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EDITORIAL: An abuse righted

Tom DeLay’s successful appeal rebukes a malicious prosecution

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Retired congressmen usually have it made. They either return home for a quiet life of leisure or head to K Street for a lucrative lobbying career. Former majority leaders have their pick of seven-figure opportunities. But not always. Tom DeLay, the former Texas congressman famous for his unbending conservative ways, has spent the past decade with neither a job nor a day's rest, fighting for his very freedom. The nightmare ended Thursday.

A Texas Court of Appeals panel rebuked the liberal political establishment in Texas by ordering Mr. DeLay's acquittal on charges of money laundering in a swap of contributions with the Republican National Committee. The appellate majority said a man shouldn't be imprisoned for an arcane reading of baffling campaign-finance statutes. "The deficiency of the state's case," the court noted, "is illustrated by the confusion displayed by the jury during deliberations."

The charges stemmed from Mr. DeLay's work in 2002 to ensure a Republican majority in the Texas Legislature, which could then redraw the political map to reflect the deep red politics of the state. Texas bars corporate contributions to state legislative candidates, so Mr. DeLay sent $190,000 in corporate money to the Republican National Committee, which could then give it to state legislative candidates. The transactions, often referred to as "swapping," were approved by lawyers and remain a commonplace practice in the confusing world of campaign-finance regulations.

After the Republicans won a majority in the Legislature, the district prosecutor Ronnie Earle saw an opportunity for payback, taking inspiration from the late Supreme Court Justice Robert Jackson, who once observed that "if the prosecutor is obliged to choose his cases, it follows he can choose his defendants." This, he said, is "the most dangerous power of the prosecutor: that he will pick people he thinks he should get, rather than pick cases that need to be prosecuted." Several grand juries rejected Mr. Earle's convoluted argument, but he kept trying until he found one willing to indict.

Mr. DeLay was put on trial in Austin, the state's most liberal precincts, instead of his Houston-area home, and the prosecutors used the advantage of a pool of jurors unlikely to be fans of a Republican leader known as "the Hammer." They did their duty as citizens, with one juror asking the judge the key question: "Can it constitute money laundering if the money wasn't procured by illegal means originally?" The correct answer is "no," according to the verdict of the appeals court, but the trial judge avoided giving an answer. Mr. DeLay was convicted and sentenced to three years in prison. He appealed.

The appellate court found Mr. DeLay and his aides had no criminal intent. "Rather than supporting an agreement to violate the Election Code," the court ruled, "the evidence shows that the defendants were attempting to comply with the Election Code limitations on corporate contributions."

With no crime and no proof of criminal intent, the Austin prosecutor settled for branding a Republican majority leader with a "convicted felon" label. Now even that has been vacated. Mr. Earle, who imagined that he would be rewarded by voters for the DeLay verdict but lost a race for lieutenant governor, is now retired. He faces neither punishment nor reprimand for what appears to have been malicious prosecution. He's Exhibit No. 1 in the case for reforming the system that gives prosecutors the power to ruin lives with partisan prosecution.

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