The $190,000 Question

Grand juror: DeLay evidence is there
'Stacks of papers' support indictment, foreman says;
U.S. Rep. says there's no case

By CHRISTY HOPPE / The Dallas Morning News
Saturday, October 1, 2005

AUSTIN – Grand jurors were presented a load of evidence, including testimony and phone records, that led them to believe Rep. Tom DeLay should be tried on a conspiracy charge, the leader of the Travis County grand jury that indicted the congressman said Friday.

"It was not one of those sugarcoated deals that we handed to [District Attorney] Ronnie Earle," William M. Gibson said.

He added: "Mr. Earle has stacks and stacks of papers – evidence of telephone calls from Mr. DeLay and everybody."

Mr. DeLay has said that Mr. Earle has no evidence to prove that he tried to subvert Texas election laws. The Sugar Land Republican's lawyers did not return calls seeking comments on Mr. Gibson's description of the grand jury proceedings.

The indictment stems from the activities of Texans for a Republican Majority, a political action committee created by Mr. DeLay. The group, known as TRMPAC, is accused of trying to circumvent Texas laws that make it illegal to use corporate or union money in political campaigns.

Labeling it a money laundering scheme, Mr. Earle says that TRMPAC took $190,000 in corporate donations and routed it – along with the names of seven Statehouse candidates – to the Republican National Committee in September 2002. The RNC then sent out $190,000 in contributions to those same seven candidates, who couldn't legally have accepted corporate money.

At the heart of the conspiracy charge against Mr. DeLay is whether he knew about the transaction. Experts on Texas law say that knowledge alone might be all that is needed for a conviction under state law.

Mr. DeLay, who stepped down as House majority leader when the indictment was issued Wednesday, and his lawyers say he knew nothing about the money exchange at the time it happened and that the indictment is a political vendetta against him.

But in the first public acknowledgements of what evidence against Mr. DeLay might exist, Mr. Gibson, a 76-year-old former sheriff's deputy and state insurance investigator, said there were ample indications of the congressman's involvement.

He said that Mr. DeLay provided the district attorney with a written statement that was given to the grand jury to consider but that Mr. DeLay declined to sign a sworn document or testify under oath.

Mr. DeLay "just gave a statement saying he did nothing. And he didn't know how that money got back down here and all that stuff," Mr. Gibson said. "We believe different from other paperwork we got."

He added, "I am very much convinced that he had" knowledge of the transaction.

Action called proper

DeLay attorney Dick DeGuerin disputed that assertion.

"He had knowledge of it after it happened," Mr. DeGuerin said immediately after the Wednesday indictment. "It wasn't something that he did in advance, or suggested, or anything like that."

Mr. DeLay's legal team also questions the money laundering charge, asserting that corporate money was legally accepted by the RNC and a different $190,000 – from a separate, noncorporate account – was distributed to state representative candidates.

"These corporate contributions were not illegal. They were made properly at the proper time and they were spent for proper things," Mr. DeGuerin said.

Lawsuit

TRMPAC already has lost a lawsuit brought by losing Democratic candidates over how $600,000 raised from corporations was used against them.

In May, state District Judge Joe Hart ruled that the Democrats were damaged by TRMPAC's improper use of corporate money.

"TRMPAC as a whole was an illegal entity," said Cris Feldman, a lawyer representing the Democrats.

He also pointed out that in the ruling, Judge Hart weighed the $190,000 transaction and included it as part of the improper donations, which was used to determine the damage award.

"It's implicit recognition that it was money laundering," Mr. Feldman said.

TRMPAC, which is now defunct, has denied the allegations and is appealing the verdict.

Agreement at issue

While DeLay lieutenants John Colyandro and Jim Ellis were charged with money laundering, Mr. DeLay was charged only with conspiracy – but that statute casts a wide net in Texas.

"The basic [criminal] conduct is agreeing," said University of Texas law professor George E. Dix, who has written books about criminal procedures in Texas. "The defendant must agree with one or more persons, and then one or more of them participates in an action that is a felony."

He said under most circumstances, a person is considered part of a conspiracy even if he or she didn't realize the act they agreed upon was illegal.

"From my understanding, whether or not Mr. DeLay or any defendant believed the conduct he intended to be committed was criminal or not is irrelevant," Mr. Dix said.

Technically under the law, all he had to do was agree to a transaction that turned out to be illegal, he said.

60-day limit

State law also bars directly or indirectly making a corporate contribution to a political party 60 days before a general election. The $190,000 check from TRMPAC to the RNC was delivered within that range.

In e-mails included in the record of the lawsuit, Mr. Ellis and Mr. Colyandro were aware of the 60-day limit. But Mr. Colyandro's research showed that the restriction didn't apply because the contribution was from TRMPAC and not the corporations directly.

"So we are in good shape," Mr. Ellis wrote at the time.

Some legal experts said that if Mr. DeLay knew of the donation prior to its delivery, that would be enough to show that he was knowledgeable about a felony about to be committed.

But Mr. DeGuerin disputes that line of reasoning.

"Whenever the contact was with Tom DeLay and Jim Ellis, it was not that Tom DeLay was calling the shots or that Jim Ellis was trying to get his approval. But again, what Jim Ellis did, and what John Colyandro did, was not a violation of the law. Nobody broke the law," Mr. DeGuerin said.

But Mr. Gibson said there's enough to suggest to the contrary.

"As far as we're concerned, they presented us enough evidence and witnesses that we felt we were on the right track," he said. "I would not have put my name on that grand jury indictment unless I felt we had ample probable cause."