Q and A on Tom DeLay; Part II

For more than a decade now the Travis County District Attorney has been trying to convict former U. S. Congressman Tom DeLay of violating Texas campaign finance laws. This is the second in a series of four posts where I am attempting to explain and answer questions about this complex and long-running case.

Q: What is the gist of the case against DeLay?

A: In late 2001 DeLay formed a political action committee called Texans for a Republican Majority (TRMPAC). At the time Democrats held a slim majority of the seats in the Texas House of Representatives and DeLay made no bones about the fact that the goal of TRMPAC was to elect a Republican majority to the Texas House, so that the boundaries of congressional districts could be re-drawn to elect more Republicans from Texas to the U.S Congress. Those additional Republican representatives from Texas would then, presumably, help DeLay retain his powerful position as House Majority Leader. At the time it was widely-believed that he had immense influence over Speaker of the House Dennis Hastert and was one of the most powerful people on Capitol Hill. TRMPAC was a key part of his strategy to keep it that way.

In early 2002 DeLay solicited hundreds of thousands of dollars of donations to TRMPAC from corporations like Bacardi U.S.A., Sears, Roebuck and Co., Cracker Barrel, Quality Nursing Home Care, Inc. and Diversified Collection Services. These companies each wrote checks of $25,000 to as much as $100,000; all of them made payable to TRMPAC.

The brochures, forms, and letters used by TRMPAC to solicit these contributions included the following statements:

• “TRMPAC is focused on raising and giving funds directly to Republican candidates for state house, state senate, and potentially all statewide offices.”
• “Your support today will go directly to help Republican candidates in Texas successfully run and win their campaigns.”
• “All contributions, whether to the PAC or individuals, will be used for direct campaign expenses.”
• “Unlike other organizations, your corporate contribution to TRMPAC will be put to productive use. Rather than just paying for overhead, your support will fund a series of productive and innovative activities designed to increase our level of engagement in the political arena.”

On Sept. 12, 2002 TRMPAC's executive director, John Colyandro, wrote a check from TRMPAC to the Republican National State Elections Committee (RNSEC), a nonfederal component of the Republican National Committee, for $190,000, an amount that had been negotiated with the RNSEC by DeLay’s top political aide, Jim Ellis. Colyandro attached a note to the check that listed specific dollar amounts that RNSEC was to distribute to seven Republican candidates for the Texas House of Representatives. Those amounts added up to $190,000. On October 4, 2002 RNSEC wrote checks to the seven candidates Colyandro had named in his note and the amount of each check was exactly the same as the amounts that were instructed in Colyandro’s note. However, the checks that were cut by the RNSEC came from a bank account that was separate and distinct from the account in which the $190,000 check from TRMPAC had been deposited less than a month earlier.

Ellis and Colyandro worked for DeLay and the DA contends all of the actions mentioned above were carried out at DeLay’s behest and with his knowledge. 


DeLay’s attorneys dispute this last part, saying DeLay’s role in directing the actions of Ellis and Colyandro was less robust than the DA suggests.Otherwise, DeLay's side pretty much agrees that this is what happened.

Q: Why is any of this a problem?

A: There is a state law that has been on the books for more than a century that prohibits corporations from contributing to the campaigns of individual candidates for public office. 

Q: How does DeLay spin this?

A: Basically DeLay’s position is that he found a clever – but perfectly legal – way to leverage corporate donations to TRMPAC into donations to specific candidates by “swapping” so-called “soft money” that is restricted from this use with so-called “hard money” that is not restricted. The vehicles for this swap were TRMPAC and RNSEC. He points out that there was no attempt to hide this exchange; the transactions were all done by check, leaving a very clear paper trail. No laws were broken he says.

Q: Apparently the DA doesn’t see it that way?

A: No. From the perspective of Earle/Lehmberg the “swap” was a conspiracy to circumvent a state law that clearly prohibits corporate donations to candidates for public office.

In September and October, 2005 – just days before the statute of limitations would have expired – a Travis County Grand Jury returned indictments alleging that Ellis, Colyandro and DeLay conspired to violate state election laws and committed the crime of money laundering.

If the corporations and/or TRMPAC had contributed directly to the candidates, that would have been a clear violation of the state’s election laws. But they did not do that. Instead, they gave the money to RNSEC and asked RNSEC to contribute to the candidates. A lot of people might think that constitutes a conspiracy. However, the State Legislature had never seen fit to broaden its conspiracy statutes to include election law violations.

So Ellis, Colyandro and DeLay moved to quash the indictment, claiming the crime of conspiracy was not intended to apply to the election code. Judge Priest agreed with them and quashed the indictment. The DA appealed Judge Priest’s ruling to the Third Court of Appeals which upheld Judge Priest’s ruling. The DA then appealed to the Court of Criminal Appeals and the CCA upheld the Third Court’s ruling and the indictment for conspiracy to violate the state’s election law was quashed for good.

DeLay was then re-indicted on the charges of money laundering and conspiracy to commit money laundering and Lehmberg took the case to trial.

Q: What happened at the trial?

A: The trial took place in Austin in November, 2010; more than eight years after the alleged crimes had occurred. One reason that it took so long is that DeLay was successful in getting two Travis County district judges removed from the case before Supreme Court Chief Justice Wallace Jefferson appointed Priest. DeLay then tried to get the trial moved to Ft. Bend County (his home county), which Priest denied.

When the trial finally got started the DA called more than 40 witnesses to document the corporate contributions to TRMPAC and the subsequent transfer of funds from TRMPAC to RNSEC and then from RNSEC to the seven Republican candidates for the State House of Representatives.

Prosecutors told the jury that this sequence of exchanges constituted the crime of money laundering.

“The moment that the decision was made to send the soft dollar check up to Washington D.C. with the intent that it ultimately go to candidates for elective office is the moment that this money became proceeds of criminal activity,” a prosecutor told jurors in closing arguments.

As I mentioned earlier, DeLay did not substantively dispute any of the transactions or that the Election Code prohibited corporations from making campaign contributions to Texas candidates.

Rather, his defense was simply that none of those transfers were illegal—that they were structured to comply with campaign finance laws—and, therefore, there were no proceeds of criminal activity to support a charge of money laundering. His attorneys presented evidence that trading “soft” money for “hard” money was legal; something that was commonly done by both political parties at that time, they said.

As I mentioned earlier, they also disputed DeLay’s level of involvement in orchestrating the transactions.

Apparently the jury didn’t buy those arguments and returned a verdict of guilty on both counts of money laundering. Judge Priest sentenced DeLay to three years in the state penitentiary and 10 years of community supervision.

In the next post I will discuss the appeal.