Commentators and journalists falsely attacked the indictment handed down against former House Majority Leader Tom DeLay (R-TX) by claiming that it cites little or no specific evidence to support the charge that he conspired to violate Texas campaign finance laws. Attacks appearing on Fox News took two forms: 1) that the absence of evidence in the indictment is highly unusual; and 2) that it implies a weak case. In fact, Texas law requires only that specific allegations be presented in the indictment, not the specific evidence to back up those allegations. Moreover, contrary to the claim that the indictment's lack of evidence is highly unusual, prosecutors in Texas rarely include such evidence [The Washington Post, 9/29/05].

Under Texas law, an indictment only must include the specific allegations which, if proved at trial, would constitute a violation of the law. According to Texas' Code of Criminal Procedure, "[e]verything should be stated in an indictment which is necessary to be proved" -- in other words, all the specific statutory elements of the crime need to be alleged against the defendant. Regarding the Texas conspiracy statute DeLay is accused of violating, the indictment needed to allege the following: that DeLay and his charged co-conspirators, James Ellis and John Colyandro, agreed to work together in order to violate Texas' ban on corporate contributions (a felony), and that at least one of the group then “performed an overt act” to try and fulfill the agreement.

The indictment does not allege that DeLay himself acted to carry out the conspiracy, but specifically alleges that as one of the defendants, he, “with the intent that a felony be committed, did enter into an agreement with [Colyandro and Ellis] or with [Texans for a Republican Majority (TRMPAC)] that one or more of them would engage in conduct that would constitute the offense of knowingly” making an illegal corporate contribution to Texas state House of Representatives candidates. Texas law requires no more information (other than formalities) regarding DeLay specifically, as the second element, the “overt act,” is alleged to have been committed by Colyandro and Ellis. Colyandro and Ellis were previously charged with having actually broken the corporate contribution ban and money-laundering [Houston Chronicle, 7/13/05]. As University of Texas law professor George E. Dix noted in the September 30 New York Times, "'All that conspiracy requires is that one member of the conspiracy commit an overt act, and it doesn't have to be the named defendant' ... Prosecutors would have to show that a defendant, in this case Mr. DeLay, 'had the intent that a felony be committed,' not commit it himself." Consistent with the requirements of Texas' indictment rules, Travis County, Texas, District Attorney Ronnie Earle said at a September 28 press conference (aired on that day's CNN's Live From...) that while the conspiracy indictment contains specific allegations, the evidence to support them will be presented at trial:

QUESTION: The indictments of Colyandro and Ellis are very specific about the actions they took in making this money exchange. What role did Mr. DeLay actually have in facilitating that money exchange?

EARLE: Well -- and this is all in the indictment -- criminal conspiracy in this context means that a person with the intent that a felony be committed agree with two or more persons that, like in this case, the corporate contributions be made, and one or more of them performs an overt act in pursuance of the agreement.

QUESTION: What proof do you have that Mr. DeLay communicated with these guys or made any kind of conspiracy with them? I'm reading the indictment; I don't see it.

EARLE: You wouldn't see that because those are issues of evidence that will be presented at the trial.

QUESTION: So it hasn't been proved yet?

EARLE: Well, the indictment is an allegation; it's not proof.

Nevertheless, commentators on Fox News have characterized Earle's case against DeLay as weak, based only on the indictment, or have claimed that the absence of specific evidence in the indictment was highly unusual:

• Fox News Washington managing editor Brit Hume and Fox News senior judicial analyst Andrew Napolitano, on the September 28 edition of Special Report with Brit Hume:

HUME: Judge Napolitano, I looked at this indictment, I read it several times, it isn't very long, and apart from the broad general claim that Tom DeLay entered into a conspiracy with two others to violate Texas state campaign laws, it doesn't mention Tom DeLay in any specific way after that in terms of what he did. Do you have a sense of what he is alleged to have done here?

NAPOLITANO: Well, you are right, the indictment doesn't tell us. Remember, the charge against Tom DeLay is conspiracy, and the essence of a conspiracy is an agreement. So all the indictment says with respect to Tom DeLay is that he entered into an agreement with others to violate or circumvent Texas election law and that one of the others either carried out or attempted to carry out that agreement. But there is no allegation that Tom DeLay took any purposeful step in furtherance of the agreement.

[...]

HUME: Is it common, though, for an indictment to be this vague about the nature of the agreement and how the agreement was entered into?

NAPOLITANO: No, it is not common, Brit. In fact, most court rules in the federal system and in most state systems require great specificity in conspiracy indictments for this very reason. The defendant needs to know what the government says he did and what the government says was illegal. When it's as vague as this is, it doesn't fairly even tell the defendant what he has to defend against.

• Barbara Comstock, former director of the Justice Department's Office of Public Affairs under Attorney General John Ashcroft, from the September 28 edition of The Big Story with John Gibson:

COMSTOCK: When you look at the indictment, all they say is “conspiracy” with no facts. They just allege this amorphous conspiracy, and as Judge Napolitano has pointed out, really, all day, it's sort of a last resort when you don't really have anything. And what Ronnie Earle knew is that this would have a political impact.

• Roll Call executive editor Morton M. Kondracke, from the “Fox News All-Star Panel” on the September 28 edition of Special Report:

HUME: OK, the indictment has been filed, we have all seen it, we have read it, we have all seen what the evidence -- such as it was presented with it -- is, what about it?

KONDRACKE: I think it is very thin. It alleges that DeLay was part of a conspiracy, but it includes no evidence whatever of what he did with the conspiracy. These two aides of his who were involved in this Texans for a Republican Majority, you know, supposedly conspired with him to filter money collected from corporations through the Republican National Committee back to candidates for the state legislature in Texas.

In addition, Fox News host Sean Hannity, during an interview with DeLay on the September 29 edition of his nationally syndicated radio show, made both false claims. He also incorrectly claimed that the indictment did not list the specific allegation against the former majority leader:

HANNITY: The indictment is three and a half pages in length. I've read it repeatedly. Your name appears at the beginning of the document. You are accused specifically of a criminal conspiracy, and after that you are not mentioned in any of the supposed facts presented in the indictment. They talk about other people, they talk about a PAC, they talk about the RNC. They do not mention you. There's no single sentence, there's no information provided in this indictment linking you to any crime. I have spoken to numerous lawyers who find this extraordinary.

DeLAY: It's very extraordinary, in fact, my own lawyers think this is good, we can get rid of this case fairly quickly because it's obvious they have no evidence, nothing to substantiate any claims at all as it pertains to me.

[...]

HANNITY: This is an important point. Federal and state law require that indictments, that they must be specific enough to inform a defendant exactly what they are being accused of having done.

Nationally syndicated radio host Rush Limbaugh also made substantively similar comments about the indictment on the September 29 broadcast of The Rush Limbaugh Show:

LIMBAUGH: Uh, but that's beside the point. Here's the point. DeLay is innocent. Hasn't been -- he hasn't been convicted of anything yet. All these charges, all these allusions to charges, all of these -- all of these horror stories about what Tom DeLay -- he's not been convicted of anything. And this indictment doesn't specify one thing. I don't want to beat a dead horse to death, but it doesn't specify one thing that he did.

The indictment does not -- does not connect Tom DeLay to any -- any crime! Not a single fact is alleged in this indictment. And experienced lawyers will tell you -- lawyers who have seen gazillions of indictments will tell you that indictments carry a list of charges. That's how you know what you're being charged with! You know, you have -- when you're -- when you're accused and you're being charged, you have a right to know what it is. There's nothing in this indictment that specifies what DeLay did.

So you have to ask, do we still live in the United States of America? If someone's charged with a crime, they have a legal right to know exactly what it is they're being accused of. Otherwise, they can't defend themselves. If we can't accept that principle and defend that principle, then just how far have we sunk as a movement, and as a party, and as a country? Throw the guy out. Because we don't think he's going to be effective anymore?

[...]

If -- if some hack local prosecutor can bring an indictment at the 11th hour based on no facts whatsoever, then our -- our Democratic institutions are endangered.

People ask - I've got emails all over. Well, how can this happen? How can -- how can -- how can some prosecutor just level an indictment with no charge? How can it happen? That's the power they have. That's why there are such phrases as abuse of power. Prosecutors are invested with a lot of it. You'll hope they use it wisely and responsibly. But what can you do? If you're the victim of it, what can you do?

But, as The Washington Post noted, there is nothing extraordinary about the form of the DeLay indictment: “Texas law permits such evidence to be left out of the indictment, so it is rarely included.”