A good argument can be made — and I tend to agree with it — that the Sixth Amendment, not the Second, is our last line of defense against tyranny. This is the amendment that guarantees that a criminal defendant be accorded a speedy trial by an impartial jury of his peers.
The government can do a lot of horrible things to you — imprison you, confiscate all your wealth, even kill you — but not until 12 of your peers, selected at random, have found that you violated a law that carries one of those penalties. Resorting to Second Amendment remedies should never be necessary as long as we have a Sixth Amendment.
However, when the defendant is a conservative Republican whose “crime” was taking power away from liberal Democrats, and those sitting in judgment were drawn from the most liberal jury pool in the state, the Sixth Amendment becomes a sick joke.
Last Wednesday, the day before Thanksgiving, former House Majority Leader Tom DeLay, was convicted of money laundering and conspiracy to commit money laundering by a not-so-impartial jury of his not-quite peers in Austin, TX.
Here are the basic facts in this case:
DeLay controlled a political action committee, Texans for a Republican Majority PAC (TRMPAC), which was focused mainly on electing Republicans to the state legislature. Some of the money raised by the PAC — $190,000, to be exact — had been raised from corporations.
Now Texas has a law that prohibits the use of corporate money in campaigns for state offices. No problem. TRMPAC just donates $190,000 raised from corporations to the Republican National Committee (RNC) which then donates $190,000 raised from individuals to seven Republican candidates for the Texas house of representatives. Both of these actions are perfectly legal.
Partly as a result of this, Republicans won control of both houses of the Texas legislature for the first time since Reconstruction and then proceeded to redraw Congressional districts to give the GOP a majority of the state’s Congressional seats.
While this may sound like Republican mischief-making, the effect of redistricting was to end decades of Democrat gerrymandering and bring the make-up of Texas’ Congressional delegation in line with the expressed will of the voters. Before redistricting, Democrats held a majority of the state’s Congressional seats even though Republicans collectively won a majority of the votes.
Was the money-swap a violation of the spirit of the law banning corporate money from state political campaigns? I suppose. Was it illegal? Only by the wildest leap of the imagination.
Ronnie Earle, a liberal Democrat and the Travis County (Austin) district attorney was willing to make that leap. Liberal Democrats who hold political power tend to believe they’re entitled to it, and nothing infuriates them like having it taken away from them.
Earle was itching to prosecute DeLay. He just needed something on which to hang a case. He finally decided to try the Congressman for money laundering.
Now, Texas law considers money to be laundered only if it was gained through criminal activity. The money-swap between TRMPAC and the RNC hardly meets this test, since all donations were obtained legally and all transactions were duly reported. Even liberal Democrats thought Earle was whistling into the wind on this one. Nevertheless, he was ready to give it the good old college try.
Earle had to shop eight different grand juries before he got an indictment that would stick. Six of the grand juries rebuffed him completely, and the first of the indictments that was returned was quashed by the trial court. Eventually Grand Jury Number 8, after a bare 30 minutes of deliberation, returned an indictment that went to trial.
The grand jury is a well most prosecutors go to only once in a case. If they can’t get an indictment the first time, they usually drop the case. Since prosecutors control everything grand jurors see and hear about a case, it is rare that the jurors don’t do exactly what the prosecutor wants. As former New York Supreme Court Judge Sol Wachtler wryly observed, any prosecutor worth his salt can get a grand jury to indict a ham sandwich. Yet Ronnie Earle couldn’t get six separate grand juries to indict Tom DeLay.
The case finally went to trial in October, more than five years after Earle had filed his original charges. In fact, Earle had retired by then so he could run for lieutenant governor (he lost in the Democratic primary), and the case was turned over to his hand-picked successor, Rosemary Lehmberg.
DeLay’s lawyers tried unsuccessfully to get a change of venue. Austin, where the trial was held, is only geographically part of Texas. Politically, culturally and spiritually it is somewhere else. Being both the state capital and the home of the University of Texas, it is the most liberal venue in the state. It’s as if Madison, WI, had been dropped down into the middle the Lone Star State. While Texas was voting 55 – 45 for John McCain in 2008, Austin was voting 2 -1 for Barack Obama. In Austin, Fidel Castro is more popular than Tom DeLay.
Despite coming from such a left-wing jury pool, jurors still took 19 hours to reach a guilty verdict. Conceivably, DeLay could be sentenced to life imprisonment and, judging by the reaction of some members of the liberal punditry, many liberals no doubt are hoping he will be.
I am no fan of Tom DeLay. I hold him, along with his fellow Texans Karl Rove and George W. Bush, to be largely responsible for the GOP abandoning its small-government principles in its drive to gain and hold on to power. DeLay earned the nickname “The Hammer” for the bullying tactics he used to whip Republican Congressmen into line and get them behind the Bush agenda. His “K Street Project”, an effort to get lobbying firms to hire Republican Congressional staffers, only succeeded in tying the GOP more tightly to the Beltway establishment.
I gather that others on the Right hold no great love for him, either. While liberal pundits are practically dancing in the streets over DeLay’s downfall, I’ve heard barely a peep from Right. The only commentary I’ve seen that was critical of the prosecution and conviction of Tom DeLay was in an editorial published in, of all places, The Washington Post.
However, those of us who care about liberty should be concerned. DeLay’s prosecution and conviction are part of a disturbing and extremely dangerous trend in American political life, namely the criminalization of politics.
For decades now the Left has been using the courts to get what they could not get from legislatures or at the ballot box. Voters don’t want unrestricted access to abortion? Then just get the Supreme Court to invalidate all state abortion statutes. Voters reject same-sex marriage in 31 state referenda? Then file a lawsuit.
No doubt emboldened by their success with this tactic, the Left is now using criminal proceedings in an attempt to destroy anyone who stands in the way of their agenda. They did this with Scooter Libby, and they tried to do it with Sarah Palin. When Palin returned to Alaska after the 2008 campaign, she had to deal — at her own expense — with a mountain of frivolous ethics charges. Although she was cleared of all of them, she ran up a legal bill that was four times her annual salary as governor.
Palin should count herself fortunate. Tom DeLay has been forced to spend $8 million on his defense. And that is one of the reasons the Left likes to use this tactic: even if they can’t send the targeted individual to jail, they can force him to spend everything he has defending himself.
I doubt that DeLay’s conviction would stand up under appeal. The conviction could be thrown out on Sixth Amendment grounds alone: he did not receive a speedy trial, and the jury was probably not impartial. Actually, the judge should never have allowed the case to go to the jury. In deciding that two legal acts together constituted an illegal act the jurors were deciding a question of law, not fact.
Whether he appeals the verdict depends, I suspect, on the severity of the sentence handed down by the trial judge. The cost of appealing, plus the cost of a new trial (if the appeals court orders one), could be prohibitive.
The way to end the criminalization of politics is to make it as costly for those who try to use this tactic as it is for their victims. Perhaps we need something like the Old Testament civil law, under which the penalty for falsely accusing someone of a crime was whatever penalty attached to that crime. I wonder if Ronnie Earle would have been so anxious to prosecute Tom DeLay if there was a good chance that he, not DeLay, could face life in prison.