AUSTIN, Texas — The Texas money laundering law is usually associated with drug dealers or white collar criminals, and Tom DeLay's defense attorneys say they will try to keep the former U.S. House majority leader out of prison with an appeal that focuses largely on questions about whether the law was ever intended to apply to election violations.
DeLay was sentenced this week to three years in prison and 10 years of probation for scheming to illegally influence Texas elections. Unlike in most money laundering cases, prosecutors argued he stood to benefit not financially but through political power.
The creative use of the statute – the first time it was ever applied in such a case – was key to his convictions on money laundering and conspiracy to commit money laundering charges.
Prosecutors with the Travis County District Attorney's Office contended DeLay conspired with two associates to use his Texas-based political action committee to send $190,000 in corporate money in 2002 to an arm of the Washington-based Republican National Committee. The RNC then sent the same amount to seven Texas House candidates. Under Texas law, corporate money can't go directly to political campaigns.
A jury in November convicted the Houston-area Republican of money laundering and conspiracy to commit money laundering. Senior Judge Pat Priest sentenced him on Monday, but DeLay will be free on bond pending his appeal, which could take years.
DeLay is not the first politician, whether local or national, to be indicted or convicted of money laundering, but most of those cases fell under the traditional definition, involving financial benefits rather than political ones. Others in recent years include former Arizona Congressman Rick Renzi who is facing trial for his alleged involvement in a federal land swap.
Dick DeGuerin, DeLay's lead attorney, said he will argue that money laundering never took place because the $190,000 that went to Texas candidates was not the product of illegal activity, as required by law, because the money swap was legal. DeLay contended the money swap resulted in the candidates getting money raised from individual donors, which can be legally used in Texas campaigns.
"I think the case will be reversed because Tom DeLay didn't do anything wrong. He didn't violate the law," DeGuerin said.
DeLay's legal team is considering several other appeal options. They argue the judge should have moved DeLay's trial out of Austin, the most Democratic city in one of the most Republican states in the country. The impact of last year's U.S. Supreme Court ruling that now allows companies and unions to spend unlimited funds on elections also could be an issue for the appellate courts.
The uniqueness of the case against DeLay was something that did not escape Priest.
"I recognize that this case is the first of its kind and there is very much a possibility an appellate court will disagree with me," Priest said just before he sentenced DeLay.
Prosecutors say DeLay got a fair trial.
"We followed the laws as we understood them at the time we presented this case to the jurors. We see no reason why it would be overturned," said lead prosecutor Gary Cobb.
Carlos Gonzalez, a Miami-based white collar criminal defense lawyer who's followed DeLay's case, said the ex-lawmaker has a "better than normal chance" in his appeal.
DeLay's attorneys first need to attack whether sufficient evidence was presented to prove money laundering took place, he said.
"Issue number two: take the position that prosecutors have overreached in applying the statute and that (it) was never intended to deal with this type of conduct," Gonzalez said.
Bradley Simon, a New York criminal defense attorney who also followed the case, agrees that attacking the prosecution's creative use of the money laundering law might be DeLay's best strategy.
"I was underwhelmed with the state's case. It's not traditional money laundering," said Simon. "Appeals courts look at the legislative history of a statute and see if it was intended for this type of offense."
However, Cal Jillson, a political science professor at Southern Methodist University in Dallas, believes DeLay's prospects are dim.
"It's been (Texas) law for almost a century that corporations can't contribute directly to political campaigns," he said. "Common sense and the law suggest it was illegal corporate money that went up (to the RNC in Washington) and that same money came back."
Another possible factor in the success of DeLay's appeal could be the makeup of the appellate courts that hear his case. His case will initially go to an appellate court in Austin, which is mostly Republican. But it will ultimately be decided by the Texas Court of Criminal Appeals, which is entirely Republican.
While Gonzalez believes DeLay won't get "a better shake" from the appeals courts because he is Republican, Simon thinks political considerations will play a role in the final decision.
"Questions have hung in the air for decades about whether Texas justice is influenced by politics," Jillson said. "I expect, on the law, his convictions will be sustained. If not, people will look very, very closely."