The Persecution of Rick Perry
Amid all the political back and forth about the stunning, once-in-a-century indictment of our sitting governor, it is easy to forget that for James Richard Perry, Aug. 15 was a life-changing day. Then last Tuesday, he booked himself in at the Travis County jail for fingerprints and his mug shot, an experience he will never be able to erase.
As all of Texas now knows, Perry was indicted on a first degree felony charge of misuse of public office and a third degree felony of coercion of a public official. Special prosecutor Michael McCrum also sought bribery and “official oppression” charges but failed to win indictments from the grand jury on those charges.
Many politicians who are indicted know they are guilty, so for them it is an earned experience. Typically, when an elected official is indicted, it is because they were alleged to have done something with their official power for their own private benefit.
Based on what is currently known, that does not appear to be the case here.
Partisan allegations about Perry’s call to remove Travis County District Attorney Rosemary Lehmberg (who confessed to and was convicted of drunken driving) to stop or slow down an investigation into CPRIT, the cancer prevention board that is funded by taxpayers, fail to account for the publicly known fact that CPRIT’s board was cleared of wrongdoing. Indeed, only the actions of its professional staff were being examined.
Perry has been masterful at waging a public battle in his own defense.
In the immediate aftermath of the indictment, he was everywhere: holding a rare Saturday news conference at the Capitol, keeping a previously scheduled interview on Fox News Sunday, releasing a professionally produced Web video, gabbing with radio talkers Erick Erickson and Sean Hannity, and cleverly turning his own appearance at the county jail into a rally with hundreds of supporters.
The public relations battle matters right now, but the ultimate resolution of this case is what will determine his political (and personal) future. The core of the legal case is this: Can two lawful actions used in combination equal an unlawful action?
Lawful action No. 1: As governor, Perry can call for anyone’s resignation, especially an individual who has responsibility over an office (the Public Integrity Office) that receives state funding. His lawyers have signaled a First Amendment defense may be used.
Lawful action No. 2: The line-item veto is a constitutionally protected power of the office of the governor of Texas. It is essentially unlimited. Governors do not have to explain vetoes, although they often do.
The prosecutor seems to believe that simply threatening a veto to advance a call for resignation is a felony. How can a veto threat be a felony? Governors do it all the time. Without veto threats, our system of government cannot work.
Are we really expected to believe that a veto threat is a first degree felony punishable by up to 99 years in prison? Indictments grab headlines, forever tarnishing the image of the indicted.
What is troubling is that the Travis County district attorney’s office has a terrible record prosecuting Republicans.
In 1993, my former boss, Kay Bailey Hutchison, was elected U.S. senator in a special election, and then almost immediately indicted. Travis County DA Ronnie Earle had no case and little evidence, hoping that he could build one after the indictment. Hutchison pressed for a quick resolution, and five months later, after Earle refused to present evidence, the judge ordered a full acquittal.
House Majority Leader Tom DeLay was indicted in Travis County as well, and ten years later, he is on the cusp of being fully cleared via appeal. Where does he go to get ten years of his life back?
It is beyond absurd that one prosecutor, elected only by the residents of Travis County, has statewide jurisdiction to prosecute public officials. The Public Integrity Unit should be moved into the Office of the Attorney General, which I expect will happen in next year’s legislative session.
Perry clearly plans to fight aggressively this criminalization of politics. His legal team has now filed a pre-trial writ of habeas corpus (on the grounds that the statute is unconstitutional on first amendment and separation of powers grounds). If that fails, watch for a motion to quash to indictment, a request to move the trial outside Travis County, legal efforts to limit evidence, and even Perry testifying in his own defense.
While Perry’s freedom outrageously hangs in the balance, he will continue to serve as governor through early January and explore a 2016 presidential bid.
Rick Perry is a fighter, and this indictment is a sucker punch.
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