Prosecutors attempting to reinstate a conspiracy charge against former U.S. House Majority Leader Tom DeLay argued Wednesday that the "plain language" of Texas law means he can be charged with conspiring to violate the election code.
But lawyers for DeLay and two co-defendants told the Court of Criminal Appeals the law is clear in their view — that conspiracy didn't apply to the state election code before 2003, a year after the alleged crime.
"Historically, there have been limitations on the use of conspiracy laws," said DeLay's attorney, Dick DeGuerin of Houston.
Travis County District Attorney Ronnie Earle's office is appealing lower court rulings that threw out the charge accusing DeLay and Republican fundraisers Jim Ellis and John Colyandro of conspiring to violate the Texas election code and its ban on corporate campaign contributions.
It could be weeks or months before the appeals court makes a decision.
DeLay and the co-defendants are still charged with money laundering and conspiracy to launder money, but state district Judge Pat Priest has said he doesn't have jurisdiction and can't hold a trial until the appeals court makes its ruling.
DeLay, now out of Congress, wants to get the criminal case behind him, DeGuerin said.
Prosecutors' appeal of the dismissed conspiracy charge allowed them to put off DeLay's trial and hurt him when he was trying to regain his leadership post and during his re-election bid last year, DeGuerin said.
"Being able to drag it out this long has caused the maximum damage to Tom DeLay," he said.
Prosecutors allege that DeLay, Ellis and Colyandro illegally funneled $190,000 in corporate contributions through DeLay's Texans for a Republican Majority political action committee and through an arm of the National Republican Committee to seven GOP state legislative candidates in 2002.
The defendants say they did nothing wrong.
The 3rd Court of Appeals agreed with Priest's ruling, then prosecutors appealed the decision to the Court of Criminal Appeals.
In a brief filed with the court, prosecutors rejected defense lawyers' contention that the state's conspiracy law didn't apply to the Texas Election Code until 2003. They outlined a series of steps in legislative history to back up their argument.
"The plain language ... is clear and unambiguous: the offense of criminal conspiracy applies to all felony offenses defined by Texas law, including the offense of unlawfully making a corporate political contribution," prosecutors wrote.
But DeGuerin has disputed that, also saying the law is clear.
"There was no conspiracy to violate the election code on the books at the time that the conduct took place. There's no such crime, in other words," DeGuerin said.
DeLay was indicted in September and October 2005. Soon after, DeLay was forced to step aside as majority leader. He remained a member of Congress, representing his suburban Houston district, and won his Republican primary in March. But he later resigned from public office.
After an extended court fight that ultimately prevented the Republican Party from placing a new candidate on the November election ballot, DeLay withdrew from the race. A write-in Republican candidate couldn't muster enough voter support, and DeLay's seat is now held by Democratic Rep. Nick Lampson.