The missed misdemeanor

The WaPo has a fascinating story today about the monthlong dance between Tom DeLay and Ronnie Earle that almost led to a misdemeanor plea on DeLay’s part but instead wound up with the felony indictments against him.

A key question has long been whether DeLay was aware of or involved in [TRMPAC]’s most controversial action — its transfer of $190,000 from Texas to the Washington headquarters of the Republican National Committee in a check dated Sept. 13, 2002, and the committee’s subsequent payment from a different bank account of $190,000 to seven Texas candidates several weeks later.

Earle has charged that the transfers amounted to money laundering, meant to circumvent the state’s long-standing ban on the use of corporate funds for election purposes.

To prove that, he has lined up what several sources described as solid testimony supporting the indictment’s claim that when DeLay fundraiser James W. Ellis gave the RNC a check drawn on TRMPAC’s account, he also turned over to the RNC a list of the Texas candidates meant to receive the funds. Ellis has said he denies Earle’s “version of the story.”

The sources said they also expect witnesses to say that the TRMPAC check was sent to Washington with the dollar amount blank and inscribed with $190,000 only after RNC officials determined they would be able to send back that amount to Texas.

But the trail of evidence surrounding the transfers and other key acts, based on documents and testimony from key corporate donors, DeLay’s associates and even his daughter Dani Ferro, a campaign aide of his, did not lead directly to DeLay’s door, according to those familiar with the case.

[…]

This picture of DeLay’s remove from key events changed in August, when he met secretly with Earle for an hour and a half at the offices of Earle’s public integrity unit in Austin. DeLay did not speak under oath at the meeting. He accepted Earle’s request that the meeting would be transcribed by a court stenographer, and he was relaxed and garrulous, according to three sources familiar with the session.

Asked what his role was in creating TRMPAC, DeLay said it was his vision and his idea, the sources said. But he reiterated that he knew only in general terms about its day-to-day operations. DeLay said he was also generally aware of a plan to shift money between Texas and Washington. It called for pulling together $190,000, sending it up to Washington and getting the same amount sent back to Texas for state election campaigns.

According to matching accounts provided separately by the sources, DeLay was asked whether such a deal happened and responded yes. Asked if he knew beforehand that the deal was going to happen, DeLay said yes. Asked how he knew, DeLay said that his longtime political adviser, Ellis, came into his office, told him it was planned and asked DeLay what he thought. DeLay told Earle that he recalled saying, “Fine.” He added that he knew it was corporate money but said it was fine because he thought it was legal.

Under Earle’s reading of the relevant law, only one person involved in a conspiracy has to perform an overt act, such as turning over a check. Those who support or agree with the act — even after the criminal activity is already under way — are just as culpable. So Earle decided that DeLay’s statements amounted to a moment of legal self-incrimination that made his link to the conspiracy clear. Earle decided he should present that evidence to the grand jury by Sept. 12, before the statute of limitations expired.

But after DeLay agreed to waive the statute of limitations for a month, Earle agreed to hold talks about the implications of DeLay’s admission. That’s why no mention was made of DeLay on Sept. 13, when the grand jury indicted Ellis and Colyandro for money laundering and conspiring to violate the state election law.

On Sept. 23, Ed Bethune, a retired FBI agent and former Arkansas congressman who oversees DeLay’s legal defenses, met with Earle to discuss the possibility of DeLay pleading guilty to a lesser charge than Ellis, an idea that Earle was prepared to accept, according to the four sources. Earle said he wanted Ellis and DeLay to spend three to four months in jail if their appeals failed, an idea that DeLay’s lawyers rejected. They then discussed letting a state jury decide the issue of punishment.

Asked for a comment, Jonathan D. Pauerstein, Ellis’s lawyer, confirmed that Ellis’s potential guilty plea was “a concept that was discussed” but added that it was “not something that anybody said they would do,” because “there was never anything put on the table that would be worthy of consideration.”

The principal reason the deal foundered was that DeLay’s attorneys wanted to postpone his plea until after the Texas appellate courts had ruled on the validity of the state election law provisions at issue, the sources said. Under their proposal, if the courts agreed the law was invalid, then all charges would be dismissed and the promise of a plea forgotten. For the two years it might take to resolve the issue, DeLay would be able to keep his post.

Earle insisted instead that DeLay enter a plea with the court immediately. He was willing only to defer punishment until appeals related to the validity of the law were exhausted; striking any other deal would show undue favoritism to DeLay, several sources said he argued. But DeLay’s defense team felt such a decision would gravely damage the majority leader’s political standing.

“DeLay was at peace with not doing that. He is ready to fight about it,” White said.

At this point, I’m not sure where I’d place my bet as to which side was more reckless in the plea negotiations. It seems to me that if you feel confident that the higher courts will uphold the validity of the state election law, you might consider being generous about the timeline for accepting a plea, since once the law has been upheld as you expect you’ll be in a pretty strong position. Given that the foundation on which the felony case against DeLay is built is not nearly as solid (to my mind, anyway) as the ones against the TRMPAC Triplets, I’d be worried about ensuring I got some kind of positive result out of all this.

On the other hand, from DeLay’s perspective, I’d be pretty eager to get some kind of resolution that allowed me to keep my leadership post and got my name out of the papers for awhile. Given the utter disarray that the current House leadership is in, I’m sure he’s chafing about his inability to get things done any more. Even if he gets the ultimate vindication he seeks, how much will he have been damaged in the meantime?

Read the whole thing and see for yourself. Link via Atrios.

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