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Wednesday, September 28, 2005


Will wonders never cease to amaze us? Tom Delay is indicted for a felony --coming out of the State of Texas at that!

Presidential response "(we) still have confidence in Tom Delay."
Republican talking point "this is purely partisan."
Pat Buchanan "this is the end of his(Delay's) career."
Chris Matthews "this is moneylaundrying. He is either guilty or not."
Anti-Corruption Groups "what took you(prosecutor) so long!"

Delay's co-defendant co-conspirators are now presented with the unique opportunity of grabbing a lenient plea deal to turn state's evidence against Delay, or go "away" for a long time.

So the question the criminally indicted, including Mr. Delay, should ask now is "How do we make this indictment go away?"

Well, indictments must be dealt with in one of the following ways: (1) Trial on the charges indicted; (2) Plea bargain arrangement which covers the original charges in indictment; (3) Prosecutor decides not to prosecute the charges as indicted; (4) Indictment is dismissed by a Judge for either procedural or substantive irregularity; (5) Upon return of indictment the grand jury is presented with additional evidence which prompts reconsideration and withdrawal of the previously issued indictment with court approval (ie. proof of innocence).

Our Analysis: In reverse order, (5) has almost zero possibility as the term of the grand jury ends today, and the prosecutor is solely responsible for presentation of evidence the grand jury sees. Number (4) this is possible, but not likely. You can bet the procedural and substantive elements have been reviewed extensively by not only the prosecutor's office but by a presiding judge. Number (3) there is no chance on this one. After over 2 years of investigation and the accumulation of evidence against Delay and the other co-defendants, he will not refuse to take the grand jury indictment to trial.

Number (2) is the most likely resolution of the indictment. Delay knows the evidence that would be put on and must know that a trial would likely lead to conviction. He will want to avoid jail time and a felony conviction, so he is likely to agree to plead guilty to one or more misdemeanors with a promise of no jail time. Will the prosecutor accept a guilty plea to a misdemeanor to make this go away? Who knows. But even if Delay has to plead to a felony to get the sentence with which he can live, he will do so. His career as majority leader in the House is over, and he most likely will lose his seat in the House. His only hope is to play for time by dragging the process out, but once an indictment is issued there are established court deadlines that must be met. Essentially time has run out on Delay.

Number (1) is the second most likely resolution of the indictment. Agree to no plea offers, admit nothing, smear the prosecutor and grand jury in the press as partisan, fight like hell to win at trial on a technicality. The advantage to Delay is that this will lengthen the process. However, it will increase the likelihood of active jail time in the event of a guilty verdict. Most seasoned defense lawyers will advise a client in the fix which Mr. Delay finds himself to negotiate a deal, and get the sentencing behind him. Then mount a public relations attack to recharacterize his plea as being entered for the good of the Republican Party and President Bush, not because he was actually guilty.

The immediate effect of this indictment of Delay? It is well known that Delay made a lot of enemies within the Republican Party. This presents the perfect opportunity within the Republican Party to shift the balance of power from the hands of those leaders like Delay who have ruled with an "iron fist" to more moderate Republicans who are looking to survive the upcoming mid-term elections. Once Delay steps down, he will never "step up" to that position again.

The reality is that Delay's world has changed permanently.

And better late than never, we are all the better for it.