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Tom DeLay

Republican Party sues to get Farenthold off the ballot

Now here‘s something you don’t see every day.

Rep. Blake Farenthold

The Texas GOP is suing the Texas secretary of state to keep embattled U.S. Rep. Blake Farenthold off the 2018 primary ballot — one day after the Corpus Christi Republican announced he will not seek re-election in 2018.

Farenthold, who’s facing a raft of allegations that he sexually harassed staffers and created a hostile work environment, had filed for re-election by the Monday deadline and missed the deadline the next day to withdraw. Still, he asked Texas GOP Chairman James Dickey on Friday not to include him on the ballot, according to the lawsuit, which notes Dickey has until Tuesday to submit the names of all primary candidates to the secretary of state.

Filed late Friday in federal court, the lawsuit calls into question the “incongruity” between the separate deadlines to withdraw and to hand over the names, while arguing Farenthold’s appearance on the ballot at this point would violate the “First Amendment associational rights” of the party.

“In short, the State cannot constitutionally force any political party to be represented on the primary election ballot by a candidate with whom it does not wish to associate,” the lawsuit said.

See here for the background. As you know, I Am Not A Lawyer. I am, however, a sentient carbon-based life form, and I am highly dubious of this claim. Candidates who are not representative of a given political party run for office in the primary of that party all the time. Dave Wilson has filed as a Democrat numerous times, for instance, most recently in 2016 when he challenged Rep. Jessica Farrar in HD148. Keisha Rogers and Lloyd Oliver, both of whom have had success in primaries, have done this as well. The reason Farenthold is still on the ballot is because he resisted the pressure from national Republicans to step aside until it was too late to legally withdraw his filing. The fact that he’s had a change of heart now is nobody’s problem but his own. There are other Republican candidates running for CD27, and working to ensure that one of those candidates defeats him in March is a perfectly viable option. Farenthold can abet this by not campaigning, or even endorsing one of his opponents. If the people choose to support him anyway, that’s just too damn bad. He can stay on the ballot and hope all is forgiven, or he can withdraw at that time and leave it up to the RPT to find a suitable write-in candidate, a la Tom DeLay and Shelley Sekula Gibbs in 2006. The RPT can also remember that it has total control of state government, and lobby for a change to that portion of the electoral code in 2019. Until then, I say tough luck. We’ll see what the courts say.

Rep. Ted Poe to retire

We’re verging on a mass exodus here.

Rep. Ted Poe

U.S. Rep. Ted Poe, R-Humble, announced Tuesday evening that he will retire from Congress.

“Thanks to the good Lord, I’m in good health, but it’s time for the next step,” Poe said in a statement. “I am looking forward to spending more time in Texas, especially with my 12 grandkids who have all been born since I was first elected to Congress. I am proud of the work that my office has accomplished: giving crime victims a voice, helping to combat human trafficking, and fighting for our constitutional rights and individual liberty.”

[…]

The seat has drawn some Democratic challengers, most notably nonprofit executive Todd Litton, who has held his own against Poe in fundraising in recent months.

First elected to Congress in 2004 and a sixth-generation Texan, Poe is possibly the most personally popular Texan within the U.S. House of Representatives.

With fans on both sides of the aisle, that affection came to light in 2016, when he was diagnosed with leukemia. Colleagues like U.S. Rep. Pete Olson, R-Sugar Land, reacted to the news by wearing orange “Team Poe” wristbands. Even Democrats were known to check in with concern about his health.

Sources close to the congressman said that while the his health is stabilized, the ordeal did cause the 69-year-old to consider more spending time with his family.

But there were also signs of political frustration earlier this year. Amid congressional Republicans’ troubled efforts to move a repeal of former President Obama’s 2010 health care law, Poe resigned from the House Freedom Caucus. The group is known to be a thorn in the side of House leadership.

At the time he resigned from the group in late March, he said, “It is time to lead.”

A quirky but sincere presence around the Capitol, Poe made criminal justice a signature issue. He built his career as a Harris County prosecutor and a criminal court judge. His off-beat and shame-inducing punishments in that role became known as “Poe-tic justice.”

Poe also spent a much of his time on foreign affairs and on immigration. But he is best known to his colleagues as a go-to force on issues like violence against women and human sex trafficking.

First, let me say that I wish Rep. Poe all the best with his fight against leukemia, and that he has a happy and healthy retirement. He joins three of his Republican colleagues –
Sam Johnson, Jeb Hensarling, and Lamar Smith – in calling it a career this cycle. The last election we had where this many new members got elected was 2004, thanks to the DeLay re-redistricting that helped elevate Poe.

CD02 will be favored to be held by the Republicans, but Democrats made some gains there in 2016, and the departure of this generally well-liked incumbent may make holding this district a little tougher for them. First, we have to see who will run on that side; as of last night, there were no names being mentioned as potential candidates. I suspect that the pool of hopefuls is pretty deep, and as such we could have quite the primary race next year. I figure names will start dropping soon, and as filing season opens on Saturday, the rubber will meet the road in short order. How we feel about the future disposition on this district may depend a lot on who comes out of those races. The Chron has more.

Rick Perry will join “Dancing With The Stars”

Make your own Tom DeLay joke. Mine is in the embedded image.

Who are YOU to judge me?

Rick Perry’s spirit animal

Former Gov. Rick Perry is joining the new season of “Dancing With the Stars.”

Texas’ longest-serving governor will be a contestant in the 23rd season of the dance competition show, which premieres Sept. 12 on ABC. Perry will be paired with professional dancer Emma Slater, the network announced Tuesday morning.

Entertainment Tonight broke the news Monday, and in a round of media appearances shortly before the lineup announcement, Perry declined to comment on the rumors. But he did suggest that the show would help him with dancing at his daughter’s upcoming wedding and that it would be an “extraordinary platform” to draw attention to two issues he has long been passionate about: the military and veterans.

“I just hope I don’t forget my dance steps, were I to be on this program, after the third lesson,” Perry said on Fox Business News, riffing off his infamous failure to remember the third federal department he wanted to eliminate during his 2012 presidential campaign.

I will say that I think Perry is likely to be a better fit for this than Tom DeLay was, because DeLay never appeared to have any actual charm, while Perry, whatever else you may say about him (and Lord knows there’s plenty), does have some people skills as well as a discernable sense of humor. I’m just glad that my kids are into watching “American Ninja Warrior” and not DWTS, so I won’t have to watch any of it. Now if he were to become a contestant on “American Ninja Warrior”, that would impress me. Until that time, here are Perry’s competitors for this title.

HD146 nomination process is today

You know the drill.

Borris Miles

Borris Miles

Twenty-seven southwest Houston precinct chairs are set to tap a replacement for Democratic state Rep. Borris Miles on Saturday, the third time in less than two months many of them have convened to fill a hole on the party’s November ballot for non-judicial seats.

The vacancy is the latest result of former Harris County Commissioner El Franco Lee’s death in January, which set off a chain of openings. Precinct chairs in June selected state Sen. Rodney Ellis to replace Lee as the Democratic nominee for Precinct 1 commissioner, and they later chose Miles to fill Ellis’ legislative seat.

At least four candidates are running to represent Miles’ district of more than 175,000, which stretches from Sharpstown to Sunnyside.

Harris County Board of Education Trustee Erica Lee Carter and attorney Shawn Theirry are seen as frontrunners, with former City Council candidate Larry Blackmon and activist Valencia Williams also seeking the Democratic nod for District 146.

[…]

Precinct chair Tiffany Hogue, of Brays Oaks, discussed the challenge of trying to represent the views of her constituents, as well as the opinions of those in surrounding areas who do not have a precinct chair.

“A process that people never expected to use has been used three times in the course of a month and a half,” referring to the Democratic Party meetings to replace Lee, Ellis and Miles.

“We’ve definitely seen some of the pros and cons of filling vacancies on ballots this way.”

See here for the background. As this is now the second sequel to the process to replace El Franco Lee on the ballot, there have been plenty of complaints about how we go about doing it. I don’t have a whole lot of patience for the complaints – everyone is welcome to address them to their legislators, along with their proposed alternative method – but it has been strange, and it has consumed a whole lot of time and energy.

The good news is that this was a particularly singular set of circumstances, whose like we will probably never see again. For that matter, I couldn’t tell you when this process was last used to fill a vacancy for something other than a newly-created office. The Republicans almost went through it back in 2006 when Tom DeLay tried to declare himself “ineligible” to run for re-election. He was later ruled to have withdrawn and could not be replaced, but until a final ruling came in there was candidate activity by various interested parties (then-State Rep. Bob Talton was considered the frontrunner) prior to what would have been the selection. Before that, I have no idea when this was last done. Anyone out there recall a previous instance?

Anyway. As before, you’re only actually running for this if someone nominates you, and for a 27-voter universe the old saw about every vote counting has never been more accurate. Erica Lee Carter, whom the Chron endorsed on Wednesday, would seem to be the favorite, but we won’t know till it’s over. I’ll have a report tomorrow.

Paxton moves to dismiss the charges against him

To be expected.

Best mugshot ever

[Ken] Paxton’s legal team announced late Monday it had filed six motions to quash the three indictments against him, citing problems with the grand jury process. They also raised other objections to the case in four pretrial applications for writ of habeas corpus.

A Collin County grand jury indicted Paxton earlier this year on charges of misleading investors in a technology company before he was attorney general. Paxton pleaded not guilty.

Paxton’s legal team has raised the prospect that the grand jury was “empaneled in a matter inconsistent with law.” Last month, his lawyers won access to information related to the makeup of the panel.

The special prosecutors handling the indictments have maintained “absolutely nothing improper” happened in the formation of the grand jury. In a statement late Friday, special prosecutor Brian Wice said the motions to quash are “so clearly baseless, neither merits comment.”

A copy of the motions can be found at the DMN Scoop blog, which contains some other interesting tidbits.

Among the allegations in the motion to quash are that [District Judge Chris] Oldner [who oversaw the selection of the grand jurors in Collin County who indicted Paxton] breached the secrecy of the grand jury process by telling his wife that Paxton had been indicted. His wife, Cissy Oldner, then told Collin County commissioner Susan Fletcher about the sealed indictments, according to allegations in the defense’s motion.

Oldner also is accused of entering the grand jury room two separate times during the July 7 session when Paxton was indicted on the charge of failing to register as a securities agent. The defense team also states that Oldner improperly held onto that July 7 indictment until July 28.

The judge, who ultimately recused himself from the case, also issued warrants for Paxton’s arrest rather than allowing him to appear by summons. “It is reasonable to deduce that this was a vindictive action meant to publicly embarrass and humiliate Paxton,” the defense motion states.

[…]

Among the other motions filed late Monday:

– One accused the special prosecutors of improperly providing details to the media about the evidence going before the grand jury. The special prosecutors are also accused of improperly leaking details from the July indictments to media before the indictments were unsealed. The defense motion calls the media interviews and leaks “a clear attempt to taint the potential criminal jury pool.”

– One alleges the indictment for failure to register as a securities agent must be quashed because the three-year statute of limitations on prosecution had passed. The indictment came July 7. Any solicitation by Paxton occurred on or before June 26, 2012, according to the defense team’s motion.

– Two motions sought to quash the indictments because they failed to give adequate notice of specific charges against Paxton and failed to state the specific offense. For example, according to the motion, the indictment failed to say whether Paxton had solicited potential clients or advised existing clients. In another example, the securities fraud indictments allege Paxton was compensated with 100,000 shares of Servergy stock in each of the two instances. But Paxton had only 100,000 shares total, creating an inconsistency that should prompt the indictments to be quashed, the defense argued.

– One moved to quash the indictments because the cases were not referred by the Texas State Securities Board, which has primary jurisdiction over security offenses. The motion also argued that Paxton was already sanctioned by the securities board for failing to register as a securities agent. Seeking criminal charges for the same action would constitute double jeopardy, the motion alleged.

This story provides more details of the defense’s claims, as well as some analysis of their chances for success.

“There is a perception that there are people that are in the pro-Paxton camp,” said Plano attorney Todd Shapiro, who is the son of former Republican state Sen. Florence Shapiro, who was succeeded in her Senate seat by Paxton. “There are others that are in the anti-Paxton camp.”

Paxton’s attorneys accuse Oldner of tainting the grand jury process by violating the secrecy of the panel by talking to his wife about the indictments. Rumors about the judge’s wife and potential judicial misconduct have been circulating for months. Paxton’s supporters have accused the judge of being out to get the attorney general.

[…]

In the affidavit, [Collin County Commissioner Susan] Fletcher describes herself as a longtime friend of Paxton. She also says Cissy Oldner helped with her successful campaign for election to county commissioner. The motion also includes text messages between Oldner’s wife and Fletcher in the weeks before the July indictments.

“Your friend Paxton has not had a good week,” Cissy Oldner said in a text. And later that same night: “This is exactly what we told you was going to happen to Paxton. It’s worse than we ever thought. Over 100k. Ouch.”

Cissy Oldner described herself in a text as “gloating,” presumably over Paxton’s legal troubles. At the time, a grand jury overseen by her husband was beginning to hear evidence against Paxton.

“I understood Cissy’s comments to mean Paxton’s case was not going well for him,” Fletcher wrote.

In her affidavit, Fletcher describes the events that took place on July 28 — the same day that a grand jury handed down twin securities fraud indictments against Paxton. She said Cissy Oldner told her about the indictments around 4:48 p.m.

“I replied to her that I was sorry to hear about Mr. Paxton’s indictment, but did not want to be involved in the matter,” Fletcher wrote. “Cissy reminded me that she had warned me this was going to happen.”

Fletcher said she asked if Judge Oldner was going to recuse himself from the case. Cissy Oldner replied that he would not, she says in the affidavit.

“Cissy also said this was a controversial case, and people will be wondering if the prosecution was politically-motivated,” the affidavit quotes Fletcher as saying. “Cissy encouraged me to remind everyone that this is the process, and the legal process needs to play out. Cissy continued that this was very embarrassing for our county and for Texas. I told her again that I would prefer to step back and not discuss the matter or comment further.”

A little over an hour later, Fletcher said she got another call from Oldner’s wife, telling her not to tell anyone about the indictments because they were sealed. But it was too late; Fletcher had already told other county officials about Cissy Oldner’s call.

[…]

“If he disclosed even the fact of the indictment to his wife, that’s not proper,” said retired state district Judge Michael Snipes. “Even though it’s his wife, that’s not allowed.”

He also said if Oldner did enter the grand jury room while it was in session — as Paxton’s attorneys have alleged in the motion — then that also was improper.

But if even if it happened, Snipes says, “they can’t show prejudice, and you’ve got to show prejudice to quash the indictment.”

He said he does not believe the Tarrant County judge presiding over the case will toss the indictments based on that motion.

Snipes also said did not see selection of the grand jurors as improper.

There’s more in both stories, so go read the whole thing. Paxton is certainly getting his money’s worth out of his defense team, whether he has to pay for them or not. I’d be interested to hear what the lawyers out there think of the defense team’s filings – do you agree with Judge Snipes and Todd Shapiro, who saw it the same way? What it says to me is that we are in for the long haul. Remember how long it took for the Tom DeLay case to get to trial? (Actually, off the top of my head, I don’t remember how long it took, but thankfully Wikipedia reminds me that it was five years from indictment/arrest to the first day of trial.) Basically, the trial judge will eventually rule on the motions (after the prosecution responds and both sides make oral arguments), then it goes to the district appeals court, then finally the Court of Criminal Appeals. So yeah, we’re probably measuring things in years at this point, meaning my suggestion that an already-convicted Paxton could be on the ballot in 2018 is way too optimistic. We may not even know if he has to go to trial by then. WFAA, the Statesman, and the Lone Star Project have more.

A further look into anti-HERO financing

Regular commenter Mainstream has been investigating the complex money trail of the various anti-HERO factions and documenting it in the comments for the 8 day finance reports: Pro- and anti-HERO post. I’m putting his two most recent entries here to make sure everyone sees them; they were left late Thursday night:

BagOfMoney

The funding for the anti-HERO forces is much more complicated to analyze, because they formed multiple committees, and filed much of their reporting with the State Ethics Commission, rather than with the City of Houston.

All of the interrelated committees have Bart Standley as their treasurer, and the names of the groups include Conservative Republicans of Texas, Conservative Republicans of Harris County, Campaign for Texas Families, Citizens for Restoration (of theocracy).

Former Congressman Tom Delay is being paid by the Campaign for Texas Families about $1400 for travel associated with events, through his Sugar Land based First Principles LLC.

The Campaign for Texas Families gets its money from Conservative Republicans of Texas.

The Campaign for Houston is shown donating $79,000 to Conservative Republicans of Harris County, and the Conservative Republicans of Texas gave $2500 to the Conservative Republicans of Harris County.

Jeff Yates’ consulting company gets paid $80,000 for “advertising expense.”

Harris media in Austin is also being paid. Gulf Direct, which is Kevin Burnette, also in Austin, is also a consultant.

There is a separate statewide Campaign for Houston committee whose main donors are former failed congressional candidate Peter Wareing ($20,000), and Jack A. Cardwell ($25,000) a trucking executive from El Paso who has donated gobs of money to mostly Republicans, but even some Democrat officeholders.

I am not sure what to make of all the back and forth transfers between these committees, and the fact that the reporting is only being done in Austin, and not with the Houston filings.

And I see nothing on the Campaign for Houston filings to correlate with the reported donation of $79,000 to Conservative Republicans of Harris County.

[…]

Digging deeper, I found the $79,000 transfer from Campaign for Houston to Conservative Republicans of Harris County.

I also found $100K for TV to David Lenz Media and $120K to Big Bucks for TV and Radio.

Donors to the state PAC for Campaign for Houston include: County Commissioner Jack Cagle ($1000), city controller candidate Bill Frazer ($500), County Court at Law Judge Clyde Leuchtag ($50), State Sen. Lois Kolkhorst ($5000), voter registrar Mike Sullivan’s office employee Valoree Swanson ($100), former losing congressional candidate Ben Streusand ($2500), former losing judicial candidate Ric Ramos, a family lawyer whose wife is a judge ($15,000), former losing judicial candidate Don Self ($2000), Terry Lowry of the Link Letter publication ($1000), car dealer Mac Haik ($5000), and Alan Hartman ($100,000).

One needs to know who one’s enemies are. My sincere thanks to Mainstream for his diligence and persistence.

Neugebauer to step down in CD19

At least one Congressional seat will have a new person sitting in it next year.

Rep. Randy Neugebauer

U.S. Rep. Randy Neugebauer, R-Lubbock, announced Thursday that he would not seek re-election in 2016.

Neugebauer, who has represented his West Texas district in Congress since 2003, plans to finish his current term.

“To say that this has been an honor would be an understatement,” Neugebauer said in a statement. “Representing the citizens of the Big Country and West Texas has been one of the most rewarding times in my life.”

[…]

Buzz had been mounting in recent months that Neugebauer was planning to retire. Texas’ Congressional District 19 is expected to stay in Republican hands, and the primary will all but determine who will follow Neugebauer in Congress.

Immediate speculation for possible successors centered on state Sen. Charles Perry and state Rep. Dustin Burrows — both Lubbock Republicans — as well as Lubbock attorney Allen Adkins. Other names include Lubbock Mayor Glen Robertson; Tom Sell, the managing partner of Combest, Sell and Associates; and former Texas Tech Vice Chancellor Jodey Arrington.

Perry does not plan to run for the seat, according to Jordan Berry, his political consultant.

Asked about his interest in the seat, Burrows issued a statement that did not rule out a run.

“Today is Congressman Neugebauer’s day to enjoy the knowledge that he’ll no longer need to commute to Washington, D.C., and to revel in a career protecting West Texas from an overreaching federal government,” Burrows said. “On behalf of West Texans and the Burrows family, we thank him for his service to our nation.”

[…]

Tea Party groups have struggled to oust federal incumbents in Texas, and organizations like the Madison Project say they see an opportunity in open-seat races like this one now is, setting up a potential clash between the Tea Party and an establishment candidate.

“I think the Washington establishment is always going to get want who they think they can get, and the local establishment is going to want who they want, and it will not always gel with the Washington establishment,” Berry said.

“The conservative base may want something completely different,” he added. “This could go several different ways.”

This primary will also take place on March 1, when U.S. Sen. Ted Cruz, a conservative favorite, is poised to be on the ballot in the presidential race. Neugebauer’s son Toby has emerged as one of the top donors to Cruz’s presidential effort, giving $10 million to a super PAC supporting the senator. Toby Neugebauer, co-founder of the Houston private-equity firm Quantum Energy Partners, was recently replaced by evangelical leader David Barton as the head of a cluster of pro-Cruz groups.

Yeah, I think we see how this is likely to go. Neugebauer wasn’t exactly the brightest light out there, but it seems fair to say that our Congressional delegation is about to get dimmer. And louder.

This may have the effect of creating another vacancy in the House – it would appear unlikely to create on in the Senate as well, as Sen. Perry would have to give up his seat to try for CD19, and it looks like he’s not interested in that – but the vacancy it’s creating in Congress is a relative rarity in Texas. Here’s a list of the members of Congress as of January, 2005, and the same list as of January, 2015:

Dist 2005 2015 ============================ 01 Gohmert Gohmert 02 Poe Poe 03 Johnson Johnson 04 Hall Ratcliffe 05 Hensarling Hensarling 06 Barton Barton 07 Culberson Culberson 08 Brady Brady 09 Green Green 10 McCall McCall 11 Conaway Conaway 12 Granger Granger 13 Thornberry Thornberry 14 Paul Weber 15 Hinojosa Hinojosa 16 Reyes O'Rourke 17 Edwards Flores 18 Jackson Lee Jackson Lee 19 Neugebauer Neugebauer 20 Gonzalez Castro 21 Smith Smith 22 DeLay Olson 23 Bonilla Hurd 24 Marchant Marchant 25 Doggett Williams 26 Burgess Burgess 27 Ortiz Farenthold 28 Cuellar Cuellar 29 Green Green 30 Johnson Johnson 31 Carter Carter 32 Sessions Sessions

Of the 32 seats that existed in 2005, 23 have the same incumbent now, with one of those incumbents from 2005 (Rep. Lloyd Doggett) moving to a different district thanks to redistricting. Of the eight who are no longer in Congress, only Ron Paul, who stepped down in 2012 to run for President, and Charlie Gonzalez, who retired in 2012, left on their own terms. Tom DeLay resigned in 2006 under the cloud of indictment. Ralph Hall (2014) and Silvestre Reyes (2012) lost in primaries, while Henry Bonilla (2006), Chet Edwards (2010), and Solomon Ortiz (2010) lost in general elections. We’ve seen a lot of turnover in recent years in the State House, but the US House in Texas is a different story. Trail Blazers and Juanita have more.

Paxton reindicted

On the same charges, with slightly different wording.

Best mugshot ever

After re-filing indictments against Attorney General Ken Paxton in his securities fraud case, two special prosecutors are pushing back against criticism from Paxton’s attorney, who says the recent action shows that they “botched” the proceedings.

“It is not unusual in any felony case, particularly fraud cases, for prosecutors to ask the grand jury to re-indict so as to provide sufficient notice to the accused as to the nature of the criminal conduct with which he is charged,” Kent Schaffer and Brian Wice, the special prosecutors said in a prepared statement Tuesday evening.

On Tuesday afternoon, the prosecutors re-filed two of the three charges Paxton faces — two counts of first-degree felony securities fraud. The third charge — accusing Paxton of acting as an investment adviser or representative without registering – remained untouched.

[…]

In the charge naming Cook, for instance, prosecutors originally stated Paxton “had not, in fact, personally invested in Servergy.” The new charge states Paxton “had not, and was not investing his own funds” in the company.

Joe Kendall, Paxton’s attorney, criticized the re-indictment, saying it illustrated a process fraught with “troubling issues.”

“They had months to investigate and then rushed to indict,” Kendall said in a statement. “Now, the special prosecutors are back to clean up the botched indictments. It should make every fair-minded person question the process in this case.”

Not so, the prosecutors replied.

“Contrary to the assertion of Mr. Paxton’s criminal defense lawyer that the indictments charging his client with two counts of first-degree felony securities fraud were ‘botched,’ we obtained re-indictments to defuse the boilerplate arguments predictably advanced by the defense that the original indictments lacked specificity or were otherwise ambiguous,” Schaffer and Wice said in their statement.

Philip Hilder, a Houston-based criminal lawyer, said that while re-indictments don’t happen all the time in such cases, they are not rare.

“In this particular case, it’s clear that the prosecutors were trying to get out front and clean up the indictment before the defense had the opportunity to attack the pleadings,” he said after reviewing one of the re-filed charges.

You can see a copy of the indictments – there are two, one for each of the complainants in the first-degree cases, which are the ones from the expanded investigation – in the Chron story. I don’t know how often this kind of “cleanup” happens, but I can say that it happened in the Tom DeLay case. The fact that he was ultimately let off the hook by the Court of Criminal Appeals didn’t have anything to do with that. I’d be interested in hearing what any attorneys have to say about this, but beyond that it seems like a fairly mundane update to this story.

How will we miss Ken Paxton if he doesn’t go away?

Despite his arrest and indictment, Ken paxton might stick around for awhile.

Best mugshot ever

Using Texas history as a measure, Ken Paxton’s indictment on securities fraud charges may mean he will have to navigate rough political waters if he stays in office pending his day in court.

And even if he should be convicted on the charges unsealed Monday in Collin County, experts say there may be no way to officially force him from office – thanks to a 22-year-old law that prohibits the removal of state officials for acts they committed before they took office.

“The real issue here is whether the attorney general can be effective as the state’s chief legal and law enforcement officer,” said Mark Jones, chairman of Rice University’s political science department and a longtime observer of Texas politics.

[…]

But should Paxton be convicted of the charges, most observers agree, the politics of him remaining in office become much more dicey. Even though conviction of a felony might not otherwise officially disqualify him from holding office, officials said, Paxton would likely face intense pressure to resign from fellow Republicans seeking to avoid any ill-effects on GOP control of state politics.

But impeachment – an official, if seldom-used, route for housecleaning – might not even be available. The reason, officials said Monday, is a 1993 state law that says “an officer in this state may not be removed from office for an act the officer may have committed before the officer’s election to office.”

Exactly what prompted that change in 1993, at a time when ethics reform was an issue after a legislative influence-peddling scandal, remained unclear Monday. Legislative reference files show only that it was part of an update in state government code, including many housekeeping revisions, that was billed as “non-substantive” at the time. Legislative aides said they did not remember any details about the bill that was passed into law.

The acts for which Paxton is charged took place before he became attorney general, officials said.

“That raises an interesting question, because impeachment is the only ability the state has to take someone out of office who doesn’t resign,” said Brandon Rottinghaus, a University of Houston political scientist who recently published a book on executive-branch scandals. “I think that statute would certainly complicate things if it ever came to that.”

For a point of comparison, consider the Tom DeLay case. DeLay was (re)indicted in October of 2005, then went through a long process of trying to get his indictments thrown out, taking his appeal of that all the way to the Court of Criminal Appeals. After all those avenues were finally traveled, he went to trial and was convicted in November of 2010, more than five years later. He then appealed the conviction, and was rewarded when the 3rd Court of Appeals overturned his conviction in September of 2013. The state then appealed that, and the CCA upheld the reversal in October of 2014, finally putting an end to the saga more than nine years after it officially began.

Given that, if Paxton is sufficiently pigheaded (early signs point to Yes, though that may just be standard-issue bravado) and has the money to keep his lawyers busy (more on that in a second), we could have two more statewide elections before this thing wraps up. Paxton could theoretically be in his third term before there’s a final resolution, in which he goes free or goes to jail. The process could take less time if he doesn’t challenge the indictments like DeLay did, if he gets acquitted, or if he (improbably) takes a plea deal. But if we go balls to the wall the whole way, we could be looking at nine years. Pace yourselves on the popcorn, is what I’m saying.

And despite the speculation I’ve seen in various reports that Tea Party types may help force Paxton out because they’re “fed up” with “business as usual” or whatever, please remember that it was the Tea Party that got Paxton elected in the first place, and so far they are standing by their man against those evil liberals in Collin County and the Texas Rangers. Yeah, there’s that one TP dude who expressed some concern about how all this looks. Wake me up when there’s more than one like him.

As for the money issue, as I understand it Paxton can only use his campaign treasury (which has some $2.5 million in it right now) to defend himself against charges for things he did while in office. These charges, of course, long predate his time in office. That should mean Paxton is on his own for the lawyer bills – he can fundraise to help pay them, of course, as anyone else could – but I have a feeling he won’t accept that without some kind of pushback. It’s the TEC that would rule on what he can do with his campaign funds, and who’s afraid of the TEC? For that matter, even if he claims to abide by them, who’s to say Paxton will be scrupulous about it, and not try to funnel some money out of his campaign account without anyone noticing? He doesn’t exactly have a record of honesty here. Keep an eye on the money is my advice. If there is a limiting factor in how long this all might take, it’s Paxton’s ability to keep his lawyers paid.

DeLay gets off

Sure is nice to have friends in high places.

Who are YOU to judge me?

Who are YOU to judge me?

Siding with a decision made a year ago by a lower appeals court, the Texas Court of Criminal Appeals on Wednesday refused to reinstate money-laundering convictions against former U.S. House Majority Leader Tom DeLay.

In an 8-1 decision, the state’s highest criminal court backed a Texas 3rd Court of Appeals decision that reversed DeLay’s 2011 convictions on money laundering and conspiracy to commit money laundering. The court had ruled there was not enough evidence to prove that DeLay’s actions were criminal.

“We agree with the court of appeals that, as a matter of law, the State failed to prove facts to establish that the appellant committed either the object offense of money laundering or the inchoate offense of conspiracy to commit the same,” the criminal appeals court ruled.

[…]

Court of Criminal Appeals Judges Cheryl Johnson and Cathy Cochran wrote in a concurring opinion that although there was evidence DeLay knew — after the fact — of the transfer of the funds, there was no proof “he was directly involved.”

“Like some of Goldman Sachs’s dealings with a Spanish bank, the wheeling and dealing was a tad shady, but legal,” they wrote.

Judge Lawrence Meyers, the lone dissenter, says that the majority opinion “places a burden on the State that is impossible to overcome,” because an individual would have to be aware that his or her actions violates the Texas election code.

“In addition to placing this ridiculous burden on the State, which effectively repeals the statute, this holding also allows corporations who simply cannot be bothered to look up the law to get away with making illegal contributions,” Meyers said.

Here’s the decision. Given the way oral arguments went, this can’t be considered a surprise. Those of you looking for partisan angles, note that the one dissenter was the guy who decided to run for the Supreme Court as a Democrat. We’ve come an awfully long way to wind up here, but that’s the way it goes. I don’t really feel like thinking about this right now – too much else going on, and I always did think the case against DeLay was weaker than the cases against his henchmen. Whatever else, the world is a better place without Tom DeLay in a position of power, and at least we’ll always have that. Juanita has more.

Abbott’s voter registration persecution

Now this is what a partisan witch hunt looks like.

Still not Greg Abbott

On an overcast Monday afternoon, officers in bulletproof vests swept into a house on Houston’s north side. The armed deputies and agents served a search warrant. They carted away computers, hard drives and documents.

The raid targeted a voter registration group called Houston Votes, which was accused of election fraud. It was initiated by investigators for Attorney General Greg Abbott. His aides say he is duty-bound to preserve the integrity of the ballot box.

His critics, however, say that what Abbott has really sought to preserve is the power of the Republican Party in Texas. They accuse him of political partisanship, targeting key Democratic voting blocs, especially minorities and the poor, in ways that make it harder for them to vote, or for their votes to count.

A close examination of the Houston Votes case reveals the consequences when an elected official pursues hotly contested allegations of election fraud.

The investigation was closed one year after the raid, with no charges filed. But for Houston Votes, the damage was done. Its funding dried up, and its efforts to register more low-income voters ended. Its records and office equipment never were returned. Instead, under a 2013 court order obtained by Abbott’s office, they were destroyed.

And the dramatic, heavily armed raid never was necessary, according to Fred Lewis, president of Texans Together, the nonprofit parent group of Houston Votes. “They could have used a subpoena,” he said. “They could have called us and asked for the records. They didn’t need guns.”

The previously unreported 2010 raid coincided with agitation by a local tea party group and Lewis’ testimony in the trial of former House Majority Leader Tom DeLay, R-Sugar Land. Lewis had filed a complaint against DeLay that, in large part, led to his indictment on corruption charges.

Abbott, the Republican candidate for governor, declined interview requests. A spokesman, Jerry Strickland, said the attorney general does not recall being briefed by staff members on the Houston Votes investigation.

“In this investigation — and all other investigations conducted by the Office of the Attorney General — evidence uncovered dictates direction,” Strickland said in an email. “To insinuate there were other factors at work in this case is ludicrous and unfounded.”

Read the whole thing and see for yourself how “unfounded” it is. It’s a toxic mix of True The Vote paranoia, bad practices and bad faith from the Harris County Tax Assessor’s office, and Abbott’s zeal to prove that somewhere, somehow there exists justification for voter ID laws. And then there’s the best part:

Abbott’s office said the Harris County district attorney in October 2011 “declined to accept for prosecution the case as prepared by investigators of the Texas Attorney General office,” according to a court document filed last year.

The document said the case related to a violation of an identity theft law in the Penal Code, which is a felony. It did not list names or details.

Strickland, the Abbott spokesman, said the attorney general’s office does not have jurisdiction to prosecute that section of the Penal Code. As a result, the information was given to the Harris County district attorney’s office, he said in an email.

The News on June 10 filed a public records request with the attorney general for the case file. Abbott’s office, which is in charge of enforcing the state’s open records law, asked itself for a ruling on whether those records must be released. In an Aug. 28 letter, the attorney general’s office ruled that it may withhold the records under state law.

The records are exempt from required release because they pertain to a criminal investigation that did not result in a conviction or deferred adjudication, wrote Lindsay Hale, an assistant attorney general in the Open Records Division.

It’s unclear how often Abbott’s office investigates allegations similar to the ones leveled at Houston Votes.

In response to requests from The News, the attorney general’s office provided a list of 637 potential violations of the Elections Code referred to Abbott since he took office in late 2002.

Strickland said he could not say how many were investigated or how many involved alleged voter registration fraud. “The office does not ‘compile or keep statistics,’” he said.

The Harris County district attorney’s office declined to comment on the Houston Votes case. Terese Buess, assistant district attorney over the public integrity division, told The News that her office doesn’t discuss cases that don’t result in criminal prosecution. But “generally, criminal charges are only authorized when there is evidence that establishes probable cause to believe that a crime has been committed.”

Emphasis mine. So Greg Abbott asked Greg Abbott if Greg Abbott needs to release information about Greg Abbott’s half-baked partisan-driven investigation, and Greg Abbott said that Greg Abbott didn’t have to if Greg Abbott didn’t want to. Makes sense to me. Be sure to read the whole thing, there’s a lot to digest. PDiddie, Nonsequiteuse, and Texpatriate have more.

UPDATE: Definitely read this update from Nonsequiteuse as well.

More about TPJ

The Chron profiles Texans for Public Justice, the group that filed the complaint that led to Rick Perry’s indictments.

[Craig] McDonald’s Texans for Public Justice, which operates out of a small office west of the University of Texas-Austin campus and currently has less than $1,000 in the bank, is known as the state’s preeminent group for analyzing campaign donations, building lobbyist databases and filing ethical complaints. It is at least partially responsible for the downfalls of former state Rep. Gabi Canales, former state Board of Education member Rene Nuñez and, most notably, former U.S. House Majority Leader Tom DeLay.

The only thing unusual about the two-page Perry complaint, McDonald said, was how long it took him and longtime colleague Andrew Wheat to put it together: just two days.

That, and the reaction.

Since the indictment was handed up Aug. 15, Texans for Public Justice has received dozens of interview requests and hundreds of expletive-filled letters, calls and emails, 10 times what followed DeLay’s 2005 indictment, McDonald said.

The group has played no role in the case since filing the complaint, but it nonetheless has become a part of the story as Perry has waged an aggressive campaign to cast the indictment as politically motivated.

[…]

Most of the group’s most high-profile targets have been Republicans, including DeLay, Perry and Ken Paxton, the current GOP nominee for attorney general, who last month became the subject of a TPJ complaint over his failure to register as an investment adviser as required by law.

Texans for Public Justice has gone after Democrats too.

One of the group’s earliest efforts targeted Canales, a Corpus Christi Democrat, for allegedly selling her power as a legislator to delay lawsuits. Canales lost her 2004 re-election bid, and the Legislature passed a law requiring all members to disclose when they used legislative continuances during legal proceedings.

Two other Democrats, Nuñez and fellow state Board of Education member Rick Agosto, were targeted in 2009 for not reporting gifts from a firm with business before the board. Nuñez was fined and lost his re-election bid.

National campaign-finance watchdog Ellen Miller said the group likely would target more Democrats if there were more of them in power.

“Texans for Public Justice has a national prominence and recognition for their very active state-based work around issues having to do with money, power and politics,” said Miller, executive director of the Sunlight Foundation, which donated $1,200 to the Texas group in 2012.

So there you have it. Elect more Democrats, including some statewide, and you’ll see more of them get into trouble. It’s a lot harder to abuse power when you don’t have it.

Anyway. This story is a lot like the Trib story from last week, and undoubtedly like the others that have been written as well. I hope that in addition to all the attention they’re getting, a few people have also made contributions to TPJ so they can keep doing what they’re doing. If you want to be one of those people, see below the fold for the text of a fundraising email they sent out, with a donation link included. Someone has to do what TPJ does, and they’ve shown they’re pretty good at it.

(more…)

More on the Perry indictment

Just some more thoughts and links relating to the big story that turned a relatively quiet Friday into one of the busiest news day of the year so far. Let’s start with a reality check from Harold Cook.

Corndogs make bad news go down easier

This corndog has done nothing wrong

First of all, I’m a bit puzzled by the indictment. It seems weak to me. When the criminal complaint was first made following Perry’s veto of Lehmberg’s Public Integrity Unit, it seemed weak to me then, too. But then, Special Prosecutor Michael McCrum remarked publicly that he was especially concerned about Perry’s actions post-veto, which might rise to the level of breaking the law.

Finally, an aspect of this that made sense to me. Except that in reading the actual two-count indictment, it appears to focus on Perry’s veto, and his threatening words before the veto. A layman reading between the lines of the indictment would conclude that, while it’s perfectly legal to line-item veto a DA’s budget, it’s illegal to threaten to veto a DA’s budget, if you then subsequently veto that budget.

Don’t get me to lying – I’m not going to practice law without a license on this situation, but personally that seems like (good)hair-splitting. I’m left wondering whether the case is weak, or whether there are smoking gun-like aspects of a strong case which aren’t spelled out in the indictment. Either thing, or both things, are entirely possible. Only time will tell.

The trial, if there is one, may come down to whether the Governor was within his Constitutional rights, threat or no threat, in vetoing a line item, or whether he was out of his lane by trying to circumvent a legal process by which a district attorney may legally be removed from office (a process in which, incidentally, Lehmberg prevailed).

The second notable item related to the indictment is that I have seldom seen such breathless hyperbole, misdirection, and misinformation launched in any situation than I have in this one. Opinion leaders from the left, the right, and even from some journalists, are guilty of it.

I’m no more a lawyer than Harold is, but I think if it comes to a trial, the prosecution has a pretty straightforward story to tell. If I were in charge of this case – Lord help us if I were, but stay with me here – what I would present to the jury is a simple tale of coercion. One elected official does not have the right or the authority to force another elected official to resign, especially by making threats. The only authority Rick Perry has over Rosemary Lehmberg is what any other registered voter has over her. Let’s pretend for a moment that the DUI never happened and there is no CPRIT investigation to speak of. We all agree that if Rick Perry had just out of the blue told Rosemary Lehmberg in 2013 to resign or he’d veto funding for the Public Integrity Unit, that would be suspicious, right? Perry’s always been free to veto the PIU funding. It’s actually a little surprising that he hasn’t put pressure on the Lege to cut that function out of the Travis County DA office and give it to the Attorney General or something like that. But he hasn’t, maybe because it wasn’t worth the effort and the political fallout, or maybe he just had other fish to fry. Then Lehmberg goes and gets herself busted for drunk driving, and now maybe Perry has a wedge. That doesn’t give him any more right to threaten the duly elected Lehmberg than he’d had the day before she made the poor choice to get behind the wheel after downing too much vodka. One elected official cannot coerce another. I think a jury will have an easy time grasping that.

Harold also muses about how odd it is for Perry to get indicted for doing something he could have easily done on the QT without raising any eyebrows. It’s absolutely true that in the aftermath of Lehmberg’s arrest Perry could have joined the calls for her to resign without explicitly mentioning the PIU funding, and he could have vetoed the PIU funding later saying that it made no sense for someone who lacked integrity to head up a Public Integrity Unit. It was publicly connecting the two that landed him in the soup. Isn’t that often how it is with criminal activity? The perpetrator could have gotten away with it if only someone – usually but not always the perps themselves – had kept their big mouth shut. I find a deep well of irony and humor in this, but I don’t see any contradiction.

Against all that you’ve got the Chron and the Statesman running stories with lots of quotes from defense attorneys and law professors saying that McCrum has a high bar to clear to get a conviction. I can only presume he thinks that he can, because by far the path of least resistance would have been to drop the whole thing. I’m glad this is his job and not mine, that’s for sure.

Harold has a lot more to say at his post and you should go read it all because he makes a lot of sense. On the subject of keeping one’s mouth shut, it’s interesting to see the reactions to this so far from Wendy Davis and Greg Abbott. Here’s Davis:

State Sen. Wendy Davis, the Democratic nominee for governor, passed on the opportunity Saturday morning to call for Gov. Rick Perry’s resignation following his indictment by a Travis County grand jury.

Speaking with reporters before a block walk in Plfugerville, Davis reiterated her statement Friday that she was troubled by the charges against Perry, which stem from his threat to veto funding for the state Public Integrity Unit unless Travis County District Attorney Rosemary Lehmberg resigned. Lehmberg’s office controls the unit, which aims to enforce ethics among public officials.

Asked whether Perry should step down, Davis told reporters: “As I said, there will be, I’m sure, more information that comes to light. I trust that the justice system will do its job, and these indictments handed down by the grand jury demonstrate that some very seriously potential crimes have been committed.”

As the story notes, the Texas Democratic Party and at least one elected official, Rep. Joaquin Castro, have called for Perry to step down. It’s very much in Davis’ interest to not get invested in this. For one thing, there is a non-zero chance that the indictment could get tossed. For another, it does her no good for this to be seen as just another partisan dispute. Her story line is one of a “culture of corruption” that Perry embodies and Abbott represents, and it’s much better for her if the evidence for that is as objective and non-partisan as possible. There’s also a principle at play here, which Juanita captures:

I am not one of the folks calling for Rick Perry to step down as Governor and I believe it is a major mistake to do so.

I am a Democrat and therefore I believe in the rule of law. You are innocent until proven guilty. Period. No exceptions. None.

Additionally, we Democrats were all outraged when Rick Perry asked District Attorney Lehmberg to step down. We were right to be angry. We even supported her when she was found guilty and served her jail sentence. Her behavior was unacceptable but we stood behind her. It seems more than a tad duplicitous for us to now call for Perry’s resignation.

Hard to argue with that. As for Abbott, he expressed his doubts about the indictment on a Fox News appearance but declined to say more than that, saying he hadn’t read it yet. My guess is that after he does read it he won’t say much more than that. Like Davis, there are risks for him if he throws his full weight behind defending Perry. Perry is highly unlikely to go to trial before November, but Abbott has to think longer term than that. It would not be good for him as Governor if there’s a trail of full-throated statements of support by him of Perry and he winds up going down in a way that leave no doubt about his guilt. Enough bad information could come out about Perry and the evidence against him between now and November to have a significant effect on public opinion, and he doesn’t want to be too closely associated with that.

A bit of history, since the name Tom DeLay has come up quite a bit and will no doubt continue to do so. DeLay was indicted in October 2005, and eventually resigned in June 2006 after trying to withdraw from the race in CD22 by claiming that he was a citizen of Virginia and thus ineligible to be the nominee. The goal there was to get another nominee on the ballot, as DeLay’s shenanigans meant that CD22 was in danger of being won by Democrat Nick Lampson in a year where Republicans were (rightly) worried about losing their majority in the House. DeLay’s gambit ultimately failed and Lampson prevailed over the epic write-in candidacy of Shelley Sekula Gibbs. My point in bringing this up is that while DeLay did resign, he did so for his own reasons and with other considerations in mind. Democrats were happy to have him on the ticket for as long as possible.

There is one clear-cut line of attack Davis can take that Abbott could be vulnerable to. Here’s Burka to point it out.

The indictment of Rick Perry turns Texas politics upside down. He can’t be a serious presidential candidate when he is facing a potential jury trial. But it also has serious affects for the state party. An obvious issue is that Greg Abbott has previously ruled that the state could pay for Perry’s defense. Does anyone think the Democrats are going to sit idly by and allow Perry to continue to spend large sums of money on his defense when he stands accused of breaking the law? Not a chance.

My archives show that Abbott was asked for an opinion about this, but it appears that request is still pending. Given the other ways in which Abbott has helped Perry it’s easy enough to imagine a similar ruling, and it’s easy enough to imagine the attacks even in the absence of such a ruling. One can certainly make a case that criminal defense of an action taken in the official capacity of the office of Governor should be paid for by the public, but boy is that a tough thing to stick up for when the chips are down. I’d feel sorry for the position Abbott is in if I were a better person.

And finally, the Trib has the official word from the man of the hour his own self.

A steamed Texas Gov. Rick Perry on Saturday decried a Travis County grand jury’s indictment of him on two felony counts, saying allegations that he abused his power by threatening to veto funding for the state’s anti-corruption unit were politically motivated.

“We don’t settle political differences with indictments in this country,” Perry said in a short press conference. “It is outrageous that some would use partisan political theatrics to rip away at the very fabric of our state’s constitution. This indictment amounts to nothing more than abuse of power and I cannot and I will not allow that to happen.”

Perry — who followed through on the threat because Travis County District Attorney Rosemary Lehmberg, who had pleaded guilty to drunken driving, refused his request to step down — said his actions were protected by the state Constitution, and that he and his attorneys would aggressively fight the charges. They include abuse of official capacity, which carries a potential penalty of five to 99 years in prison, and coercion of a public servant, which has a penalty of two to 10 years.

“I intend to fight against those who would erode our state’s constitution and laws purely for political purposes and I intend to win,” he said. “I’ll explore every legal avenue to expedite this matter. I am confident that we will ultimately prevail, that this farce of a prosecution will be revealed for what it is. And those responsible will be held accountable.”

Mighty big words there, cowboy. Fasten your seatbelts, y’all. BOR, Main Justice, Trail Blazers, the AusChron, Texas Politics, the Trib, Juanita, and Martin Longman have more.

DeLay gets his day before the CCA

Looks like he might have had a pretty good day, too.

Who are YOU to judge me?

Who are YOU to judge me?

Oral arguments in Tom DeLay’s decadelong legal fight with the Travis County District Attorney’s office heated up Wednesday as Republican judges on the Texas Court of Criminal Appeals questioned whether prosecutors could prove the former House majority leader illegally funneled corporate money to state candidates.

[…]

Presiding Judge Sharon Keller, one of the panel’s eight Republicans, was outspokenly doubtful about prosecutors’ ability to prove DeLay and his associates illegally funneled $190,000 in corporate donations to seven GOP candidates for the state Legislature in 2002.

The money was donated to DeLay’s state political action committee, Texans for a Republican Majority, and made its way into a Republican National Committee corporate donations account. Checks totaling the same amount then were distributed from a different RNC account to the state candidates.

[Travis County Assistant District Attorney Holly] Taylor said the scheme is illegal under state law, which bans corporate contributions to campaigns, but Keller and her colleagues were less sure.

“It seems like your theory of prosecution has some internal inconsistencies,” Keller said, referring to the money laundering argument. Judge Elsa Alcala also asked about the unprecedented nature of the state’s case, saying the original intent of the money laundering law was to target drug trafficking: “When I see this case, my first reaction is, ‘What are you talking about?’ ”

“The first time something happens, it’s still a crime,” Taylor responded.

Seriously, when was the last time Sharon effing Keller expressed that kind of skepticism in any prosecutor’s case? It’s like Dave Wilson not being a flaming homophobe – it’s just not in her nature. I have never bought into the idea that the CCA would be pro-Republican on DeLay’s behalf, but if this is how they actually go it will be hard to dismiss that idea. We won’t know till 2015 on that, so we’ll see. What do you think, am I reading too much into this? Texas Politics and Texas Public Radio have more.

Today’s the day for Tom DeLay at the CCA

Apologies for the excessive alliteration. I got on a roll and couldn’t stop.

Who are YOU to judge me?

Who are YOU to judge me?

DeLay’s appellate lawyer, Brian Wice of Houston, and Travis County prosecutor Holly Taylor will argue Wednesday before the state’s highest criminal court in Austin over whether the jury’s verdict should be reinstated or if DeLay will be exonerated.

A victory by DeLay ends the marathon case, but if prosecutors prevail with the Texas Court of Criminal Appeals, Wice says he has another point to appeal — that the $190,000 transaction for which he was convicted could not have been money laundering because a check, not cash, was used. The 3rd Court panel did not address that point in its opinion last fall.

[…]

In her appeal, Taylor argued for the state that the two Republican judges used “selected” evidence to second-guess the jury improperly. Wice, meanwhile, countered that “the state’s unprecedented gambit (to create a criminal offense) was correctly unmasked by the court of appeals.”

Over the years, both sides have taken turns complaining about the partisanship surrounding the case, often getting judges removed on allegations of political bias. DeLay also objected to being tried in Travis County, citing its Democratic leanings.

Given that backdrop, DeLay’s lawyers would now seem to have the advantage of arguing before a court with eight Republican judges and one Democrat, who was elected as a Republican before switching parties.

But the state’s highest criminal court also ordered DeLay’s trail, criticizing a 3rd Court panel for trying to short-circuit the legal process several years ago by ruling prematurely on DeLay’s cash vs. check defense during pre-trial arguments.

In their briefs for Wednesday’s oral arguments, Taylor recounted evidence she thought the 3rd Court ignored and Wice criticized prosecutors’ handling of the case, including a last-minute indictment rushed through a grand jury in one day after three years of investigation.

See here and here for the most recent entries in this long-running saga. I’ve said before that to whatever extent there’s a pro-Republican lean on the CCA, I think their pro-prosecution urge outweighs it. Be that as it may, if the CCA rules against DeLay I don’t think he’s going to get much joy re-litigating the “checks aren’t cash” argument. The CCA addressed that before, though apparently not in a “that’s all there is, there ain’t no more” fashion. One way or the other, we are approaching closure on this.

TPJ files amicus brief in DeLay appeal

It’s almost time for Tom DeLay to go to court again.

Who are YOU to judge me?

Who are YOU to judge me?

A government-watchdog group on Tuesday petitioned the state’s highest criminal court to reinstate the money-laundering and conspiracy convictions of former U.S. House Majority Leader Tom Delay, moving to join a brewing legal fight before a scheduled June 18 court hearing in the case.

DeLay, a former Sugar Land Republican, was convicted in November 2010 by a Travis County jury of raising almost $700,000 in corporate contributions through Texans for a Republican Majority, a political action committee, and using those funds to help Republicans win a majority in the Texas House in 2003.

Corporate contributions to Texas politicans have been barred since 1903, and prosecutors alleged that DeLay directed a criminal conspiracy to illegally launder corporate funds into Texas House races, an argument that watchdog group Texans for Public Justice said is correct and should result in reinstatement of DeLay’s conviction. The group filed an amicus brief Tuesday with the state Court of Criminal Appeals.

[…]

Calling the dismissal of DeLay’s conviction a “partisan, result-oriented ruling” by the appeals court, Craig McDonald, executive director of the watchdog group. “Facts show that DeLay and his co-conspirators knowingly broke Texas election laws.”

The amicus brief is here, and TPJ’s press release is here. It should be noted that DeLay’s legal team succeeded in getting one of the Democratic judges removed from the panel; the remaining Democratic judge dissented on the opinion to overturn DeLay’s convictions. As I’ve noted before, it will be interesting to see if the CCA’s notoriously pro-prosecution biases overwhelm any partisan sympathy they may have for DeLay. I will also note that it was eleven months between arguments before the Third Court of Appeals and their ruling, so I wouldn’t expect a final decision any time soon.

How can we miss you if you won’t go away?

Denise Pratt is a gift that keeps on giving.

Judge Denise Pratt

Denise Pratt may not be gone just yet.

Two days after announcing her immediate resignation as presiding judge of the 311th family District Court – and the suspension of her re-election campaign – Pratt sent a text message to supporters on Sunday asking them to “call or txt” an influential endorser, Dr. Steven Hotze, and encourage him to wait a few weeks before announcing his support for her challenger in a May 27 runoff, Alicia Franklin.

“I am stil heavily favored by the party and attys as seen by wed fundraiser,” Pratt wrote. “And let him know he will b supported also.”

“It’s bizarre,” Franklin said on Tuesday, noting that Pratt had called her on Friday to concede, making her promise to “win in November.”

Despite Pratt’s resignation late Friday, Harris County Clerk Stan Stanart said her name still will appear on the ballot next month because she missed a March 12 withdrawal deadline. If she wins, Stanart said, her name would appear on the November general election ballot unless she becomes ineligible by moving out of the county, being deemed mentally incompetent by a court, being charged with a felony or dying.

That was followed this morning by a statement, which I also received, that reads, in full, “Despite published reports to the contrary, I have, in fact, suspended my reelection efforts and I am not conducting a campaign.” That, I suppose, clears that up, but there’s still the fact that she’s on the ballot. Like I said yesterday, if her name is on the ballot she can still win the runoff, and thus be the nominee in November. If she withdraws at that time, Democrat Sherri Cothrun wins by default. If she tries some kind of evasive maneuver by claiming to be a resident of another county, which would allow for a replacement candidate to be selected a la Tom DeLay’s “I’m a Virginian” scam in 2006, you can be certain it will wind up in court.

(By the way, remember when Greg Abbott filed an amicus brief on DeLay’s behalf in that fiasco? Good times, good times.)

“If your name is on the ballot, you can win, on a technical basis, yes, that is technically possible,” said Harris County Republican Party Chairman Jared Woodfill. “The question would be: Is she going to run a campaign?”

Nice try, Jared, but “technically” winning is the same as winning. Feel free to make that argument in court if it comes to that. As Mark Jones says, y’all better hope she loses in May, because it gets messy for you otherwise.

CCA to review dismissal of DeLay conviction

The criminal justice system isn’t done with Tom DeLay just yet.

Do YOU feel safe with me out on the streets?

The Texas Court of Criminal Appeals on Wednesday agreed to review whether a lower court correctly decided last fall to toss out the prison sentence handed to former House Majority Leader Tom DeLay on money-laundering charges.

The state’s highest court on criminal matters announced that it would accept a petition asking it to consider whether a 2-1 decision by the Third Court of Appeals overturning DeLay’s criminal case conviction was appropriate.

The appellate court in September 2013 tossed a high-profile jury verdict, ruling that “the evidence was legally insufficient to sustain DeLay’s convictions.” In a dissent, the lone Democrat on the three-judge panel argued the evidence for a conviction was sufficient enough to convince a rational jury that criminal conduct had taken place.

Travis County District Attorney Rosemary Lehmberg, whose office had prosecuted DeLay, had appealed the appellate court’s decision. They had no immediate comment to the morning decision to review the case.

No date for the hearing before the state Court of Criminal Appeals was set. Both sides will have time to file briefs outlining their arguments in the case.

Brian Wice, a Houston attorney who represents DeLay, said he looked forward to arguing again that the conviction should remain overturned. “We are confident,” he said, noting that he was at the Court of Criminal Appeals to argue another case when he was advised that the court would review the Third Court’s ruling.

See here for the last entry in this saga. We always knew that the Travis County DA would appeal that ruling, it was just a matter of time. The CCA has previously ruled against DeLay, but this is a different ballgame. We know that as a rule, the CCA is fairly hostile towards defendants, but not always. We’ll see if they follow their instincts or not. Juanita, who is practically dancing in the street at the news, has more.

Fjetland files for Senate

Texas Democrats will have a contested primary for the right to run against Sen. John Cornyn next year.

Mike Fjetland

Michael Fjetland, a previous GOP House candidate, has filed as a Democrat to run for the Senate seat held by Texas Sen. John Cornyn.

Fjetland, 63, of Houston, said he is not satisfied with the work the state’s two senators have been doing and criticizes both Cornyn and Ted Cruz for “reckless actions.”

“Mr. Cornyn has been a career politician,” Fjetland said. “He voted for (President George W.) Bush tax cuts and two unpaid wars that helped generate the worst recession since the Great Depression.”

On his home page, Fjetland calls himself the “Anti-Cruz” and criticizes the young senator for leading the government into shutdown in a snit over people getting federal health care.

“Mr. Cruz and Cornyn have government-paid insurance,” Fjetland said. “They are basically opposed to ordinary Americans having the same thing.”

Between 2000 and 2006, Fjetland ran in GOP primaries against then-Texas Rep. Tom DeLay, but he later decided to change parties.

“I switched from the Republican Party to the Democrats because the GOP has become too extreme, especially since 2010 and the rise of the tea party,” Fjetland said. “It is even more extreme than it was a decade ago when I ran against Tom DeLay.”

Fjetland said the tea party and Republicans like DeLay drove him away from the Republican Party and led him to vote for President Barack Obama in 2008.

“I cannot be in the same party with people like Steve Stockman and Michelle Bachmann,” Fjetland declared. “The Democratic Party looks like America – very diverse, just like the good people I have met around the world.”

Fjetland’s webpage is here and his Facebook page is here. I noted his candidacy in passing on Monday. He joins Maxey Scherr in the race, though Scherr has not officially filed yet. I know Mike Fjetland, I interviewed him in 2004 when he ran as an independent against Tom DeLay. He’s a good guy and his heart is in the right place, but I don’t know how much traction he’ll get in the primary. This is a longshot race for either candidate, we’ll see if one of them can stand out as the better alternative.

DeLay wants to sue

Whatever you say, dude.

Are YOU fit to judge me?

Are YOU fit to judge me?

Former House Majority Leader Tom DeLay, reveling in victory Thursday against Texas prosecutors in a money-laundering case, said his political career is over but he’s eager to return to the courthouse.

If he can find a lawyer “with a backbone,” DeLay said, he’ll considering suing the Travis County district attorney for the eight-year legal clash that ended with an appeals court tossing his conviction.

“I cannot take this laying down. For the welfare of the people that serve in the future, I can’t just let this go,” he said.

The threat was vintage DeLay. As the GOP’s No. 3 leader in the House after the 1994 takeover, he earned the nickname “The Hammer” for an aggressive style that cowed fellow Republicans and tormented Democrats.

Yes, and like other best-forgotten relics of bygone decades, he’s back to enjoy a moment in the sun and to try to cash in while he still can. I wouldn’t go lawyer-shopping just yet, however, since there’s still the small matter of the state’s appeal to the CCA. Mark Bennett thinks that the top court’s all-GOP panel isn’t likely to grant discretionary review, but with all due respect to his infinitely greater knowledge of the criminal justice system, I disagree. The CCA may be a bastion of Republicans, but they’re pro-prosecutor first and foremost. Maybe there’s enough overlap between Republicans and prosecutors in this state to conflate the two, but I believe there’s a difference. I mean, just ask yourself: What would Sharon Keller do? Sure, maybe she’s rubbed elbows with Tom DeLay before, at a fundraiser or an execution-watching party, but do you think that’s enough to overcome her bedrock belief that anyone who’s been arrested for a crime must be guilty of something, and it’s her job as a judge to make sure they stay guilty for it? Anything is possible, I guess, but expecting Sharon Keller to buy the argument of a defendant seems like a losing bet to me.

Yes, I know she’s not the only judge on the CCA, but the rest of them are hardly flaming defense attorneys. And before you suggest that Keller might listen to the arguments before making up her mind, I have to ask – Have you ever read one of her opinions? The facts don’t exist to shape her opinion, the facts exist to be shaped to fit her opinion. Who are we kidding here? If Sharon Keller wants you to be guilty, that’s all the fact she needs.

Anyway. Point is, this still isn’t over. And to answer Lisa Falkenberg’s question about the two guys that pled guilty, Jim Ellis and John Colyandro both had provisions in their plea agreements that took into account the possibility that DeLay’s conviction could get tossed. As such, I think they’re both pretty happy right about now.

DeLay gets off

Bummer.

Do YOU feel safe with me out on the streets?

Former U.S. Rep. Tom DeLay’s political money laundering conviction was overturned by the state’s 3rd Court of Appeals on Thursday.

“Based on the totality of the evidence, we conclude that the evidence presented does not support a conclusion that DeLay committed the crimes that were charged,” the judges ruled. “The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity.”

The decision reversed DeLay’s trial court conviction.

[…]

Two of the three appellate judges said the state failed to prove that the money being laundered was the result of any criminal activity. In a dissent, Justice J. Woodfin Jones disagreed on that point, saying the money came from illegal corporate contributions. “A rational juror hearing the evidence presented in this trial could have found that the relevant corporate contributions… were made with the intent that they be used to support individual candidates or be put to other purposes not authorized” by law, he wrote.

You can read the majority opinion here and the dissent here. If you believe this decision was influenced by politics, you will be unhappy to learn that Justice Woodie Jones, the only Democrat currently on the 3rd Court of Appeals, is not running for re-election next year. Personally, I’m shaking my head at the fact that DeLay’s appeal has vindicated the ridiculous checks aren’t cash argument. The good news is that DeLay’s win might be short-lived.

However, Thursday’s victory for DeLay does not end the long-running case _ dating back to the 2002 elections _ because Travis County District Attorney Rosemary Lehmberg promised to appeal to the Texas Court of Criminal Appeals.

“We are absolutely going to appeal it,” she said. “We strongly disagree with the opinion.”

Lehmberg, a Democrat, said she was particularly concerned that two appellate justices substituted their judgment on the facts of the case that twelve jurors heard for weeks.

The CCA has previously swatted down the “checks aren’t cash” defense, making it one of the few times that its rabid pro-prosecutor bias was applied for a good purpose. We’ll see if history repeats itself. In the meantime, gird your loins for DeLay’s victory lap/comeback tour, which is sure to be every bit as ugly as his appearance on “Dancing With The Stars” was. BOR, Juanita, Texpatriate, Political Animal, and Burka have more.

More leftover campaign cash

The Chron writes about a subject I’ve covered before.

BagOfMoney

Former Rep. Shelley Sekula-Gibbs of Houston used leftover campaign funds to buy a life membership in the National Rifle Association. Former Rep. Martin Frost of Dallas paid a $6,000 Federal Election Commission fine. Former Rep. Tom DeLay of Sugar Land hired a media consultant. And former Rep. Henry Bonilla of San Antonio, a Republican lawmaker-turned-lobbyist, showered 35 candidates – including two prominent Democrats – with campaign donations.

Over the past two decades, retired members of the Texas congressional delegation have spent more than a million dollars they had raised for their House and Senate campaigns on expenses incurred after they left office, a Houston Chronicle review of Federal Election Commission records has found. For some of the ex-lawmakers, the expenses continued for years after they last held office in Washington.

The post-congressional spending ranged from small thank-you trinkets for supporters to large expenditures on mailing lists, computer equipment, political consultant fees and donations to other politicians that have allowed some ex-lawmakers to maintain perpetual political operations. Two former lawmakers made payments to family members.

All of the retirement spending was made possible by donors who contributed to the Texas lawmakers’ campaigns while they were holding office. A review of FEC reports indicates that none of the former legislators refunded any funds to their former donors after leaving office.

The existence of these accounts – used by 71 percent of Texas lawmakers who left office over the past two decades – may come as a surprise to many of their constituents. But it’s all perfectly legal – as long as the former officeholders use the money for political or charitable causes.

“You can use campaign funds for any lawful purpose – except they can’t be converted to personal use,” said Michael Toner, former chairman of the Federal Election Commission.

[…]

Campaign watchdogs say the current law allows former officeholders too much latitude in deciding how to use leftover money.

“There’s actually quite a lot of room for lawmakers to finagle their own campaign budgets,” said Craig Holman, a campaign finance expert at the liberal advocacy group Public Citizen.

Holman said the FEC definition of prohibited “personal use” is too narrow and allows former members to indirectly use their funds to benefit family members or themselves by funneling money into organizations they manage or control.

While the Chron story is about former federal officeholders, this is an issue at the state level, too. I thought there was a state law that required all funds to be disbursed within a set period off time, but if that is the case I’ve never seen it enforced. If it were up to me, I’d mandate that any funds left unspent four years after the person’s last day in office would be put into a fund that helps the relevant enforcement agency do its thing. Seems only fitting to me.

[Jim] Turner has the longest-lasting campaign account. The former state legislator and congressman had amassed more than $1 million in campaign funds when he retired rather than face off against veteran Republican Rep. Joe Barton of Ennis in a heavily Republican district. Eight years later, Turner has $990,000 remaining.

Turner said he has kept his campaign account active because he might run for office if “Texas becomes Democratic again.”

“I have always wanted to keep the option open and may want to run for a statewide office,” he said. “I was sidelined by redistricting, but I’ve always enjoyed public service.”

Turner’s last election was in 2002. I don’t care for his strategy of waiting till Texas is sufficiently blue in 2018 or 2022 to maybe use all that money to take another shot at public office. I hope the Democratic primary voters in those years would look askance on someone who sat on a million bucks for 15 or 20 years just in case conditions became favorable for him again instead of using it to help other candidates and causes. My advice to Turner would be to either gut it up and run against Big John Cornyn in 2014 – a million bucks won’t get you that far in a Senate race, but it beats starting out with nothing – or just admit that your time has passed and donate the cash to Battleground Texas. But seriously, don’t keep sitting on it. It’s not doing anyone any good.

Can you believe it’s been ten years?

Where were YOU when it all began?

Ten years (and one week) ago, four defeated Democratic candidates for the State House filed a lawsuit against the Texas Association of Business, claiming that TAB funneled illegal corporate contributions into state legislative races in the 2002 election. As you can see from what I wrote at the time – yes, I was blogging that long ago – I didn’t think it was likely that anything would come of this. Boy, was I wrong about that. This litigation started a chain of events that eventually led to a Travis County DA investigation of Tom DeLay and his arrest and conviction, and also to his appearance on Dancing with the Stars. Amazingly, the story is not over, and may not be over any time soon. DeLay is of course appealing his conviction, and he still has the Court of Criminal Appeals to plead to if he doesn’t win this round. His cronies Jim Ellis and John Colyandro took pleas in recent months after a similar line of appeal failed to get their indictments quashed. Their plea deals include a get-out-of-probation-free clause in the event that the infamous Citizens United ruling winds up mooting the Texas law that led to all their prosecutions. I thought about all this back when Ellis copped his plea, and put a note on my calendar to commemorate the anniversary, which I didn’t get to in time because I kind of suck at that sort of thing, but what does another week mean in this saga? I might want to create a reminder for the 20th anniversary of the original lawsuit, because it’s possible there could still be unfinished business by then. Anyway, take a moment and marvel at the wonder of it all. Where were you when it all began?

UPDATE: Just to be clear, DeLay made his memorable appearance on Dancing With The Stars prior to his trial and conviction. I have changed the wording in that sentence to clarify.

Colyandro takes a plea

Missed this on Friday.

Who's next?

It took five minutes for Capitol figure John Colyandro to end a decade-long saga that swept his boss, former U.S. House Majority Leader Tom DeLay, out of Congress and politics altogether.

Colyandro, the last individual with charges pending in the DeLay money-laundering case, pleaded guilty Friday to lesser charges of accepting illegal political contributions during the 2002 state legislative elections.

He received one-year deferred adjudication on two Class A misdemeanor charges, meaning there will be no final conviction on his record if he successfully completes unsupervised probation. He also was fined $8,000.

[…]

Despite Friday’s plea, Colyandro continues to face civil litigation arising from the 2002 election.

DeLay remains free on bail, pending his appeal of his three-year prison sentence and conviction on conspiracy and money-laundering charges.

A third co-defendant, Jim Ellis, DeLay’s right-hand political staffer in Washington, D.C., pleaded guilty in June to a felony charge of making an illegal campaign contribution. Ellis, who negotiated the $190,000 exchange, received four years of probation and was fined $10,000.

[…]

Colyandro’s plea bargain includes a provision, similar to one offered to Ellis, that takes into account the possibility that the current state law might be challenged.

See here and here for the relevant bits on the criminal cases. I’ve no idea where any civil litigation stands at this point – honestly, I thought that had been resolved years ago, but I suppose there still could be something out there, or the potential for something in the future once the criminal stuff is all done. The only case still going is DeLay’s. It’s not the end of an era yet, but you can almost see it from here.

DeLay argues his case before the appeals court panel

It’s an old, familiar argument.

Who are YOU to say that checks aren't cash?

Former U.S. House Majority Leader Tom DeLay should not go to prison on money-laundering charges because the 2002 campaign transaction involved a $190,000 check and not cash, his lawyer argued before the Third Court of Appeals Wednesday.

Houston lawyer Brian Wice said the Legislature later changed the money-laundering statute to include checks, proving that DeLay’s transaction was not covered by the law. But Travis County prosecutor Holly Taylor said lawmakers in 2005 were only clarifying what was already the law.

She said Wice’s argument is ludicrous because a drug dealer would have been guilty of money laundering if he used a money order but not a cashier’s check.

Taylor pointed out that criminals using checks were being successfully prosecuted before the 2005 change in the law, while Wice countered that their lawyers “didn’t have the sense” to raise the no-cash defense.

Yes, it’s our old friend the checks aren’t cash argument. Perhaps it’s just that previous lawyers didn’t have the brass to raise that defense. I’ll be honest, I thought the Court of Criminal Appeals settled this matter in 2010 when they unanimously ruled that the state’s money-laundering statute did apply to checks. That was an appeal from the Ellis/Colyandro trial, so I guess DeLay gets to make the same arguments himself. There’s also an issue being raised about whether or not the corporate donors knew what their money was going to, but this to me is the signature question. All we know for sure is that the CCA will get to rule on it again. The Trib has more.

Doesn’t he know that Valjean was French?

Poor, pitiful Tom DeLay.

I know who I am but who are YOU?

DeLay, and his attorney, Brian Wice, are hoping to get his convictions overturned. On Oct. 10, they will finally get a chance to make their case to the 3rd Court of Appeals, arguing the once-powerful Republican leader did nothing wrong and is the victim of a political vendetta, a claim that prosecutors deny.

DeLay, 65, was found guilty in November 2010 of money laundering and conspiracy to commit money laundering for helping illegally funnel corporate money to Texas candidates in 2002.

Sitting with DeLay in his office in downtown Houston on Wednesday, Wice used a literary allusion to explain the case. He compared DeLay to Jean Valjean, the kind-hearted protagonist of Victor Hugo’s “Les Misérables.” He called Ronnie Earle, the now-retired Democratic Travis County District Attorney in Austin who charged the former lawmaker, a modern-day Inspector Javert, who pursued Valjean at all costs.

The Travis County District Attorney’s Office says the case was never about politics but about someone who broke Texas law.

“Our office has always been fair and never been politically motivated in prosecuting this defendant or any other,” said prosecutor Holly Taylor.

I believe it was Ronnie Earle who said “Being called partisan by Tom DeLay is like being called ugly by a toad.” But never mind that, I feel a song coming on:

Yes, Jean Valjean was exactly like Tom DeLay, with his book deal and his touring the country giving speeches and rubbing elbows with power brokers, and of course his gig on “Viennese Waltzing With The Stars”, which was a big hit back in the day. Valjean also had a legal defense fund that helped keep him afloat all those years he was being pursued by Javert. It’s like they’re twins separated by a couple of centuries and the fact that one of them is fictional.

If I hadn’t been a math major, I might have read enough Great Books to have a better fictional doppelganger for DeLay to suggest, but I didn’t and I don’t. So I’ll leave that to you. Make your nomination for DeLay’s true literary counterpart in the comments. I’m sure we’ll get a better answer than this.

More DeLay trial news

Some other action on the Tom DeLay front this week.

I'm pointing at YOU!

The Tom DeLay legal marathon inched forward Wednesday on two separate fronts.

John Colyandro, a DeLay co-defendant who has been under investigation since 2003, found out his trial won’t start until next year.

Meanwhile, DeLay, who is fighting his conviction and three-year prison sentence, finally knows which three justices on the 3rd Court of Appeals will hear his appeal.

[…]

Pre-trial motions in Colyandro’s case will be heard Oct. 9, but the Austin district court’s schedule won’t allow time for a trial before 2013.

[…]

On Wednesday, Texas Supreme Court Justice Wallace Jefferson named Justice David Gaultney, a Beaumont Republican on the Ninth Court of Appeals.
Gaultney, who’s been an appellate justice since 2001, joins 3rd Court Chief Justice Woody Jones, a Democrat, and Justice Melissa Goodwin,a Republican, on the DeLay appeal.

Judge Gaultney replaces Judge Diane Henson, who was removed from the case after DeLay challenged her impartiality. Colyandro is the last of the DeLay cronies to learn his fate after Jim Ellis took a plea earlier this year. By the time Colyandro’s trial actually begins, the crimes of which he has been accused will be more than ten years old. Well, you can’t rush these things.

Henson removed from DeLay appeals case

Score one for Team DeLay.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay has won a tactical victory with the removal of Justice Diane Henson, a Democrat, from his appeal.

A motion to remove Henson was granted late Friday without comment and posted on the 3rd Court of Appeals’ website. The action might put the much-delayed appellate case back on track.

“All we ever asked for was a level playing field,” said Brian Wice, DeLay’s appellate lawyer from Houston. “That wasn’t going to happen as long as Justice Henson’s DNA was on the case.”

In his motion, Wice had complained about what he called “anti-Republican” comments Henson had made about his client, a prominent Republican, several years ago.

[…]

When Wice challenged Henson, the 3rd Court was down to Chief Justice Woodie Jones, a Democrat, and Justice Melissa Goodwin, a Republican, to decide whether Henson could hear the DeLay case.

Texas Supreme Court Chief Justice Wallace Jefferson added a third, temporary justice to hear the motion against Henson. He appointed San Antonio District Judge David Berchelmann Jr., a Republican and a former criminal appellate justice.

With Henson now off the case, Wice said Saturday he expects Jefferson will appoint a justice to hear oral arguments with Jones and Goodwin.

See here, here, and here for background. I seriously doubt this ruling would make any difference in the outcome of DeLay’s appeal, but now there’s one less cause for appeal if he loses again. Let’s get this show on the road already. Postcards and Hair Balls have more.

Former DeLay aide Ellis pleads guilty

This was out of the blue.

Who's next?

Tom DeLay’s chief political aide, Jim Ellis, pleaded guilty Thursday to a felony charge of making an illegal campaign contribution during the 2002 election.

Ellis, who headed DeLay’s Americans for a Republican Majority political action committee, was the aide who negotiated an exchange of $190,000 of corporate money for campaign contributions to Republican candidates for the Texas Legislature, according to testimony in DeLay’s 2010 trial.

Ellis received a four-year probation and was fined $10,000 on a charge that he made a contribution of corporate money to a political party within 60 days of an election.

[…]

Under the terms of Ellis’ plea, the adjudication of the third-degree felony charge is deferred, meaning a final conviction won’t be reflected on his record if he successfully completes probation.

Ellis also cannot work for a political action committee in any capacity in which he handles or solicits corporate political contributions. There will be no travel restrictions for Ellis, who lives in Virginia.

Ellis also agreed to testify in any future legal proceedings. Charges are pending against Ellis’ co-defendant, John Colyandro of Austin, who is scheduled to appear in court Aug. 8. Colyandro was executive director of Texans for a Republican Majority, the political committee that DeLay chaired.

In exchange for Ellis’ plea, prosecutors dismissed conspiracy and money-laundering charges.

Prosecutors also agreed to cut Ellis a break in the event the state law is eventually overturned in court, which after the most recent “Citizens United” ruling you have to think is a live possibility. I must say, after all this time I did not expect someone to cop a plea, even though I have always believed that the case against Ellis and Colyandro was stronger than the one against DeLay himself. The most recent development in this case before now was last year when Judge Pat Priest recused himself after urging Ellis and Colyandro to consider accepting pleas. Funny how these things work, isn’t it?

Speaking of DeLay and recusals, we now have a pinch hitter for the Third Court of Appeals.

A San Antonio district judge was temporarily appointed to the 3rd Court of Appeals on Wednesday to help determine whether Justice Diane Henson, a Democrat, should be recused from considering Tom DeLay’s money-laundering case.

Under state appellate rules, when judges decline to recuse themselves — as Henson has done — the matter goes before the entire court to decide by a majority vote.

But three Republicans on the six-judge court have already recused themselves from hearing DeLay’s appeal, giving no reason for their removal. And the rules do not allow Henson to vote on the request.

Needing a third judge to decide DeLay’s motion to recuse, Woodie Jones, chief justice of the Austin-based 3rd Court of Appeals, last week asked the Texas Supreme Court to name a temporary panel member.

Chief Justice Wallace Jefferson responded Wednesday by appointing San Antonio District Judge David Berchelmann Jr. to the appeals court “for as long as may be necessary to hear and rule on the motion.”

DeLay’s lawyers have said that “anti-Republican remarks” made by Henson at a state Democratic Party convention in 2006 raised questions about her impartiality.

See here and here for some background. Judge Berchelmann is there to help decide whether or not Judge Henson can hear the appeal of DeLay’s conviction. If she is removed for the appeal, a substitute will have to be named for her, since there are no more un-tainted judges on the Third Court any more. By the way, if the name “David Bedrchelmann” sounds familiar to you, it’s because he was the judge in the Sharon Keller case. That case was a mess in more ways than one, and I can’t say I was impressed by Judge Berchelmann’s performance. That’s water under the bridge now, so we’ll see what happens here.

A trio of trial updates

Planned Parenthood versus Texas:

A ruling affecting health care, including contraception, for some 130,000 low-income Texas women probably won’t come until late this year as Planned Parenthood and the state of Texas plan for mid-October oral arguments in their legal fight.

The state is appealing a preliminary injunction that U.S. District Judge Lee Yeakel granted six weeks ago preventing Texas from disqualifying Planned Parenthood from participating in the Women’s Health Program. State leaders oppose Planned Parenthood because some of its clinics provide abortion services.

Yeakel told both parties Friday the case could change depending on how the 5th U.S. Circuit Court of Appeals rules on the state’s effort to lift his injunction. The appeals court will hear oral arguments on June 7.

According to Postcards, the schedule is depositions and discovery are to be done by August 17, the last briefs are due in October 5, and oral arguments will be on October 19. We’ll probably get a ruling in November.

Voter ID:

The state’s lawsuit against the U.S. Department of Justice over the voter ID bill will commence in July, keeping alive the chance that the controversial measure could be in effect by the November election.

[…]

The Department of Justice confirmed that a federal district court in Washington D.C. will hear the case starting July 9, but declined to offer any additional comment.

At this rate, the voter ID lawsuit could be decided before the redistricting lawsuit. Man, that’s taking forever. In the meantime, you’ve probably heard that a divided DC Court has upheld the Voting Rights Act in the Shelby County (Alabama) lawsuit. The Supreme Court may hear the inevitable appeal of the voter ID suit, which also challenges Section 5 of the VRA, before the appeal of this case. At least one of those cases will be on their docket next year.

Tom DeLay.

The much-delayed Tom DeLay case is delayed again.

The 3rd Court of Appeals cancelled [this] week’s oral arguments on DeLay’s money-laundering conviction after his lawyer, Brian Wice, asked Justice Diane Henson to recuse herself.

[…]

The latest postponement in the marathon case was prompted because three Republicans on the 3rd Court removed themselves from hearing the appeal. They did not cite a reason.

“The Republicans all apparently think this case is kryptonite,” Wice said at the time. That left Wice facing a 2-to-1 Democratic panel hearing the oral arguments.

Friday’s cancellation came after Wice had filed a motion asking the court to make a decision on Henson by Friday or he would ask a higher court to intervene.

The court did not explain the reason for the cancellation or suggest how long the appeal might be on hold. Wice speculated Friday that the court has reached an impasse over Henson’s participation.

“I think they did the sensible thing and called a timeout,” Wice said.

I’ve got the World Court in The Hague on speed dial whenever they’re ready to face up to the inevitable.

Will the last judge on the Third Court of Appeals please issue a ruling on Tom DeLay?

The way this is going, we may have to start importing judges from other states.

Are YOU fit to judge me?

Former U.S. House Majority Leader Tom DeLay’s appeal has taken an unexpected turn as three Republican justices removed themselves from his money laundering case in just a matter of days.

That leaves the fate of DeLay, a high-profile Republican who argued that he couldn’t get a fair trial in the Democratic Travis County, in the hands of a 2-1 Democratic majority on the 3rd Court of Appeals.

For now.

On Friday, DeLay’s appellate lawyer, Brian Wice, filed a motion to remove Justice Diane Henson, a Democrat, because of “anti-Republican” remarks she made at the state Democratic Convention in 2006.

[…]

In his motion, Wice said Chief Justice Woodie Jones, a Democrat, and two Republicans, Bob Pemberton and Jeff Rose, were initially scheduled to hear oral arguments.

Then, last week, Wice said he learned that Henson had replaced Pemberton and that Rose was stepping aside as well. But Rose’s replacement, David Puryear, another Republican, removed himself Thursday.

That left the lone remaining Republican on the court, Melissa Goodwin, to join her two Democratic colleagues.

Justices typically don’t say why they recuse themselves, but in Pemberton’s case, his re-election opponent is Bryan Case, a prosecutor involved in the DeLay case.

Puryear stepped aside Thursday, and Wice filed his motion challenging Henson’s impartiality the next day.

First they have to decide who will hear Wice’s motion to recuse Judge Henson, which may require a judge from another court being appointed for that hearing by Supreme Court Chief Justice Wallace Jefferson. Then, if Wice is successful in his attempt, a third judge will need to be appointed to hear the case, since there are no more judges on the Third Court who haven’t already recused themselves. Recusals have been the norm in this case and in the related case of DeLay associates Jim Ellis and John Colyandro. I once suggested we skip all of this folderol and go straight to the World Court in The Hague. Looks to me like that’s still a good idea.

“Checks aren’t cash” back before 3rd Court of Appeals

Sometimes when you least expect it, Tom DeLay pops up in the news.

It would defy common sense to reverse the three-year prison sentence of former U.S. House Majority Leader Tom DeLay because his money-laundering case involved a check instead of cash, Travis County prosecutors are arguing.

Their argument comes in a legal brief to the 3rd Court of Appeals, the only court to embrace the novel defense before a higher court criticized the 3rd Court for acting prematurely during pre trial maneuvers and ordered DeLay to stand trial.

The check-versus-cash argument is only one of several legal points on appeal, but it might give the Sugar Land Republican his best chance to reverse his felony conviction because some of the judges previously appeared open to the argument. Republicans still control the majority on the Austin appeals court, 4-to-2, but half of the six judges have left the bench since the 2008 ruling that had judges publicly accusing one another of partisanship and acting in bad faith.

[…]

“No doubt an ordinary person would expect that a defendant could not circumvent the money laundering law by merely having the ill-gotten gains deposited in a bank and using a check to transfer the money,” [Travis County Assistant DA Holly] Taylor wrote.

Taylor noted that Texas courts have upheld guilty verdicts in other money laundering cases where the laundered funds consisted of checks written before the law was amended in 2005.

Taylor also challenged the reasoning behind the 3rd Court’s controversial opinion about checks.

Under the court’s theory, Taylor said, a drug dealer who deposited his criminal proceeds in a bank could not be prosecuted for money laundering if he wrote a check on that account. On the other hand, if the dealer withdrew cash or used a cashier’s check, he could be charged with money laundering.

“Certainly the Legislature never intended such nonsensical results,” Taylor wrote.

See my various posts here for background. The original ruling on the “checks aren’t cash” defense theory came in 2005. Whatever the 3rd Court of Appeals says – and I have no idea when they will say it – you can be sure this will go back to the CCA afterward, which to its credit got this one right the first time around. There’s still a couple of years to go before this one finally hits the end of the road.

DeLay files appeal of his conviction

The man has been a boon for the defense bar, I’ll say that much for him.

Tom DeLay’s appellate lawyer tapped a movie musical and Shakespeare in a wide-ranging appeal that argues the former U.S. House majority leader was wrongly convicted of conspiring to launder corporate dollars into campaign donations.

In 2002, DeLay’s political committee sent a $190,000 corporate check to the Republican National Committee that, in turn, agreed to donate the same amount from its noncorporate account to Texas candidates. State law prohibits corporate donations to candidates.

The monthlong trial before a Travis County jury last fall turned on the question: Were DeLay and his co-defendants laundering corporate money, or making the kind of “money swaps” both parties had done in the past?

To sum up the legal points in Houston lawyer Brian Wice’s appeal: DeLay didn’t do anything as part of a conspiracy. If he did, it wasn’t a crime. If it was, he couldn’t have known it was a crime. And, besides, the ban against corporate donations is a constitutional infringement on free speech.

Wice also requested a hearing to explain it all.

Judge Pat Priest, a visiting judge from San Antonio, sentenced the Sugar Land Republican, who was once one of the most powerful leaders in Washington D.C., to three years in prison. DeLay remains free pending an appeal that could take months, if not years. Prosecutors have weeks to respond to the brief filed late Thursday.

I should note that convicted felon Tom DeLay had previously filed a motion for a new trial. I have no idea what the status of that is. Also, Judge Priest had previously recused himself from the trial of DeLay’s cronies Jim Ellis and John Colyandro. A new judge has been named, but I have no idea when that trial may get underway. We may all be dead from old age by the time this finally gets adjudicated.

I have to say, DeLay has good taste in attorneys. He had Dick DeGuerin at trial, and Brian Wice is one of the top guys for appeals. As the story notes, he has a decent chance of winning thanks to the ridiculous “checks aren’t cash” ruling the Third Court of Appeals made a few years ago, for which it later received a spanking from the Court of Criminal Appeals. I had never expected DeLay to be found guilty in the first place, so even if he is ultimately freed the fact that I have been able to refer to him as “convicted felon Tom DeLay” in the interim will still have been sweet. And he’ll always be a convicted felon to me, no matter what the courts ultimately say.

Taking aim at the Voting Rights Act

In responding to a petition by State Rep. Marc Veasey and State Sen. Wendy Davis to intervene against the state in its lawsuit to get the federal court to pre-clear the new maps, the Attorney General responded by saying that the Voting Rights Act is too big a burden for it to deal with.

The state’s lawyers wrote that “subjecting the states to a suit where they bear the burden of proving, in essence, that they are not governed by recalcitrant lawbreakers is extraordinary in itself, albeit perhaps once justified by the historic exigencies of the middle 1960s.”

[…]

In the brief, the state’s attorneys argue that Rep. Marc Veasey and Sen. Wendy Davis, the North Texas Democrats who have filed to intervene, don’t have standing to join the federal case and shouldn’t be allowed to because their concerns are represented in redistricting lawsuits already filed in Texas.

Gerry Hebert, Veasey and Davis’ attorney, said they sought to get involved with the D.C. case because the judges are looking specifically at whether the redistricting plan reduces the minority opportunity for representation in the Texas Capitol and congressional delegation.

“That’s the purpose of the preclearance provision, to really put the burden on the state to prove nondiscrimination,” Hebert said.

Yes, that is the point. And the point of the AG’s response, which you can see here via Texas Redistricting, is to raise the question about whether the VRA is even needed any more so that (the GOP hope is) it can be narrowed or even voided. The GOP’s grand strategy all across the country is to make it harder to vote. This is part and parcel of that.

On a related note, Roll Call writes about the time pressure the court is under.

In Texas, either courts or the Justice Department must clear the new map before the Dec. 12 candidate filing deadline for the March primary.

Texas officials filed their case with federal courts last month, but there is no set time frame for a ruling.

It’s possible that the federal courts could strike down the map without giving state lawmakers enough time to pass a new plan and resubmit it. In that case, a three-judge panel would likely redraw the map — and it’s anyone’s guess what the final result would be. Candidates would run in the primary and general election under those court-mandated Congressional boundaries — and not those drawn by state lawmakers earlier this year.

The courts ultimately drew the Texas Congressional map a decade ago after state lawmakers could not agree on a plan. That ruling precipitated the infamous mid-decade redraw orchestrated by former House Majority Leader Tom DeLay (R-Texas).

“The Congressmen are deathly afraid of it being sent to the three-judge panel based on what happened in 2001,” said one Texas Republican operative close to the redistricting process.

The reason for that, as David Nir suggests, is that a judicial redraw could cost them as many as four Congressional seats. The basic math at play here is simple enough: Latinos accounted for 80% of Texas’ growth, but only one of the four new seats can be considered a Latino opportunity seat. Had the GOP gone with the Lamar Smith option of two new Latino seats, they’d likely have a much stronger hand to play. You never know what the court will say, of course, and however despicable most of their goals are you have to admit the GOP has done pretty well swinging for the fences these days, so let’s not put the postmortem ahead of the cart here. I do wonder if anyone is now ruing the decision to stick with the March primary date instead of moving it back, which would have allowed for more time to get a preclearance ruling. Hindsight.