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Possibly the last thing I’m going to say about the Perry indictment for now

Certainly not the last thing I’ll ever say, since there’s a vast amount of the story left to be told, and I reserve the right to change my mind. But for now, since the indictment came down on Friday there’s been very little actual news. There’s been the over-the-top response from Perry’s legal team, there’s been the predictable tribal responses, there’s been a crap-ton of woefully ignorant pontificating from mostly non-Texas writers, but not much else worth talking about. So, until there is a new development, I’m going to leave with these two thoughts.

This Trib story about Texans for Public Justice, the group that filed the complaint that led to the indictment, contains a little tidbit of information that even I hadn’t realized but which ought to be a required inclusion in everything anybody writes about this saga from here on out.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

TPJ didn’t plan to delve into the complex game of political chicken going on between Perry and Travis County District Attorney Rosemary Lehmberg near the end of last year’s legislative session. Lehmberg had been immersed in a political scandal since April, when a video of her aggressive behavior during her drunken driving arrest drew national attention. TPJ had stayed out of the drama until June 10, when [TPJ Director Craig] McDonald read in the Austin-American Statesman that Perry was threatening to veto the state’s funding of the Public Integrity Unit, housed in the Travis County DA’s office, unless Lehmberg resigned. Perry has said he only acted within the authority he has under the state Constitution.

“We decided [to get involved] that Tuesday morning,” McDonald said. “I said to Andrew [Wheat, TPJ research director], ‘This has got to be illegal. The governor can’t threaten the district attorney to do something that is out of his power. She doesn’t work for him. Never has.’”

Soon after, TPJ filed its complaint against Perry, hours before Perry vetoed the PIU’s $7.5 million budget.

Perry and his legal team have made his right as governor to veto state funding, and Lehmberg’s behavior during her drunken driving arrest, as central to the indictment. Various national political reporters and pundits have dismissed the indictment as overreaching or politically motivated, often pointing, like Perry, to a governor’s right to use his veto power.

McDonald said those critics are missing a crucial point: TPJ’s original complaint was filed before Perry implemented his veto because the veto is irrelevant.

“The threats are the issue, and I think that’s what the grand jury listened to,” McDonald said. “The only role the veto played and the only reason it’s relevant is that’s the club he held over his head to try to get her to leave her job. The veto is a side player to this. It’s not the subject of the charges.”

Emphasis mine. Did we all catch that? The complaint was filed before the veto was made. Let me repeat that, with formatting and an active voice construction: TPJ filed their complaint before Rick Perry vetoed the Public Integrity Unit funds. It wasn’t about the veto, it was about the threat, the coercion, of a duly elected public official that did not answer to Rick Perry. Anyone who opines about this in any fashion and doesn’t grasp that fact has no frigging idea what they’re talking about and should be ignored.

Another test for ignorance by those who bloviate about this case, in particular those who go on about Rosemary Lehmberg’s DUI arrest and of course it was sensible for Rick Perry to want a drunk DA to step down: Rosemary Lehmberg was the third District Attorney in Texas to be arrested for drunk driving during Rick Perry’s time as Governor. She was the first such DA to come under any pressure from Rick Perry about it. She was also the first such DA to be a Democrat. And yet it’s Rick Perry who’s the victim of a partisan vendetta, by a non-partisan special prosecutor appointed by a Republican judge who was appointed to hear the case by another Republican judge.

Oh, and one more thing, from Lisa Falkenberg:

In Harris County and other Texas jurisdictions where judges use the “pick-a-pal” system to empanel grand jurors, bias and corruption are natural byproducts. The judge picks a pal, called a “commissioner,” to go out and find some more pals to serve on a grand jury and supposedly mete out justice. The process, as I’ve written, has been outlawed in the federal system, and is still only used in Texas and California.

But it wasn’t used in this case.

[judge Bert] Richardson didn’t ask a buddy to empanel the grand jurors. The members were randomly selected from Travis County jurors who answered a summons – a similar process to the one used to select regular trial juries.

See this story as well. Grand juries are the prosecutors’ show, and we all know what they say about them. But still, a jury of ordinary citizens thought there was sufficient evidence of a crime to return two indictments. Mike McCrum didn’t indict Rick Perry, the grand jurors did.

Now it’s certainly possible for an informed observer to examine the indictments and think they’re a stretch. We really have never seen anything like this before, and generally speaking our laws about official misconduct have to do with money and/or influence in fairly direct ways. It’s fair to say that the laws Perry is accused of breaking weren’t really written with this situation in mind, probably because no one ever imagined this sort of situation might happen. That doesn’t mean that these laws don’t apply or that a fair jury couldn’t find Rick Perry guilty. It does mean that the appeals courts are someday going to perform fine surgery on some legal hairs, and one way or another we’ll have a clearer understanding of what these laws do mean, at least based on this experience.

But once we start down that path, we are – to borrow a legal phrase we all know from “Law and Order” – assuming facts not in evidence. We don’t know what Mike McCrum’s case is yet. We’ve heard plenty from Rick Perry and his high-priced legal team – the best lawyers the taxpayers can provide for him – and from his hackish sycophants in the national press. What have we heard from Mike McCrum, other than the indictment itself? Not much.

McCrum, asked in an interview earlier Monday about criticism that the case is weak, calmly defended it.

“The case is going to bear itself out in the long run, both from a legal standpoint and from a factual standpoint,” he said.

I’ll say it again: We just don’t know what cards Mike McCrum is holding. It’s certainly possible that he’s gone off on a wild hunt against Rick Perry for some reason. It’s possible he’s tendentiously misreading the law in an attempt for, I don’t know, fame and glory and a lifetime of being a legal expert on CNN or something. It’s possible he’s shooting from the hip and didn’t really think through how his actions would be scrutinized by criminal defense attorneys. There’s nothing in his history to suggest these things are true, but I don’t know Mike McCrum and I have no idea what’s in his head right now. What I do know is that we don’t know what his case will look like once it’s all been laid out in a courtroom. Maybe we’ll look back someday and say “Holy moly that was a load of crap, what in the world was Mike McCrum thinking?”, maybe we’ll say “That was a strong case but ultimately the jury/the Court of Criminal Appeals/SCOTUS didn’t buy it”, or maybe we’ll say “Where were you when Rick Perry was hauled off to the slammer?”. I for one am not making any predictions. And until there’s something new to talk about, I’m going to let it rest.

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2 Comments

  1. Mainstream says:

    I would be interested in more discussion about the advantages/disadvantages of selecting the grand jury in the same random manner by which regular jury panels are chosen, and who has the legal authority to decide how grand jurors are selected in Harris County, and to make changes in that system.

  2. Murvin Auzenne says:

    This is the most sane thing I have read on this matter. Excellent work sir!

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