What I sent to The New York Times

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.

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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.

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Perry indicted

In case you haven’t checked the internets in the last two days, it is worth repeating once again that Governor Rick Perry has been indicted by a Travis County Grand Jury for two felonies, abuse of politicaal office and coercion of a public servant. Two big questions come to mind immediately. First, how did we get here? Second, where do we go from here? I will attempt to briefly answer both below.

In April of last year, the Travis County District Attorney, Rosemary Lehmberg, was arrested for drunk driving. She was nearly four times the legal limit, belligerent and tried to use her influence to get out of the charge. Normally, when an official screws up this publicly, a quiet resignation occurs and everyone will continue on their merry way. The problem with this, however, is that Perry would have appointed Lehmberg’s –a Democrat– replacement. The Travis County DA, additionally, is especially powerful because it oversees the Public Integrity Unit (PIU), which oversees alleged impropriety on the part of state officials.

Lehmberg was charged with a first-time misdemeanor, plead guilty and accepted a 45 day sentence in jail. The sentence was called by the Austin American-Statesman “without a doubt, the harshest sentence for a first-time drunken driving charge in the history of Travis County.” About a month later, she was back at work. Of note here is that the Travis County DA only prosecutes felonies, so her charged was not included. The Travis County Attorney prosecutes such misdemeanors.

But in June of that year, Perry stepped in around  veto time. He publicly threatened to cut off funding for the PIU unless Lehmberg resigned. The San Antonio Express-News recent reported last May that Lehmberg was offered a job in exchange for the resignation. When Lehmberg did not comply, he followed through and cut the funding.

This, in its simplest form, is the issue. Perry has attempted to frame it in a way that makes him look like a valiant moral crusader fighting against drunken DAs, but the controversially is completely separate. Perry had the unquestioned power to veto the PIU’s funds, but he did not have the power to publicly threaten to take or not take the action based on another person’s deed.

For what it’s worth, the PIU did not directly prosecute this case. A special prosecutor, Michael McCrum, was called in for this. I’ve even heard he is a Republican, but don’t care too much about that.

I think, when all is said and done, the only real affect of this issue is that it will sink whatever presidential prospects Perry may have had. He will have long left office before this goes to a trial. My inclination is that Perry will be convicted at least on the coercion of a public servant charge by a Travis County Jury, but the charges will be thrown out on appeal.

This case is all about the law, the grey. The facts are not in dispute. The only question is if Perry’s little diatribe to the media before line-item vetoing the funding constituted coercion.

In the past, I made comments suggesting that Lehmberg should not resign. Those were wrong, I should not have taken a hard position on this issue given that I am not one of Lehmberg’s constituents nor is she part of a deliberative body that directly affects me, such as the State Legislature. But whatever your position on Lehmberg and her drunkenness (to be fair, a trial designed to get her kicked out of office last year went nowhere quite expeditiously), it does not justify what Perry did. It does not make it any less illegal, nor less serious. It is a complete, 100% red herring.

No matter what Lehmberg could have been guilty of, it would not have justified what Perry did. He is not her boss, he just cannot micromanage like that while staying within the boundaries of the law.

I’ll likely have more when Perry gets his mug shot next week!

Grand Jury convened against Perry

The Austin American-Statesman, as well as the Houston Chronicle (both behind those asinine paywalls), both report that in the ongoing legal action against Governor Perry.

A few weeks ago, Judge Richardson appointed a Special Prosecutor, later deemed to be Michael McCrum, against Governor Perry in the ongoing abuse of office and coercion investigation. As many will recall, Perry went all Nixonian in June after using a line-item veto to cut funding for the Travis County District Attorney’s Public Integrity Unit. This was done after the Travis County DA, Rosemary Lehmberg, was arrested for drunk driving. Lehmberg, for her part, pleaded guilty and served out her sentence–30 days in jail. However, this was not good enough for Perry, who demanded she resign (and therefore be replaced by a Perry appointment) or he threatened to cut funding to her office’s key Statewide function.

After making the cuts, an Austin group, Texans for Public Safety, filed suit against Perry for a number of corruption charges. The Public Integrity Unit, for its part, was mostly saved after the County itself decided to foot the bill.

This grand jury will be empaneled for three months, and will consider the charges against Rick Perry (as well as some against Rosemary Lehmberg). It may offer up an indictment to either of these representative.

Off the Kuff has more.

Things get worse for Perry

A number of days ago, I noted that a Special Prosecutor would be appointed against Perry in the ongoing ethics, coercion & abuse of office complaint against the Governor. Now, the San Antonio Express-News reports that a Bexar County area lawyer, Michael McCrum, has been appointed to that position. The Express-News immediately asked to sit down with McCrum, instead receiving only a rudimentary statement on his behalf:

He told the Associated Press his first steps would be to “go and get a preliminary analysis as to what is really necessary.” He added, “This matter requires that no rash judgment be made, that there be some careful considerations of all options.”

The Dallas Morning News has a little more on the story, specifically on McCrum himself. The article in the Morning News gives some insight into his political affiliation, noting that President Obama attempted to nominate him as an US Attorney, but in the face of opposition, eunuch Obama backed off (like always). Though Obama certainly has a history of nominating non-Democrats to both the Federal bunch and prosecutor’s office in red states, the fact that he associated so close with the Administration tells me he is at least amicable to the cause of Democrats.

In other news, the Houston Chronicle reports that Emails have been leaked that prove Rick Perry was on a witchhunt against UT President Bill Powers, specifically making accusations to the regents that he was “spreading misinformation.”

Patti Hart wrote a wonderful article on this topic, explaining the entire saga of Perry vs Powers. As she continues:

Rumors that the regents are poised to fire Powers have been rampant in Austin for two years. He has been openly critical of the regents, including for a decision not to hike tuition. Some regents have criticized Powers’ fundraising ability, despite a record amount of donations to UT this year.

Fort Worth lawyer Gordon Appleman, a UT alum who is a member of the Texas Coalition for Excellence in Higher Education, said the communication confirms his suspicions that criticism of Powers has been directed by the governor.

“All this confirms what everyone has suspected: The governor is driving the train and these people are following obediently,” he said.

The spat has made national news, and is a perfect example of everything wrong with Perry. Before these emails were obtained, Perry had always distanced himself from the outlandish, anti-Powers statements made by his regents–yes, his regents. The emails, however, prove what we have known all along.