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.