Elections Committee which is part of the RNC) for $190,000. RNSEC then sent checks totaling $190,000 to seven Republican candidates for the Texas House of Representatives.

As a result of the indictment, Mr. DeLay stepped down as House Majority Leader in accordance with House Republican rules (not House rules as many observers mistakenly reported).

According to the Austin American-Statesman (the Statesman), on Friday, September 30th, when questions arose about whether the conspiracy statute could be applied as used in the indictment, Earle presented new charges. As the grand jury that had presented the original indictment was no longer sitting, Earle took his case to another grand jury working on its last day and attempted to get a new indictment.

No luck; this second grand jury declined to indict.

No problem; Ronnie Earle would simply take the case to a third grand jury.

The following Monday, October 3rd, DeLay’s attorney, Dick DeGuerin filed a motion to dismiss arguing that the conspiracy charge rested on language that wasn’t part of the law until 2003. This would be a problem for the prosecution as the alleged conspiracy was said to have occurred in 2002.

Meanwhile, according to Ronnie Earle’s own statements, the prosecution uncovered new evidence over the weekend that allowed it to go to a third grand jury with the money-laundering and conspiracy charges. Hours later, this third grand jury, working on its first day, came through for Earle and presented a revamped indictment now charging the two counts, with the conspiracy charge now including money laundering as a purpose of the conspiracy.

As to the charges against Tom DeLay, just what does Ronnie Earle have to go on? Applying what we know against the elements of the crimes charged the obvious answer is: Not much.

What follows is a brief review of the charges as laid out in the second indictment. Although not confirmed, I am assuming the second indictment has superseded and replaced the first. In any event, much of the analysis of the first count would also apply to the conspiracy charge contained in the first indictment.

Along with Tom DeLay, the second indictment, like the first, names as defendants John Colyandro and James Ellis. John Colyandro was the Executive Director of TRMPAC while Jim Ellis was a consultant and headed DeLay’s national PAC. The first count of that indictment charges the three with criminal conspiracy as follows:

§ 15.02(Criminal Conspiracy). (a) A person commits criminal conspiracy if, with intent that a felony be committed:

(The indictment alleges that the felonies are: (a) a violation of Texas Election Law and (b) the money laundering of over $100,000 funds)

(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense;

(The indictment alleges that these actors are: Tom DeLay, John Colyandro, Jim Ellis, TRMPAC and the RNC)

and
(2) he or one or more of them performs an overt act in pursuance of the agreement.

(The indictment alleges the people performing the overt acts are: Colyandro, Ellis and the RNC)


The original indictment alleged a conspiracy to commit a violation of the Texas Election Code, namely that corporate contributions were made, albeit indirectly, to candidates for the Texas House of Representatives. However, that indictment did not also charge an actual violation of the Texas Election Code. In Texas, the Attorney General (AG) has prosecutorial authority over election law violations. The AG can, however, direct the county or district attorney serving the county in which the offense is to be prosecuted to prosecute an offense. Presumably, the AG has not done so in this instance.

The second indictment tries a different tact from the first. While maintaining the violation of the Election Code as an underlying felony for the conspiracy, the indictment also alleges a felony money laundering charge as a purpose of the conspiracy (and for which there is no doubt the law was applicable in 2002).

As specific as the indictment is in outlining exactly what Colyandro and Ellis are alleged to have done, so is the document totally lacking in specifics as to any hint of how and when DeLay became involved in any conspiracy. Count 1 merely alleges that DeLay agreed with the parties listed above that someone should commit the crimes charged. Nowhere does it describe the where or when of DeLay’s so-called agreement and there has been no public acknowledgement of what the State believes are the circumstances behind DeLay’s involvement. In fact, after merely alleging his agreement to the conspiracy, the name “Thomas Dale DeLay” does not come up again in Count 1.

What does come up is 13-step timeline of the actions supposedly taken in furtherance of the conspiracy. Assuming this timeline is, in fact, accurate, we learn that Colyandro had apparently decided TRMPAC would contribute $190,000 to RNSEC and had produced a check towards that on September 10, 2002. Only after Colyandro produced this check did Ellis contact Terry Nelson of the RNC (the next day, September 11) and suggest that RNSEC give money to Republican candidates in Texas – hardly an audacious request since RNSEC is, after all, in the business of helping Republicans win state elections.

Years ago, Judge Learned Hand described conspiracy as “the darling of the modern prosecutor’s nursery”. His description is a gross understatement as it applies to Ronnie Earle. Reading the indictment, one can at best infer only an agreement between certain parties to perform several legal transactions…and absolutely no hint that Tom DeLay was in anyway involved.

The second count of the indictment charges the three with money laundering which is described as follows:

§ 34.02. Money Laundering . (a) A person commits an offense if the person knowingly:
(1) acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of
criminal activity;
(2) conducts, supervises, or facilitates a transaction involving the proceeds of criminal activity; or
(3) invests, expends, or receives, or offers to invest, expend, or receive, the proceeds of criminal activity or funds that the person believes are the proceeds of criminal activity.

This charge has led to a lot of head scratching. I’m guessing Earle is including this charge only because he thinks he might need it. If the alleged conspiracy on the election law violation charge doesn’t go forward as noted earlier then he’ll need another felony to support the conspiracy charge. Hence, the felony of money laundering. (Previously, a grand jury had handed down indictments charging money laundering against Colyandro and Ellis.)

According to the indictment, the criminal activity from which the proceeds derived was the transfer of $190,000 from RNSEC to seven candidates for the Texas House of Representatives. But the money in the hands of the RNSEC was certainly legitimate money. The RNSEC did not obtain the funds through nefarious methods. So how can the funds be deemed the “proceeds of a criminal activity”. If, as the indictment claims and Ronnie Earle would have us believe, the transfers by the RNSEC were unlawful, then it follows that the proceeds become “of a criminal activity” only in the hands of the candidates and not before. In other words, you don’t launder money by using it in a criminal activity; you launder money by using it in a legitimate activity…after it has been received in a criminal activity. Someone should sit down and explain this timeline of money laundering to Ronnie Earle.

Corporations give money to TRMPAC. TRMPAC gives money to the RNC. The RNC gives money to a candidate’s campaign. If any of this was illegal, then that was a well-kept secret because similar transactions were a common occurrence on the other side of the aisle. As first reported by the American Spectator: “on October 31, 2002, the Texas Democratic Party sent the Democratic National Committee (DNC) $75,000, and on the same day, the DNC sent the Texas Democratic Party $75,000. On July 19, 2001, the Texas Democratic Party sent the DNC $50,000 and, again on the same day, the DNC sent the Texas Democratic Party $60,000. On June 8, 2001, the Texas Democratic Party sent the DNC $50,000. That very same day, the DNC sent the Texas Democratic Party $60,000.” Conspiracy requires intent to commit a felony and there can be no intent here if no one knew it was a felony.

A common observation after the first indictment came down was that while the indictment was certainly bad news; the good news was that the prosecutor was Ronnie Earle. A brief outline of his prosecutorial record easily supports a circumstantial case charging him with personal and political partisanship. He has a well-documented record of using his office to go up against people that just happen to also be political opponents. He’s just not very good at it. Notable indictments that failed to lead to convictions include Senator Kay Bailey Hutchison in 1994 and then-Attorney General Jim Mattox in 1983. It appears he’ll soon be adding another name to that list.