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.