Who Is Abusing Power: Rick Perry or Michael McCrum, His Special Prosecutor?

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Posted in: Criminal Law

Texas Governor Rick Perry was indicted on August 15, 2014, by a Travis County grand jury under the direction of an appointed special prosecutor: San Antonio attorney and former federal prosecutor who is now active as a criminal defense attorney, Michael McCrum. At issue is whether Texas Governor Rick Perry broke state law when he threatened to withhold funding, and then did withhold funding, from the Travis County District Attorney’s Office unless the head of that office, Rosemary Lehmberg, who had been arrested and pleaded guilty to a DWI, resigned. She refused, so Perry vetoed the appropriations for the Public Integrity Unit of the office.

Charges Filed Against Perry

According to the indictment, Governor Perry violated two Texas statutes. The first statute, Abuse of Official Capacity, states: “(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly … (2) misuses government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

In count one of the indictment, the grand jury and McCrum concluded, in essence, that Perry acted with intent to harm Rosemary Lehmberg and the Public Integrity Unit of the Travis County District Attorney’s office by misusing his veto in blocking the funding to the Public Integrity Unit when Lehmberg refused to resign. It is not clear if those appropriated funds were in Perry’s “custody or possession by virtue of the public servant’s office” because no court has ruled on such a circumstance.

Under the second count, the grand jury (and McCrum) charged that Perry violated the Coercion of Public Servant statute, which states: “(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.” And this statute notes as subsection “(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.”

The grand jury and McCrum also charged that Perry coerced Lehmberg by trying to force her to resign, noting that the exception to this statutory provision was not applicable because Lehmberg and Perry “were not members of the same governing body of a governmental entity.”

Both counts of the indictment are felonies.

Ridicule of Charges Filed Against Perry

Not surprisingly, Governor Perry quickly responded that the indictment was politically motivated, and “a farce.” Soon Perry’s PAC issued an ad attacking Rosemary Lehmberg, casting her behavior as the reason for his actions. The governor topped off his disdain and dismissal of the charges by posing for his mug shot as if it were a campaign poster photo and treated his booking by law enforcement as a mere campaign stop.

Similarly, Perry’s supporters have not blinked; rather they seem to believe the charges provide an opportunity to bolster his presidential ambitions. More surprisingly, many prominent Democrats think the indictment is flimsy and a political stunt by Texas Democrats who have overstepped in attacking their Republican governor. For example, Barack Obama’s adviser David Axelrod tweeted that the charge seemed “sketchy,” (from which he has slightly retreated) while Jonathan Chait at New York Magazine, wrote the indictment was “unbelievably ridiculous.” Attorney and progressive MSNBC anchor Ari Melber wrote that he found the indictment “fishy,” since it criminalized Perry’s action under the Texas constitution of threatening, and then vetoing, the appropriation for the office of a prosecutor who refused to resign.

A bevy of law professors have in varying degrees attacked and ridiculed the indictment of Perry. For example, the blog Above the Law headlined “Law Profs Say Rick Perry Indictment Is Dumbest Thing Since Rick Perry,” setting forth reasons many had reached their conclusions. Their arguments were not unpersuasive either.

But given the early stage of this case, the broad language of the indictment, and the broad language of the statutes involved, it is anything but clear these first impressions are valid, and those who think Perry will not be successfully prosecuted have been surprisingly dismissive of the facts. It strikes me that calling these actions political overreach may be baseless, and Governor Perry is facing a serious problem.

The Truth of Perry’s Prosecution

Perry and his advisers get a lot of credit for framing his prosecution as pure politics. He has done a wonderful job of creating amnesia about how it all happened, and why he was indicted. It is true this case is about politics, but a reader who examines both sides will soon discover it is about Perry’s politics. He has been the governor of Texas since Bush II handed him the job, almost a decade and a half ago. And it is well known in Texas he is more than a bit of a bully, politically. The grand jurors have now publicly stated their indictment was not a political action, rather one called for by their oath of service.

Take Perry’s demand that Travis County DA Rosemary Lehmberg resign or else have the funding for her office cut off. Ms. Lehmberg is the elected head of that office, and Perry had no control over her office—not to mention she is a Democrat who had been a thorn in the side of many Republicans who control the state. Tellingly, as reported by the Dallas Morning News, when two other Republican district attorneys were convicted of drunk driving, convicted and jailed in not dissimilar situations from Ms. Lehmberg, there was not a peep from Perry.

As the Dallas paper pointed out, Lehmberg’s Public Integrity Unit has been actively investigating Perry’s biggest accomplishment in Texas, the Texas Cancer Research and Prevention Institute, which just happened to give millions in un-reviewed state money to a big Perry contributor. And had Lehmberg resigned as demanded, Perry would have appointed a Republican to replace her, which would have removed the problem he is having because of her investigation. Now he eliminated the problem by defunding the unit investigating his contributor.

To figure out what is really happening in Texas, I spoke with a couple well-connected attorneys in Texas (one of whom frequently writes about legal matters, and had taken a close look at these proceedings). The insider view appears to be that this prosecution is anything but a partisan overreach, as balanced accounts report. The special prosecutor, Michael McCrum, is a careful, non-political and experienced criminal law attorney, who was selected by a Republican judge. McCrum appears very straight talking, not the type to risk his career with a worthless case.

According to knowledgeable Texas criminal lawyers (who have spoken with current and retired Texas judges), the first count of the indictment will be more difficult, but not impossible, to sustain because it is untested. So the first count will involve legal issues while the second count will involve factual issues, and if—as many believe the situation—the prosecutor shows past efforts by Perry to coerce Ms. Lehmberg, he will be convicted.

In brief, while Perry may play his indictment politically, the prosecutor cannot do that. The only person who may have abused his power is Governor Perry, for Special Prosecutor McCrum is doing it by the book. It will be Texas judges—and possibly a jury—not law professors and political pundits who decide this matter.

  • Joe Paulson

    Vetoes as well as the appointment power can be used for unpleasant partisan reasons, sometimes to target political opponents. This is ‘abusive’ but criminal? Eh. I’m willing to accept the prosecutor here is fair. Still, eh.

  • weffie

    If the arguments of the law professors who have weighed in are not “unpersuasive,” what are the arguments that unseat their persuasive authority?

    I haven’t seen anything. If it’s criminal to try to influence a state actor to take a legal action with another legal action, then a million things are criminal, and that component of the statute is hopelessly vague.
    Questions for the local legal folks down there: what standard does the judge use to appoint a prosecutor? How and how much is the special prosecutor paid?
    Also, as a factual matter, isn’t it a red herring to say that, with Lehmberg removed, investigations (which turned of nothing) would be squelched? Wouldn’t Gregg Cox still run the PIU? I can’t believe, if he had the goods on a public official, he’s just let a more Perry-friendly DA just boss him around. That doesn’t make sense, but I don’t know local custom.

  • Victor Grunden

    Well, at least Gov. Perry didn’t use mob rule. I imagine politicians from both parties are anxiously awaiting the decision to see when strongarm politics become coercion. Despite all these ethics and public integrity units, the slush funds and donor paybacks just keep getting larger and larger. To quell the peasants a little flesh must be tossed to them from time to time and Gov. Perry with presidential ambitions, is a convenient scapegoat. Seems presidential ambitions is the greatest offense.

  • harrison j. bounel

    this county has a history of this type of crap. amazing if you read it.

  • Jerry Monroe

    Why listen to this chicken excrement a$$hat ? If he did the same thing in this administration that he dlid to President Nixon he would have an accident by now !!

  • close call

    You got to love this stuff. The Hair on the MSNBC news post is throwing
    anything that will stick on the wall. The Hair is taking the play book from
    the hand of, I’m the Decider. It’s a grandstand tactic, just like activating
    the Texas National Guard, they can’t do much of anything legally. So
    we have a tiger with no teeth. The voters need to stop looking at the
    brush strokes, look at the whole picture. What’s happening with his legal
    problems is just that, it’s his problem. Let that work its way through
    the legal system. I like the Republic, with its rule of LAW. What I have
    learned is these goofs will take a item, put it on a balloon to see how
    it sticks with the voters. It’s getting old, and tiring. This man has let his
    head get away from his hat. And, to his handlers, throw that play book
    where the sun does not shine. Been there, seen that, it’s a rerun.

  • Rob Sieger

    This is nothing but Obamacratic apologetics. And anyone who believes what a jury says (especially when you consider the Robert Durst, OJ Simpson and Casey Anthony verdicts) is a wannabe halfwit.

  • Rob Sieger

    And why is this titled “Rick Perry or Michael McCrum, His Special Prosecutor”? That implies that McCrum is a special prosecutor selected by Perry, rather than purchased by George Soros. A little rewording of the syntax is called for.

  • Shannon Jacobs

    Good column, but the story should be placed in the context of ugly politics, Texas style. This is part of an OLD legacy that used to be called the Dixiecrat wing of the Democratic Party, and which has now become the Teaparty neo-GOP wing of the Republican Party. The situation is actually more complicated in Texas, because the hard-core Dixiecrats were fundamentally racists who started by hating the Republican Party for the Civil War (between the States), but turned that hatred against the Democratic Party when LBJ pushed the Voting Rights Act (conveniently forgetting or getting confused by the reality that many of the supporters of that legislation were progressive liberals in the actual GOP). For the racist kernel, its the same people (and their children), same hatreds, but shifting targets.

    The situation is a bit more complicated in Texas because there is a sprinkling of extreme individualists. I’m all for freedom, too, but within rational limits, and it’s quite easy to probe Libertarians and find the crazy streaks. It’s also complicated by the old-fashioned cash-based corruption, mostly involving oil money (but I think it’s much weaker than the cash corruption in such venues as New Jersey).

    Anyway, as Perry sees it, he’s just playing old-fashioned Texas hardball politics, and too bad for any pissants who get in the way. Of course, including such disenfranchised voters as me. My vote was long ago gerrymandered to nothing. Thanks, Dubya. Or maybe I should blame LBJ?

  • sdharms

    and this is written by John Dean? Give me a break. If there were any justice in this world he would be in a soup line, not wearing $5K suits and writing about the law. As if he obeys it. Ha!

  • Anthony

    If your situational assessments to Richard Nixon were of this caliber, I now understand what happened to the poor man. The frustrating idiocy of your assessment makes it difficult to pick a place to begin. So, I’ll just start somewhere…

    1. Paragraph 2 under the sub-heading “The Truth of Perry’s Prosecution”. Of course Rick Perry wouldn’t “make a peep” regarding 2 other elected DA’s getting prosecuted for DWI. With what mechanism would he “peep”? District Attorneys’ office budgets are paid by their COUNTY governments. The STATE government has absolutely nothing to do funding a District Attorney’s office.

    Secondly, your word-smithing in the 1st sentence states, “…[Perry would] have the funding for her office cut off.” That’s totally, and completely deceptive; and you very well know it. The only funding at issue was for the exclusively-unique-to-Travis-County “Public Integrity Unit”, (lots of metro DA’s offices have these…the difference is that they’re funded locally and prosecute locally. More on that in a second). This has nothing to do with the funding for a COUNTY office that is responsible for the everyday prosecutions of criminal acts by perpetrators acting within the jurisdictional confines of TRAVIS COUNTY, Texas. Not one red cent was at stake for the DA, any ADA’s, investigators, support staff, their fleet vehicles or the Ozarka for the water coolers.

    2. Second-to-last paragraph. You mention a couple of generic, unnamed criminal defense lawyers, who spoke with “retired” and “current” judges. Oh, I guess that settles it. WHAT THE HECK, MAN!!? I personally know a slew of suspects from that gaggle, and it includes classifications from rabid dogs to imbeciles who can’t grab a butt cheek with either hand.
    3. PP 3 of the sub-heading “Charges Filed Against Perry”. Answer me this, Einstein; is the statement “I RESIGN”: 1) a specific exercise of the official power of the District Attorney for the County of Travis, Texas?, or 2) a specific performance of the official duty of the District Attorney for the County of Travis, Texas?, or 3) a violation of the public duty of the District Attorney for the County of Travis, Texas? (Hint: no, it isn’t. As you well know, a President of the United States can choose to resign when he gets pressure for having done questionable things; as can the local paperboy, or sanitation worker – or anyone in between – for purposes that can be as generic as “seeking other career opportunities”. Any rule to the contrary is what we’d call either slavery, or indentured servitude.)
    4. Finally, I want to talk about the Public Integrity Unit of the Travis County District Attorney’s Office. People need to know that state constitutional questions have been around for many years regarding the state legislature’s gentlemen’s agreement to pour millions of dollars into a county agency of one Texas county for potential investigation and prosecution of state or federal breaches of the governmental law.
    There is no constitutional authority for this. Ronnie Earl, the former Travis County DA, was a notorious abuser of this trust, and did so overtly. Regardless of what anyone may think of Tom DeLay, personally or politically, his career (and almost his life) was ruined – and he was sentenced to 3 years in the TDCJ-ID through the state-funded mechanism of the Public Integrity Unit of the Travis County DA’s Office, at the hands of Ronnie Earl. ALMOST NEVER do you see a criminal conviction overturned at the appellate level (and affirmed by the Texas Court of Criminal Appeals) for insufficient evidence. But, that’s exactly what happened in this case. If you read the appellate record, and understand the actual evidence, you quickly realize this was an abuse of political power. It’s like giving a gun to someone, with the express understanding that there are no legal repercussions for discharging it into a crowd of his enemies, and then telling him not to use it.