by Robert Emmett Murphy, Jr.
Presidential hopeful, and longest-ever sitting Texas Governor, Rick Perry, has been indicted for two felonies and is facing a potential (but improbable) 109 years in prison. His supporters are screaming witch-hunt. His detractors say its long-over-due.
Please relax while, to the best of my ability, I explain what this is about…twice. Because this story has an easy version, and a complicated version. And after I give you both versions, there will be even more to explain.
• The easy version:
Travis County District Attorney Rosemary Lehmberg runs the Public Integrity Unit. As her office is in Austin, the Capital, her little office has the authority to investigate corruption state-wide. She’s a Democrat, and although she has aggressively prosecuted political players of both parties, she’s proven a special thorn in the side of the State of Texas’ largely Republican power-structure because her office indicted and convicted Tom Delay for money laundering. DeLay was Texas’ most important power broker, and his influence over redistricting maps was central to the Republicans expanding their power base to completely dominate every level of State government despite having only a bit less than 45% of the population actually self-identifying as Republican (based on a 2008 Gallup poll). This conviction was also a key component in the interconnected prosecutions in the Jack Abramoff scandal, which were maybe the most significant, successful, corruption prosecutions of elected official on the Federal level since the ABSCAM scandal of the 1970s (there have been two major Hollywood movies made about Abramoff’s misdeeds, ABSCAM only seemed to demand one). Fall-out from that scandal enabled the Democrats to seize the majority in the US House of Representatives in 2006, and played a role in the continued Democratic surge that brought President Barack Obama into office in 2008.
Perry and Lehmberg were long-standing adversaries, not in the least because she appears to be the only remaining important head of any facet of Texas’ State-wide authorities that wasn’t a Perry ally/appointee. Moreover, she was investigating one of his signature projects, and by extension, investigating him. That was a state agency called the Cancer Prevention and Research Institute of Texas (CPRIT) which was marred with charges of mismanagement and corruption. In the midst of this investigation, Lehmberg got was arrested and convicted of a misdemeanor. Now had she resigned, or been forced out, in the wake of this, Perry would’ve been empowered to replace her with a DA of his own choosing. His autocracy would be complete, and perhaps this could’ve also derailed the CPRIT case.
No one with potential authority to fire or impeach her took any steps against her. The prosecutors who worked under her publicly supported her remaining in office, as did State Senator Kirk Watson and other Democrats. There were at least two attempts to force her out of office through the courts, but so far all have failed to satisfy judges/juries.
Very importantly, Perry didn’t have that authority to demand her removal. She wasn’t a State Appointee, but like him, an Elected Official.
Enraged that Lehmberg would not get out of his the way, he threatened to veto $7.1 million dollars in funding for the PIU. When she continued to resist him, he carried through on his threat. This was done at the end of the session, making it illegal for the legislature to overturn the veto come the next session. The Travis County Commissioners were forced to find funding on their own without State support, but what they could manage was radically paired down, requiring steep cuts and lay-offs within the office, which was at the time carrying more than 400 open cases. Despite this, the case against CPRIT continued unabated and a former director, and close Perry associate, was indicted last year for his handling of an $11 million grant.
The charges against Perry are born of his abusing his veto power to achieve something beyond his authority, getting Lehmberg replaced with someone more friendly to him. And he harmed the public good in the process, by defunding an anti-corruption unit. And that unit just happened to be investigating him at the time.
This is the text of the specific law he is accused of violating:
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree
• Now to make it more complicated:
Rosemary Lehmberg’s misdemeanor arrest was for drunk driving. Her arrest and time in the police custody were videotaped, and her behavior was disgraceful: berating the officers, kicking inanimate objects, weeping, and making demands and requiring restraints. Her blood alcohol level was three times the legal limit. Credit card records showed purchases of truly breathtaking volumes of Cirroc vodka, more than 23 gallons, in a 15-month period. This made her far more famous nationally than her successful prosecution Tom Delay (which was recently over turned on the grounds that the evidence was legally insufficient to sustain his convictions, but Lehmberg’s office has vowed to appeal), and fame like this is best described as, “You are now a national joke.”
It is somewhat of a surprise that the head of an Integrity unit was able to return to her post after being sentenced to 45 days in jail (she served 22.5) and mandated to receive intensive counseling. Perry is insisting that his punitive veto is sincerely in the public interest. When Perry made true his threat to veto funding for the office, he was explicit as to why:
“Despite the otherwise good work of the Public Integrity Unit’s employees, I cannot in good conscience support continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”
As it happens, even though Perry, as Governor, didn’t have the right to fire Lehmberg, he does have broad powers under the Texas Constitution to veto just about anything. Because of that Constitutionally granted power, David L. Botsford, Perry’s defense lawyer, described the indictment that grew out of the veto as an abomination:
“This clearly represents political abuse of the court system and there is no legal basis in this decision. The facts of this case conclude that the governor’s veto was lawful, appropriate and well within the authority of the office of the governor.”
Botsford is likely referring to is something that, when I quoted the law above, I chose to leave out. The last paragraph of the law in question reads:
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.
This clause specifically empowers Perry to do exactly what he did…right?
• Not so fast.
First off, read broadly, the last paragraph of the law empowers the “member of the governing body ” to engage in wholly legal but still abusive coercion without any restraint. That can’t be right, can it?
And the indictment against Perry addresses this in its last sentence:
“…Perry, knowingly and intentionally influenced or attempted to influence Rosemary Lehmberg, a public servant…in the specific performance of her official duty…the defendant and Rosemary Lehmberg were not members of the same governmental entity…”
The indictment is based on the argument that Perry crossed the line by publicly tying his veto of the unit’s funding to his effort to push Lehmberg from office. “Threatening to take an official action against her office unless she voluntarily resigns is likely illegal. The governor overstepped his authority by sticking his nose in Travis County’s business,” said Craig McDonald, director of Texans for Public Justice, when that watchdog group brought the original complaint against Perry last June.
(The original complaint: http://info.tpj.org/press_
And not for nothing, but Texas has been down this road before and based on precedent, the law seems solid. In 1917 Gov James E. “Pa” Ferguson was indicted 1917 by a Travis County grand jury on nine charges, one of which was coercion. The coercion charge was based on his veto of the entire appropriation for the University of Texas because it had refused to fire certain faculty members. He was impeached, resigned, and later convicted. (Sounds pretty similar, doesn’t it?)
• But isn’t there another precedent that tells a different story? Maybe.
State v. Hanson (1990), in which Bosque County Judge Regina Hanson threatened to terminate the county’s funding of the salaries of a Deputy District Clerk and an Assistant District Attorney in an attempt to coerce the District Judge into firing the County Auditor and to coerce the County Attorney into revoking a misdemeanant’s probation. Hanson was indicted for two misdemeanors. (Again, sounds pretty similar, doesn’t it?)
The indictment were quashed on appeal on the grounds that “the indictments were based on unconstitutionally vague and overly broad penal provisions.” This is the most important paragraph of the decision:
“A vague criminal statute that encroaches on free speech violates due process because it fails to give fair warning of what is prohibited, encourages arbitrary and discriminatory enforcement, and has a chilling effect on the exercise of free expression…The test for vagueness is whether persons of ordinary intelligence must necessarily guess at a statute’s meaning and differ on its application…Therefore, a criminal statute must be drawn with such precision that ordinary people can intelligently determine the lawful course to follow.”
• Maybe not.
But there are important differences between the overturned misdemeanor against Hanson and the current two felonies Perry faces, and that difference does not bode well for Perry. First, note that this was couched as a “free speech” argument. But Perry is not being charged related to his speech, but his action; here his speech is merely the evidence of the illegal motive behind his action.
Still, lets extend the other ideas presented, which are related to the “reasonable man” concept in law — would a “person of ordinary intelligence…guess at a statue’s meaning” in this case?
Well, “reasonable man” has no specific legal definition, it is highly subjective, changing from case to case and observer to observer. In this case, what would this flexible concept be measured against?
Well, there’s the earlier conviction of Gov Ferguson.
Then there’s the fact that Perry had the guidance of a legal team who no doubt warned him.
More important still, when he made the initial threat, but before he engaged in the act, there was a public outcry that outlined pretty much what’s in the indictment, and probably a great deal more.
But really the most important measure it the most important yardstick of all, the obligation of all public servants to avoid misconduct or the appearance of misconduct. Lehmberg was holding her office legally, and Perry’s withholding of funds did the public harm (lawyers and investigators within PIU were laid off), and of course she was actively investigating him, or at least his close associates.
Put it in these terms, what if President Obama started re-prioritizing broad swaths of Federal funding away from every state that refused Obamacare’s Medicaid expansion?
Under these circumstances Perry can’t claim excessive vagueness in the statute as a defense unless he’s deaf, dumb, blind, and stupid.
(I know what your going to say in regard to that last word. Please show restraint.)
• Is this all just political tit-for-tat?
No, there is law here, and there are facts. But, yes, much of it is pure politics. And the politics run deeper than simple partisanship; it touches on the core functionality of government itself. The indictment is based on Perry’s politically motivated actions that seem to violate the separation of powers between the Governor and the DA (and by extension, the Judicary); but the actual indictment is also seen by some as a threat to a different separation of powers, by disempowering the Governor’s broad veto power one inevitably tips the balance in favor of the Legislature.
Then of course, there are associations we give our loyalty to that shape our choices, and others perceptions of our choices, that set the wheels in motion as much as law, fact, guilt, or innocence.
Before the Perry part of the scandal flowered, Lehmberg had already stated she won’t run again in 2016. She also made it clear her decision to stick it out until then has was to avoid complete Republican hegemony over Texas, especially in the sensitive area of Integrity Investigation. The Perry part of the scandal could’ve been easily avoided had he agreed to allow Lehmberg choose the successor he appointed, and that really wouldn’t be too much to ask given her 37-years as a much-respected Prosecutor, who won her last election by something like a 75% margin. Why that didn’t happen is lost in the secrecy of a back-room-maybe-but-not-quite-deal, but clearly, Perry wasn’t agreeable. It has been suggested he wished was to install Terry Keel, much respected, with a long resume of legislative, legal, and law enforcement experience, but probably most importantly, a solid Republican loyalist.
Texas Republicans had long complained about what they saw as partisan prosecutions in Travis County, one of the most liberal parts of the state. The very troubled, and ultimately failed, prosecution of Kay Bailey Hutchison is frequently cited. The overturning of Tom DeLay’s conviction seemed to confirm this theme. Regarding the Perry case, they are unimpressed by any Grand Jury that, because of its location, was almost certainly filled with Democrats, sitting in judgement over a Republican Presidential hopeful.
But juries are made up of common citizens, they aren’t politicians, and anyone with a specific interest in the case or the defendant are specifically barred from serving. It was a jury of citizens that affirmed the indictment against Perry. It was also a string of juries of citizens that made the indictment of Hutchison so difficult to obtain and then ultimately acquitted her. And it was a jury of citizens that convicted DeLay — but it was an Republican Judge (an elected official, so effectively a politician) that threw the conviction out because he didn’t see any evidence, though they clearly did.
As mentioned before, Perry is a Presidential hopeful; though no one has really announced who is going for the White House in 2016, it’s pretty obvious who’s positioning themselves. Sadly, Perry’s indictment is just the most recent in a string of national GOP embarrassments that came out of that positioning. Other hopefuls, Michelle Bachman, Chris Christie, and Scott Walker, are all subject to high-profile ethics and criminal investigations.
There’s a lot of jokes being told about this, my favorite was posted on Facebook by Jinni Lorette:
“Republicans pick Presidential candidates like Rhianna picks boyfriends…cannot find one that will work out.”
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