The FBI’s case against Tom DeLay
In the mid-2000s, a scandal swept Washington centered around the larger-than-life lobbyist Jack Abramoff and top Republican members of Congress and staff who had benefitted for years from his largesse. When the dust settled, the Justice Department had secured at least 20 guilty pleas or trial convictions based on evidence the FBI uncovered in a wide-ranging public corruption investigation initiated in 2004. The investigation netted not only Jack Abramoff, who pleaded guilty in January 2006 to conspiracy, aiding and abetting honest services mail fraud, and tax evasion and was sentenced to 48 months in prison, but also implicated his close friend, former House Majority Leader Tom DeLay (R-TX). Those convicted included two former congressional senior aides to Mr. DeLay: Tony Rudy and Michael Scanlon. But despite travelling for years in Mr. Abramoff’s orbit as “one of Washington’s top power brokers,” Mr. DeLay was spared, as confirmed by the surprising announcement he made in August 2010 that DOJ had informed him the agency would not be bringing criminal charges against him in connection with his relationship to Mr. Abramoff.
News reports speculated that DOJ had declined to prosecute DeLay because “prosecutors were unable to compel incriminating testimony by a former DeLay aide, Edwin A. Buckham, and find other witnesses or evidence that could have led to a conviction.” DeLay and Buckham were labelled “two of the principal targets in the department’s multifaceted probe of Abramoff’s lobbying practice,” id., and DOJ’s decision not to prosecute DeLay was characterized as “a stark footnote to the lobbying scandals that helped Democrats in 2006 regain the House majority.” But the still unconfirmed question as to why DOJ really had declined to prosecute DeLay led CREW to file a FOIA request with DOJ in October 2010 for records from the now-closed DeLay investigation. This request set CREW off on a seven-plus year saga, as it fought to compel DOJ to reveal publicly why DeLay escaped scot-free, despite the significant public record documenting he had a hand in a great many quid-pro-quo arrangements.
Initially, the FBI responded that because CREW was seeking information about third parties from investigative files the requested records were categorically exempt on privacy grounds. As CREW pointed out, however, the proverbial cat already was out of the bag; DeLay himself had revealed publicly he had been under investigation by DOJ, so there was no need to protect him from the stigma of being associated with a law enforcement investigation. Refusing to yield, DOJ insisted no records could be released, requiring extensive litigation, including two appeals to the U.S. Court of Appeals for the D.C. Circuit, before CREW finally obtained at least some of its requested documents.
The FBI’s response to CREW’s FOIA request for records about the four-year investigation yielded a total of 328 pages; of those, 131 pages eventually were released. The documents fall largely into two categories: (1) summaries of witness interviews, referred to as “302s,” and (2) investigative materials comprising “derivative communications and reports analyzing the evidence obtained,” including interagency memos, emails, and grand jury material. The FBI produced less than half of the responsive documents, and those it did produce were heavily redacted.
The extensive redactions make it very difficult to ascertain precisely what the FBI learned about DeLay’s activities, but scattered throughout are tidbits of information. For example, one 302 (DeLay 8), documents an interview with an unidentified attorney who described Abramoff’s relationship with the Washington, D.C. law firm Greenberg Traurig, where Abramoff generated large sums of money lobbying for Indian tribes. The attorney noted how the tribes picked up the tab for box seats at MCI Center, Fedex Field, and Camden Yards that Abramoff used to entertain members of Congress. (DeLay 4, 5). The attorney further noted that Abramoff would steer people to Tom DeLay’s charity, and described DeLay as “Abramoff’s source.” (DeLay 1224). DeLay’s name is sprinkled throughout the documents, including in discussions about Abramoff-funded travel he took, references to meetings between Abramoff and DeLay, conversations between DeLay and unidentified individuals at fundraisers, and money paid to DeLay’s foundation.
CREW’s FOIA request and attendant litigation yielded one very significant document that offers the most insight into what the FBI did and why the investigation was closed with no indictment – a 10-page memo dated April 1, 2010, from the FBI’s Washington Field Office to DOJ’s Criminal Division. (DeLay 119-128). The memo states its purpose as “to close the piece of the Rainmakers investigation that pertains to former Congressman Tom DeLay” and another unidentified individual or individuals. (DeLay 119).
The first section of the memo, titled “Allegations,” lays out what the FBI was trying to determine, specifically whether DeLay “conspired to commit honest services fraud by accepting things of value (TOV) from lobbyists, including Jack Abramoff, in return for providing official actions benefitting these lobbyists and their clients.” (DeLay 119). In other words, were the many things of value DeLay is known to have accepted, such as golf trips and payments to his foundation, given in exchange for DeLay’s promise to use his office to take actions that benefitted Abramoff’s clients: a classic quid pro quo. The FBI also attempted to ascertain whether another unidentified individual conspired with DeLay to commit honest services fraud. Id.
The second section, titled “Summary of Investigation in Support of Charging the Subjects With Conspiracy to Commit Honest Services Fraud,” lays out the investigative steps the FBI took and their yield. The four-year investigation involved “millions of documents and electronic records.” (DeLay 120). The overview starts with the things of value an entity (name redacted) received in 1997 from Abramoff or his clients to take actions, the specifics of which are redacted. Id. This is followed by summaries of the numerous trips DeLay and others took that Abramoff and/or his clients funded, often to benefit Abramoff or some entity associated with him. (DeLay 121-122). For example, in late December 1997, Abramoff arranged for DeLay and others to travel to a place, the name of which is redacted. DeLay’s presence on this trip is described as enhancing the stature of Abramoff and other unidentified individuals with their clients “and so advanced their lobbying practices.”Id. In July 1998, DeLay and others took another Abramoff-funded trip to “scout out the golf course on the [Choctaw – an Abramoff client’s] reservation as a possible venue for a DeLay Foundation event.” The memo describes DeLay as “supportive of Choctaw issues over the years.” (DeLay 121).
Abramoff or his clients funded more exotic trips for DeLay and others, including a trip to London and Scotland in May 2000. Id. That particular trip was paid for by a non-profit that Abramoff’s clients funded. The FBI memo describes the trip as “largely recreational,” an apt description given that the London portion included shows, while the Scotland portion “consisted of several days of golfing.” Id. Notably, DeLay failed to disclose the golfing expenses on his congressional travel disclosure form. In August of the following year, DeLay and others travelled to Korea, Malaysia, and Taiwan, paid for by nonprofits funded by the clients of someone whose name is redacted. (DeLay 121). Again, the FBI noted that the stature of the trips’ funders “undoubtedly would have been enhanced . . . in the eyes of . . . clients” and their lobbying practice advanced simply by DeLay’s presence. Id.
Beyond funding or securing the funding for these trips, Abramoff directed his clients to contribute to the DeLay Foundation, ARMPAC, and other nonprofits supporting conservative causes known to and supported by DeLay. (DeLay 122). The heavy redactions make it nearly impossible to ascertain the precise nature of the other things of value DeLay received from Abramoff, his clients, and Abramoff-associated entities.
The memo also outlines the actions DeLay in turn took from 1997 through 2005 to support the lobbying practices of Abramoff and another unidentified individual (referenced herein as “John Doe”) – the quo for the quid. (DeLay 122). Upon request, DeLay granted “access and face time” to the clients of Abramoff, including on the numerous trips that especially provided “ample face time.” Id. Upon request, DeLay also met numerous times with the clients of Abramoff and John Doe. As the memo notes, their ready ability to secure these meetings and face time “undoubtedly enhanced their stature in the eyes of their clients and so advanced their lobbying practices.” Id. Stated differently, Abramoff was able to present himself to his clients as a mover and shaker by the ease with which he could arrange a sit-down with Tom DeLay, the powerful House Majority Leader.
DeLay’s action went well beyond this face time. DeLay and his staff took affirmative actions to benefit the clients of Abramoff and John Doe, “such as writing letters . . . or attempting to pass or block legislation.” And DeLay went even further by helping them obtain or retain lobbying or grassroots clients. Id.
Public reporting amplifies the FBI’s memo. For example, just two months before DeLay voted against legislation that a tribe and a gambling services company opposed, the same tribe and company made donations to the National Center for Public Policy Research, which covered most of the expenses for the London and Scotland trip in which DeLay participated. Further, DeLay and three other Texas Republican congressmen reportedly sent a December 11, 2001 letter to the Justice Department urging it to close the Livingston casino run by the Alabama-Coushatta tribe. They sent the letter just eight days after Abramoff sent an email to a lobbyist associate that stated: “We have to shutter Alabama Coushatta and fast.”
Also missing from the FBI memo but bearing directly on the issue of actions DeLay took that could be characterized as quid pro quos is the fact that the House Ethics Committee admonished DeLay three times for violating House rules governing members’ activities and contacts with registered lobbyists. Id. DeLay’s violations included accepting payment from lobbyists for travel expenses that include entertainment and recreational activities costing more than $50, and failing to accurately report the true sponsors of his trips and their full cost.
Despite the extensive evidence the FBI gathered during its four-year investigation, the decision was made not to prosecute DeLay. The memo’s explanation for that decision begins with the statement:
“[b]ased upon all of the above facts, a strong case could be argued that the aforementioned individuals [which include DeLay] violated the honest services statute by providing or accepting a stream of TOV (payments to the wives and trips) in exchange for conducting official acts which benefitted the lobbying practices and clients.(DeLay 123). Yet, the memo asserts, “there are some legal arguments and intent arguments the subjects could make in their defense making such charges harder to prove.” Id. The possibility of these arguments succeeding apparently persuaded both the FBI and DOJ not to prosecute DeLay and others absent “any ‘game changing’ evidence.” Id.
The memo identifies four general areas of concern underlying the declination decision: (1) statute of limitations issues; (2) official acts; (3) the Supreme Court and the honest services fraud statute; and (4) “possible other factors.” Each is discussed below.
Statute of Limitations
The significant redactions in the memo make it impossible to ascertain the precise statute of limitations problems. In responding to those problems, DOJ seems to have been swayed by the fact that while “reasonable arguments” exist “to extend the statute of limitations,” there is only a “limited amount of case law precedent” to support the extension, making “the success of this argument . . . not guaranteed.” (DeLay 124). The FBI, however, disclaimed this was a determinative factor in its analysis, describing the statute of limitations issue as “just one more thing of concern that added to the totality of circumstances leading to DOJ’s declination.” Id.
Nevertheless, the memo’s treatment of the statute of limitations issue seems to set an especially high bar for prosecution of a high-profile defendant like DeLay.
A majority of the memo’s prosecutive opinion focuses on the official acts component of an honest services fraud prosecution, and the likely arguments DeLay and others would make in response. First, the memo points to jury instructions U.S. District Judge Ellen Huvelle issued in the related Kevin Ring trial, which the FBI characterizes as giving Ring “quite a bit of wiggle room in explaining legitimate gifts and lobbying activity,” and setting a high bar “in terms of the types of acts that constitute official acts on the part of public officials.” (DeLay 125). Judge Huvelle’s instructions excluded as official acts “[m]ere favoritism” as exhibited by the willingness of a public official to meet with a lobbyist or take their calls, and sharing of information to help a lobbyist develop a strategy. Id. Applying that standard to DeLay, the memo notes in many instances DeLay simply met with Abramoff’s clients, but took no subsequent action. Id. From this, the FBI anticipated DeLay likely would argue his actions fall outside the definition of an official act as defined by Judge Huvelle. (DeLay 125-26).
Missing from the memo, however, is any discussion of how the full body of evidence against Delay compares to the evidence against Ring. Further, the memo fails to mention that the jury receiving Judge Huvelle’s instructions convicted Ring on five counts, including conspiracy, honest services fraud, and paying gratuities related to an illegal lobbying scheme.
The memo further suggests the timing of DeLay’s actions in support of Abramoff’s clients undermines any honest services fraud count, as they pre-date his receipt of “the largest TOV in this case[.]” (DeLay 126). As the memo also notes, however, Abramoff’s same clients made contributions in that earlier period to a DeLay political action committee, ARMPAC, a period that coincided with DeLay receiving trips paid for by Abramoff’s clients. Id.
The memo also anticipates a defense that DeLay’s official acts on behalf of Abramoff’s clients “were ideologically or politically consistent with DeLay’s positions[.]” Id. For example, the memo posits, DeLay might attempt to justify a July 1997 energy luncheon for Russian and U.S. based oil companies as serving both Abramoff’s Russian clients and the oil companies located in DeLay’s congressional district. Id. Similarly, DeLay was likely to argue his involvement in the awarding of an energy contract that benefitted an Abramoff client was consistent with his past support of energy deregulation. Id. Likewise, the FBI thought DeLay would defend his 2000 letter to the Postmaster General urging him not to raise postal rates – a move that if successful would benefit an Abramoff client – as consistent with his previous history of opposing postal rate increases. Id. The memo also suggests Delay would attempt to justify his support for a prescription drug law that benefitted specific entities as a major legislative effort of President George W. Bush that he, as majority leader, naturally would support. (DeLay 126-27). The FBI summarized DeLay’s anticipated argument as essentially that “DeLay was not bought off; he would have done everything he did anyway regardless of the TOV.” (DeLay 127).
While prosecutors frequently consider the defenses and legal arguments a prominent target like DeLay would advance if charged, again, however, the memo fails to match up these anticipated arguments against the four years’ worth of contrary evidence the FBI had amassed. Further, some of the arguments advanced, such as the one that he had no “nefarious influence peddling motive,” could apply to virtually any public official facing corruption charges Id.
The Supreme Court and the Honest Service Fraud Statute
The memo highlights the then-pending cases before the Supreme Court involving the honest services statute and the likelihood any ruling could “weaken the statute making it that much more difficult for the Government to successfully bring charges under this statute.” Id. To be sure, on June 24, 2010, the Supreme Court in Skilling v. United States significantly narrowed the reach of the statute, limiting it to offenses involving “bribery and kickback schemes,” not to “undisclosed self-dealing by a public official or private employee.” 561 U.S. at 408-09. Nonetheless, prosecutors’ decision not to wait for the Supreme Court’s Skilling decision – issued just two months later – before declining to prosecute DeLay is puzzling.
Possible Other Factors
Finally, and perhaps most significantly, the fallout from DOJ’s prosecution of Senator Ted Stevens appears to have had a chilling effect on the pursuit of public corruption cases by DOJ’s Public Integrity Section that also swept in the DeLay matter. The memo notes the “perceived pull-back in terms of the aggressiveness” by the Public Integrity Section in prosecuting public corruption cases after its chief and other DOJ attorneys were found to be in contempt of court for their conduct in the Stevens prosecution. (DeLay 127). As a result, “[c]ases which were previously strongly supported for prosecution by [Public Integrity] became questionable.” Id.
The case against Tom DeLay apparently fell into this category of “questionable” prosecutions. The FBI memo states DOJ declined prosecution because it “foresaw many challenges in being able to successfully prosecute this case.” (DeLay 128). A separate letter of May 6, 2010, from the Acting Chief of DOJ’s Public Integrity Section to the FBI’s Supervisory Special Agent, memorializes the decision not to prosecute DeLay and others for a variety of crimes beyond honest services fraud including bribery, extortion under color of official right, making false statements on required disclosure forms, violations of the post-employment lobbying ban, and income tax offenses. (DeLay 129). Notably, the FBI memo is silent on many of the listed offenses for which DeLay was investigated, leaving no explanation for how or why the FBI’s investigation came up short.
In the end, a picture of a gun-shy Department of Justice emerges from the FBI’s records, reeling from its disastrous prosecution of Senator Stevens and focused more on the case’s perceived weaknesses than its strengths in order to justify its decision not to prosecute him. The Department of Justice, in its own deliberations, may have engaged in more thorough analyses of the pros and cons of their case, but the documents the FBI produced to CREW do not reflect this. Instead, they reveal that after a four-year investigation, DOJ quietly closed its case against one of the most powerful men in Congress, letting him off the hook for his years of shady deals and actions on behalf of Jack Abramoff and his many clients.
 See CREW v. Dep’t of Justice, Civil No. 11-592 (RJL) (D.D.C.), Declaration of David M. Hardy, ¶¶ 22-23 (Dkt. 9-3).
 Id. See also Jason Ryan, Four More Years in Prison for Jack Abramoff, ABC News, Sept. 4, 2008 available at https://abcnews.go.com/TheLaw/story?id=5725200&page=1.
 Mike Allen and Josh Gerstein, DeLay ‘Knew This Day Would Come’, Politico, Aug. 16, 2010, available at https://www.politico.com/story/2010/08/delay-knew-this-day-would-come-041104.
 Heather Horn, After 6 Years, Tom DeLay Will Not Be Charged, The Atlantic, Aug. 16, 2010 available at https://www.theatlantic.com/politics/archive/2010/08/after-6-years-tom-delay-will-not-be-charged/344487/.
 R. Jeffrey Smith, Justice Department Drops Investigation of DeLay Ties to Abramoff, Washington Post, Aug. 17, 2010, available at http://www.washingtonpost.com/wp-dyn/content/article/2010/08/16/AR2010081602066.html.
 Allen and Gerstein, Politico, Aug. 16, 2010.
Jordan Fabian, Ethics Watchdog Sues Justice Dept. for Documents in Tom DeLay Case, The Hill, March 22, 2011 available athttp://thehill.com/blogs/blog-briefing-room/news/151281-ethics-watchdog-sues-justice-department-for-delay-documents.
 The released documents can be found here.
 CREW v. Dep’t of Justice, 746 F.3d 1082, 1090 (D.C. Cir. 2014).
 References are to the Bates numbers the FBI assigned to the documents it produced to CREW.
 Public reports add further details about at least some of DeLay’s foreign trips. For example, the Washington Post reported on a six-day trip DeLay took to Moscow in 1997 that was “underwritten by business interests lobbying in support of the Russian government[.]” R. Jeffrey Smith and James V. Grimaldi, A 3rd DeLay Trip Under Scrutiny, Washington Post, Apr. 6, 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A28319-2005Apr5.html.
 See R. Jeffrey Smith, DeLay Airfare Was Charged to Lobbyist’s Credit Card, Washington Post, Apr. 24, 2005, available at http://www.washingtonpost.com/wp-dyn/articles/A12416-2005Apr23.html?nav=rss_topnews.
 Smith, Washington Post, Apr. 24, 2005.
 Michael Hedges and Samantha Levine, DeLay Led Bid to Close Livingston Casino, Houston Chronicle, Jan. 11, 2006, available at https://www.chron.com/news/politics/article/DeLay-led-bid-to-close-Livingston-casino-1506577.php.
Smith, Washington Post, Apr. 24, 2005.
 Kevin Ring was a former hill staffer who left Congress to join Jack Abramoff’s lobbying practice, first at the law firm Preston Gates and then at Greenberg Traurig.
See Office of Public Affairs, Federal Bureau of Investigation, Washington Field Office, “Former Abramoff Colleague Kevin Ring Convicted of Conspiracy, Honest Services Fraud, and Paying Gratuities Related to Illegal Lobbying Scheme,” Nov. 15, 2010 available at https://archives.fbi.gov/archives/washingtondc/press-releases/2010/wfo111510-1.htm.