Laurel Brubaker Calkins (c) 2014, Bloomberg News
HOUSTON — Texas’ Republican Gov. Rick Perry stands a good chance of defeating public-corruption charges that even some staunchly Democratic lawyers called politically motivated.
“You can’t pay me enough to vote for Rick Perry, but this indictment is a totally corrupt use of criminal law,” said David Berg, a Houston attorney and contributor to Democratic candidates. “It is clearly political, vindictive and unsupportable.”
Perry, a possible candidate for the Republican presidential nomination in 2016, is accused of abusing his authority by trying to force out the Democratic prosecutor whose office probes government corruption throughout Texas after she was convicted of drunk driving. She refused to resign and Perry vetoed funding for her office.
Berg and other lawyers familiar with the state’s official-misconduct laws say those statutes don’t trump the governor’s constitutional authority to veto any line item in the state budget that he chooses – without explanation.
“This indictment basically criminalizes ordinary political conduct, and I don’t think they can get a conviction,” Berg said in a telephone interview.
Perry, 64, was indicted on two charges, one of abuse of official capacity and one of coercion of a public servant, according to a copy of the Travis County grand jury indictment issued Aug. 15 in Austin, the state’s capital.
Texas’ longest-serving governor denounced the indictment, saying he was right to call for the resignation of Travis County’s Democratic district attorney, Rosemary Lehmberg, and threaten to veto funding for the public integrity unit run from her office. Last year, as he followed through on that threat and vetoed $7.5 million in funding, Perry said he couldn’t “in good conscience” continue to support an office with statewide jurisdiction “when the person charged with ultimate responsibility for that unit has lost the public confidence.”
Michael McCrum, the white-collar defense lawyer brought in to lead the investigation of Perry’s actions, expressed confidence in charges he said are based on more than 40 interviews and hundreds of documents.
“I looked at the law and I looked at the facts,” McCrum, a Republican, said in an e-mail the day of the indictment. “The grand jury has spoken that at least there’s probable cause he committed two felony crimes.”
McCrum, a former federal prosecutor, led the major crimes unit of the U.S. Attorney’s office in San Antonio and chaired the regional health-care fraud task force. He drew bipartisan support to become U.S. Attorney for San Antonio from Austin’s Democratic congressman and the state’s two Republican senators before withdrawing from consideration in 2010. He also served briefly as a Dallas police officer in the 1980s.
The abuse of official capacity charge is a first-degree felony and carries a possible prison sentence of five to 99 years, McCrum said. The coercion charge is a third degree felony, punishable by two to 10 years in prison, he said.
An arraignment date will be set this week, according to McCrum. It might be three months to a year before a trial begins, he said.
Perry fired back at McCrum and the grand jurors over the weekend, saying in an Aug. 16 statement that the indictment is a farce.
“I wholeheartedly and unequivocally stand behind my veto, and will continue to defend this lawful action of my executive authority as governor,” Perry said. “We don’t settle political differences with indictments in this country.”
McCrum didn’t immediately respond yesterday to an e-mail seeking comment on claims that the charges were politically motivated. Rudy Magallanes, a spokeswoman for the Travis County District Attorney’s office, said in an e-mail that Lehmberg declined to comment on the charges against Perry.
In 2010, the corruption unit won a guilty verdict against the former U.S. House Majority Leader, Republican Tom DeLay, on money-laundering charges. An appeals court threw out that conviction last September, finding there was insufficient evidence that he mishandled campaign funds in the 2002 election.
Perry was elected lieutenant governor in 1998 and became governor in 2000 when George W. Bush resigned to become president. In 2012, Perry’s campaign for the Republican presidential nomination faltered during the primaries.
According to the nonprofit group that filed the complaint leading to Perry’s indictment, Perry’s bid to remove Lehmberg was part of a cover-up designed to derail an investigation of a cancer research-funding program he championed, The Cancer Prevention and Research Institute of Texas. The program has been accused of funneling state funds to Republican donors, and a former official was indicted last year for mishandling grant money.
Perry is charged in the indictment with abusing his office by misusing state funds in a manner “contrary to the oath of office he took as a public servant.” The indictment also charges that he tried to coerce Lehmberg into failing to carry out her elected responsibilities by threatening to veto a measure already approved by the legislature.
Perry’s authority to reject specific spending appropriations after lawmakers sign off on the state budget isn’t mentioned in the indictment.
That power is his absolute right under the Texas constitution, said Brian Wice, a Democrat and a lawyer for DeLay in the appeal of his conviction.
“You don’t have to be a Rick Perry fan or a fan of his politics to recognize he had every legal right to do what he did,” Wice said.
“At the end of the day, how Perry’s actions come within the spirit and letter of that misconduct statute has me scratching my head,” Wice said. “This is the criminalization of politics – the sequel.”
Travis County’s ethics task force has been a longtime target for Republicans, Wice said. They don’t like that it gives one district attorney authority over elected officials statewide without holding that prosecutor accountable to voters beyond Travis County, the most liberal in Texas.
“In the rest of Texas, if we don’t like what the DA does, we go to the polls and vote” them out, Wice said. “What’s my remedy if I don’t like what the district attorney in Travis County is doing and I live in Houston?”
Perry’s public urging of Lehmberg to step down or face funding cuts indicates the governor didn’t think he was committing a crime, Wice said.
“Why are we going to penalize him and put him through the sausage factory of the criminal justice system because he displayed the one quality so many politicians lack: candor?” Wice said.
Lehmberg refused to step down after serving a brief jail sentence in June 2013 for the drunk driving conviction. Widely circulated police videos of the district attorney show her being verbally abusive to arresting officers, kicking her cell door and requiring physical restraints in jail. She later defeated a lawsuit aimed at removing her from office.
“She disgraced herself with her arrest and her conduct after her arrest – hell, they had to strap her down,” said Dick DeGuerin, who was DeLay’s trial attorney. “Her conduct was clearly enough to call her judgment into question. At bottom, Rick Perry did what he was constitutionally authorized to do because he lost confidence in her judgment. He didn’t have to justify it.”
DeGuerin, a self-described “yellow dog Democrat,” said Travis County’s ethics prosecutors have drawn complaints over the years for their pursuits of high-profile politicians. Under previous District Attorney Ronnie Earle, a Democrat, the unit unsuccessfully pressed corruption charges against former Republican Sen. Kay Bailey Hutchison, who lost the 2010 gubernatorial primary to Perry, and Democrat Jim Mattox, a former Texas attorney general and U.S. congressman who died in 2008.
Berg said there’s a “good chance” a judge will dismiss Perry’s charges before they ever get to trial. If not, he said, the governor should press for a speedy trial and “get on the stand and own what he did.”
“Perry should say he used his political office to try to force a drunk out of hers,” Berg said. “I think a jury would buy that in a minute.”
— With assistance from Andrew Harris in federal court in Chicago.