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One indictment against TAB tossed

A state district judge has thrown out one of the four indictments against the Texas Association of Business for activities related to the 2002 election.

District Judge Mike Lynch ruled that 2002 pre-election ads produced by the group did not expressly advocate the election or defeat of Texas legislative candidates. Travis County prosecutors had said the group broke state election law by using corporate money to support candidates.

Lynch’s ruling put in doubt two other similar indictments pending against the organization by also discounting prosecutors’ alternative theory that the ads became illegal when the association coordinated them with other political groups. Lynch called the prosecutors’ argument “innovative” but concluded that state law does not cover it.

Austin lawyer Roy Minton, who represents the business association, predicted that Lynch’s decision ultimately would be the end of the lengthy prosecution: “I believe the basic position the court has taken is going to make it very difficult, if not impossible, for the state to prosecute TAB.”

Even as critics warned that the ruling would open the floodgates to more secret money in state politics, District Attorney Ronnie Earle said he would pursue prosecution of a fourth indictment accusing the association of making an illegal contribution to its own political action committee. He also will probably appeal Lynch’s ruling.

Here’s the original story, from last September. The indictments that were handed down were for the following:

14 counts of prohibited political contributions by a corporation (TAB) for paying Hammond and staffer Jack Campbell to do political work.

28 additional counts for fraudulently soliciting money from corporations to use in the 2002 election..

83 additional counts of prohibited political contributions by a corporation for paying for political mailers and TV commercials.

Three counts of prohibited political expenditures by a corporation for spending money in connection with 23 legislative campaigns.

It’s a little confusing, but I believe the “fourth indictment” that Earle will still be pursuing is the one listed first here, the 14 counts of “prohibited political contributions by a corporation”. I believe the tossed indictment is the last one, for “prohibited political expenditures by a corporation”. If anyone knows better, please say so in the comments.

In his four-page order, Lynch acknowledged that many people would read the ads as campaign material.

“The advertisements . . . irrespective of political philosophy, are troublesome because they engage in what most non-technical, common-sense people (i.e. non-lawyers) would think of as clear support for specific candidates,” Lynch wrote. The judge called some of the ads “patently offensive” – they attacked candidates based on actions they took as defense lawyers representing the accused.

However, Lynch concluded that the ads did not expressly advocate the election or defeat of candidates under the Texas Election Code, which he called “an archaic, cumbersome, confusing, poorly written document in need of serious legislative overhaul.”

The judge wrote that the prosecution’s legal theory on coordination between political groups is a “convoluted maze” that would not give a defendant adequate warning about what they are charged with.

Lynch noted that Earle eloquently argued that the association unfairly attempted to subvert the electoral process. But citing the deficiencies of the indictment and state law, he concluded:

“You simply cannot make a silk purse out of this sow’s ear.”

I can’t say this surprises me. Like Vince, I think the intent of these ads is clearcut, and I’m disappointed that the judge didn’t follow that instinct to its logical conclusion. But I’ve never doubted the need to make the election code clearer and more relevant on these points. I continue to have hope this will happen, but frankly until it’s a priority among the state’s leadership, it will be very much an uphill fight.

Lawyers defending the association and its corporate donors in several civil lawsuits applauded Lynch’s decision.

Austin lawyer Terry Scarborough, who represents AT&T Inc., which donated money to the 2002 ad campaign, said the decision will have a broad effect: “Judge Lynch agrees with what we have argued for three years: The Texas election code is unconstitutionally vague. The only way the district attorney or the plaintiffs in the civil suits can win is if the election code is unconstitutionally applied.”

Austin lawyer Cris Feldman, who is suing the business group on behalf of Democrats, won a similar lawsuit against its ally Texans for a Republican Majority last year.

He noted that the legal standards for criminal cases are much higher than for civil lawsuits.

“Our case is as strong as it was Day One,” Feldman said. “We will continue to pursue enforcement of the election code and upholding the 100-year-old doctrine that corporate money has no place in Texas elections.”

Although Lynch’s decision does not relate directly to the money-laundering charges pending against DeLay and two associates, DeLay lawyer Dick DeGuerin said it helps his arguments that Earle’s prosecution is based on political philosophy.

“The judges that will have some say-so read the newspapers like ordinary people do,” DeGuerin said. “They will see the opinion. It certainly can’t hurt us.”

It can’t hurt, but I doubt it will matter much. Certainly, Dick DeGuerin didn’t need this to make his case effectively. And if you really want to press the matter, it’s clear that Judge Lynch thought the ads were bad and the prosecution’s cause was good. He just didn’t think the laws applied to TAB in this case. It’s not a stretch to argue that Tom DeLay isn’t TAB, and that the situation is different in his case.

But we’ll see. Earle is likely to appeal this ruling, and there are still other appeals in other matters pending. Lord only knows when all this will get wrapped up.

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One Comment

  1. d says:

    The older he gets, the more of a dispeptic old codger Mike Lynch becomes. Hard to believe he was once an assistant attorney genral under liberal icon Jim Mattox.