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Why Did Tom Delay Waive the Statute of Limitations?:
One puzzling aspect of Tom DeLay's indictment is that DeLay agreed to waive the statute of limitations applicable to the alleged offense. For the non-lawyers out there in VC Land, a "statute of limitations" in criminal law is a law that gives the government a specific window of time in which to bring a criminal charge. The Texas statute gave the government three years after the crime was committed to bring charges. By waiving the statute, DeLay consented to being charged outside that window of time.

  The question is, why would DeLay waive the statute of limitations? (The indictment doesn't make this clear, but I assume he waived the statute of limitations before it ran out, not after.) Defense attorney Norm Pattis suggests that there may have been a deal between DeLay and the prosecutor, and that DeLay is planning on pleading guilty at some point. It seems more likely to me that DeLay knew the indictment was coming one way or another, and he figured that he was better off politically if he could put off the indictment for as long as possible. But this is just speculation on my part, of course. Do any VC readers with experience in criminal law have additional insights to share about this?
frankcross (mail):
I don't know about this particular case, but such waiver/tolling agreements are usually used by potential defendants to postpone action hopes of forestalling it altogether. Basically, the government says: sign this or we will indict you now.
9.29.2005 11:47am
Brett Bellmore (mail):
If you're actually prosecuted, you have the formal opportunity to actually prove your innocence in a convincing fashion in court. For the ordinary person, that expensive opportunity isn't worth much compared to running out the clock, but for a politician, waiving the statute of limitations is an effective way of precluding the prosecutor from holding a press conference, and announcing that you would have been prosecuted, and almost certainly convicted, if it hadn't been for the statute of limitations running out on your crime. A form of smear that's hard to effectively refute without a trial...
9.29.2005 11:54am
Richard Bellamy (mail):
Statutes of limitations are regularly waived for ongoing investigations. They are good at protecting from fishing expeditions into the distant past, but for an ongoing investigation, standing on you SoL rights are stupid.

As frankcross says above, he was likely asked, "Would you like to be indicted today, or would you like to waive the SoL"? This happens regularly, and the answer is always to waive.
9.29.2005 11:59am
lyle stamps (mail):
I'm with Brett. The man believes he is innocent and can convince a jury of such; thus bringing about public vindication rather than lingering allegations.
9.29.2005 12:04pm
Per Son:
He specifically said that he will not be arguing technicalities and the like. Rather, he wants robust vindication.
9.29.2005 12:09pm
guest:
Again, I have no first hand knowledge of the facts of this case, but it seems likely to me that the prosecutor agreed to give DeLay more time if DeLay would agree to waive the SoL. This sort of thing happens all the time in civil litigation, and it really works to the benefit of DeLay, who gets to put of the indictment/gets more time to comply with a subpoena/etc.

If I were DeLay's attorney at this point, I too would be advising him to make lots of noise about wanting a full airing of the facts, not wanting to be vindicated on techincalities, etc. He probably never had a chance to get out of this on the SoL anyway.

But, if there had ever been a chance to beat this thing on the SoL, I don't think DeLay would be foolhardy enough to voluntarily face indictment anyway. The spectacle of being indicted, resigning the leadership post, and possibly standing trial is to my mind worse than the damage that could come from some prosecutor holding a press conference accusing DeLay of beating the rap on a "technicality."
9.29.2005 12:24pm
Ddraig (mail):
Mr. DeLay addressed this question in an interview with Bret Hume, available in transcript and video at Fox News.
Basically, the answer was to postpone action by the Grand Jury in hopes of forestalling it altogether, as mentioned by Frank Cross and Richard Bellamy.
9.29.2005 12:28pm
WaterDept:
Brett writes: "... for a politician, waiving the statute of limitations is an effective way of precluding the prosecutor from holding a press conference, and announcing that you would have been prosecuted, and almost certainly convicted, if it hadn't been for the statute of limitations running out on your crime."

Wouldn't a politically motivated prosecutor announce that you had signed the waiver of the statute of limitations (rather than face immediate indictment)? Not only was there no announcement, the DA's office apparently never even leaked the fact that DeLay waived the SoL. I think its significant that, as far as I know, there was no press at all on that fact.
9.29.2005 12:40pm
Kevin L. Connors (mail) (www):
The problem I have with Brett's theory is that, in today's political enviroment, unless one is found factually innocent, rather than simply not guilty, merely that the charges were brought is a political liability.
9.29.2005 1:00pm
Crank (mail) (www):
frankcross has the correct answer: it's common for criminal defense attorneys, esp. in big white collar cases, to enter into a tolling agreement under threat of a hasty indictment.
9.29.2005 1:20pm
akiva eisenberg (mail):
DeLay is not a dummy; he has a rep as a mean infighter who rose through the muck of Texas politics. I may be cynical, but he might be calculating that this case may play out to his ultimate benefit, with the concommitant permanent and final emasculation of an AG who has been a thorn in the Republicans' side. Even much of the MSM is leery of the validity of this indictment, given the sleazy history of the AG.
9.29.2005 1:27pm
guest:

this case may play out to his ultimate benefit, with the concommitant permanent and final emasculation of an AG who has been a thorn in the Republicans' side. Even much of the MSM is leery of the validity of this indictment, given the sleazy history of the AG.


That is fantasy. Defending political charges is never a good thing politically. He didn't waive the SoL so that he could voluntarily be prosecuted; he apparently waived it to avoid a quick indictment. Also, what exactly is the "sleazy history" of the prosecutor? If you're implying that the charge is motivated by partisanship, how would you support such a charge, given that the prosecutor has in the past indicted something like 3x as many dems as repubs?
9.29.2005 1:36pm
jgshapiro (mail):
I believe the prosecutor is the Austin district attorney, not the Texas AG.
9.29.2005 1:55pm
Paul Virkler (mail):
"If you're implying that the charge is motivated by partisanship, how would you support such a charge, given that the prosecutor has in the past indicted something like 3x as many dems as repubs?"

His indictment of Hutchinson when the judge threw out of court. Some of the democrats he indicted were political enemies, e.g. Jim Mattox. Generally the democrats he indicted were crooks and this indictment was for a political crime for political. He has used Delay for political fund raising and this grand jury has leaked
9.29.2005 2:04pm
AV (mail):
"[T]he prosecutor has in the past indicted something like 3x as many dems as repubs?"

That's because there are more crooked Democrats than Republicans.

duh.
9.29.2005 2:19pm
A F:
This should be a puzzleblogger post. The reason is also the name: Delay.
9.29.2005 2:26pm
alkali (mail) (www):
Here is a slightly longer version of the story frankcross tells:

Prosecutor: "This doesn't look good for your client. We're gonna need a whole bunch of documents from him by Friday; can you accept service of the subpoena?"

White Collar Defense Attorney: "Look, we really ought to have a sit-down so you can hear our side of the story before you do anything dramatic, but my client's out of town. And we can't get you all those documents by Friday. How does a month from now sound?"

P: "I'd like to hear you out, but the clock is ticking on the statute of limitations. We really need those documents."

D: "We'll give you a tolling agreement [which treats the statutory limitation period as not running from now until, say, six months in the future, and therefore partially waives the defendant's rights under the statute]."

P: "Fine. Send over a form of agreement."

... and, scene.

(Query whether there wasn't an additional twist here in that DeLay may not be indictable while the House is in session.)
9.29.2005 2:39pm
Tim (mail):
As a former prosecutor in IL, I can say that in IL the running of the statute of limitations is an affirmative defense to be raised after the indictment or information is filed. I have never heard of anyone consenting to being charged.
9.29.2005 3:48pm
Jeff313:
One more point: once the original indictment is filed, the SoL is satisfied, and the defendant need not be tried on that indictment. Rather, the investigation may continue, and the prosecutor may (and almost always does, at least in complex federal cases) file one or more "superceding indictments." (There are speedy trial concerns that come into play post-indictment, but largely for some of the pragmatic reasons already discussed, speedy trial limitations are routinely waived by defendants)
9.29.2005 4:07pm
Mark Leen (mail):
I heard Delay's attorney on the news, and he said that the prosecutor threatened to indict Delay immediately if he did not waive the statute of limitation. The attorney said that Delay hoped that he could avoid an indictment by further cooperating with the prosecutor.
9.29.2005 4:11pm
Steve:
The thing is, DeLay has been railing about the partisan nature of this prosecutor for months. If you really believed the prosecutor was on a partisan witch hunt, you'd never agree to toll the statute of limitations merely on the hope that you might get him to understand the facts better, because a partisan witch-hunter wouldn't care about the facts.

In this context, the only way I can see a tolling agreement being reached is if bona fide plea bargain negotiations were in progress. Otherwise, there would be no point in dragging things out and giving the prosecutor even more time to prepare his case.
9.29.2005 4:19pm
Dilan Esper (mail) (www):
I think DeLay waived the Statute of Limitations because otherwise he was going to be indicated during the 2004 election campaign and the Bush campaign told him in no uncertain terms that they didn't want that to happen.
9.29.2005 4:38pm
Bryan Kerwick (mail):
The reason DeLay waived the Statute of Limitations is to set precedence. This is going to get ugly and by doing what he did, it takes away EVERYONE ELSE's option to hide behind it. It is impossible to wrestle with a pig and not get muddy, especially since the pig likes it that way. Those who decided to attack DeLay knew there would be repurcussions, but never expected this. When it is their turn on the barrell, they have no chance of hiding behind the Statute unless they wish to give up public office forever. Nice move Tom.
9.29.2005 6:35pm
cybercpa (mail):
He's charged with conspiracy, but the charge seems to include several acts of fraud. Isn't there a longer SoL for fraudulent acts? If so, what harm would come of extending the Sol for conspiracy?
9.29.2005 7:16pm
NickM (mail) (www):
If DeLay had been indicted before the 2004 elections, it might have had an effect on some of the hotly contested races for Congress in Texas - since this effect probably would not have been good for the GOP nominees in those races, it makes perfect sense for DeLay to seek to push indictment off until after the 2004 elections. The only way likely to do that is to waive the SoL. This is irrespective of whether he is guilty - if a prosecutor wants an indictment, he almost surely gets it.

Nick
9.29.2005 8:22pm
Stephen M (Ethesis) (mail) (www):
His indictment of Hutchinson when the judge threw out of court

You ought to read that case and what happened. Interesting, all the way around.
9.29.2005 8:46pm
lbl (www):
I think Delay's waiver of the SoL creates serious problems for the meme that this is a partisan witchhunt.

Assuming it is a partisan witch hunt (and Delay knows it to be such):
A. There is no rational reason for Delay to agree to a tolling agreement, as Steve makes clear above, except for purposes of political timing (clearing the decks for the 2004, etc.)
B. If Delay's motivation is political timing, and he really really doesn't want this indictment coming down at some time x. A savvy partisan witch-hunter would make sure that x was precisely the time when the indictment was signed. He would not enter into or respect a tolling arrangement that aids the partisan he is trying to skewer.

Given the thinness of the indictment, it seems likely to me that the prosecutor either needed all the time he took or wasn't motivated by partisanship.

I hasten to add that from a partisan point of view, this is exactly the wrong time to indict. Elections are remote, Frist's trouble is in its infancy, the White House still has an incendiary SCOTUS nomination to deal, the political dominoes from the hurricanes are beginning to fall in Louisiana and Washington, and on Monday a new Chief Justice will begin his term. In a media environment like that, an unsexy campaign finance indictment is a three day story.

I doubt that the partisan label will stick well on Earle. If he is a partisan, he's not a terribly effective one. But then I doubt anyone will remember his name in two weeks anyway.
9.29.2005 10:09pm
SimonD (www):
Assuming it is a partisan witch hunt...and Delay knows it to be such...There is no rational reason for Delay to agree to a tolling agreement...except for purposes of political timing (clearing the decks for the 2004, etc.)
I don't think that necessarily follows. There is every reason for DeLay to seek to delay it until after the elections, even if the accusations have no merit and it's all a partisan witch hunt. Whether the charges are well-founded or not, this is going to generate a lot of press, and the election cycle is probably not the place for that.
9.29.2005 10:51pm
Andrew MacDonald (mail):

I don't think that necessarily follows. There is every reason for DeLay to seek to delay it until after the elections, even if the accusations have no merit and it's all a partisan witch hunt. Whether the charges are well-founded or not, this is going to generate a lot of press, and the election cycle is probably not the place for that.


Right, but if it were a political witch hunt, signing it in 2004 makes sense for Delay, but why would Earle offer it then? If Earle really wanted to screw with Delay with little interest in actual justice, why bother even offering that in the fall of '05? Why indict now when the new cycle is really at his disadvantage. Either he's a lousy witch hunter, or he didn't really care about that...
9.30.2005 12:31am
howvan:
I question whether DeLay would plead guilty to the criminal charge. Doing so would put the GOP in a Catch-22: either kick him out of Congress, like they did with Jim Traficant three years ago, or not kick him out, and then face the Democratic chorus that that only proves that the GOP is corrupt and must be thrown out of office in 2006. I wonder which they would take.
9.30.2005 10:01am
Alan (mail):
Another grand jury that just convened today indicted DeLay for money laundering. Some bloggers are calling Earl incompetent for filing defective charges the first time around and needing a "do over". Seems to me Earl may have played DeLay like a harp. Picture this: Earl wants the grand jury to indict DeLay on multiple charges, but its not clear what they are going to do. Earl gets DeLay to sign a waiver that allows Earl to give another grand jury (one that hasn't even convened yet!) an additional opportunity to indict DeLay. Net result: DeLay is indicted for conspiracy by the first grand jury and money laundering by the second. Far from being incompetent, looks to my like Earl not only knew exactly what he was doing, he played DeLay!
10.3.2005 11:28pm
nb (mail):
As an attorney who has defended targets of government investigations many times, I have recommended to clients that they agree to a prosecutor's request to "toll" (or extend) the statute of limitations as part of a general strategy of cooperation with the authorities. The hope is that, where the prosecutor is investigating other targets (as was the case in the DeLay investigation), your client's willingness to work with the prosecutor to produce documents, supply information, extend deadlines etc. will result in small settlement fine, or even a "withering away" of the inquiry. This is especially the case in the wake of the famous Thompson Memo, which outlined a strategy of threatening indictments if full cooperation in US Attorney investigations is not obtained.

So I think while it is correct to say that the waiver was likely part of a broader strategy to obtain a small settlement through cooperation, it's probably not the case that it was part of a "plea deal" in which DeLay would have pled out to criminal charges.
10.4.2005 2:00pm