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“Innocent Before Proven Guilty?”: The Bizarre Bipartisan Rush To Clear Rick Perry

If you’re planning a second presidential bid — especially if your last one didn’t go so well — getting indicted would seem to be, at the very least, a major roadblock.

But the news that Texas Gov. Rick Perry (R) is facing felony charges has so far brought the man nothing but support and sympathy. As the Texas Observer’s Forrest Wilder put it, “Judging from the reaction of national pundits and journalists, the verdict in the case of State of Texas vs. James Richard ‘Rick’ Perry is already in: Rick Perry is not just innocent; he’s being railroaded by liberal Democrats in a vindictive, politically motivated prosecution.”

On both the right and the left, politicos have sympathized with the governor, arguing the case is nothing but a political witch hunt. “Sketchy” is how David Axelrod described the whole affair.

Rather than taking a hit, Perry has managed to turn his ordeal into an indictment of the apparently oh-so-powerful liberal establishment in Texas. He’s largely played offense. On Tuesday, he got booked, smiled through his mug shot, then went out for ice cream at Austin-favorite Sandy’s. His statement on the charges explained that “this indictment amounts to nothing more than an abuse of power and I cannot, and will not, allow that to happen.”

The greatest irony with Perry being cast as victim is that the many charges of cronyism and legalized corruption that have long dogged his tenure are now at risk of fading to the background — just part of those ostensibly trumped-up integrity charges.

But the highlights alone show a theme. Perry’s biggest backer, the late home-building magnate Bob Perry (no relation), once got his own commission, the Texas Residential Construction Commission, which largely shielded builders from consumer complaints. In another case, Perry mandated an HPV vaccine for all Texas girls after his former chief of staff, Mike Toomey, became a lobbyist for the vaccine maker, Merck. Then there was the time construction firm HNTB hired former Perry spokesman and friend Ray Sullivan less than a year after he left the governor’s office; from 2004 to 2009, when Sullivan returned to Perry’s staff, the company got $300 million worth of state contracts. (One $45 million contract, for disaster recovery, had to be canceled after the company disastrously mismanaged rebuilding from Hurricane Ike.)

For now, the indictment gives Perry more allies than he has any right to expect, which allows him to gain distance from charges of corruption on every front.

Of course, that might not last.

The charges aren’t nearly as straightforwardly bunk as many reports make them sound. In 2013, Travis County District Attorney Rosemary Lehmberg was arrested for drunk driving and displayed appalling behavior — screaming and crying and spitting — as she was pulled over and cuffed, all of it caught on camera. Many thought she should resign, but Perry uniquely stood to gain from her departure. Housed within the Travis County DA’s office is the Public Integrity Unit, which investigates and prosecutes corruption in the state. It’s one of the most significant checks on the power Perry has amassed in his 14 years in office. Had Lehmberg resigned, Perry would have appointed her successor.

Perry threatened to veto all funding for the Public Integrity Unit if Lehmberg didn’t resign. And when Lehmberg didn’t step down, the state funding got cut. But Perry, through intermediaries, continued to make offers in exchange for her resignation, including a promise to return funding to the office and another position for Lehmberg within the DA’s office. Though no one disputes that the governor has the power to veto funds or to call for a DA’s resignation, Perry’s guilt or innocence rests on whether these threats and promises amount to an illegal coercion of public officials.

Though some national pundits have claimed a liberal witch hunt because a left-leaning group, Texans for Public Justice, filed the complaint against Perry, it was actually a Republican judge, Bert Richardson, who gave the case to special prosecutor Michael McCrum, a man who’s received support from Democrats and Republicans. We still don’t know what evidence McCrum has gathered in his investigation.

It’s certainly possible that as the case drags out and more information comes to light, Perry will lose his glow of invincibility. Even if the evidence is not enough for a guilty verdict, it may still hang Perry in the courtroom of public opinion. But these aren’t easy cases to prove, and Perry has assembled an impressive team to combat the charges.

For now, Perry should be pretty pleased with turning what should have been a black eye into some sort of beauty mark. He might even go out and get more ice cream to celebrate.

 

By: Abby Rapoport, Freelance Reporter in Austin, Texas; The Week, August 22, 2014

August 23, 2014 Posted by | Abuse of Power, Rick Perry, Texas | , , , , , , | Leave a comment

“Wounded Innocence?”: Why Rick Perry May Be Out Of Luck

Governor Rick Perry of Texas and President Barack Obama, strangest of bedfellows, are making similar discoveries about the scope of prosecutorial discretion. In short, it’s very broad.

Perry’s education on the subject is an unhappy one. Late Friday, the Texas Governor, who has about five months left in his term, was indicted on two counts: abuse of official capacity and coercion of a public servant. What those charges mean, though, is hard to say. The indictment itself is just two pages and, to put it charitably, unelaborated.

The case has its origins in Perry’s long-running feud with Rosemary Lehmberg, a district attorney in Travis County, which includes Austin and represents an island of blue in the deep-red sea of Texas. Last year, Lehmberg was charged with drunken driving. She promptly pleaded guilty, which, in light of the YouTube videos of her sobriety test and her booking at the police station, was no surprise.

Lehmberg served several days in jail but declined to resign, so Perry decided to make the most of her difficulties. He said that, unless she resigned, he would use his power as Governor to veto $7.5 million in state money for her Public Integrity Unit, which had been hard at work prosecuting Texas pols, many of them Republicans. He could not, he said, support “continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”

What Perry did was obvious. The Governor was using his leverage to jam a political adversary—not exactly novel behavior in Texas, or most other states. But Democrats succeeded in winning the appointment of a special prosecutor, Michael McCrum, to investigate Perry’s behavior, and on Friday McCrum brought the hammer down. The threat to veto the money for the D.A. amounted to, according to the prosecutor, two different kinds of felonies: a “misuse” of government property, and a corrupt attempt to influence a public official in “a specific exercise of his official power or a specific performance of his official duty” or “to violate the public servants known legal duty.” (In the charmingly archaic view of Texas statutes, every public official is a “him.”)

Perry’s indictment has been widely panned, including by many liberals, as an attempt to criminalize hardball politics. (Vetoing things is, generally, part of a governor’s job.) Perry himself is all wounded innocence. “I intend to fight against those who would erode our state’s constitution and laws purely for political purposes, and I intend to win,” he said at a news conference. (It would be easier to feel sorry for Perry if he expressed similar concern about, say, the constitutional rights of those who were executed on his watch and with his support.)

So Perry may have a point, but he also has a problem. Prosecutors have wide, almost unlimited, latitude to decide which cases to bring. The reason is obvious: there is simply no way that the government could prosecute every violation of law it sees. Think about tax evasion, marijuana use, speeding, jay-walking—we’d live in a police state if the government went after every one of these cases. (Indeed, virtually all plea bargaining, which is an ubiquitous practice, amounts to an exercise of prosecutorial discretion.) As a result, courts give prosecutors virtual carte blanche to bring some cases and ignore others. But, once they do bring them, courts respond to the argument that “everyone does it” more or less the same way that your mother did. It’s no excuse. So if Perry’s behavior fits within the technical definition of the two statutes under which he’s charged, which it well might, he’s probably out of luck.

The President is relying on the same concept of discretion to push immigration reform, even though Congress has refused to pass a law to do so. The legislative branch writes the laws, which define the classes of people who are subject to deportation. But it is the executive branch that decides which actual individuals it will pursue and deport. Over the past several years, the Obama Administration has used its discretion to allow more immigrants to stay. During the 2012 campaign, the President announced his Deferred Action for Childhood Arrivals (DACA), which amounted to a kind of administrative DREAM Act. It limited the number of deportations of people who had been children when they were brought illegally to this country, provided they meet certain other conditions. The legality of DACA has not been successfully challenged.

Prosecutorial discretion is not unlimited. The executive branch can refrain from prosecuting certain individuals, but it cannot, in theory, offer immunity to entire classes of law-breakers. Nor can a prosecutor only charge people of a certain race, or, for that matter, political party. But it’s hard to know who would have standing to challenge a failure to bring a criminal case or a deportation. The rules of standing are usually limited to individuals who have suffered a specific harm, and there’s no harm in not being prosecuted. (The New Republic has a useful primer on the subject. )

That sort of limitation on prosecutorial discretion is unlikely to help Rick Perry. His complaint is that the prosecutor is bringing one case too many, not too few. That claim, almost invariably, is a loser. So, it turns out, may be the soon-to-be-former governor.

 

By: Jeffrey Toobin, The New Yorker, August 19, 2014

August 21, 2014 Posted by | Rick Perry, Texas | , , , , , , , , | Leave a comment

   

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