I am not shedding any tears over the conviction of former House Republican Majority Leader Thomas DeLay's conviction on money laundering charges earlier this week. His brand of politics leaves me cold. But I nonethelss shudder every time I see a defendant toppled by a novel application of the law. Prosecutors aren't supposed to be creative. Due process requires that we conform our conduct to the requirements of law, not prosecutorial fancy. Tom DeLay just got blindsided.
DeLay was convicted earlier this week of money laundering in a Texas courtroom. A jury of 12 bought the state's theory that DeLay had obtained money illegally and then sought to hide it by unlawful means. This is the first time Texas prosecutors tried this theory on for size in a campaign financing case. They rejected an earlier and simpler theory that DeLay had conspired to break campaign finance laws as unprovable.
The case turned on a $190,000 check that DeLay's state political action committee gave to the Republican National Committee. The funds were donated by corporations hoping to catch DeLay's attention. Once the money hit the RNC books in Washington, a DeLay operative also gave the RNC paymasters a list of state lawmakers and the amount to be given to each. Six of the seven state lawmakers won close races, and Texas congressional districts were redrawn. At the next election, Texas returned a bunch of Republicans to Congress, and DeLay's stock rose.
DeLay was convicted of money-laundering, the same sort of crime drug dealers and organized crime figures engage in when they funnel money from illegal activities into legitimate enterprises in an effort to cover their tracks.
Our Supreme Court has ruled that a corporation is entitled to as many votes as its money can buy, so it is hard to see just how DeLay's activities can be held to be the equivalent of a Mexican drug lord's. I suspect that DeLay's conviction will be overturned on appeal. The law permits politicians to line up at corporate troughs and begin their recitation of the Pledge of Allegiance with a heart-felt barnyard call for pork.
DeLay was quick to denounce the prosecution as a political payback by a Democratic prosecutor. From afar, it is hard to reject the notion out of hand. Who gave the merciless nitwit of a prosecutor, Rosemary Lehmberg, the right to make up the law as she goes along? "This was about holding public offices, ... no one is above the law," she bleated.
But who protects us from prosecutors? Texas first considered pursuing a conspiracy case, and then decided the case was unprovable. So it changed course and then rewrote the law on Tom DeLay's back. Was the jury told this is what happened? Or did the judge keep from the jury the ability to decide whether we ought to legislate by indictment?
I don't like Tom DeLay, and, frankly, would rather that he spend the next decade in a prison than in politics. But I trust prosecutors even less. Due process requires laws clear enough for persons of ordinary intelligence to understand that what they are doing is prohibited. I doubt that the conviction of Tom DeLay was based on such a theory. Frankly, it looks like politicas as usual: money bundled and repackaged for distribution from corporate fat cats to political wannabes eager to please. A creative prosecutor dreamed up something new under the Sun and then used her creation to blind a jury. That's simply wrong.
DeLay was defiant on the courthouse steps after his conviction. His remarks got it half right: "The criminalization of politics undermines our very system," he said. Sort of. Letting corporations spend freely to buy votes encourages politicians to behave like little more than pimps. What undermines our system is overcriminalization -- the yielding to prosecutors the right to dream up new and novel legal theories to pursue any one of us for conduct that was perfectly legal on Monday, but became a crime Tuesday morning, as prosecutors shrieked "Eureka!" upon seeing a whole new class of defendants to prosecute.
I am rooting for a reversal of this conviction.