Last week I observed that, even though the House Ethics Committee failed to answer that question, its report on the Smith affair contained sufficient evidence to indict Majority Leader Tom “The Hammer” DeLay. DeLay told the committee that on the night of the Medicare drug-bill vote he promised Smith that if Smith voted for the bill, he, DeLay, would endorse the congressional candidacy of Smith’s son Brad. (Smith didn’t, and therefore DeLay didn’t. Brad eventually lost the GOP primary.) DeLay’s endorsement meets the legal definition of an attempted bribe because DeLay was offering something of value to a public official with intent to influence an official act.
Such behavior is not business as usual. An editorial in the Oct. 6 Wall Street Journal compared DeLay’s offer to “trading a yea for a court house or highway” and concluded, “If the ethicists really got serious, the Appropriations Committees might have to go out of business.” This reflects a widespread misconception that bribery has no legal meaning in Congress, where “I’ll vote for your bill if you vote for mine” is a way of life and members enjoy broad immunity from prosecution under the Constitution’s “ speech and debate clause.” But the speech-and-debate clause doesn’t apply in the Smith case, because DeLay was not acting in a governmental capacity when he offered the endorsement. As the Supreme Court noted in United States v. Brewster, a 1971 case involving the bribery of U.S. Sen. Daniel Brewster, D-Md.,
The only reasonable reading of the Clause, consistent with its history and purpose, is that it does not prohibit inquiry into activities that are casually or incidentally related to legislative affairs but not a part of the legislative process itself.
Brewster was convicted. Let the DeLay prosecution begin!
But there still lingers the question of that elusive $100,000. Knowing how Smith became acquainted with that dollar figure would probably make it easier to convict DeLay. And besides, a proper game of Clue doesn’t end until you’ve identified the murderer, the setting, and the weapon. We have Professor Plum in the library, and we’re pretty sure he used the wrench. But we can’t prove it. How did Professor Plum get the wrench? That is to say, how did DeLay, or (more likely) someone working with DeLay, plant the $100,000 figure in Smith’s mind? The narrative contained in the Ethics Committee report illuminates one very logical pathway.
Smith was at first uncooperative with the Ethics Committee because he was trying, very clumsily, to retract his bribery accusation. This annoyed the committee a lot, and eventually it exacted revenge by giving Smith a “public admonishment” along with DeLay. (Smith’s response has been to act as though the report vindicates him, which it doesn’t. It concludes, erroneously in my view, that Smith had no basis for saying he was offered $100,000.) For the committee, the sorest point was Smith’s flat-out refusal to identify a “friend” who had phoned him the day of the vote and said that if he supported the Medicare bill, Brad would receive “substantial and aggressive support.” Smith mentioned the “friend” in a Dec. 17 letter to the committee. In a Feb. 13 reply, the committee chairman and ranking member asked Smith for the friend’s name. Smith ignored this query and instead had his lawyer send a letter on March 5 reiterating that no House member had offered money to Brad’s campaign. In effect, Smith told the Ethics Committee to buzz off. The committee answered with a subpoena.
Smith’s “friend” turned out to be Jason Roe, chief of staff to Rep. Tom Feeney, R.-Fla. If Feeney’s name sounds familiar, that’s because he got some national publicity during the electoral “long count” in 2000 when, as speaker of the Florida House, he pushed hard to declare George W. Bush the winner. This is a tantalizing link but, alas, a meaningless one. Feeney had absolutely no motive to conspire with DeLay in bribing Smith because, like Smith, Feeney voted against the Medicare bill and said he would all along.
Roe had even less motive to conspire with DeLay. In addition to his boss’s longstanding opposition to the Medicare bill, Roe had a family connection to Smith going back four decades. He had previously worked as Smith’s press secretary, and he ended up giving $500 to Brad’s campaign. If Roe had any opinion at all about how Smith should vote on the Medicare bill, it was probably that he should vote against it. (Roe did not return my phone call.) But Roe was well-situated to convey, informally, the message from DeLay that if Smith voted for the Medicare bill, then DeLay would give Brad’s campaign $100,000. And as it happens, shortly before Roe placed his call to Smith, Roe received a call from Dan Flynn, DeLay’s deputy chief of staff.
The Ethics Committee interviewed all three participants in these two phone calls: Smith, Roe, and Flynn. None related any mention of $100,000, and presumably they were questioned closely about that. But in reading what Smith, Roe, and Flynn each remembered of these conversations, I was struck by what seemed like odd elisions. These were different in each man’s testimony. It was as if all three recognized, independently, some imperative to muddy the waters, but had not taken the risk of sitting down together—which the Ethics Committee had forbidden them to do—to agree on a common strategy of evasion.
In Smith’sversion,which took some doing to get out of him, Roe told Smith there could be “substantial and aggressive support” for Brad if Smith voted for the Medicare bill. According to Smith, Roe said that a source close to DeLay’s office had told him Smith’s yea vote would get Brad an endorsement from the National Republican Congressional Committee. Smith viewed this as gossip, not hard information. (NRCC chairman Tom Reynolds told the Ethics Committee that he knew of no plans to endorse Brad.)
In Roe’s version, Roe never mentioned to Smith any source close to DeLay. Roe was not calling Smith on anyone’s behalf, but rather to discuss the various kinds of pressure being put on the bill’s opponents, who included Feeney, his current boss. He was curious to learn what Smith had been subjected to. They did discuss, hypothetically, what the House leadership might do for Brad if Smith changed his vote, but they also discussed the likely backlash in Smith’s very conservative district—which was where Brad was seeking the nomination—against expanding an already large federal program. (Smith will retire at the end of this year: Brad sought to succeed him.) Before phoning Smith, Roe spoke to Flynn more than once, but Brad’s primary race never came up. The conversations focused on whether Feeney could be persuaded to support the Medicare bill.
In Flynn’s version, he phoned Roe because he wanted to learn more about Brad’s primary race—and Roe, he knew, was close to Smith. Flynn says he didn’t ask Roe to call Smith about his Medicare vote. Flynn also says he didn’t mention any plans by DeLay or the NRCC to endorse Brad or any other candidate in the primary. But Flynn says he had a discussion with DeLay that day about Smith’s longstanding desire for DeLay to endorse Brad. Flynn says he explicitly mentioned to DeLay the possibility of changing Smith’s vote by endorsing Brad. (Two other DeLay aides remember Flynn discussing this, but one says that DeLay wasn’t present, and another says DeLay was there but might not have heard it. DeLay remembers only that somebody told him that day that Smith was a “gettable vote.” Flynn did not return my phone call.)
In sum: Smith says Roe had it from a source close to DeLay that Smith’s yea vote would win an endorsement and big bucks for Brad, but it was only gossip. Yet Smith regarded this conversation as being sufficiently compromising (to Roe, presumably) that he didn’t want to tell the Ethics Committee about it. Roe says all he did was gossip, and that he had no source close to DeLay on this, even though he spoke to Flynn. Flynn says he spoke to Roe about Brad’s primary, but he didn’t discuss a possible endorsement, even though he discussed with DeLay offering one in exchange for Smith’s Medicare vote.
To render these three narratives plausible and consistent while making the fewest possible alterations to each, I propose the following:
1) Flynn called Roe and mentioned that DeLay would endorse Brad and get him $100,000 (probably from DeLay’s very flush “leadership PAC”) if Smith changed his vote. Flynn probably wouldn’t have had to ask Roe explicitly to pass this information on to Smith.2) Roe called Smith and told him what Flynn said, not as an advocate for Flynn but merely because he found the offer astonishing. 3) When DeLay offered to endorse Smith’s son in exchange for Smith’s vote, he was implicitly sealing the deal to give Brad’s campaign $100,000.
In fairness, I should note that DeLay claims it was Smith, not he, who initiated the bribe. But the more I think about this scenario, the more I’m struck by its implausibility. Why would Smith, after trying to bribe DeLay, then babble in public about someone trying to bribe him? Professor Plum in the library with a wrench is good enough for me, at least until we get more information, as I expect we will at DeLay’s bribery trial. But first somebody’s got to indict him.
Medicare Bribe Archive:
Oct. 1, 2004: “ Defendant Delay?”
Aug. 4, 2004: “ Brad Unbound”
April 29, 2004: “ Brad’s Little Problem, Part 2”
March 23, 2004: “ Kalamazoo Kapitulation!”
Feb. 26, 2004: “ FBI Examines Medicare Bribe”
Feb. 4, 2004: “ Brad’s Little Problem”
Jan. 22, 2004: “ Burying the Bribe”
Jan. 8, 2004: “ Bob Novak Ate My Brain!”
Dec. 23, 2003: “ Now It’s a Scandal”
Dec. 8, 2003: “ A Drug-Company Bribe?”
Dec. 6, 2003: “ Why Smith Can’t Recant”
Dec. 5, 2003: “ Nick Smith Recants”
Dec. 1, 2003: “ Who Tried To Bribe Rep. Smith?”