Politics

08.22.14

Yes, Rick Perry Could End Up Doing Time

Everyone right and left is mocking it. But the Texas governor ignored statutory procedure and acted unilaterally. Sorry, that’s serious.

We finally found a political issue that unites liberals and conservatives. No, it’s not something that could benefit millions of Americans like raising the minimum wage. Instead, it’s the indictment of Texas Governor Rick Perry for his alleged abuse of power.

Who could’ve predicted that The New York Times and Brietbart.com would both label these criminal charges unjustified? Or that former Obama strategist David Axelrod would call the indictment “sketchy,” putting him on the same side of the issue as Ted Cruz, who praised Perry as a “man of integrity”?

No wonder Rick Perry views the charges as a “farce.” This probably explains why Perry’s mug shot looks less like a defendant in a criminal case and more like a profile photo for Match.com. In fact, after the mug shot was taken this week, Perry immediately went out for ice cream, which he boasted about on Twitter.

Yet despite Perry’s outward appearances, he surely knows these charges are dangerous. I don’t care how many so-called “legal pundits” tell you Perry has nothing to fear. Criminal defense lawyers I spoke to who are in the legal trenches on a daily basis made it clear to me that this case could result in a conviction. And the Texas Observer, which has been following this story far before the national media, agrees.

That’s why Perry has hired a team of high-powered lawyers to represent him, including two from Washington, D.C. And the head of Perry’s legal team is nationally known attorney Tony Buzbee, who is being paid $450 an hour by the State of Texas. Perry clearly isn’t putting his fate in the hands of his own version of “My Cousin Vinny.” (Although a Texas version called “My Cousin Cletus” would be hilarious.)

By now, you probably know what led to Perry’s indictment. Travis County District Attorney, Rosemary Lehmberg, who is a Democrat, was stopped by the police on suspicion of drunk driving on April 12, 2013. She was belligerent to the police and had a very high blood alcohol reading. Lehmberg ultimately pleaded guilty to driving while intoxicated. Perry demanded she resign. However, when two other DA’s during Perry’s time as governor were convicted of drunk driving, he didn’t publicly call for them to resign. Why? Well, they were both Republicans.

Perry’s motivation in wanting Lehmberg out could be her office’s investigation into a $3 billion scandal tied to the Cancer Prevention and Research Institute of Texas. Some of the people being investigated apparently have close ties to Perry.

Lehmberg also heads up the Public Integrity Unit that investigates government corruption. As the Texas Observer noted,  “practically speaking, this anti-corruption unit is one of the few checks on the power and influence Perry has accumulated over 14 years in office.”

Perry, in an effort to shame Lehmberg into quitting (allowing him to then appoint a Republican DA), publicly threatened to use his line-item veto to cut the $7.5 million in funding to the integrity unit that had been approved by the state legislature. She refused. Perry vetoed the funding. The unit had to lay off staff, cut its caseload, and lacked the funds to take on statewide corruption cases.

Some have dismissed the charges as nothing more than a partisan witch-hunt. Others, like The New York Times, have in essence defended Perry’s actions as being run-of-the-mill political “horse trading.”

They are wrong. It’s much more than that. That’s why a Republican judge in Texas appointed a special prosecutor, Michael McCrum, to investigate. And McCrum, whose investigation led to the indictment, is no Democratic operative. He was a federal prosecutor during the George H.W. Bush administration and was even championed by two major Republicans, Senator John Cornyn and then-Senator Kay Bailey Hutchison, to serve as U.S. Attorney in Texas.

So what did Perry do that landed him in hot water? He used the apparatus of the government to strip the resources of an agency charged with ferreting out fraud and government corruption to further his personal agenda of removing Lehmberg from elected office. That’s undisputed. The question is, do Perry’s actions constitute the crimes of abuse of official capacity or coercion of a public servant under Texas law (the coercion being the threat of a veto)?

Keep in mind, Perry could have followed the statutory procedure under Texas law that provides for the removal of DA’s for misconduct. But Perry didn’t avail himself of this. And in fact, after Perry’s veto, a petition was filed by a local lawyer to remove Lehmberg from office under this statute, but in December 2013 a Texas judge ruled against the application, noting that a single instance of intoxication does not rise to the level of “official misconduct.”

Perry could have also continued to call for her to leave to rally public opinion. He didn’t. Instead, he used the powers of his office to essentially strip an elected official of her powers because he had decided it was time for her to go. That’s what this case is truly about, not whether the DA was a drunk or whether Perry had the power to veto funding.

Adding an intriguing wrinkle to this case, as noted by the Texas media, is the question of whether Perry’s motivation in wanting Lehmberg out was her office’s investigation into a $3 billion scandal tied to the Cancer Prevention and Research Institute of Texas. Some of the people being investigated apparently have close ties to Perry.

At this point, no one can tell you with certainty if Perry will be convicted on either count of the indictment, the most serious carrying a jail term of 5 to 99 years.  And don’t think that governors never do hard time—in the last 20 or so years, six have gone to jail. But one thing that seems certain is that these charges are not going away soon. As Seema Iyer, a former prosecutor and current criminal defense and civil rights attorney, explained to me, “In over 90 percent of the cases where a defendant has been indicted by a grand jury, the defendant either enters a plea deal or the case is tried.”

But given the reality that Perry has a real fight on his hands, why are so many liberal pundits and progressive media outlets siding with Perry? Is it their way of protecting President Obama from impeachment by saying criminal charges are baseless when an elected official is simply using his executive powers? Or do they fear looking hypocritical if they say Perry should be prosecuted for “abuse of power” while at same time mocking allegations from the right that Obama should be prosecuted for his alleged “lawless” executive orders?

It’s unclear. What we do know is that Perry is trying to use this indictment to his political advantage. He’s playing the “victim card” for all it’s worth, framing the indictment as an attack upon the very freedoms that our Founding Fathers fought for. (It’s just a matter of time until he claims the special prosecutor is tied to the Muslim Brotherhood or ISIS.) This probably can only help Perry, considering most polls show him lagging near the back of the pack in his quest for the GOP presidential nomination.

In fact, after Perry is arraigned today, where he’s expected to enter a not-guilty plea, he’s scheduled to head off to New Hampshire to press the flesh. You really can’t get more ironic that an indicted governor’s first stop after entering a plea in his criminal case being a state with the slogan: “Live free or die.”