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The Rick Perry Indictment is Textbook Malicious Prosecution


Outsiders were stunned by the August 15 indictment of Gov. Rick Perry by a Travis County Grand Jury, but they shouldn’t have been.  The common perception that Texas is solidly or uniformly “red” is mistaken. Yes, for the past 16 years, Texas voters have elected only Republicans to statewide office, and since 2002 the GOP has controlled both houses of the state legislature, but the partisan divide in the Lone Star State is sharp and highly polarized. In 2012, Mitt Romney trounced President Obama by 16 points statewide, but over 40% of the Texas electorate is resolutely “Blue.”  There are pockets of liberal Democrats throughout the state, mainly in the large cities of Houston, Dallas, and San Antonio, but Travis County (encompassing Austin) is the epicenter of the Liberal Political Establishment in Texas, which thrives on the flagship campus of the University of Texas, in the halls of the Legislature, and in the ultra-liberal media organs based there: Texas Monthly, Texas Tribune, and the Austin American-Statesman. Democrats control Travis County and the City of Austin, as thoroughly as the GOP dominates statewide offices. And Texas liberals—frustrated by more than a decade of electoral impotence—seeth with hatred at the symbol of Republican hegemony: Gov. Rick Perry, who has served longer, at 14 years, than any governor of any state in U.S. history.

Since 1982, the Democrat-controlled Travis County District Attorney’s Office has received state funding to manage the “Public Integrity Unit,” which has jurisdiction to investigate and prosecute political corruption by elected officials statewide. (It is odd that a local district attorney, rather than the state Attorney General, has this responsibility.)  Travis County politics ensure that the PIU is used as a bludgeon against Republican officials.  The notoriously partisan former District Attorney Ronnie Earle used the PIU to bring bogus charges against then-state Treasurer (and later U.S. Senator) Kay Bailey Hutchison and House Majority Leader Tom DeLay, both Republicans. In 2009, Earle was succeeded as District Attorney in Travis County by Democrat Rosemary Lehmberg, who was arrested for drunk driving in Austin in a widely-publicized incident in April 2013. Her blood alcohol level when arrested was .23%, three times the legal limit.  She refused to resign and instead pleaded guilty to DWI and served her 45 day jail sentence while continuing to hold office. Imagine the district attorney, behind bars! The public was appalled not only by her arrest, but her boorish and abusive behavior while in custody.

In June 2013, during the biennial legislative session, Gov. Rick Perry threatened to veto $7.5 million in state funding for the PIU unless the disgraced Lehmberg resigned.  Like many Texans, Perry felt that as a jailbird Lehmberg was unfit to lead the PIU. When she refused to resign, Perry vetoed the PIU funding, as he has the authority to do under the Texas Constitution.  A Soros-funded organization in Texas, with ties to trial lawyers (who despise Perry due to his steadfast advocacy of tort reform), Texans for Public Justice, filed a complaint against Perry for the veto, which was referred to a “special prosecutor,” criminal defense lawyer Michael McCrum (who had been nominated unsuccessfully by President Obama to become a U.S. Attorney in San Antonio at the urging of liberal congressman Lloyd Doggett).

McCrum presented the complaint to the grand jury and, after several months of maneuvering, he obtained a two-count indictment against Perry (like the proverbial ham sandwich).  What are the charges?  McCrum contends that Perry withheld the state funds from the PIU for “personal” reasons; had Lehmberg resigned, as governor Perry would have been authorized to appoint her replacement.  Perry would presumably have appointed a Republican to be district attorney, who might be more favorably disposed toward Perry in any inquiries involving the governor—Politics 101.  In an unprecedented (and absurd) application of the Texas Penal Code, McCrum framed this as a violation of a statute prohibiting “Abuse of Official Capacity,” which deals with the “misuse of government property … or any other thing of value that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”  In other words, by vetoing the Legislature’s appropriation of funds for the PIU, Perry committed a felony.  Even though governors routinely exercise their veto powers, and Perry frequently has slashed funding for various programs during his tenure as governor, Perry became the first Texas Governor to be indicted in nearly 100 years.  That is “Count 1” (section 39.02).

“Count 2” is even more ridiculous. Penal Code Section 36.03 deals with “Coercion of Public Servant,” and is in the chapter prohibiting “bribery” and “corrupt influence.”  McCrum’s risible theory is that by threatening to veto the PIU funding unless Lehmberg resigned, Perry was improperly attempting to influence her in the exercise of her official duties.  As UCLA law professor Eugene Volokh has pointed out, Texas case law suggests that “[c]oercion of a lawful act [i.e., resignation] by a threat of lawful action [i.e., veto of funding] is protected free expression.”  State v. Hanson (1994).  In any event, the statute in question has a specific exception for “official actions taken by a member of the governing body [of a governmental entity],” i.e., the Governor.  The indictment rests on the novel premise that the exception for political negotiations only applies if the public servant being influenced is a member of the “same governing body of a governmental entity” as the member exercising influence.  McCrum contends that because Lehmberg is the Travis County D.A., Perry had no authority to threaten to withhold state funds as Governor (and that he committed a felony by doing so)!  Even the Obama Administration (through senior adviser David Axelrod) has questioned the merit of McCrum’s indictment.  When the administration of Eric Holder’s Department of Justice describes an indictment as “pretty sketchy” (as Axelrod did), you know the legal arguments are flimsy beyond belief. New York magazine writer Jonathan Chait calls the indictment “farfetched” and “unbelievably ridiculous.”  Chait, a liberal, notes that “[t]o describe the indictment as ‘frivolous’ gives it far more credence than it deserves.”

Notwithstanding the baseless nature and obvious political motivation of the indictment, Texas liberals are squealing with delight.  The intensity of the anti-Perry vitriol (which is a proxy for Democrats’ longstanding electoral frustration and acknowledgment that 2014 is going to be another GOP landslide statewide) is astonishing.  The Chairman of the Texas Democratic Party, Gilberto Hinojosa, and U.S. Rep. Joaquin Castro (D-San Antonio) immediately called on Perry to resign.  Perry stands by his veto, calling the indictment “outrageous,” “an abuse of power,” and a “farce of a prosecution.”  Perry has vowed “to fight against those who would erode our state’s constitution,” expressed confidence that he will prevail, and indicated that “those responsible will be held to account.”

Whatever the outcome, and the impact on Perry’s nascent 2016 presidential aspirations, McCrum’s frivolous indictment takes the use of our legal system as a political weapon to a new low. The skullduggery of this is reminiscent of the (thankfully aborted) “John Doe” criminal investigation of Wisconsin Gov. Scott Walker. That such an unscrupulous stunt  could happen in Texas—the biggest and most influential Red State—shows that partisan rancor has swept aside legal ethics.  This lack of respect for the rule of law threatens us all.  If a popular three-term governor can face politically-motivated criminal charges for exercising his constitutional authority to veto funding of a program due to the failed leadership of a convicted (and abusive) drunk driver, ordinary citizens are at even greater risk of malicious prosecution.  Perry’s opponents were never able to beat him at the ballot box, so they resorted to the ultimate dirty trick— a trumped-up indictment. Not just Texans, but all Americans, should be outraged.

Mark Pulliam, writing from Austin, Texas, is a retired lawyer.