It’s what any defense attorney would try to do.
A lawyer for Gov. Rick Perry said Friday he will challenge felony charges that the governor overstepped his authority when he said he would veto state funding for Travis County prosecutors if District Attorney Rosemary Lehmberg would not resign her post.
David Botsford, an attorney for Perry, informed Visiting Judge Bert Richardson he plans to file a writ of habeas corpus challenging the constitutionality of the laws underlying the two-count indictment against Perry.
“It will speak for itself,” Botsford told reporters. He said his challenge would be based on the governor’s power to veto and his First Amendment rights.
Both Botsford and Michael McCrum, the San Antonio defense attorney who was appointed the special prosecutor in the case, met with Judge Richardson Friday. After a 35-minute meeting in the judge’s chambers, the two attorneys came out and Richardson informed the court Botsford would turn in his challenges to the indictment by Aug. 29.
Once those objections have been filed, McCrum will file his responses and the first full hearing in the Perry criminal case will be scheduled.
Outside the courtroom, McCrum declined to talk about his strategy or address criticism about the indictment returned against the governor.
“I think it’s appropriate to approach this case in a court of law,” said McCrum, who anticipated that a trial in the matter would not take place until next year.
Novel idea, that. Just as a reminder, the complaint was filed before Rick Perry vetoed the Public Integrity Unit funds, so we’ll see how far that gets with the judge. Costs them nothing to try, and hey, you never know.
An earlier story about the defense strategy contained some interesting legal analyses.
“If I was on the Perry defense team, I would be asking for the quickest trial date I could get,” said Paul Coggins, a defense attorney with the Locke Lord law firm and a former U.S. attorney in Dallas. “Let’s load it up in 30 days. Let’s go.”
Coggins, a Democrat, said the next thing to watch for is Perry’s team challenging the Texas statute behind the two felony counts.
“They’ll take a swipe at the statute,” he said. “The statute is too vague. You’re going to do that at least. I think the judge is going to have some real issues with the statute.”
The two-page indictment gave few clues as to how grand jurors were convinced Perry may have done something illegal. And Coggins said that unless McCrum can prove to jurors that Perry’s veto threat was illegal, it will go nowhere.
“Based upon what we know so far, if there isn’t some incredibly powerful, smoking gun that we’ve heard nothing about, then I don’t think this case should have gone to the grand jury,” Coggins said.
Not so fast, says Bill Mateja, a defense attorney in the Dallas office of Fish & Richardson. Mateja is a former federal prosecutor who knows McCrum, the San Antonio defense attorney tapped by Richardson, well.
“I’ve worked with Mike McCrum,” Mateja said. “I cannot believe that Mike McCrum decided to indict Rick Perry based solely on Rick Perry playing politics. I can believe that Mike McCrum indicted Rick Perry because there is something more than we’ve seen.”
Mateja, who described himself as a conservative Republican and a Perry supporter, said that if McCrum’s case doesn’t show more than what is already known, then it’s a “bad indictment.”
I think we all agree on that. As for McCrum, he had a few things to say as well.
McCrum said he would respond in court to Perry’s filing.
“At this time, I feel confident of the charges. I feel confident of the facts as applied to the law, and I will move forward,” he said.
McCrum said he expects the case to go to trial because “I anticipate that Mr. Perry will never plead guilty.” He said he thinks a trial would not be until next year.
McCrum was asked by reporters about the drumbeat from Perry and his team that the case against him is politically motivated.
The San Antonio lawyer said he didn’t plan to discuss strategy or evidence in the case, pointing out that Perry’s lawyers are “talking about the theories of law and whether or not the facts support those theories.”
“On this situation, I think it’s important that I approach it with dignity and respect for our system of justice,” McCrum said.
He also declined to supply his own political affiliation.
“I don’t feel that anything about politics is relevant to this case insofar as my politics are concerned,” McCrum said in response to a reporter’s question. “And so with all due respect, sir, I can’t dignify the question because by answering it, I give it relevance, and I don’t think it has relevance.”
It shouldn’t have any relevance, but you know how that goes. Going back to the earlier story, Mateja also predicted the defense would try to get the indictments tossed. If that happens, that would be a huge victory for Perry and an equally huge egg to Mike McCrum’s face. Again, I’m not a lawyer and I have no expertise in this matter, but again there’s nothing in Mike McCrum’s history to suggest that he’s gone off half-cocked. There’s plenty of evidence to suggest that McCrum has more up his sleeve than he’s shown so far. Maybe that won’t be enough. We’ll get some idea of that this week.
On a side note, the two-man team at Texans for Public Justice wrote a piece for Politico that called out various liberal pundits for their embarrassing ignorance in the Perry matter. They didn’t break any new ground, but at least the word is getting out there that the indictment isn’t about what a lot of people leaped to conclude it was about.