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“Overturning Elections Has Consequences”: Perry v. Lehmberg And The Veto That Illuminated An Unsettling Trend

A truism: Almost nobody looks good in his booking photo.

That said, the 47th governor of Texas, one James Richard Perry, certainly gave it his best shot when he faced the camera at the Travis County Courthouse last week. The resultant image is … not terrible. Perry is caught somewhere between a tight smile and an outright grimace, his mien taut with confidence and seriousness of purpose.

Gazing on that photo, one cannot help but suspect that a transparently political indictment designed by his Democratic opponents to cripple this presumed presidential aspirant might actually help him instead. One is not usually disposed to think of Texas’ swaggering governor as a victim, but darn if this indictment hasn’t turned the trick.

Of course, if Democrats in Texas have done the Republican governor an inadvertent favor, they sure haven’t done the country one. What is this thing lately of political parties using the courts as weapons of political destruction, trying to win judicially what they could not win at the ballot box?

A few words of definition before we proceed. The reference here is not simply to lawsuits and prosecutions with political import. Obviously there has been no shortage of those. But the sins and alleged sins of Rod Blagojevich, William Jefferson, Larry Craig, Bob McDonnell, Tom DeLay and others — money-laundering, corruption, disorderly conduct — are at least recognizable as crimes.

By contrast, Republican Speaker of the House John Boehner is suing President Obama for issuing an executive order. Faced with mulish obstructionism from the GOP, Obama chose that route to make a technical change in a law — the Affordable Care Act — Boehner’s party hates. Now here’s Perry, indicted on felony abuse of power charges that could theoretically send him to prison for over a century. His crime? He issued a veto.

Here is the backstory: The district attorney of Travis County, Democrat Rosemary Lehmberg, was arrested last year for drunk driving. Video captured her being belligerent toward police. Perry called on Lehmberg, who oversees the state public integrity unit, to resign, perhaps so that he might appoint a friendly Republican successor to head an agency that has been a thorn in his backside. Lehmberg refused, so Perry vetoed $7.5 million in state funding for the integrity unit.

Neither principal in this sordid episode emerges covered with glory. Lehmberg’s behavior suggests the opposite of public integrity; she should have resigned. And Perry’s veto smacks of scorched earth, bully-boy politics, which is not pretty. It is also not a crime.

Things were not always thus. Once upon a time, the losing party felt itself bound to accept the will of the electorate with some modicum of grace. You weren’t happy about it, but you embraced the role of loyal opposition and bided your time until the next election in hopes your fortunes might change.

But that’s so 20th century.

For six years, the GOP has been trying to undo the election of 2008; Boehner’s lawsuit is only the latest of their many loopy schemes. Now, if Travis County is any bellwether, at least some Democrats are doing the selfsame thing.

It is behavior that should give all fair-minded Americans pause, regardless of party affiliation, for it illustrates with stark clarity the sheer brokenness of our political system. Flooded with corporate money, gerrymandered beyond any semblance of reason, it limps along prodded by those whose devotion to the “game” far outweighs any devotion they might have to that quaint relic we once called the public good. Now there is this misuse of the courts for political payback, this attempt to criminalize ordinary political activity.

The public should take note. Elections have consequences, folks used to say.

Overturning them does, too.

 

By: Leonard Pitts, Jr., Columnist, The Miami Herald; The National Memo, August 25, 2014

 

August 26, 2014 Posted by | Elections, John Boehner, Rick Perry | , , , , , , , | Leave a comment

“When Rick Perry Said And Did Nothing”: Two Other District Attorneys Faced The Same Charges Under Similar Circumstances

Texas Gov. Rick Perry’s (R) legal troubles started over a year ago, when Travis County District Attorney Rosemary Lehmberg was arrested for drunk driving. After an ugly scene in April 2013, Lehmberg, a Democrat, pleaded guilty, apologized, and served 20 days behind bars.

Despite the fact that this was the district attorney’s first offense, Perry called for her resignation. Lehmberg refused. As we discussed over the weekend, this set a series of steps in motion: the governor announced that if she did not resign, he would use his veto power to strip her office of its state funding. When Lehmberg ignored the threat, the governor followed through and vetoed the funding, in the process scrapping resources for the Texas Public Integrity Unit.

Now, for those who are skeptical of the case against Perry, the governor’s actions hardly seem unreasonable. Indeed, it’s not exactly outrageous to think a governor would want to see a district attorney step down after she spent a few weeks in jail.

But the Dallas Morning News added an interesting wrinkle to this argument.

Rick Perry was outraged at the spectacle of Travis County District Attorney Rosemary Lehmberg’s drunken-driving arrest last year. But he didn’t feel that strongly when two other district attorneys faced the same charges under similar circumstances.

In those cases, he said and did nothing.

This is no small detail. If Perry was convinced a DUI was a disqualifier for a district attorney, why did the governor apply this standard so selectively?

Democratic strategist Jason Stanford put it this way: “The key difference was that one of the DAs was investigating his administration for corruption and the other two DAs weren’t.”

In 2009, for example, a Kaufman County D.A. was convicted of drunk driving, his second offense. Perry’s office said nothing, dismissing it as a local issue.

In 2002, a Swisher County district attorney was found guilty of aggravated DWI, which came against the backdrop of a scandal involving the prosecutor and a sting operation gone wrong. Again, Perry said nothing.

So why would the governor rely on different standards? Jason Stanford, the Democratic strategist, added that Perry treated Lehmberg differently “in a way that makes you question what his motives were. And he had a real clear motive because she’s investigating him for corruption” in connection with a cancer-fund scandal.

I realize many on the left and right have been quick to dismiss this case on the merits. That said, I can’t help but wonder if they were a little too quick in their judgments.

Update: I heard from Gov. Perry’s press secretary this morning, who passed along an affidavit from Chris Walling, a former investigator with the Public Integrity Unit, who said the governor was not a target in the cancer-fund scandal.

 

By: Steve Benen, The Madow Blog, August 21, 2014

August 24, 2014 Posted by | Abuse of Power, Rick Perry, Texas | , , , | 2 Comments

“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

“Down Goes Perry!”: The GOP’s “Deep Bench” Just Completely Fell Apart

There was a time, long ago, when the Beltway media had a comforting narrative for Republicans, as they faced the loss of Mitt Romney and Paul Ryan in 2012. And it was: Unlike the Democrats, who were relying on flawed hero Hillary Clinton, the GOP had a “deep bench” of candidates for 2016, one that was especially thick with pragmatic governors.

But that bench has been splintering for a while, and now it’s a small pile of wood shavings that might be used as tinder for a fire that could ignite in 2020 or later – or not. Actually, it’s probably not even that useful.

We’ve seen New Jersey Gov. Chris Christie at least partly sidelined by his various scandals. Wisconsin Gov. Scott Walker seems to have survived two damaging John Doe investigations, only to wind up tied with political newcomer Mary Burke in his November re-election race. Former Virginia Gov. Bob McDonnell – oh, never mind, everyone crossed him off that list at least a year ago.

Now, shockingly, Texas Gov. Rick Perry has been indicted for his role in a state scandal, on Friday night. The charges center on Perry’s decision to veto funding for the office of Travis County District Attorney Rosemary Lehmberg, charged with investigating public corruption – her office’s work indicted former Texas congressman Tom DeLay in 2005 – after she was arrested for drunk driving.

Back when Perry vetoed the funding, Lehmberg was investigating the state’s Cancer Prevention and Research Institute of Texas, after multiple allegations of corruption under Perry, including the indictment of one official for mishandling a multimillion-dollar grant.

“The governor has a legitimate statutory role in the legislative process,” Texans for Public Justice director Craig McDonald, who originally filed the complaint, told the New York Times. “In the case of the Travis County district attorney, the governor had no authority over the district attorney’s job — a district attorney who was elected by Travis County voters and serves exclusively at their will.”

Talking to MSNBC’s Steve Kornacki, longtime Texas journalist Jim Moore said it looked like “Perry is trying to circumvent being investigated by anyone.” He noted that Lehmberg served 45 days in jail for her drunk driving conviction, even though there is “a long record in this state of forgiving people and electing them to office” after such crimes. That might sound like a lame liberal excuse, but Moore didn’t even  mention the most famous Texas DWI arrest, that of future governor and president George W. Bush.

Indicted by a county grand jury, it’s still possible Perry will beat the charges. It’s also worth noting that Democratic Gov. Andrew Cuomo faces investigation for comparable allegations of interfering with an agency charged with investigating political wrongdoing by allies. If Clinton wasn’t in the 2016 wings, Cuomo’s troubles would be bigger national news. Now that Perry’s been making aggressive moves right, making it pretty obvious he wants to run in 2016, this is generating big headlines even on a big-news weekend.

Imagine being a billionaire Republican donor: What would you do, surveying the GOP field, if you wanted to avoid the extremism of Sen. Ted Cruz and the eccentric, occasionally libertarian stylings of Sen. Rand Paul, two relative electoral neophytes. You’d likely be crossing Rick Perry off your list tonight, even if you sympathize with his political troubles. “Indicted, but not convicted” isn’t the best slogan for a presidential candidate. There are better slogans for Republicans; Dave Weigel jokingly suggests “Romney 2016: Still not indicted.” I’m not sure that’s the winner, either, but Romney is more likely to be nominated than Rick Perry right now.

 

By: Joan Walsh, Editor at Large, Salon, August 16, 2014

August 17, 2014 Posted by | GOP Presidential Candidates, Rick Perry | , , , , , , , | 1 Comment

   

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