Former House Majority Leader Tom DeLay was not my favorite Congressman while he was in office.
DeLay came to Congress as a Texas conservative, however, he soon abandoned conservative principles to join the Capitol Hill Republican establishment and put his formidable political skills to use growing government, adding billions to the budget through earmarks and playing “the Hammer” to pass Medicare Part D and many of the other excesses that set in motion the loss of the Republican House majority in 2006.
Among conservatives the philosophical and political disappointment in Tom DeLay was deep.
When an ambitious and vindictive Texas Democrat prosecutor indicted him for money laundering and DeLay was forced out of his leadership position and later his seat in Congress, and ultimately convicted of the charges in 2010, Tom DeLay’s fall from grace seemed complete.
Except it wasn’t – not by a long shot.
Tom DeLay, in a remarkable show of character, refused to take a plea bargain. He refused to admit he was guilty of anything other than being an effective tactician for his Party and he claimed that his prosecution was entirely political – he’d done nothing wrong.
DeLay fought the charges for eight years and yesterday, 11 years after the allegedly criminal activities for which DeLay was indicted occurred, a Texas Court of Appeals not only overturned the verdict against him, it also entered a full acquittal.
Justice Melissa Goodwin wrote in the majority opinion that, “Rather than supporting an agreement to violate the election code, the evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions.”
In other words, the majority on the Court of Appeals found that Tom DeLay was trying to comply with the law that he was convicted of violating – exactly the opposite of the allegations made by the prosecutor.
How can you be convicted of violating a law with which you are “attempting to comply?”
One way – and the most common way – is to run afoul of laws that are so broad, so complex and so subject to arbitrary and capricious enforcement that an ambitious and vindictive prosecutor can use the law to ruin anyone he singles out for personal destruction.
Our own Mark Fitzgibbons and University of Tennessee law professor Glenn Harlan Reynolds have written persuasive articles pointing out that “Given the vast web of legislation and regulation that exists today, virtually any American bears the risk of being targeted for prosecution,” as Professor Reynolds put it.
If prosecutors were not motivated by politics, revenge, or other improper motives, the risk of improper prosecution would not be particularly severe.
However, as Professor Reynolds noted, such motivations do, in fact exist, and they motivate prosecutors to pursue certain individuals, like Tom DeLay, while letting others off the hook.
Tom DeLay summed-up his near decade-long odyssey this way, “If you really look at this, this is an outrage and a violation of freedom, a violation of law and it’s a violation of just decency.”
And that fits perfectly with the original motivation of the case – if your goal is to oust someone from public office, bankrupt them, and destroy their reputation and family then a conviction on the facts and the law is somewhat beside the point.
The decision of the Texas court overturning the verdict and entering a full acquittal in Tom DeLay’s money laundering case is not only a personal vindication for DeLay, it is a clarion call for criminal justice reform and structural changes in the criminal justice system that will more successfully deter prosecutorial abuse in a legal system where today, even a ham sandwich can be indicted by an ambitious and vindictive prosecutor.