Can the Judge in Tom DeLay's Case Remain Impartial?

This is a partial transcript of "Special Report With Brit Hume" from Oct. 21, 2005, that has been edited for clarity.

(BEGIN VIDEO CLIP)

REP. TOM DELAY (R-TX), FORMER HOUSE MAJORITY LEADER: Ronnie Earle and the Democrat campaign behind him will be unsuccessful. I will fight this prosecutor’s abuse of the legal system. And I will be absolutely exonerated.

(END VIDEO CLIP)

BRIAN WILSON, HOST: Well, tthat was Tom DeLay (search) Friday in Austin, Texas, before making what was a pretty brief appearance in court. As we told you earlier, it was his first hearing after he was indicted on conspiracy and money laundering charges.

And it didn’t happen very long. The case today was not very long. DeLay’s lawyers have asked the judge in the case to recuse himself, suggesting that, because Judge Bob Perkins (search) has made Democratic political donations, he cannot be impartial in such a politically charged case.

For more on this, we turn again to FOX News correspondent Megyn Kendall, who, in addition to being a very competent reporter is also a very competent lawyer. And she joins us from the courthouse in Travis County, Texas.

Megyn, thanks for joining us. First of all, a very short hearing, but a couple of things I noticed this morning in watching this is, the judge seemed to be immediately on the defensive. And Dick DeGuerin (search), who is DeLay’s attorney, went immediately on the attack.

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Yes, exactly right. I mean, DeGuerin and DeLay seem to be taking the tact that the best defense is a good offense. And that generally has been, in my experience, a very good way to handle a defense case.

The judge came on the bench saying he should have stayed where he was in Italy, seeing the number of people in the courtroom, clearly seeming a little disturbed at the media attention that this case is getting. And, you know, it was interesting, Brian, because DeLay’s attorney gave him the chance to punt on this case. They filed a motion asking him to recuse himself, or take himself off the case.

The rules here in Texas — the attorneys tell me — say that, if he were going to grant that motion and take himself off the case, he could have done it Friday. If he were going to deny it, he had to refer it to another judge. And that’s exactly what he did.

WILSON: All right. So it goes to this administrative judge by the name of BB Schraub (search), who happens to be a Republican. What do we know about him?

KENDALL: Right. That’s about it, that he’s a Republican, that he also had to run for his seat, and that he was appointed by both Democrats and Republicans, a majority of Republicans, but at least a couple of Democrats, to his position in this administrative chief role.

So he will either get to decide this recusal motion, as we call it, or he’ll pick another judge to decide it.

WILSON: Megyn, back when I was growing up in Texas, I used to kind of like the fact that judges were elected officials, because it held them accountable. If you got a boneheaded judge who made bad decisions, they’d vote him out of office the next time he came up.

But in political cases, it gets very complicated, doesn’t it?

KENDALL: Yes, it does. And this Judge Perkins has been in this spot before.

Now, where I am here in Austin, this is Travis County, a heavily Democratic county. And of course, if this judge has to answer to this electorate, who are not fans of Tom DeLay — just being outside of the courthouse Friday, you could see the numerous protestors who were there chanting against him — he might be concerned about having to explain to this group of people in this Democratic county why he, a Democrat, kicked this case to another judge.

As I say, right now, it’s in the hands of a Republican instead of the Democrat, Perkins. That’s something he has to worry about, because, as an elected judge, he does have to answer to the electorate.

WILSON: Now, Democratic District Attorney Ronnie Earle (search) — that’s also an elected position in the state of Texas — held a brief appearance with reporters today. And let’s listen to what he had to say.

(BEGIN VIDEO CLIP)

EARLE: What this means is, if a judge has contributed to crimestoppers, that that judge then couldn't hear a burglary case. And carried to its extreme, that’s what this motion means. And I think that’s the truth.

(END VIDEO CLIP)

WILSON: So there you have Ronnie Earle, the district attorney, who doesn’t speak before cameras — or at least hasn’t spoken before cameras very often in this case — saying, "Look, this is absurd, that you gave it to crime stoppers, you’re saying he couldn’t hear a burglary case."

That’s an interesting point. What do you make of it?

KENDALL: You know, it’s interesting, Brian, because when I was first reading the motion to have this judge recuse himself last night, it sort of struck me as pro forma.

Lawyers often do this. When you think you have a bad judge, you come up with some grounds, if there are some, to say, "Let’s get rid of that judge and get somebody else."

But as you read a little bit further, DeGuerin — that’s the lead attorney — has a little bit more than what you just heard Ronnie Earle suggest. He’s got this judge making, not only Democratic National Committee contributions and contributions to Democratic candidates, but a contribution, $200 bucks about a year ago, to Moveon.org, as I mentioned in my piece at the beginning of the show.

And the problem for this judge is that judges are supposed to avoid what we call in the law the appearance of impropriety. Well, DeGuerin is arguing, "Judge, you gave $200 bucks to this left-wing organization that has been attacking my client for the past year, calling him corrupt. They have a petition on their Web site right now trying to kick him out as House majority leader," which of course happened once he got the felony indictment.

His point is, "You donated to that group. How can you sit on that bench, whether you’re impartial in your heart or not, and still avoid that appearance of impropriety?"

WILSON: One of the things that Tom DeLay says he wants is he wants a speedy trial, because he’d like to reclaim his position as majority leader. And to do that, he needs to move fairly quickly.

I hold in my hand just some of the many motions that his attorneys have filed in this case. Given the fact that we’re not going to have another hearing on this first issue for at least a week or so, and then you have all these other motions pending, it doesn’t seem to me as if this is going to be a very quick trial.

KENDALL: Well, it’s interesting, Brian. I think they want a speedy trial, but they want it in the right venue before the right judge, because they don’t want a speedy trial that comes out with the wrong result for DeLay.

They think they can do better. They think they can do better than Travis County. They think they can do better than this judge.

And I’ll tell you, if they end up with this same judge or not, they’re still going to push for that change of venue. They think they can do better outside of this heavily Democratic county. And sources here in the town tell me they’re probably right.

WILSON: Megyn Kendall, on the job in Austin, Texas, thank you, Megyn.

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