Evaluating the case against DeLay

Boy, yesterday sure was fun, wasn't it? Breathe it in deeply, because it all gets hairier from here.

The first question, of course, is how does Travis County DA Ronnie Earle go from indictment to conviction? What kind of evidence does he have against The Hammer? The conventional wisdom suggests a canary.

"I can't imagine indicting a majority leader of the U.S. House of Representatives without having a smoking gun, and that means someone who flipped on DeLay," said Buck Wood, an Austin lawyer who filed a related civil lawsuit on behalf of Democratic congressional candidates. "He's got to have corroborating evidence, too, bills and things proving where DeLay was at key times."

[...]

DeLay was indicted, along with two political associates, by an Austin state grand jury Wednesday. The three were charged with conspiracy to violate a Texas election law that bars giving corporate money to candidates.

The brief indictment accuses DeLay's two co-defendants with specific acts such as collecting corporate contributions through a Texas political action committee. It says they sent a $190,000 check to a branch of the Republican National Committee with a list of Texas congressional candidates who were to get funding.

But all the indictment says DeLay did was "enter into an agreement" with one or both men to knowingly violate the election code. Earle must prove to a jury that DeLay agreed to a felony when he denies it.

Houston lawyer David Berg said the case against DeLay could possibly be proved with a lot of circumstantial evidence such as cryptic e-mail, hotel and travel bills placing him at meetings, and his "fingerprints" somehow on the transactions.

"But what a prosecutor wants is someone in the meetings. I think someone has to have rolled over on DeLay," Berg said.

He said prosecutor Earle has too much at stake to move forward without strong evidence. Earle has to be careful because he has taken heat over his public anti-DeLay comments and is marked by his failure to convict U.S. Sen. Kay Bailey Hutchison, R-Texas, some years ago, Berg said.

Attorneys familiar with the case said that key anti-DeLay cooperators, if they exist, could be co-defendants, insider Republicans or even witnesses from the contributing corporations.

My best guess is that it's the latter. Earle has already made some deals with indicted corporations, and I figure they're the most risk averse here. I have a hard time believing that someone who is not under indictment, say a Beverly Woolley, would roll on DeLay, since there'd be no pressure on them to compel their testimony. I'm not sure how to evaluate the likelihood of a codefendant (Jim Ellis or John Colyandro in this case, as they were also indicted on the conspiracy charges) cutting a deal. It feels too early in the process for that, but what do I know?

The Texas law invoked against DeLay is loosely worded and casts a wide net. It merely requires that a conspirator must intentionally agree with at least one person that they or someone else in the conspiracy will commit an act to further a felony.

University of Houston professor David Crump said the government is nevertheless going to have to show the jury, no matter how many Travis County Democrats are sitting on it, that DeLay did something to promote a campaign-fund transfer that was against the law.

"Yes, it's possible to have a conspiracy in which one conspirator didn't do anything but merely agreed. But I've never seen it happen in reality. The agreement can't be that passive or tacit," Crump said.

Crump said a "granddaddy of conspiracy cases" comes from moonshine charges. "Courts said delivering sugar, knowing it would be used for moonshine, just wasn't enough," Crump said. "They required an agreement with the intent to promote (moonshine production)."

So DeLay could argue that while he knew TRMPAC (which he helped to set up) might be used to do questionable things, he never agreed to participate or facilitate any of those things. I doubt he'd have much of a political career after mounting such a defense, but it does show that he has some rope to play out, since just being in the know won't be enough to convict him.

He'll do plenty of maneuvering before setting foot in a courtroom, of course. David Corn had a chat with crisis management expert Eric Dezenhall, and he provides a blueprint for the pre-trial defense.

"The first thing he must do," Dezenhall said, "is to realize that his objective is to get acquitted, not to look good. He must understand that damage control does not equal damage disappearance. He has to save what is save-able. He might not be able to save everything: his freedom; his political career, and his financial prospects. His life has changed; he has to focus on acquittal." At the same time, he added, DeLay has "to stick with his brand and fight back savagely." And will he depict himself as a martyr being crucified because of his devotion to the conservative cause? I asked. "What does he have to lose at this stage?" Dezenhall answered. "He has to dig in, stay in character and depict the indictment as unholy and agenda-driven. Show contrition? Nah, that's total horseshit."

Dezenhall also noted that from this day on, DeLay's target audience is the to-be-named-later jury that will hear the criminal case against him: "He and his advisers have to concentrate on what will work with a Texas jury. A media roadshow involving someone in a legal case never pays dividends. And DeLay is sufficiently divisive and that does not lend himself well to a careful TV interview. What does pay off is whipping up the preexisting prejudices of the the jury pool." While Dezenhall said that DeLay ought to "speak up within the confines of his brand," he noted that DeLay "is always vulnerable to coming off looking mean, and mean does not go well with juries." (Before DeLay became majority leader, Representative Curt Weldon, a GOP hawk, once observed, "We need someone who can go on national TV and present a good, positive image of the Republican Party and not a mean-spirited image.")

DeLay's team, Dezenhall continued, may also consider playing the leak game. With DeLay indicted on a conspiracy charge, it could be that Travis County DA Ronnie Earle flipped one of the coconspirators. There are several ways of establishing a conspiracy charge--say, obtaining memos or emails that lay out the conspiracy--but one clear way is by obtaining the testimony of one of the schemers. If Earle does have an insider spilling all, DeLay will need to undermine that witness--perhaps before any trial. This could lead to a "media game," Dezenhall said. "Things are leaked to get the person or people who were flipped. This will be done through leaks to the media. The point from DeLay's perspective is, don't love me, but hate him." Above all, Dezenhall added, DeLay has to proceed with the understanding that he "cannot get people to change their fundamental perception of him."

Link via Political Wire. If there is a flipper, I doubt it'll be long before his identity is known. That's just too hot to stay secret. For what it's worth, a correspondent to Kevin Drum claims it'll be Sears, one of the indicted corporations. We shall see.

Other news: Read how DeLay's attempt to name his own successor failed. These are fun days for the GOP House caucus, I'll bet. And I'm sure you will be shocked to learn that the man who did take DeLay's place as Majority Leader is also up to his sternum in sleaziness.

Almost, I'm sure, as shocked as you were to learn that Senate Majority Leader Bill Frist is also in deep doodoo for some mighty convenient stock sales. It's almost like there's a culture of corruption surrounding these guys or something.

Well, when you've recovered from all that shock, go pay a visit to Juanita and enjoy a little more schadenfreude. You've earned it.

Posted by Charles Kuffner on September 29, 2005 to Scandalized! | TrackBack