Ted Stevens, Tom DeLay and Rick Perry Were Charged, Then Cleared

An acquittal is supposed to be the end of the story. It almost never is. By the time a court says the charge was wrong, the election has been lost, the leadership post has been given away, the legal bills have eaten the savings, and the headline that announced the indictment ran in type four times the size of the headline that announced the collapse.

Three Republican officials, in three different decades, learned that lesson. Senator Ted Stevens of Alaska, Representative Tom DeLay of Texas and Governor Rick Perry of Texas were each charged, each saw the case damage a career, and each saw the case fall apart in the courts. I am going to tell all three stories in order, with dates, because the record is what matters. Then I will say what each case taught the country, and why a conservative should care more about the process than about the party of the defendant.

Why These Three, and a Caution

Let me state at the outset what this post does not claim. It does not claim that Republicans are never guilty, or that Democrats are never prosecuted unfairly, or that every case against a Republican is a plot. Officials of both parties have been convicted and the convictions have held. The claim is narrower and more useful: these three cases each failed for reasons we can document, and the failures say something about how prosecutorial power can be misused when the target is a public figure.

The constitutional frame is the Fifth Amendment's guarantee that no person shall be "deprived of life, liberty, or property, without due process of law," and the Sixth Amendment's guarantee of a fair trial. We covered the broader question of how to tell a real prosecution from a political one in Lawfare Defined, and How to Tell a Prosecution From a Campaign Tactic. This post supplies three of the cases.

Ted Stevens: The Conviction That Was Wiped Away

Ted Stevens was the longest-serving Republican senator in history at the time, a figure of power in Alaska politics who had been in the Senate since 1968. In July 2008, a federal grand jury indicted him on seven counts of making false statements on his Senate financial disclosure forms. The charges alleged that he had failed to report gifts, including renovations to his home in Girdwood, Alaska, from an oil-services company called VECO and its chief executive, Bill Allen.

The trial took place in Washington, D.C., in the fall of 2008. On October 27, 2008, a jury convicted Stevens on all seven counts. That was eight days before the election. Stevens, who was running for a seventh full term, lost to Mark Begich by a small margin.

Then the case fell apart. After the election, defense lawyers pressed claims that the government had withheld exculpatory evidence. The evidence in question included notes of an interview with Bill Allen, the government's key witness, and other material that conflicted with testimony the jury had heard. The trial judge, Emmet Sullivan, was angry. In April 2009, newly installed Attorney General Eric Holder moved to dismiss the indictment and set aside the verdict, saying that the Justice Department had concluded that Stevens should not have been convicted. On April 7, 2009, Judge Sullivan granted the motion and dismissed the case. He also appointed a lawyer, Henry Schuelke, to investigate the conduct of the prosecutors. His report, delivered in 2012, concluded that members of the prosecution team had intentionally withheld and concealed significant exculpatory evidence.

Stevens did not live to see the report. He died in a plane crash in Alaska in August 2010.

What this case teaches is the constitutional rule of Brady v. Maryland (1963), which holds that the prosecution's suppression of evidence favorable to the accused violates due process when the evidence is material to guilt or punishment. The government is not supposed to win; it is supposed to do justice. A prosecutor who hides evidence has not merely made a mistake. He has corrupted the thing the Fifth Amendment was written to protect.

Tom DeLay: A Statute Stretched

Tom DeLay of Texas was the House Majority Leader, one of the most powerful Republicans in Congress, when a county prosecutor in Austin took an interest in his political committee. In September 2005, a Travis County grand jury indicted DeLay on a charge of conspiracy to violate the state election code in connection with corporate contributions in the 2002 Texas legislative campaigns. A later indictment added charges of money laundering. Under House Republican rules at the time, DeLay had to step down from his leadership post, and he did not return to it.

The case took years. DeLay was tried in Austin and, in November 2010, a jury convicted him of conspiracy and money laundering. He was sentenced to three years in prison, though he remained free while he appealed. In September 2013, a Texas court of appeals reversed the convictions and entered acquittals, concluding that the evidence was legally insufficient. The Texas Court of Criminal Appeals, the state's highest court for criminal cases, affirmed in October 2014.

The legal question that decided the case was whether the transactions DeLay's committee had made met the statutory definition of money laundering. The appeals court held that they did not. That is the novelty problem. A prosecutor who reads a statute broadly enough to reach conduct the legislature did not clearly criminalize is asking a jury to punish a person for something no one told him was a crime. The principle that criminal statutes must give fair warning is old, and it is the reason courts construe them narrowly.

By the time the courts vindicated DeLay, his congressional career was over. He had resigned from the House in 2006. The case had played out across nearly nine years.

Rick Perry: Prosecuting a Veto

The third case is the strangest, and in some ways the clearest. In June 2013, Texas Governor Rick Perry vetoed funding for the Public Integrity Unit, a state prosecutorial office in Travis County, after its director, the Travis County district attorney, Rosemary Lehmberg, had been arrested for drunk driving and had pleaded guilty. Perry had said he would veto the money unless she resigned, and she did not. He vetoed it.

In August 2014, a Travis County grand jury indicted Perry on two felony counts, abuse of official capacity and coercion of a public servant, arguing that his threat to veto, and then his veto, were criminal acts. A governor was being charged with a crime for exercising a power that the Texas constitution gives him.

The case did not survive. In July 2015, a state appeals court threw out one of the counts, and in February 2016 the Texas Court of Criminal Appeals dismissed the prosecution, holding that it violated the separation of powers. The reasoning is straightforward and worth quoting in spirit: a veto is a constitutional act. If a prosecutor can bring a felony charge against the person who performs it, then the executive's power is at the mercy of whoever controls the local grand jury. That is the problem with criminalizing the use of a political power. The remedy for a bad veto is the voters, the legislature or the next election.

I want to be careful not to put words in the court's mouth. What I can say with confidence is the outcome: the case ended in dismissal at the highest criminal court in Texas, and a prosecution of a governor for exercising a veto power did not survive.

The Steelman: Perhaps the Prosecutors Were Right to Try

Here is the best case for the prosecutors, which should be stated fairly. The Stevens case involved a real allegation that a senator had accepted something of value and not disclosed it, and the grand jury and the trial jury were persuaded. The mistake, the argument goes, was the withholding of evidence, a failure by individual prosecutors, not a reason to doubt the decision to investigate. In the DeLay case, a jury convicted, and appellate courts sometimes reverse on technical grounds. In the Perry case, a Travis County grand jury found probable cause, and a veto, however protected, can sometimes be used in a corrupt bargain. A system in which officials may never be tested in court is a system in which the powerful escape. Let the courts sort it out, and when the courts do sort it out, the system has worked.

There is a good deal in that. The fact that all three cases ended in the defendants' favor in court is evidence that the courts work. But the argument skips over the cost. A case that ends in acquittal still cost a senator his seat, a majority leader his post, and a governor months of legal threat and a place in the headlines. The system works, but the process is the punishment. That is why the quality of the decision to charge matters as much as the quality of the verdict, and why the Founders insisted on grand juries, juries of the vicinage and the other protections of the Fifth and Sixth Amendments.

What Each Case Taught

Stevens taught the cost of withholding evidence. The Brady rule has been the law since 1963, but the Stevens affair showed that a rule is only as strong as the prosecutor's discipline. The aftermath produced real changes. In January 2010, Deputy Attorney General David Ogden issued guidance directing federal prosecutors to take a more careful and uniform approach to gathering and disclosing evidence in criminal cases, and Congress later passed the Due Process Protections Act in 2020, which requires judges to remind prosecutors of their disclosure obligations at the start of a criminal case. Those reforms flowed from a case in which the injured party was a Republican, and they protect defendants of every party and no party.

DeLay taught the cost of the stretched statute. The tests of a legitimate prosecution include whether the theory is one the law clearly supports. When a court looks at a long, expensive case years later and says the evidence was legally insufficient, it is telling us that the question should have been answered earlier. For related reading on how courts approach these questions, see Standing Explained, the Doorway Rule That Keeps Courts Out of Politics.

Perry taught the principle of the separation of powers. The prosecution of an official act of one branch by another is a danger that Montesquieu described and the Founders feared. In Federalist 47, Madison wrote that the accumulation of all powers "in the same hands, whether of one, a few, or many," may "justly be pronounced the very definition of tyranny." The idea that a county grand jury could police a governor's veto cuts directly against the idea that each branch has its own sphere, and that disputes over the use of that sphere are for politics, not for prosecutors.

The Bipartisan Lesson

A fair account has to include the mirror image. Officials of both parties have been charged in cases that raised similar questions, and a rule that protects one party's officials from a stretched theory or hidden evidence has to protect the other's too. A conservative should say so without being asked. The test of our principle is whether we apply it when the defendant is someone we do not like. Our reply to the lawfare critique is not to demand that our people never be charged. It is to insist that the evidence be disclosed, that the statute be one the legislature wrote, that the charge be one a court will entertain, and that the decision to charge be made without regard to the defendant's party.

The record from the cases above supports that conclusion. The courts ended all three cases. The institutions that failed were prosecutors' offices, not the system of trials and appeals, and the remedy is to make the offices better, not to abolish the prosecutions of the powerful.

For more on how prosecutors and agencies are held to account, see The Rule of Law Is Older Than the Constitution, From Magna Carta to Marbury, Robert Jackson Left the Supreme Court to Prosecute the Nazis at Nuremberg, and the oversight page. Jackson, as Attorney General, gave a famous speech in 1940 on the power of the federal prosecutor, and it is worth reading in full.

The case in brief

1. Ted Stevens was convicted in October 2008, lost his Senate seat days later, and saw the case dismissed in April 2009 after prosecutors were found to have withheld exculpatory evidence, in violation of the Brady rule.
2. Tom DeLay was indicted in 2005, convicted in 2010, and acquitted on appeal in 2013, with the Texas Court of Criminal Appeals affirming in 2014, after a case that depended on a contested reading of a state statute.
3. Rick Perry was indicted in 2014 over a veto, and the Texas Court of Criminal Appeals ended the prosecution in 2016 on separation-of-powers grounds.
4. Each case prompted reform or reaffirmed a principle: stronger disclosure rules, fair warning in criminal statutes, and the independence of each branch's constitutional powers.
5. The lesson is bipartisan: the process is the punishment, so the decision to charge must be disciplined, and the rules that protect one party's officials must protect everyone's.

What you can do: look up your state's rules on prosecutorial disclosure, and write to your state legislator or county commissioner asking whether your local prosecutor's office has a written policy on handing evidence to the defense.