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The indictment of Rep. Tom DeLay (R-Texas) for alleged criminal conspiracy sets up a rematch between the Texas prosecutor pursuing the congressman and his hometown defense lawyer, both of whom sparred a decade ago in a case over another high-profile politician. That case, which involved Texas Republican Sen. Kay Bailey Hutchison, ended up as a full-scale embarrassment for the prosecutor, Ronnie Earle. On Sept. 28, a Travis County, Texas, grand jury indicted DeLay and two political associates for criminal conspiracy, the result of an almost three-year investigation into allegations that corporate money was unlawfully directed to Texas House of Representatives candidates in 2002. “The law that makes corporate contributions a felony in Texas is intended to safeguard democracy and make the ballot box accessible to everybody, regardless of the amount of money involved,” Earle, the Travis County district attorney, said at a news conference a few hours after the grand jury returned the indictment. DeLay is represented by Houston criminal defense lawyer Dick DeGuerin. And his involvement makes the indictment against DeLay, who, as the former House majority leader, was arguably the most powerful man in Congress, less of an easy prosecution for Earle’s office. “Dick, of course, is an excellent lawyer and will do a good job and has the experience of going against that office,” says Ronald Woods, a former U.S. attorney for the Southern District of Texas who worked with DeGuerin on Hutchison’s defense team. In 1994, DeGuerin was lead counsel for Hutchison, whose trial for allegedly tampering with government records ended with a directed acquittal, after Earle refused to present the state’s case. In that case, prosecutors alleged Hutchison, while the state treasurer, put state-paid employees to work on her 1992 Senate campaign and then attempted a cover-up after Earle, a Democrat, began investigating. “My heart goes out to Tom and his family,” Hutchison said in a written statement Sept. 28. “We must all remember that in our system of justice he is innocent until proven otherwise and he deserves the chance to tell his story.” Jamie Loftus, a spokeswoman for Hutchison, said the senator would not immediately comment further on the indictment. OUT IN FORCE Steve McCleery, an Austin, Texas, lawyer who was Earle’s first assistant D.A. and lead counsel for the Hutchison trial, says he expects to see a huge amount of publicity coming from DeLay’s defense early on. McCleery says he is basing his prediction on his previous experience on prosecutions in which DeGuerin was the defense attorney. “It will be run to a great extent like a political campaign,” McCleery says.� At a Sept. 28 press conference in Washington, DeLay characterized the indictment as a partisan attack by Earle, and proclaimed his innocence. “Now, let me be very, very clear: I have done nothing wrong. I have violated no law, no regulation, no rule of the House. I have done nothing unlawful, unethical, or, I might add, unprecedented, even in the political campaigns of Mr. Earle himself,” DeLay said. The indictment charges DeLay with conspiracy to violate the Texas Election Code. It also names John Colyandro, former executive director of the DeLay-founded Texans for a Republican Majority Political Action Committee (TRMPAC), and James Ellis, DeLay’s chief fund-raiser in Washington, as co-conspirators. DeGuerin, a partner in Houston’s DeGuerin, Dickson & Hennessy, told reporters at a separate news conference in Austin that DeLay retained him in recent days, when it became apparent Earle would seek the indictment. DeLay’s defense team also includes Bill White of Austin and Steve Brittain, a solo practitioner in Austin who was the first chief of the special crimes division in Earle’s office. Brittain helped establish the division. In Washington, DeLay is represented by McGuireWoods’ Richard Cullen, a former Virginia attorney general and U.S. attorney for the Eastern District of Virginia who was retained this spring. At the time, the hiring of Cullen, a white-collar criminal defense specialist who also represents the American Israel Public Affairs Committee in a Justice Department probe into the leak of classified national security information, was viewed as an indication that DeLay faced serious legal problems. Cullen’s role, in part, has been to represent DeLay in a Justice Department probe of Jack Abramoff, a former lobbyist at Greenberg Traurig with close ties to the former majority leader. In addition, DeLay has been advised by McDermott, Will & Emery’s Bobby Burchfield, who also represents Rep. Don Sherwood (R-Pa.), a married congressman ensnared in a messy civil suit by a former lover three decades his junior. Bracewell & Giuliani’s Ed Bethune, a former Arkansas congressman and a specialist in congressional ethics investigations, has also advised DeLay. Overseeing the legal team is DeLay’s general counsel, Elliot Berke. Berke is no stranger to politically charged investigations, having spent two years as a lawyer for the independent counsel in the Whitewater investigations of the Clintons in the 1990s. “We’re going to fight this tooth and nail,” DeGuerin said. “There’s no crime here. We want a trial as quick as possible.” In DeGuerin’s view, politics motivated Earle in the cases of both Hutchison and DeLay. DeGuerin contended that Earle prosecuted Hutchison to destroy her chances of becoming the Republican senator from Texas and now is trying to destroy DeLay because of what he has meant to Republican politics in Texas. In 2002, DeLay pushed to elect a Republican majority in the state House, enabling Texas Republicans in 2003 to draw new districts for U.S. House seats that favored GOP candidates. Earle said he’s only doing his job: “The law says that corporate contributions to political campaigns are illegal in Texas. The law makes such contributions a felony. My job is to prosecute felonies. I’m doing my job.” DeGuerin said the indictment already has affected DeLay by causing him to step down as House majority leader. “That’s what Ronnie Earle wants,” DeGuerin contended when speaking to reporters on Sept. 28. Under House Republican Conference rules, any GOP leader indicted for a felony that carries at least a two-year prison sentence must step down immediately. Criminal conspiracy is a state felony punishable by up to two years of incarceration and a fine of up to $10,000. DeLay spokesman Ben Porritt says his boss’s resignation from his leadership position is temporary. Rep. Roy Blunt (R-Mo.) took over as majority leader. SHORT ON SPECIFICS The indictment against DeLay and his political associates is short on specifics with regard to DeLay’s alleged wrongdoing. “It looks mighty slim,” Frank Reilly, an Austin attorney whose practice includes election law, says of the indictment. Reilly is not involved in the criminal prosecutions. “It is the most awkwardly worded indictment I’ve ever seen,” says Woods, the Houston criminal defense lawyer, who notes that Hutchison’s defense team obtained a dismissal of the indictment against her three times, because Earle’s office failed to clearly state an offense in those indictments. As alleged in the indictment, DeLay, Ellis, and Colyandro entered into an agreement to violate the Texas Election Code by funneling corporate dollars to seven Republican candidates for state House seats. “The indictment describes a scheme whereby corporate money, which cannot be given to candidates in Texas, was sent to the Republican National Committee, where it was exchanged for money raised from individuals and then sent to those Texas legislative candidates,” Earle said at the news conference. The indictment alleges that Colyandro and TRMPAC accepted $155,000 in corporate contributions. The indictment further alleges that the money was included in funding for a $190,000 check that Colyandro signed and Ellis delivered to the Republican National Committee. The check, a copy of which is included in the indictment, was made out to the Republican National State Election Committee (RNSEC), which also received instructions on the amount of money that was to be contributed to each of the seven GOP candidates, the indictment alleges. Lawyers for Ellis and Colyandro say their clients will plead not guilty to the criminal conspiracy charge. Another Travis�County grand jury indicted Colyandro and Ellis in September 2004; those indictments accuse the two of money laundering. The earlier grand jury also indicted Colyandro of accepting or making banned corporate contributions. Both men deny the allegations. Austin’s Joseph Turner, Colyandro’s attorney, says the Sept. 28 indictment is “a rehash” of the other indictments. Turner says, “Not one penny of corporate dollars ever found their way to candidates’ campaigns. It came out of a separate account, which was a hard-dollar account.” While the indictment alleges that Ellis, Colyandro, and TRMPAC performed “overt acts” that carried out the criminal conspiracy, it provides no details on DeLay’s alleged involvement. “That’s because he didn’t do anything,” DeGuerin told reporters. Earle said that criminal conspiracy, in this context, means that a person, with the intent to commit a felony, makes an agreement with two or more persons. One or more of those persons then perform an overt act in pursuance of the agreement, he said. “I don’t see in this indictment that they’re making a prima facie showing that this occurred,” says Reilly, a partner at Potts & Reilly. He says that for DeLay to be convicted, prosecutors will have to prove that the lawmaker agreed to the allegedly illegal campaign-funds transfer with either Colyandro or Ellis or both. According to the indictment, DeLay waived the three-year statute of limitations on the conspiracy charge. Brittain says the limitation on that charge ran out on Sept. 13. DeGuerin said that DeLay signed the waiver to provide more time to convince Earle that no crime had been committed. “It was done under duress; it was done because Ronnie Earle said, �I’m going to get the grand jury to indict you right now,’ ” DeGuerin contended. Earle did not return a telephone call seeking further comment.
Mary Alice Robbins and Brenda Sapino Jeffreys are reporters for Texas Lawyer , an ALM publication. Legal Times reporter Jason McLure contributed to this article.

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