House Majority Leader Tom DeLay (R-Texas) has begun quiet discussions with a handful of colleagues about the possibility that he will have to step down from his leadership post temporarily if he is indicted by a Texas grand jury investigating alleged campaign finance abuses.
The probe, which is being conducted by Travis County District Attorney Ronnie Earle, centers on whether Texans for a Republican Majority, a group and its affiliated political action committee started by DeLay, broke a Texas law prohibiting the use of corporate donations in political campaigns during the 2002 state legislative elections.
Republican Conference rules state that a member of the elected leadership who has been indicted on a felony carrying a penalty of at least two years in prison must temporarily step down from the post. He or she may return to the job if found not guilty or if the charges are reduced below a felony or dismissed.
With an increasing amount of press attention on the Texas investigation, a handful of Republican Members have approached DeLay in recent weeks to commiserate and offer their support. Some have also begun pondering how the Conference should proceed if DeLay is forced to temporarily vacate the Majority Leader post.
“This is seen as a ‘step-aside,’ not a ‘step-down,’” said a Republican lawmaker close to the leadership.
Several sources said that the subject has not yet been discussed in any leadership meetings, and most lawmakers interviewed for this story said they were not even aware of the Conference rule on indictments.
“A lot of Members recognize that this is a political witch hunt and they may not be taking it as seriously as they should,” said Rep. John Sweeney (R-N.Y.), a close DeLay ally.
Sweeney’s opinion of Earle’s investigation is shared by DeLay and many of his colleagues, who believe that the Majority Leader is being targeted by vengeful Democrats upset about his successful Texas redistricting effort.
“If Democrat Ronnie Earle’s investigation is an honest search for the truth, he will finish his work quickly and announce that DeLay has been legally exonerated,” said DeLay spokesman Stuart Roy.
DeLay supporters also point out that Earle indicted current Sen. Kay Bailey Hutchison (R-Texas) in 1993 but then chose not to pursue the charges after a judge threw out most of the case.
Earle has strenuously denied allegations of partisan motivation and has emphasized that he has prosecuted far more Democrats than Republicans during his tenure as district attorney.
The idea that Earle is playing politics has led many Republican Members to discount the possibility that DeLay will be indicted.
“I really think the reaction to any suggestion that there may be some indictment or some wrongdoing [by DeLay] is just dismissed out of hand by the Members,” said Chief Deputy Majority Whip Eric Cantor (R-Va.). “It’s ridiculous. I think he will be leader for as long as he wants to be.”
Texas Rep. John Carter (R), a former Williamson County district judge, said an indictment “is not intended to be a declaration of guilt” and that it would be “pretty rough” if DeLay had to relinquish the Majority Leader post without having been convicted of anything.
Repeating a well-known legal adage, Carter said, “A DA can indict a ham sandwich given the opportunity.”
The GOP Conference adopted the rule on indictments in August 1993 as Republicans were in the midst of criticizing then-Ways and Means Chairman Dan Rostenkowski (D-Ill.) for his involvement in the House Post Office scandal.
Originally, the provision only affected chairmen and ranking members, but then-Minority Leader Bob Michel (R-Ill.) amended it during the drafting process to apply to all members of the elected leadership as well.
Because the rule was not applied retroactively, then-Appropriations ranking member Joe McDade (R-Pa.) was allowed to keep his post throughout the 103rd Congress even though he had been under indictment on federal racketeering charges since 1992. At the end of 1994, however, incoming Speaker Newt Gingrich (R-Ga.) decided that McDade would not be eligible to keep the top Appropriations slot in the 104th Congress.
While the rules call for an indicted chairman who has stepped down to be succeeded by the next ranking committee Republican, they do not specify how a member of leadership should be replaced in such a circumstance.
Speaker Dennis Hastert’s (R-Ill.) longtime emphasis on unity and continuity makes it appear unlikely he would tolerate a protracted leadership struggle, particularly in the middle of an election year.
Presumably, the current elected leaders could each move up a slot until DeLay was able to return, meaning Majority Whip Roy Blunt (R-Mo.) would become Majority Leader and Cantor would take Blunt’s post.
Under another scenario, the Conference would elect a “caretaker” Majority Leader, choosing a respected senior lawmaker with no leadership aspirations who would take the post for the good of the Conference and be willing to relinquish it immediately when asked.
None of those events will occur, of course, unless the Austin grand jury looks beyond TRMPAC staffers and chooses to indict DeLay, who has not to date hired a lawyer or established a legal defense fund to deal with the case. He also has not been subpoenaed or informed that he is a target of the investigation, though his daughter, Danielle Ferro, has been subpoenaed in her role as a TRMPAC fundraiser.
Earle has been examining the campaign activities of the Texas Association of Business and state House Speaker Tom Craddick (R) as well as TRMPAC’s solicitation and disbursement of more than $500,000 in corporate donations. The group spent the money for a variety of purposes, including polling and fundraising.
Texas law allows PACs to use such funds only for administrative expenses. Violators of the law could be charged with a felony carrying a sentence of two to 10 years in prison.
According to press reports, TRMPAC and Earle’s prosecutors have advanced different interpretations of what constitutes administrative expenses as opposed to political ones.
Prosecutors contend that the law only allows spending corporate money on expenses such as rent and utilities, while TRMPAC officials believe their expenses were legal and that only direct contributions to candidates would violate the law.
Even if a grand jury finds sufficient evidence that TRM broke state law, it is not clear whether it would indict DeLay himself. Published reports in Texas have suggested that prosecutors are seeking to determine the extent to which the Majority Leader, the head of a TRM advisory board, personally directed the PAC’s operations.
A deposition given in a related civil suit reportedly states that DeLay participated in TRMPAC conference calls, but the lawmaker’s allies have argued that he was not involved in the day-to-day operations of the PAC. They also contend that DeLay and TRM’s operatives had received advice from lawyers that their activities were legal, making it potentially difficult to prove that they deliberately conspired to evade the law.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.