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Thursday, November 25, 2010

Politics, Criminalized: DeLay Convicted by Texas Jury

Who decides what activity should be a crime?  The people whose duty it is to make the law, or someone else?

Civics classes teach us that the law is made by the legislature and enforced by the executive (with the judiciary to oversee adherence to the federal and state constitutions).  However, over the last several decades the executive branch has expanded its power into the law-making realm, using its bureaucracy to determine what the law is and forcing the legislatures (on federal issues, this means the House of Representatives) to play catch up.

One way the executive branch can overreach is to use its prosecutorial powers to target certain people or activities it doesn't like...or to remain silent when one of its prosecutors down below on the chain of command "goes rogue."

Such seems to be the case with a Texas county-level prosecution of former Congressman Tom DeLay for campaign finance violations which seem to be, if not entirely legal, transgressions warranting a civil remedy such as a large fine, an agreement to cease and desist (or even relinquish one's office) or even some sort of other disqualifying sanction (like debarment from public contracts).  

The problem is where certain practices stop being legitimate campaign fundraising and jump from odious pay-to-play practices to the arguably criminal.  In DeLay's prosecution, the challenged activities (which arguably ought to be more regulated or outright prohibited) were considered by the State to have satisfied the elements of the crime of money laundering.  That charge was brought, because the campaign finance law enacted by the Texas legislature did not contemplate these activities being illegal.  Apparently, an omission from the criminal code is not considered a sign that the activity is legal; this implies that our legal system is changing from one in which the law tells you what you may not do, to one in which the law tells you only what you may do. Under this paradigm shift, the realm of the illegal is vast -- the polar opposite of what we are used to in this country. 

That's right, a statute more appropriate for organized crime and large narcotics operations is now being used as a way to silence political opponents.

On this road, anyone involved in politics -- warning: business is next -- could face prosecution and incarceration if they have powerful and ethically-challenged friends who have the power to bring these cases.

Such a prosecution imperils all manner of political speech and civic activity.  One can no longer freely engage in these activities while being completely free of the concern that opponents may seek your imprisonment!  Just think what could happen if you run a business, or if you even go to work, and you have a competitor or jealous colleague who merely has the ear of (or even worse, some sort of extortionate leverage over) someone with this type of police power.

Jail time does not seem to be appropriate for arguably legal campaign finance activities, and that is what DeLay faces in the wake of a jury finding him guilty of two criminal counts.

Even if the sentences on the two counts run concurrently (i.e. at the same time), DeLay faces a minimum of five years imprisonment.

If money laundering statutes can be used to imprison someone for political fundraising, can any business activity -- and anyone owning, running or working for a business -- be at risk?

Eric Dixon is a New York lawyer who represents small businesses and individuals on various matters. Mr. Dixon has been a practicing lawyer since graduating in 1994 from Yale Law School.  He engages in strategic analysis, investigative due diligence, regulatory compliance and lawsuit stress counseling.  Mr. Dixon is available for consultation or comment at edixon@NYBusinessCounsel.com. 

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