Politics and Criminal Law: The Curious Case of Tom Delay and Reversal of His Convictions for Money Laundering

Politics impacts many of our criminal cases here in Atlanta, throughout Georgia, Florida and Alabama, and in federal cases we do throughout the country. The intersection of politics and criminal prosecutions is especially prevalent in public corruption investigations. Prosecutors often have a political motive in “going after” a particular defendant, and many a prosecutor has made a name for him or herself by bagging a politician. These principles were on full display in the case against Tom Delay, the former Majority Leader of the United States House of Representatives. Last week, the Texas Court of Appeals reversed Delay’s convictions, ruling that he had not committed any crime. The ruling is here.

Delay was known as a hard-charging Republican advocate, whose nickname of “the Hammer” demonstrated his supposedly ruthless tactics. In 2002, Delay wanted to have the Texas Legislature turn solidly Republican, which it did. To accomplish, he asked for a series of corporate political contributions to a campaign committee. Afterwards, that solidly Republican legislature allegedly jiggered the voting districts so that the Texas federal delegation was far more likely to elect Republicans to the U.S. Congress. All well and good, hard nosed politics.

Things got overtly political when the Democratic District Attorney of Travis County brought a series of criminal cases arising out of the method used to try and get lots of Republicans elected to Texas state legislative positions in the 2002 elections. In an initial set of indictments, the State accused the defendants of “participating in a scheme to channel unlawful corporate political contributions to candidates for the Texas House of Representatives in 2002.” The Election Code-based conspiracy charges were thrown out, so the prosecutor re-indicted Delay on two counts, criminal conspiracy to commit money laundering of funds of $100,000 or more and money laundering of funds of $100,000 or more. The predicate offense for the State’s money laundering charge alleged the “offense of knowingly making a political contribution in violation of Subchapter D of Chapter 253 of the Election Code.”

On appeal, the appellate court laboriously plowed through both the Election Code and the evidence at trial. The court demonstrated that first, there simply was no violation of the Election Code. Instead, it seemed that the corporate contributors simply wanted political access, something that is apparently legal in Texas. Second, the Texas Court of Appeals showed that there cannot be illegal “money laundering” unless the money was the result of some criminal act. Because there was nothing illegal when the corporate contributors gave the money over, the subsequent movement of those funds could not be money laundering.

There are plenty of crimes out there, yet aggressive and ambitious prosecutors often fall into the temptation of going after a high profile Defendant who is involved in politics. To me, the real crime is that the kind of contributions involved in this case are apparently legal under Texas law, but we seem to permit that in our country.