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August 18th, 2014:

On Mike McCrum and Pa Ferguson

There were two stories from Sunday about special prosecutor Mike McCrum that were worth flagging. First, here’s the Express News with an angle that I think has been underappreciated.

Mike McCrum

People who know McCrum said he is not the type to use a case to play politics. San Antonio defense attorney Patrick Hancock said McCrum is known for spelling out just the facts in court, while Alan Brown said McCrum does not care for politics and tries to steer clear of courthouse politics.

Brian Wice, who’ representing former House Majority Leader Tom DeLay, R-Sugar Land, in his appeal of money-laundering and conspiracy charges, looked askance at the indictment. But he simultaneously spoke highly of McCrum, saying he had “the utmost respect” for him.

McCrum, a former assistant U.S. attorney, was considered the frontrunner for a presidential appointment to be the U.S. attorney in the San Antonio-based Western District of Texas, which includes Austin, Waco and El Paso. But he withdrew his name from consideration in October 2010 after more than a year of waiting to be officially nominated by the White House, saying he had to get on with his career.

“I have not been able to take any cases for the past six to nine months, and as a result my practice has dwindled to almost nothing,” he told the San Antonio Express-News then.

At the time, he had the support of the state’s Democratic congressional delegation and both Republican senators, in addition to many local attorneys.

“I heard he was a hands-on kind of guy, kick the tires and get down in the weeds,” former Assistant U.S. Attorney Glenn MacTaggart told the Express-News when McCrum was being considered. “He pushed the proper due diligence in order to investigate and determine whether an indictment was justified.”

[…]

One of McCrum’s first jobs as an attorney was at the firm then known at Davis & Cedillo. Ricardo Cedillo described McCrum as “one of the best associates” he had ever hired, echoing others’ comments about McCrum’s thoroughness and analytical skills.

“He had street smarts as well as legal knowledge,” Cedillo said while McCrum was under consideration for the U.S. attorney position. “That’s a very rare combination in young lawyers. That goes to who he is and where he’s from.”

McCrum’s clients as a defense attorney have included former NFL star-turned-drug trafficker Sam Hurd; Dr. Calvin Day, who is awaiting a new trial after McCrum successfully lobbied to have his jury conviction for sexual assault of a patient thrown out; fellow lawyer Mikal Watts, a Democratic Party stalwart who has hosted President Barack Obama at his home; and Mark Gudanowski, the former driver for District Attorney Susan Reed accused — and acquitted — of illegally selling Southwest Airlines vouchers.

We were briefly introduced to Mike McCrum when he was named special prosecutor for this case, but that was much more cursory. What this story reminds us is that McCrum isn’t just a prosecutor. He’s also been a very successful defense attorney. As we saw yesterday, there are a lot of quotable defense attorneys out there poking holes in the indictments. One would think – at least, I would think – that someone like Mike McCrum, who has been on that side of the courtroom, would have analyzed this case and the evidence from that perspective as well, to better prepare himself for the courtroom battles to come. It’s certainly possible McCrum has missed the mark or gotten caught up in the job and focused too much on an end result, but I wouldn’t count on that. If he’s as diligent and as smart as people say he is, he’s got to have considered all this.

The DMN takes a more political angle.

Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.

Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.

“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”

Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.

“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.

“He’s very fair-minded and balanced, the kind of guy who would prosecute something only if he thinks the evidence is there,” Reamey said. “When I think of overzealous prosecution, he is not someone who comes to my mind.”

[…]

According to campaign finance records, McCrum has made only a handful of contributions to state and federal candidates.

He gave $300 in 2007 to Steve Hilbig, a Republican judge on the state appeals court based in San Antonio.

Also that year, McCrum donated $500 to U.S. Rep. Charlie Gonzalez, a San Antonio Democrat.

The next year, he contributed $500 to Republican Robert “Bert” Richardson, a Bexar County district court judge. Richardson assigned McCrum as the special prosecutor after a watchdog group filed its abuse-of-office complaint against Perry.

A little history here. When the complaint was filed by Texans for Public Justice against Perry, Travis County DA Rosemary Lehmberg recused herself from investigating it. That sent the complaint to the district courts of Travis County, where it was assigned to Judge Julie Kocurekof the 390th District Court. Kocurekof, a Democrat, recused herself as well. That kicked the case to the 3rd Circuit Court of Appeals, where presiding Judge Billy Ray Stubblefield got it. Stubblefield then assigned the case to Senior Judge Bert Richardson, who I presume will be the judge from here on out barring anything weird. Richardson named McCrum as special prosecutor, since the Travis County DA had taken itself out, and the rest you know.

Well, actually, there’s one more thing you might not know. Both Judge Stubblefield of the 3rd Court of Appeals, and Judge Richardson, who is a Senior Judge after losing election in 2008, were originally appointed to their positions. By Rick Perry. Quite the liberal conspiracy working against him there, no?

One more piece of history, from the Trib. Rick Perry isn’t the first Texas Governor to run afoul of the law in this way.

A Travis County grand jury’s allegations on Friday that Gov. Rick Perry improperly threatened to veto funding for the state’s anti-corruption prosecutors marked the first time since 1917 that a Texas governor was indicted. That year, Gov. Jim “Pa” Ferguson was indicted by a Travis County grand jury on allegations that he meddled with the state’s flagship university amid a squabble with its board of regents.

In Ferguson’s case, he vetoed $1.8 million over two years (about $34 million in today’s dollars) for the University of Texas; in Perry’s case, it was $7.5 million for the Public Integrity Unit, which is overseen by Travis County District Attorney Rosemary Lehmberg. After Lehmberg pleaded guilty to drunken driving, Perry threatened to pull state funding from her office unless she resigned.

Ferguson’s indictment led to impeachment by state legislators in September 1917. That’s highly unlikely for Perry, a lame duck with an overwhelmingly conservative Legislature who is facing felony charges for his threat — one he made good on — to veto funding for of the unit charged with investigating public offices in Texas, including that of the governor.

But there are striking similarities. Ferguson, a Bell County native who worked as a rancher and a banker before becoming governor in 1914, got in trouble for trying to remove public officials who had opposed him. Two of the articles of impeachment that removed Ferguson from office accused him of having “invaded the constitutional powers of the [University of Texas] board of regents” and “sought to remove regents contrary to law,” wrote Cortez Ewing in the journal Political Science Quarterly in 1933. Ferguson’s veto of the university’s entire legislative appropriation also prompted outrage, though he was not impeached on that point.

And the regents were goading a legislative investigation into embezzlement of state funds and improper campaign finance by Ferguson, while today, some believe Perry wanted the Public Integrity Unit gone because it was investigating possible corruption of state programs — including the Cancer Prevention and Research Institute of Texas. Perry has adamantly denied that, saying that he was entirely motivated by Lehmberg’s bad behavior.

I wouldn’t read too much into any of that, but it’s an interesting piece of history. We may as well learn as much as we can about this case, because for sure they’ll be teaching it to our kids and grandkids some day.

Hillary and Julian

The other Texas political story from last week that had tongues wagging and social media buzzing.

Mayor Julian Castro

Why yes, since you asked, the Secretary did have dinner with the Clintons at their house, Julián Castro’s press secretary allowed.

Did they have a very vice, er, nice evening? Did they veep, ah, keep, talking late into the night?

“Secretary Castro and former President Clinton had a discussion about ways the agency can expand on the partnership with the Clinton Climate Initiative to make public housing more energy efficient,” Housing and Urban Development press spokesman Cameron French said – the absolute echo of another HUD spokesman’s quote to the Washington Post about the dinner.

Last week’s repast took place at the Clintons’ 5,000-square-foot, 7-bedroom home just behind Observatory Circle – tantalizingly close to the Vice President’s official residence at the Naval Observatory.

It was just the latest manifestation of a warm, long-term relationship between the Clintons and the Castros – Julián and his brother, Rep. Joaquín Castro. And, of course, it served to bring the chatter about Julián as Hillary’s 2016 running mate to a rolling boil.

Julián worked as an intern in the Clinton White House. San Antonio’s twin political stars were in the Clinton camp in 2008, and remain there. That’s just the way Hillary likes it, as she realizes successfully courting the Latino vote is an absolute essential – both if there are substantive Democratic primaries and in the general election.

In fact, 2016 could be a history-making year in which both parties have Latinos in one of the two top spots on the ticket.

We’ve covered this ground before. I will just say again that the best thing Julian Castro can do to enhance his shot at being on the ticket with Hillary Clinton in 2016 is to do a good job at HUD and not screw anything up. If Democrats do well enough this November to make thoughts of Clinton carrying it in 2016 non-crazy, so much the better. Beyond that, this is the proverbial journey of a thousand miles, and we’re still at the starting line stretching our hamstrings. Chilling out in the meantime is advisable.

Just don’t call it “Medicaid expansion”

It’s the public policy that dare not have its name spoken, at least by Republican legislators.

It's constitutional - deal with it

It’s constitutional – deal with it

State lawmakers renewed efforts Thursday to find a “Texas solution” to expand health-insurance coverage for low-income residents without accepting the Medicaid expansion in President Barack Obama’s signature health care law.

Social-services advocates and local officials are among those pushing for a compromise measure that gives the state more flexibility than in the law to spend the money available from the federal government to cover more residents.

On Thursday, the state Senate Health and Human Services Committee met to “start a conversation that will give us an accurate picture of who the uninsured are, what services are available to them and what we can do to help them,” said chairman Charles Schwertner, R-Georgetown.

Katrina Daniel of the Texas Department of Insurance said about 6.5 million state residents do not have health insurance, although some of those can afford insurance and have chosen not to purchase it. An estimated 1.3 million uninsured Texans earn less than the federal poverty level, leaving them in the so-called “coverage gap.” The president’s law assumed all states would expand Medicaid, so it left those eligible for Medicaid out of its subsidies to help poor residents buy insurance.

Caring for those and other uninsured residents is costing counties billions of dollars a year, according to a letter sent to Schwertner on Wednesday by the judges in Harris, Bexar, Dallas, Tarrant, Travis and El Paso counties.

“We write not to complain about this fiscal burden or duty, but to urge your committee to use this interim to find a Texas way forward to fund and increase access to healthcare coverage for low-wage working Texans,” the judges wrote.

Two of those county judges are Republicans, of course, and frankly I think they have every right to complain. The cost of health care for those uninsured people comes out of their budgets, not the state’s. A lot of that cost includes treatment for folks with mental illness, who generally get that treatment in county jails. Medicaid expansion solves a whole world of problems, we just have to be smart enough to take it. If that means calling it something else, or coming up with something that’s almost but not quite exactly Medicaid expansion so we can claim it’s a “Texas solution”, then so be it. Either is better than what we’re doing now.

Vape ’em if you’ve got ’em

E-cigarettes are not affected by the city of Houston’s smoking ban. For now, anyway.

When city officials announced a sweeping ban on smoking in public parks last month, many in Houston’s growing ranks of electronic cigarette users worried the new rules applied to them.

They do not, but the concern was well founded. Of the country’s five most populous cities, Houston is the only one without a ban on where the devices can be used. There is not enough research on the relatively new, battery-powered plastic or metal tubes that heat liquid nicotine to know their medical effects, leading many cities to preemptively ban them and others to watch how the national debate plays out. For now, Houston is in the latter group.

E-cigarettes emit a water vapor rather than smoke. While most health officials agree using e-cigarettes, known as “vaping,” is less harmful than traditional smoking, many have raised concerns about whether the devices reduce or lead to conventional smoking. Other unknowns include precisely what chemicals the water vapor contains and whether bystanders absorb any nicotine.

Even as Houston has expanded its general smoking restrictions, officials have been hands-off with the controversial devices. The city smoking ordinance does not include e-cigarettes.

A spokeswoman for Mayor Annise Parker said it is not something the administration is looking to change, largely because e-cigarettes are not considered a tobacco product.

The American Lung Association’s Houston chapter, however, is advocating for the city take the approach of other large urban areas and ban them in the same places as regular cigarettes while the health risks remain unknown.

Some city officials, too, are keen on broaching the issue. Council member Jack Christie, a chiropractor with strong opinions on health policy, said he would like to see restrictions on e-cigarettes in public places, voicing concern about the potential effects of second-hand vapor. Council member Ellen Cohen, chair of the Council’s Quality of Life Committee, also has concerns about second-hand vapor and said she would like to see more federal guidance before considering whether to include them in the city’s smoking ordinance.

“There’s are a lot of things that Houston doesn’t just throw out regulations on,” Christie said. “We let other cities experiment and see what works. And I’m not for over-regulation, but if it helps innocent people, and I think this would, we should do it.”

As you know, I’ve been wondering about this. I’m okay with things as they are now – as the story notes, there’s no litter issue with e-cigarettes, and I don’t think they’re nearly as prevalent as the traditional kind; I know I’ve not encountered any vapers in public spaces as yet. Should there be further regulation at the federal level – which multiple states and local health officials are asking for – or more research showing that they’re harmful, especially to people in their vicinity, then that would be a different story. Until then, I can live with the status quo.