Rick Perry Indicted on TWO Felonies?

[Pharcellus]

www.huffingtonpost.com/2014/08/17/rick-perry-indictment_n_5685735.html

Talk about not seeing that one coming..

I would say it couldn't happen to a better crook in the person of Rick Perry, but I also am not real keen on the DA whom he was trying to oust. She was a real piece of work - DUI. Still, there has to have been a more legal and proper way to get her out of office.

The first felony charge carries a prison term of 10 years, and the second one from 5 to 99 years. O.o

I wonder what the chance is that he'll actually serve time, let alone be convicted.

[tantalyr]

The betting line is that the trial court will dismiss the indictment outright, and that the dismissal will be upheld on appeal, due to the fact that a veto--including the threat of a veto--is an official act. Under the law, exercising or threatening to exercise a power that is constitutionally granted to an official cannot be deemed a criminal act regardless of the motive behind the exercise of the veto, or the threat to do so.

I am no fan at all of my state's governor, but this indictment is a very troubling overreach by the Austin DA.

[Kulamata]

Here are two articles that dig a little deeper. The first is by a Texas defense lawyer, and gives some background, eventually agreeing with Tant that conviction is unlikely.
I've seen the same information elsewhere, but these two articles between them seem the most complete.

www.dailykos.com/story/2014/08/18/1322633/-What-you-need-to-know-about-the-Rick-Perry-indictment


The second article gives more background, and the core is taken from The Texas Observer.
www.dailykos.com/story/2014/08/16/1322201/-Why-I-agree-that-Rick-Perry-s-line-item-veto-was-an-abuse-of-power-this-time

I've excerpted some of the second article, hoping to entice those too ummm busy to click through.

Some people wonder if this is a legitimate indictment. I believe it is.

Rick Perry was defunding the office of an elected official unless that elected official resigned. That elected official was of the opposing party. Rick Perry would then appoint a replacement with someone of his OWN party, who would not be elected (and in fact, would be his personal henchman). One thing I haven't heard anybody say: The voice of the people would be silenced by the power of the purse, and any governor could use it against any public official or department he chooses.
... Lehmberg's DUI arrest, it seems to me, was used as an excuse for Perry to get rid of someone he found inconvenient:

What’s more, the Public Integrity Unit was in the process of conducting an investigation of the Cancer Prevention and Research Institute of Texas. CPRIT received a ton of money from the Legislature to award grants to high-level medical research projects. The problem: a lot of that money was going to people who shouldn’t have gotten it. And some of those folks had close ties to Perry. Just a few months ago, Lehmberg’s office indicted CPRIT’s former director over his allegedly improper disbursement of an $11 million grant. But when Lehmberg got pulled over with the potato juice in her car last spring, the investigation was just underway.
When Lehmberg’s DWI went public, Republicans saw a way to get rid of a pesky, entrenched foe. (Though they couched this in terms of their deep, abiding concern for the office’s integrity.) Meanwhile, Democrats who would have happily seen Lehmberg canned if the Travis County Commissioners Court could have appointed her replacement rallied around Lehmberg as if she was the last warrior for righteousness on Earth.
Texas Observer

I'd agree that the indictment is an overreach probably, but I also think that the use of a line item veto to do away with an elected overseer who is in an investigation that could include the governor and/or his friends and allies, and that would allow the governor to replace the elected overseer with an one appointed by him is, at the very least, a worse abuse of power. I haven't seen the grand jury proceedings published (if they even are in TX), so we don't know what the grand jury heard that caused them to indict. I would guess that indicting a governor is not something done casually. 

[tantalyr]

There's a time-honored axiom in the law, Kula, that goes like this: "A prosecutor could indict a ham sandwich." Given the processes of a grand jury--including that the targeted defendant cannot testify on his own behalf unless he's "invited" to by the prosecutor, and even when the defendant testifies he cannot have his counsel with him in the grand jury room--it's pretty much of a charade. It's the very poor prosecutor who, in such a one-sided process, cannot get a grand jury to indict whomever he's after. Scary thought, but it's true.

Couple that with the well-known fact that Austin is the only major city in Texas which is heavily Democratic--yes, the Austin District Attorney is a Democrat, just like all of his predecessors for the last 35 years--and is it really any shock at all that he managed to get an indictment of Governor Perry?

On a side note, the current Austin DA's predecessor managed to indict former House Majority Leader Tom Delay on criminal campaign finance violations AND got a jury to convict him. But that conviction was thrown out by Texas appellate courts which held that the indictment should have been quashed in the first instance.

As I stated earlier, I cannot stand my state's governor. He's a doofus of the highest caliber. But it's not a crime to be an idiot who belongs to the opposing party . . . .

[Kulamata]

Found a fine article in the Texas Observer.
www.texasobserver.org/pundits-dont-get-rick-perry-indictment/

A key point about the investigation and indictment; it was the work of a special prosecutor with strong Republican credentials. The Austin area DA is not relevant at all.

To quote from the article:

Partisan Democrats Are Not Leading the Perry Prosecution

The criminal complaint against Perry was filed in June 2013 by the liberal Texans for Public Justice but it was assigned to a Republican judge in Bexar County who appointed Michael McCrum—a former police officer and prosecutor in the George H.W. Bush administration—as special prosecutor. McCrum was previously tapped by U.S. Sen. John Cornyn and former Sen. Kay Bailey Hutchison (both conservative Republicans) to be the U.S. Attorney for the Western District of Texas. There is no evidence that McCrum has a partisan axe to grind—quite the contrary.

The Travis County DA’s office, including Rosemary Lehmberg, had nothing to do with the indictment.

The issue of major concern is apparently not the veto, but the threat of its use to influence a public official, which is considered coercion.

Further quote, although I feel that the original article is well worth reading in its entirety:

The criminal case against Perry centers on his “coercion” of a local elected official using threats and promises. It is not premised—as has been repeatedly misreported—on the veto itself. Craig McDonald, the head of Texans for Public Justice and the original complainant, has said as much. As McDonald told CNN:

“The governor is doing a pretty good job to try to make this about [Lehmberg] and her DWI conviction. But this has never been about his veto of her budget and about her. This is about his abuse of power and his coercion trying to get another public citizen to give up their job.”

There is a Lot We Don’t Know…Yet

It is quite possible that the case against Rick Perry will fizzle. Perhaps it is “flimsy” and “thin” and all the rest. Credible legal experts have said they think the prosecution will have a difficult time securing a conviction. However, none of us is privy to the evidence and testimony presented to the grand jury. According to Peggy Fikac of the San Antonio Express-News, McCrum said he “interviewed more than 40 people, reviewed hundreds of documents and read many dozens of cases.” Fikac and other reporters who staked out the courthouse long before the national press spent five minutes reading the indictment watched “current and former Perry staffers, Travis County employees and state lawmakers” entering the grand jury room over the summer.

It is possible that McCrum has gathered more information on Perry’s motives that will come to light later. Although the indictment doesn’t mention it, the Public Integrity Unit is investigating a scandal involving the $3 billion Cancer Prevention and Research Institute of Texas, a fund close to the governor’s office that suffered from cronyism and lax oversight. The Public Integrity Unit indicted one CPRIT official in December for deceiving his colleagues and awarding an $11 million grant to a Dallas biotech firm without a proper vetting.

What else, if anything, did McCrum turn up in his interviews and document search? At this point, we just don’t know.

This doesn’t make for explosive headlines but the fact is, we’re just going to have to wait and see how the case unfolds.

[tantalyr]

@ Kula--

You are quite right that the Travis County (Austin) District Attorney did not secure the Perry indictment, and I apologize for my mistaken belief to the contrary.

That said, however, I would caution against making much of the Republican bona fides of either the special prosecutor, Michael McCrum, or the San Antonio (Bexar County) judge who appointed him. According to McCrum's website, which can be found here,, he is a white collar criminal defense attorney who previously served as a prosecutor in the Western District's district attorney's office (which covers Austin, San Antonio and El Paso, among other cities). That position is not appointive by the federal government, but instead is filled by the district attorney's office according to regulated employment practices (think Jack McCoy in Law and Order). Although he was supported by not only Texas's two Republican senators, but by the majority of the Texas Democratic Congressional Delegation, for appointment as the district attorney for the Western District, he withdrew his name from consideration. So, while McCrum may not be some wild-eyed liberal (although statistically most criminal defense lawyers do tend to be liberal in their outlook and politics), nor can he be said to be some conservative stalwart.

As for the Republican judge who appointed McCrum, the Honorable Robert Richardson, you should understand that Texas (very unfortunately) elects its judges at all levels. Thus, candidates for judicial office must (again, very unfortunately) adopt party monikers to have any chance of success at the polls. And as you might suspect lawyers would do, judicial candidates typically claim to be whatever party seems to hold the political reigns at the moment. As a result, since Texas is overwhelmingly Republican--and has been for more than two decades--smart candidates strive to be the Republican nominee for the judgeship they seek. Indeed, well over half the judges in Harris County (Houston) are "Republican," but having personally represented clients before most of the current judges here I can say that many of those so-called Republicans are far from conservative.

As for the merits of the flimsy two-page indictment, here's the basic problem. Both the president and state governors have the right to veto any legislation that comes before them under their respective constitutions. Analogous to an employer's right to fire an at-will employee at any time for any reason, the president and governors have the right to veto legislation for good reason, bad reason or no reason at all. And threats of veto have for two hundred years or more been part of the American political fabric--the give and take between the executive and legislative branches of government.

Couple that with a governor's (indeed every citizen's) First Amendment right to criticize the government and its officers, and to demand redress. In this case, Perry vented about the chief of the Texas government integrity unit after she was arrested for DUI and behaved aggressively and totally inappropriately toward the arresting officers and jailers. And he threatened to veto--and in fact did veto--funding for that unit if she did not step down.

Seeking to criminalize this behavior sets a very, very dangerous precedent. It would open the door to criminally indict any president or any governor who vetoed--or even threatened to veto--any measure passed by the legislative branch. The veto power is one of the principal powers of the executive to guard against excesses by the legislature--it is one of the fundamental features of the bedrock separation of powers doctrine which girds our national and state constitutions. Criminalizing the use--or the threat to use--that power would destroy that bedrock principal.

[Deleted]

But Perry’s foes note that at the same time as he was pressuring Lehmberg to resign, the unit was investigating the use of tax incentives for a Dallas business. One executive had already been indicted.

If McCrum has evidence that the real reason Perry wanted to oust Lehmberg was to quash that investigation and any link it might have to the governor’s office, the illegal coercion charge may have more teeth, legal experts said.

That's an interesting issue there if there is indeed any evidence (which may not be public yet), though I admit its a HUUUUGE stretch.

www.dallasnews.com/news/local-news/20140817-can-perry-beat-the-charges.ece

[Pharcellus]

The thing is that, sure, Perry's actions in this situation, taken individually on their own, are just fine. However, their combination and intent is what is being challenged, and rightly so.

We'll have to wait and see what the prosecution has dug up when it presents its case, but I think it will be far more substantial than a ham sandwich.