Brit Hume, others lie: all ignored Texas
law to falsely claim DeLay indictment based on weak evidence
Media Matters
September 30, 2005
Commentators and journalists falsely attacked the indictment handed down
against former House Majority Leader Tom DeLay (R-TX) by claiming that it cites
little or no specific evidence to support the charge that he conspired to
violate Texas campaign finance laws. Attacks appearing on Fox News took two
forms: 1) that the absence of evidence in the indictment is highly unusual; and
2) that it implies a weak case. In fact, Texas law requires only that specific
allegations be presented in the indictment, not the specific evidence to back
up those allegations. Moreover, contrary to the claim that the indictment's
lack of evidence is highly unusual, prosecutors in Texas rarely include such
evidence [The Washington Post, 9/29/05].
Under Texas law, an indictment only must include the specific allegations
which, if proved at trial, would constitute a violation of the law. According
to Texas' Code of Criminal Procedure, "[e]verything should be stated in an
indictment which is necessary to be proved" -- in other words, all the specific
statutory elements of the crime need to be alleged against the defendant.
Regarding the Texas conspiracy statute DeLay is accused of violating, the
indictment needed to allege the following: that DeLay and his charged
co-conspirators, James Ellis and John Colyandro, agreed to work together in
order to violate Texas' ban on corporate contributions (a felony), and that at
least one of the group then "performed an overt act" to try and fulfill the
agreement.
The indictment does not allege that DeLay himself acted to carry out the
conspiracy, but specifically alleges that as one of the defendants, he, "with
the intent that a felony be committed, did enter into an agreement with
[Colyandro and Ellis] or with [Texans for a Republican Majority (TRMPAC)] that
one or more of them would engage in conduct that would constitute the offense
of knowingly" making an illegal corporate contribution to Texas state House of
Representatives candidates. Texas law requires no more information (other than
formalities) regarding DeLay specifically, as the second element, the "overt
act," is alleged to have been committed by Colyandro and Ellis. Colyandro and
Ellis were previously charged with having actually broken the corporate
contribution ban and money-laundering [Houston Chronicle, 7/13/05]. As
University of Texas law professor George E. Dix noted in the September 30 New
York Times, "'All that conspiracy requires is that one member of the conspiracy
commit an overt act, and it doesn't have to be the named defendant' ...
Prosecutors would have to show that a defendant, in this case Mr. DeLay, 'had
the intent that a felony be committed,' not commit it himself." Consistent with
the requirements of Texas' indictment rules, Travis County, Texas, District
Attorney Ronnie Earle said at a September 28 press conference (aired on that
day's CNN's Live From...) that while the conspiracy indictment contains
specific allegations, the evidence to support them will be presented at
trial:
QUESTION: The indictments of Colyandro and Ellis are
very specific about the actions they took in making this money exchange. What
role did Mr. DeLay actually have in facilitating that money exchange?
EARLE: Well -- and this is all in the indictment --
criminal conspiracy in this context means that a person with the intent that a
felony be committed agree with two or more persons that, like in this case, the
corporate contributions be made, and one or more of them performs an overt act
in pursuance of the agreement.
QUESTION: What proof do you have that Mr. DeLay
communicated with these guys or made any kind of conspiracy with them? I'm
reading the indictment; I don't see it.
EARLE: You wouldn't see that because those are
issues of evidence that will be presented at the trial.
QUESTION: So it hasn't been proved yet?
EARLE: Well, the indictment is an allegation; it's
not proof.
Nevertheless, commentators on Fox News have characterized Earle's case
against DeLay as weak, based only on the indictment, or have claimed that the
absence of specific evidence in the indictment was highly unusual:
* Fox News Washington managing editor Brit Hume and
Fox News senior judicial analyst Andrew Napolitano, on the September 28 edition
of Special Report with Brit Hume:
HUME: Judge Napolitano, I
looked at this indictment, I read it several times, it isn't very long, and
apart from the broad general claim that Tom DeLay entered into a conspiracy
with two others to violate Texas state campaign laws, it doesn't mention Tom
DeLay in any specific way after that in terms of what he did. Do you have a
sense of what he is alleged to have done here?
NAPOLITANO: Well, you are
right, the indictment doesn't tell us. Remember, the charge against Tom DeLay
is conspiracy, and the essence of a conspiracy is an agreement. So all the
indictment says with respect to Tom DeLay is that he entered into an agreement
with others to violate or circumvent Texas election law and that one of the
others either carried out or attempted to carry out that agreement. But there
is no allegation that Tom DeLay took any purposeful step in furtherance of the
agreement.
[...]
HUME: Is it common, though,
for an indictment to be this vague about the nature of the agreement and how
the agreement was entered into?
NAPOLITANO: No, it is not
common, Brit. In fact, most court rules in the federal system and in most state
systems require great specificity in conspiracy indictments for this very
reason. The defendant needs to know what the government says he did and what
the government says was illegal. When it's as vague as this is, it doesn't
fairly even tell the defendant what he has to defend against.
* Barbara Comstock, former director of the Justice
Department's Office of Public Affairs under Attorney General John Ashcroft,
from the September 28 edition of The Big Story with John Gibson:
COMSTOCK: When you look at
the indictment, all they say is "conspiracy" with no facts. They just allege
this amorphous conspiracy, and as Judge Napolitano has pointed out, really, all
day, it's sort of a last resort when you don't really have anything. And what
Ronnie Earle knew is that this would have a political impact.
* Roll Call executive editor Morton M. Kondracke,
from the "Fox News All-Star Panel" on the September 28 edition of Special
Report:
HUME: OK, the indictment has
been filed, we have all seen it, we have read it, we have all seen what the
evidence -- such as it was presented with it -- is, what about it?
KONDRACKE: I think it is
very thin. It alleges that DeLay was part of a conspiracy, but it includes no
evidence whatever of what he did with the conspiracy. These two aides of his
who were involved in this Texans for a Republican Majority, you know,
supposedly conspired with him to filter money collected from corporations
through the Republican National Committee back to candidates for the state
legislature in Texas.
In addition, Fox News host Sean Hannity, during an interview with DeLay on
the September 29 edition of his nationally syndicated radio show, made both
false claims. He also incorrectly claimed that the indictment did not list the
specific allegation against the former majority leader:
HANNITY: The indictment is three and a half pages in
length. I've read it repeatedly. Your name appears at the beginning of the
document. You are accused specifically of a criminal conspiracy, and after that
you are not mentioned in any of the supposed facts presented in the indictment.
They talk about other people, they talk about a PAC, they talk about the RNC.
They do not mention you. There's no single sentence, there's no information
provided in this indictment linking you to any crime. I have spoken to numerous
lawyers who find this extraordinary.
DeLAY: It's very extraordinary, in fact, my own
lawyers think this is good, we can get rid of this case fairly quickly because
it's obvious they have no evidence, nothing to substantiate any claims at all
as it pertains to me.
[...]
HANNITY: This is an important point. Federal and
state law require that indictments, that they must be specific enough to inform
a defendant exactly what they are being accused of having done.
Nationally syndicated radio host Rush Limbaugh also made substantively
similar comments about the indictment on the September 29 broadcast of The Rush
Limbaugh Show:
LIMBAUGH: Uh, but that's beside the point. Here's
the point. DeLay is innocent. Hasn't been -- he hasn't been convicted of
anything yet. All these charges, all these allusions to charges, all of these
-- all of these horror stories about what Tom DeLay -- he's not been convicted
of anything. And this indictment doesn't specify one thing. I don't want to
beat a dead horse to death, but it doesn't specify one thing that he did.
The indictment does not -- does not connect Tom
DeLay to any -- any crime! Not a single fact is alleged in this indictment. And
experienced lawyers will tell you -- lawyers who have seen gazillions of
indictments will tell you that indictments carry a list of charges. That's how
you know what you're being charged with! You know, you have -- when you're --
when you're accused and you're being charged, you have a right to know what it
is. There's nothing in this indictment that specifies what DeLay did.
So you have to ask, do we still live in the United
States of America? If someone's charged with a crime, they have a legal right
to know exactly what it is they're being accused of. Otherwise, they can't
defend themselves. If we can't accept that principle and defend that principle,
then just how far have we sunk as a movement, and as a party, and as a country?
Throw the guy out. Because we don't think he's going to be effective
anymore?
[...]
If -- if some hack local prosecutor can bring an
indictment at the 11th hour based on no facts whatsoever, then our -- our
Democratic institutions are endangered.
People ask - I've got emails all over. Well, how can
this happen? How can -- how can -- how can some prosecutor just level an
indictment with no charge? How can it happen? That's the power they have.
That's why there are such phrases as abuse of power. Prosecutors are invested
with a lot of it. You'll hope they use it wisely and responsibly. But what can
you do? If you're the victim of it, what can you do?
But, as The Washington Post noted, there is nothing extraordinary about the
form of the DeLay indictment: "Texas law permits such evidence to be left out
of the indictment, so it is rarely included."
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