Ronnie Earle Should Not Be a Prosecutor-Abuse of Power Should Offend Dems & Republicans Alike

If there is one thing liberals and conservatives ought to be able to agree on, it is this: Ronnie Earle, district attorney of Travis County, Texas, has no business wielding the enormous powers of prosecution.

I don't know Congressman Tom DeLay, the House Majority Leader. I certainly don't know if he's done anything illegal, let alone something so illegal as to warrant indictment. It doesn't look like it — and at least one grand jury has already refused to indict him (a fact Earle appears to have tried to conceal from the public as he scrambled to find a new grand jury that would). Yet experience shows it is foolhardy for those who don't know all the facts to hazard a judgment about such things.

One thing is sure, though, and it ought to make anyone who cares about basic fairness angry. The investigation of DeLay, a matter of national gravity is being pursued with shocking ethical bankruptcy by the district attorney — by Ronnie Earle.

For nearly 20 years, I had the privilege of being a prosecutor in the best law-enforcement office in the United States, the U.S. Attorney's Office for the Southern District of New York. Being a prosecutor is the world's greatest job because it is honest work for the highest cause — service to one's own community. And it is work that has precious little to do with politics.

In their private lives, many of my fellow government lawyers were political independents, either by design (i.e., out of a conscious rectitude holding that law enforcement should be above politics) or because they were just apolitical. Most, as one would expect in New York, were Democrats. A large percentage, as, again, one would expect from a group of mostly young people educated in top schools, was proudly liberal. Over coffee, or lunch, or dinner, they and we few, hardy conservatives would have spirited debates over all manner of issues.

In the four corners of a case, however, none of that mattered a wit. Within those four corners, there were rules and responsibilities. There was recognition that prosecutors have breathtaking power over the lives of those they investigate. Power inarguably vital to the rule of law. But power which, if used recklessly or maliciously, can leave lives in tatters. The lives not only of the innocent and the guilty, but of the justice system itself.

This was especially so in investigations of political corruption. We prosecuted Republicans and Democrats, in about equal measure. The cases were hard, but checking your politics at the door was never hard, for at least two reasons.

First, there tends to be nothing ideological about the crimes committed by politicians. They are a stew of pettiness, greed and above-it-all arrogance over which neither party has a monopoly, and the offensiveness of which cuts across philosophical divides.

Second, some wrongs are simply not intended to be crimes. Among them are political wrongs: sleazy abuses of power, cronyism, most acts of nepotism, half-truths or outright lies in campaigns, etc. In a free society, these get sorted out in our bumptious political system. Usually, absent shades of financial fraud, bribery, and extortion, prosecutors should stay their hands. There are too many real crimes to waste resources on that sort of thing. More significantly, the risk of criminalizing politics would only discourage honest citizens from participating in matters of public concern.

The code prosecutors live by is not a liberal or conservative one. It is a code of ethics — of nonpartisan, non-ideological honor. Of course many prosecutors are ambitious. Of course prosecutors want to win. But even the ambitious ones who care a bit too much about winning quickly learn that success is intimately tied to doing things the right way. And not least because that is the norm their colleagues follow — as well as the standard by which the defense bar and the judiciary (populated by no small percentage of former prosecutors) scrutinize them. It is, moreover, the standard the public demands they meet.

People want to see the guilty convicted, but they also want to feel good about the way it is done. The prosecutor is the public's lawyer, and his duty is not merely to get the job done but to get it done right. The second part is just as crucial as the first. They are equal parts of doing justice. No one expects perfection, which is unattainable in any human endeavor. But if the outcomes of the justice system are to be regarded as legitimate, as befitting a decent society, people have to be confident that if they stood accused, the prosecutor would enforce their rights and make sure they got a fair fight.

So there are certain things that are just flat-out verboten. Most basic are these: to resist public comment about non-public, investigative information; to abjure any personal stake in the litigation that could suggest decisions regarding the public interest are being made to suit the prosecutor's private interests; and — if all that is not Sesame Street simple enough — to remain above any financial or political entanglement that could render one's objectivity and judgment suspect.

In the profession, these things come under the hoary rubric of "avoiding the appearance of impropriety." In layman's terms, they are about having an I.Q. high enough that you know to put your socks on before your shoes. This is bedrock stuff. It is central to the presumption of innocence, due process, and equal protection under the law that prosecutors owe even the most despicable offenders. It is foundational to the integrity of the system on which rest our security, our economy, and our freedoms.

-- As Byron York has been reporting on NRO (see here, here, and here), Earle has partnered up with producers making a movie, called The Big Buy, about his Ahab's pursuit of DeLay. A movie about a real investigation? Giving filmmakers access to investigative information while a secret grand-jury probe is underway? Allowing them to know who is being investigated and why? To view proposed indictments even before the grand jury does? Allowing them into the sanctuary of the grand jury room, and actually to film grand jurors themselves? Creating a powerful incentive — in conflict with the duty of evenhandedness — to bring charges on flimsy evidence? For a prosecutor, these aren't just major lapses. They are firing offenses. For prosecutors such as those I worked with over the years, from across the political spectrum, I daresay they'd be thought firing-squad offenses.

- - Attending partisan fundraisers in order to speak openly about an ongoing grand jury investigation against an uncharged public official. As a moneymaking vehicle.

- - Penning a nakedly partisan op-ed (in the New York Times on November 23, 2004) about the political fallout of his grand-jury investigation of DeLay, then uncharged.

- - Settling cases by squeezing businesses to make hefty financial contributions to pet personal causes in exchange for exercising the public's power to dismiss charges.

- - Secretly shopping for new grand juries when, despite the incalculable advantages the prosecution has in that forum, the earlier grand jurors have found the case too weak to indict.

- - Ignoring the commission by members of his own party of the same conduct that he seeks to brand felonious when engaged in by members of the other party.

Such actions and tactics are reprehensible. They constitute inexcusably dishonorable behavior on the part of a public servant, regardless of whether the persons and entities investigated were in the wrong. They warrant universal censure.

If Congressman DeLay did something illegal, he, like anyone else, should be called to account. But he, like anyone else, is entitled to procedural fairness, including a prosecutor who not only is, but also appears to be, fair and impartial.

Ronnie Earle is not that prosecutor. He has disgraced his profession, and done grievous disservice to thousands of federal, state, and local government attorneys. Prosecutors of all persuasions whose common bond is a good faith commitment to the rules — but who will now bear the burden of suspicions fostered by Earle's excesses. The burden, but not the cost. That will be borne by the public.

(Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.)

Ronnie Earle Browbeat Grand Jury
Thursday, Oct. 6, 2005 12:09 p.m. EDT
http://www.newsmax.com/archives/ic/2005/10/6/121023.shtml

Travis County prosecutor Ronnie Earle became visibly angry when one of at least six grand juries he convened to investigate House Majority Leader Tom DeLay rejected his claim that the top Republican had engaged in a money laundering conspiracy. "The mood was unpleasant," a source familiar with that grand jury's proceedings tells the Associated Press.

The source revealed that Earle tried to convince the grand jurors that DeLay had guilty knowledge of a money laundering conspiracy by arguing that because he "didn't say, 'Stop it,' he gave his tacit approval."

That grand jury, Earle's fifth, rejected the prosecution, saying, "We have inquired carefully into the case" and "failed to find a bill of indictment against [DeLay]."

The move so angered the Travis County prosecutor that he immediately convened a sixth grand jury, which accepted Earle's money laundering charges and filed a two count indictment.

Earle's fourth grand jury charged DeLay last Wednesday with being part of a conspiracy to violate Texas campaign finance charges, but did not implicate him in money laundering. That grand jury's term expired the same day. The move forced the top Republican to step down from his House leadership post.

"[Earle] convened three grand juries in the space of five business days," DeLay lawyer Dick DeGuerin complained to ABC Radio host Sean Hannity on Wednesday, referring the prosecution's most recent efforts. Asked how many grand juries Earle had convened in the course of his two year DeLay probe, DeGuerin said, "It was probably six or seven."

Earle apparently declined to present a case for DeLay's indictment to his first three grand juries. When Earle's fifth grand jury rejected his attempt to indict Delay on money laundering charges, he reportedly convened a sixth grand jury on Monday.

That grand jury returned a two count indictment against DeLay in less than five hours.

I've been looking at the SEC disclosures on the four indicted corporations that settled their charges with Ronnie Earle. Below is one of them. I fully understand that the amounts involved were so minor that the corporations really didn't care, but I find this document very dangerous and flat out blackmail by Ronnie Earle.

Exhibit 99.2
NO. 9-04-0562
THE STATE OF TEXAS ss. IN THE 331st JUDICIAL
V. ss. DISTRICT COURT

CRACKER BARREL
OLD COUNTRY STORE, INC.
ss. TRAVIS COUNTY, TEXAS

AGREEMENT

#snip pr 1 - 2#

The Defendant certifies that, following the Indictment, it has reviewed its existing policies and has adopted additional internal polices that are designed to reflect its commitment against making illegal political contributions in the
State of Texas. The parties acknowledge that the State has been furnished with and has reviewed and approved Defendant's internal compliance policies (the "Compliance Policies") regarding political contributions that Defendant adopted subsequent to the Indictment.

In consideration of Defendant's adoption of the Compliance Policies, the State does hereby dismiss the Indictment and agrees to take, within three (3) days of the execution of this agreement, such formal action as is necessary to evidence such dismissal. In the event that Defendant abides by the remaining terms of the agreement, the State will not seek a new indictment related to the offense alleged in the Indictment (or any offense reasonably related thereto, including, without limitation, indictment of any current officers or directors of Defendant or Defendant's parent corporation related to this contribution) and will take no other steps to proceed with prosecution of the case against Defendant.

#snip pr 4#

Any violation of the remaining terms of this agreement by Defendant within the statute of limitations may result in presentation of the case to another grand jury and continued prosecution.

In exchange for dismissal of the Indictment, the Defendant agrees to the following:

1. Defendant will publicly disclose all corporate political contributions on its website for a period of two years from the date of this agreement.

2. Defendant will not make any illegal corporate political contributions in the State of Texas or in any other state that prohibits corporate political contributions.

3. Defendant will cooperate with the State of Texas in its prosecution and investigation of any other person for any offense related to the corporate contribution made by Defendant that is the subject of the Indictment.

#snip item 4 - contact addresses of both parties#

The State of Texas, by and through her District Attorney, enters into this agreement after taking into consideration the following:

1. Based upon the evidence obtained by the State during the course of its nvestigation of this case, the offense alleged in the indictment appears to consist only of a single incident that allegedly occurred within the State of Texas and does not constitute a continuing course of conduct.

2. The facts indicate that Defendant may have approved the contribution that is the subject of the Indictment on the basis of false and misleading information provided by the fundraiser who solicited the contribution and that, in any event, that there was no intent on the part of the Defendant to violate any laws relative to campaign finance including, without limitation, the applicable laws of the State of Texas.

3. Defendant no longer employs the person responsible for submitting the contribution request.

4. Defendant has demonstrated to the District Attorney that it has a history of good citizenship and high ethical standards.

5. The District Attorney believes that the public would be better served by resolving this case through this agreement.

6. The District Attorney believes that resolution of this case by way of this agreement will serve to cause corporations to more closely monitor and evaluate their political contributions in Texas and throughout the United States.

7. The Defendant, after discussions with the District Attorney, has decided to provide Fifty Thousand and 00/100 dollars ($50,000) to financially support a nonpartisan, balanced and publicly informative program or series of programs to The LBJ School of Public Affairs at the University of Texas -Austin.

Additionally, Defendant and the State of Texas enter into this agreement with the understanding that if Defendant fails to comply with the terms of the agreement and the prosecution of this offense proceeds to trial, that this agreement will not and cannot be used as evidence by either side at trial.

The Defendant further acknowledges that the historical basis for the Texas prohibition against corporate political contributions is that they constitute a genuine threat to democracy.

Finally, Defendant understands and agrees that the State will file this document as an attachment to the dismissal of the case.

[SIGNATURES APPEAR ON FOLLOWING PAGE]

#snip - sigs to document#

Earle's Actions, Movie Add Erratic Element
Austin American Statesman
EDITORIAL
Wednesday, October 05, 2005
http://www.statesman.com/opinion/content/editorial/stories/10/5earle_edit.html

Travis County District Attorney Ronnie Earle has added several more acts to the already circus-like investigation of alleged Republican campaign funding illegalities. The latest act unfolded on Tuesday afternoon when Earle disclosed that he had gone grand jury shopping on Friday after an indictment against former U.S. House Majority Leader Tom DeLay, which was returned last Wednesday, was questioned for its legality.

Working on its last day, a second grand jury declined to indict DeLay on Friday. Earle's office said it received new information over the weekend, so it went to yet a third grand jury empaneled on Monday, the last possible day under the statute of limitations. That grand jury returned the new indictments. Earle's panicked rush lends credence to those who complain that he is a partisan playing politics with the grand jury, and it gives ammunition to critics who argue that he has been hapless in his three-year probe.

Earle also didn't help himself by becoming Austin's newest movie star, allowing a documentary crew to film his pursuit of possible financial wrongdoing by Republican operatives in 2002.

Earle had to know he would be summoning a GOP storm by investigating the party's powerful lobbying and fund-raising organizations. After all, he's been there before. Since Earle's failed prosecution of U.S. Sen. Kay Bailey Hutchison in 1994, he has been saddled with the "partisan Democrat" label. He must have realized he would face the same wrath if DeLay's political action committees and the GOP business lobby were indicted.

Yet none of that history caused him to doubt the wisdom of inviting a documentary crew to film his probe of GOP fund-raising. It should have. News of the independent film crew's two-year-long access to Earle and his inner sanctum did not serve him well.

Earle disagrees, saying that he was just doing his job. Sorry, but his job is to prosecute, not be red meat for filmmakers looking for a big score. By starring in "The Big Buy," a documentary, Earle gives every appearance of having scripted a vendetta against one of the most powerful Republicans in the country.

It might not have been unethical for the district attorney to give such unprecedented access to a documentary crew, but it wasn't wise. Earle should have known better than to make himself the focus of attention. His profile has been elevated throughout the long investigation stemming from the 2002 campaign, when DeLay helped fashion a GOP effort to take over the Texas House. The strategy worked, and DeLay forced a mid-census redistricting that gave him more Texas Republicans, and more power, in Congress.

Earle's high profile includes interviews in Esquire magazine and on television's "60 Minutes" — and a speech with a gratuitous slap at DeLay during a Democratic fund-raiser in Dallas in May.

Earle would have served the public and his investigation better with less publicity and a cleaner, calmer and less controversial grand jury presentation.

His intent all along has been to get to the bottom of controversial corporate donations to political campaigns, which in most cases is illegal in Texas.

He should have kept his attention there, and not on publicity.

Earle planted his seeds in a most public way. Now the nation will be watching to see what he harvests.

Do Barnum & Bailey need a Texas partner?

For the past two days, the Chronicle has posted interesting reporting on the DeLay indictment(s), although the most compelling tidbits have been buried at the bottom. Yesterday, Chris Elam caught the following information in reporting by R.G. Ratcliffe, Kristen Mack, and Janet Elliott on the first DeLay indictment:

The Chronicle obtained the grand jury list on Tuesday under the Texas Open Records Act. State District Judge Mike Lynch had ordered it sealed.

Seven of the 12 grand jurors have voted in Democratic primaries in recent years, according to Travis County records. One grand juror voted in Republican primaries.

The other four grand jurors either had no history of voting in primaries or could not be positively identified.

Today, an article by R.G. Ratcliffe and Clay Robison contained even more interesting information about that grand jury (also near the end):

William Gibson, the foreman of the grand jury that returned the first indictment against DeLay, said in an interview with Austin radio station KLBJ on Wednesday that he was friends with a Democratic candidate who had been defeated by the corporately funded ad campaign run by the Texas Association of Business in 2002.

James Sylvester, one of the losing Democratic candidates who has sued the business group, worked at the Travis County sheriff's office. Gibson is retired from that same office.

Gibson said newspaper stories about the TAB's activities, which were coordinated with TRMPAC, convinced him that improper political activity had occurred before he ever was on the grand jury.

The partisan composition of the first grand jury -- not to mention the fact its foreman seemed to bring some strong preconceptions to the matters being considered -- does not itself say anything about Rep. DeLay's guilt or innocence, but when combined with Ronnie Earle's jury shopping, his comments about DeLay to a Democratic fundraiser, his starring in a documentary (of which I've requested a preview copy), and his seemingly messianic view of his own role in stopping whatever he might deem "abuse of power" (instead of actual trangressions of law), it's hard not to agree with the Austin American Statesman editorial board's recent assessment of Earle's conduct as "erratic" and "circus-like."

http://www.bloghouston.net/item/1943

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.