Former House Majority leader Tom DeLay is already a hero in the martyrology being created by the antics of the American prosecutocracy.
Step by step, the penal and custodial apparatus of the United States has become larger, more belligerent, and more brazen. Legislators of left and right succumbed to the law-and-order temptation and wrenched out of the hands of judges the right to sentence, and instead heavy-handedly imposed imprisonment for piffling offenses. The plea bargain was swiftly contorted into an outright means of extorting inculpatory perjury to bring down targeted individuals. Those pleading out give testimony under promise of immunity from perjury charges, and under threat of indictment as a co-conspirator if their memories are not jogged into accordance with the case the state is pursuing. The Supreme Court has sat like suet puddings while the Fourth, Fifth, and Sixth Amendment guarantees of a serious grand jury process, no property seizure without just compensation, due process, access to counsel (of choice), prompt justice, an impartial jury, and reasonable bail have been shredded—and the whole system has been turned into a conveyor belt feeding its product to the nation’s over-stuffed and crudely administered prisons.
Prosecutors now win 97 percent of their cases without even bothering with a trial, so expensive are American lawyers, so loaded the dice against defendants, and so great is the penalty in heavy sentencing for those who exercise their constitutionally guaranteed right to trial. Of the 3 percent of cases that are tried, 85 percent lead to convictions. So the odds against an indicted person are 99.5 to one. And the United States has six to 12 times as many incarcerated people per capita as Canada, Australia, France, Germany, Japan, or the United Kingdom, all comparably prosperous and flourishing democracies. There are routine revelations of deliberate prosecution suppression of exculpatory evidence, but they are protected by the Supreme Court’s infamous ruling in the Thompson case two years ago, that there is no comeback against such conduct, except by the local bar.
The media is mostly asleep to the disintegration of American justice into an office lottery in which gonzo prosecutors select and destroy victims and a corrupt prison industry grinds them to powder. The legal cartel in the country consumes about 10 percent of GDP, and the legal interpretative voice of America remains the screeching Nancy Graces demanding to know why uncharged individuals whom she has just convicted on national television are “at large.” Anyone publicly identified as a suspect, even if only by the media, immediately enters into an Orwellian cone of relentless orchestrated hate, an endless loop of the Two Minutes Hate meted out to Emmanuel Goldstein in 1984.
In this context, Tom DeLay is, to use another hackneyed American media expression, an authentic American hero. I had hoped that after the chief of staff of the former vice president, Scooter Libby, had been convicted by a rabidly partisan jury when there was no conclusive evidence, only an uncorroborated difference of recollection with a journalist; and then six-term senator Ted Stevens was convicted on the basis of what was subsequently found to be wrongful withholding of exculpatory evidence, that the executive and legislative branches of the federal government might awaken to the threat that the rogue prosecutocracy poses to them. (Justice came too late for Senator Stevens; he lost his place in the Senate, very narrowly, a few days after the erroneous judgment, and died in an air crash after his conviction was reversed.) To paraphrase Scotland Yard in vintage murder cases, no man or woman in America is safe from this monster.
Tom DeLay is fighting a good fight and has taken his tormentors most of the way toward the highest appeals court in the tenebrous thickets of Texas criminal justice, while denying them their almost inevitable moment of glee and self-satisfaction by avoiding imprisonment thus far as he pursues his appeal, which was heard Wednesday. The issue is $190,000 of contributions to his PAC, which were given to the Republican National Committee, which funneled them into seven Texas House races where the Republicans were successful, which allegedly facilitated a favorable redistribution of federal House of Representatives seats that durably advantaged the Republicans.
It has now come down to whether the state’s money-laundering law covers transfers made by check—like so much American legal skirmishing, serious points and the fate of human beings are gradually reduced, amidst mountainous enrichment of the rapacious American legal system, to arcana too absurd for any normal person to take seriously. PACs in Texas are allowed to support parties but not candidates, and the issue comes to whether this was a conversion of contributions gradually and by stages and without specific intent or a guilty mind, to a technically illegal end, or if it was an active and multilevel conspiracy to violate (ridiculous, vague, and unworkable) election-financing laws. The fact that the question even has to be put at this point, after it has been batted round and through various courts for over five years, should be enough to establish the reasonable doubt whose absence the law requires for criminal convictions, but which, by the miraculous operation of American criminal justice, is almost never found to exist.
(Disclosure: I may feel especially peppy about this because I was falsely accused and twice sent to prison for a total of three years despite all 17 of the spurious counts against me being abandoned, rejected by jurors, or unanimously vacated by the U.S. Supreme Court.)
The lawmaker, the second-ranking Republican in the House of Representatives, should never have been charged, should never have been convicted, and should be exonerated. The system is awful and his opponents are hypocrites whose motives do not require profound psychoanalysis to discern. However this ends, given the correlation of forces between any individual and the overweening imperium of the U.S. prosecutorial class, he has won a great moral victory. That Texas is a rough-and-tumble place, politically and otherwise, may be part of its success, and the U.S. is and will remain a hardball country, despite all the pastoral flim-flam of Norman Rockwell and vintage Hollywood. But the justice system is morally bankrupt, a threat to American civilization, and a national disgrace—as is the media complicity in it.
And so Tom DeLay may yet have the high destiny of arousing the American political class to the dangers of the prosecutocracy. The improbable and blood-stained scoundrel Joseph Fouché brought down Robespierre and the Reign of Terror in 1794. Tom DeLay is an acquired taste, but he is less odious than Fouché, and he is facing a less sanguinary but entrenched and far-reaching reign of terror. Decent Americans and friends of America can only wish him well.