Regarding the indictment of Governor Rick Perry, which has been covered remarkably well by the Texas press corps, a plethora of otherwise reasonable media outlets –The New York Times chief among them– were quick to lambast the indictment as nothing more than political theater. In doing so, they ignored the serious legal background and precedent underlying this case. I drafted up about 950 words on why I disagreed with their editorial positions, and why the indictments are not overly frivolous or litigious. The Times said that their reserve the right of exclusive publication, but to feel free to assume they would not publish after three days, so I waited. I have now sent the article to a couple of sites which do not demand exclusivity (The Wall Street Journal, USA Today, The Washington Times and the Los Angeles Times). I’m aware that no one will publish it, so I decided to share my thoughts here.
I’m big on Texas politics. I love it so much that I transferred from college at Brandeis University in Boston to the University of Texas at Austin so that I could return to my native State and follow the twists and turns of the full-contact sport known as our political process. And though I consider myself a left-of-center Democrat, I have a big problem with people who rag on Texas in general.
But more than my indignation at detractors of the Lone Star State, I maintain a pet peeve against the dilettante; he or she who feels entitled to write and judge what is going on south of the Red River, despite not being familiar with our laws, our traditions or our history. Sometimes the judgment happens without the author even visiting the State. I have seen this in action a disappointing number of times in the immediate aftermath of Governor Rick Perry’s indictment at the hands of a Travis County (Austin) grand jury.
Alan Dershowitz, David Alexrod, The Atlantic. A plethora of progressive mouthpieces have inexplicably defended Perry against what they foolishly call an unsubstantiated allegation, one that may be frivolous or overly litigious. Rather, the only thing frivolous is these parties’ understanding of the way Texas does business.
This is not about political blowback, it is not about any ongoing investigations into the Governor’s office and it is not even about any specific veto. It is about a threat. Perry threatened a public officeholder, the Travis County District Attorney, with leverage —the denial of funds for her office— unless she did a specific official act: resign.
The DA, Rosemary Lehmberg, has broad power over the entire State because her office, which maintains jurisdiction over the State Capitol and the Governor’s mansion, commands the Public Integrity Unit, best known for an unsuccessful trial against former Senator Kay Bailey Hutchison and a successful conviction against former House Majority Leader Tom DeLay (that one is still tied up in appeals). Lehmberg herself is no saint; she was caught driving drunk last year in a videotaped incident that recorded her belligerent and discourteous attitude toward law enforcement. For her part, she pleaded guilty and served about a month in jail, the toughest sentence for a first-offense DWI in Austin’s history.
But this simply is not about the actions committed by a District Attorney. A DWI is not a felony, nor is it a crime of moral turpitude that would necessitate removal from office. She has been no-billed by a grand jury looking into the matter, and a civil trial to determine if she should be removed from office for dereliction of duty ended with a resounding NO.
Perry is not the King of Texas; he is merely the State’s Chief Executive in a system with the separation of powers, not only between branches, but constituencies. The Governor is not the District Attorney’s boss. When Perry says that Lehmberg has “lost the public’s confidence,” where is he getting his information? She has been convincingly elected by her constituents twice, and remains somewhat popular—at least when the alternative is a Perry appointee. It is also worth noting that the Travis County District Attorney’s office only prosecutes felonies (the County Attorney handles misdemeanors), so Lehmberg’s office did not even control the process over her own crime, as many critics have falsely charged.
At the end of the day, however, what Lehmberg did is a complete red herring. It has absolutely no basis for justifying what Perry did or changing the pertinent law or precedent on the matter. This issue is not about her, it is not about the veto, it is about threat. That very simple fact bears repeating because it appears that no one in the ostensibly credible national press can remember that.
To better illustrate this point, the same principle of Perry’s illegal act should be taken to an absurd extreme. Take the ongoing spat between Perry and William Powers, the President of the University of Texas at Austin. What if Perry demanded Powers’ resignation, perhaps using the cover of the phony scandal embattled Regent Wallace Hall supposedly uncovered regarding law school admission, or else he would cut off funding? What would the State do then? Thankfully, there is a precedent.
Texas impeached one Governor nearly 100 years ago for eerily similar circumstances: James “Pa” Ferguson, a populist Democrat. Ferguson, who like the current Governor was a fervent opponent of the University of Texas, vetoed virtually all of the University’s appropriations after unsuccessfully trying to fire Regents and Professors at UT-Austin. Once again, it was not the veto so much as it was the threat. Ferguson used his power inappropriately in order to meddle in another public official’s business. This should sound familiar.
This has always been —and is— what the scandal centers upon. The legal basis is sound and holds lengthy precedent. When prominent legal minds attempt to chime in on this issue without being familiar with the underlying case, it hurts everyone who is exposed to misinformation.
The Travis County DA’s office’s public integrity unit, it should be freely stipulated, can sometimes generously be described as partisan hacks. Lehmberg’s predecessor, Ronnie Earle, engaged in a witch hunt with very little proof against Hutchison, and the office has been a bit trigger-happy investigating every misstep taken by Perry. But since this controversy has revolved around the DA’s office which normally investigates these cases, Lehmberg and her office recused themselves from all proceedings.
A Republican Judge out of San Antonio, Bert Richardson, appointed a non-partisan Special Prosecutor, Michael McCrum, last year to investigate the complaints lodged against Perry. Call it what you will, this is not a partisan witch hunt. Indeed, it is far from it.