Another story to distract us from the election results.
This corndog claims executive privilege
Special prosecutor Michael McCrum filed court papers on Monday, saying the governor, who was indicted for abuse of office, shouldn’t have access to grand jury testimony because he could intimidate witnesses.
McCrum filed two lengthy briefs in answer to a barrage of pre-trial motions filed by Perry’s attorneys. It is the first time the prosecutor has rebutted assertions by the governor’s vigorous defense team. But McCrum didn’t reveal many details in the case that led a grand jury to charge Perry with abuse and coercion.
The first pre-trial court hearing in which Perry will be present is scheduled for Thursday.
On the issue of whether Perry should be provided transcripts of grand jury testimony, McCrum cited centuries-old common law that uses secrecy to help protect all parties involved with criminal allegations.
“Indeed such a principle is even more compelling where the defendant seeking disclosure is a governor, a ‘ruler’ within our structure of government, possessing all the power that led to the initiation of the principle of confidentiality,” McCrum stated.
He cited that the issue of intimidation of witnesses is based on Perry’s own actions.
Not only was he indicted for abusing his power, but “the defendant’s own words have instilled a concern for all persons who participated in the grand jury investigation,” the brief states.
It then quotes “prepared, written comments” used in a press conference the day after the indictments were returned when the governor said, “this farce of a prosecution will be revealed for what it is, and that those responsible will be held accountable.”
[…]
McCrum, a former federal prosecutor from San Antonio who was appointed by a Republican judge, is fighting the unusual request. He asserted parts of the transcripts might be made available as part of pre-trial discovery, but the defense lawyers should not have unfettered access to the grand jury testimony nor have it this early in the process.
He stated in the brief that the Texas Court of Criminal Appeals already ruled “that illegal conduct is not part of the legislative process and is not deserving of privilege.”
McCrum pointed out that two other indicted governors – Marvin Mendel of Maryland and Rod Blagojevich of Illinois – both tried to use legislative immunity and their “appeals were flatly rejected.”
The prosecutor also pointed to Perry’s decision not to appear before the grand jury.
“Mr. Perry chose to not testify before the grand jury, therefore any privilege he now asserts necessarily rests on other witness testimony,” the brief states.
See here for the background. The original court date for this was last Friday, but it got rescheduled to Thursday. While he doesn’t have to appear in court in general, Perry will be there for this hearing. The other brief has to do with Team Perry’s claim that McCrum wasn’t properly sworn in. I have a hard time seeing that one gain traction, but I suppose it can be fodder for future appeals. The Trib, Texas Politics, and Bloomberg News have more.