October
3, 2005
Prosecutorial Politics
By Michael
Barone
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.
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Continues Below
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.
©
Copyright 2005 Creators Syndicate
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