Tom DeLay might be guilty of something. He might be a ruthless operator. He might be a right-wing zealot. But he almost certainly broke no laws in the case brought against him by Democratic District Attorney Ronnie Earle in Texas.
Liberals loathe Tom DeLay, who embodies all that they hate. But even a Christian pro-life former exterminator from Texas doesn't deserve the abuse to which DeLay is being subjected. Democrats should recall their aversion to the politicized prosecutions from the Clinton years. A prosecutor has enormous power, and unless he wields it properly, he himself becomes an instrument of injustice.
In the Earle case, DeLay seems guilty only of committing politics. In 2002, he spearheaded a Republican takeover of the Texas House that meant Republicans could redraw the state's congressional districts and pick up five seats in 2004. Democrats cried foul, although the redistricting finally brought Texas' congressional delegation more in line with the state's Republican leanings. Immediately after the GOP's 2002 victory, Earle started investigating.
He focused on a transaction between the DeLay-founded Texans for a Republican Majority PAC (TRMPAC) and the Republican National State Elections Committee (RNSEC). In Texas, it is illegal for corporations to give money to candidates. TRMPAC raised $190,000 from corporations that it sent to RNSEC, which passed it to candidates in states where corporate dollars are legal. Then, RNSEC sent the same amount - or so Earle alleges - to Texas candidates from an account that had been raised from individuals.
Earle says this is a crime, although he is hazy on why. Earle got a grand jury, after six months, to indict DeLay on a conspiracy charge. But it was doubtful whether the Texas conspiracy statute applied to the election code in 2002. Earle then asked another grand jury to indict DeLay on money laundering. It declined, angering Earle. Finally, with the statute of limitations expiring, he got yet another grand jury to do the deed after just hours of deliberation.
For a transaction to be money laundering, the money involved has to be tainted. But both ends of the TRMPAC transaction were legal: Corporate money went to candidates who could accept corporate money; money raised from individuals went to Texas candidates. It also has to be the same money coming out both ends. But the TRMPAC money went into one account at RNSEC, and the money going to Texas came from another.
A formality? Perhaps, but such swaps were popular prior to the passage of the McCain-Feingold campaign-finance reform after the 2002 election. According to campaign-finance expert James Bopp, both political parties engaged in TRMPAC-like swaps thousands of times. ''It was extremely common,'' he says, ''and everyone understood it was totally legal.''
Which is why DeLay would have been advised that TRMPAC was doing nothing wrong. DeLay often walks up to the line, but we have laws so that everyone knows where the line is. If that line is impossibly vague or shifts after the fact, you don't have the rule of law, but a morass open to exploitation by prosecutors with partisan or personal motives. Earle has both.
But the damage may already be done. When House Republicans re-instated a rule saying that members of their leadership had to step aside if indicted, they invited Earle to find a way to ruin DeLay's career. He did. DeLay's opponents can enjoy the spectacle and relish the result, but they shouldn't pretend that it is justice.
Rich Lowry is editor of the National Review.