A Plea In the Works, or Delay Tactics?

Over at Volokh, Orin Kerr tentatively disagrees with Norm Pattis on the DeLay indictment.

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.

A comment back at Crime and Federalism suggests something similar, that the statute of limitations may have been waived "in order to gain more time to try to convince the prosecutor not to file charges". But if you read the indictment (PDF Format), you find the following:

* The statute of limitations is three years;
* The date of the alleged offense was September 13, 2002;
* The time stamp on the indictment is September 28, 2005.

Did DeLay really waive the statute of limitations to buy himself a whopping two weeks? Let's take a look at what Tom DeLay has to say about the status of the prosecution as of two weeks ago:

Despite his longstanding animosity toward me and the abusive investigation that animosity has, unfortunately, rendered, as recently as two weeks ago, Mr. Earle himself publicly admitted I had never been a focus or target of his inquiry.

That statement appears to leave open three possibilities:

1. Tom DeLay is engaged in flagrant misrepresentation - that is, he was in active negotiations with Mr. Earle and very much knew himself to be a target of the inquiry, even as Earle suggested otherwise in public;

2. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges and, despite the expiration of the statute of limitations on the conspiracy charge, cut the deal Norm suggests; or

3. Tom DeLay was approached within the past two weeks with news of a pending indictment on more serious charges, cut a deal with the prosecutor to waive the already-expired limitations period on the conspiracy charge in order to buy time to try to avoid indictment, and the prosecutor immediately sought an indictment for conspiracy.

If we were in fact seeing scenario #3, I would expect DeLay to be complaining bitterly about the prosecutor's actual treachery, rather than whinging about what seems to be imagined treachery. Also, the indictment reflects that two alleged co-conspirators (James Walter Ellis and John Dominick Colyandro) were indicted on September 13, 2005, raising the possibility that one or both have agreed to testify against DeLay.

Thus, assuming that DeLay is telling the truth in his public statement, the stronger theory appears to be the one advanced by Norm Pattis.