The Perry Indictment’s Predecessor

by John Fund
A similar crusade against Kay Bailey Hutchison crashed 20 years ago.

If you want to know where the abuse-of-power indictment of Texas governor Rick Perry may be headed, look no further than how a similar indictment of then–U.S. senator Kay Bailey Hutchison crashed exactly 20 years ago.

The Republican Hutchison was indicted only four months after her landslide win in a special election in 1993. Travis County district attorney Ronnie Earle — whose successor, Rosemary Lehmberg, is at the center of the Perry indictment — persuaded a grand jury made up of residents of the liberal Austin area to indict Hutchison on charges of misusing her prior office of state treasurer. (The Travis County district attorney’s office runs the Public Integrity Unit, which enforces ethics laws for all state officials, and Austin is the county seat.) Hutchison was accused of using state employees and her state offices to conduct personal and political business and then ordering records of her activities to be destroyed. Among the specific accusations was that she used state employees to plan her Christmas vacation in Colorado and write thank-you notes.

Hutchison pressed for a quick resolution of the case because she was running for reelection in 1994, much as Governor Perry has to worry that his indictment will hang over any 2016 presidential race he might run. The case against Hutchison slowly began to fall apart. The first indictment had to be thrown out because one of the grand-jury members who heard the case was ineligible to serve. A defense motion to move the trial from the politically charged climate of liberal Austin to Fort Worth was granted. Then, when the trial began in February of 1994, it ended after only 30 minutes, when Hutchison was found not guilty on all charges.

The breathtaking denouement began as soon as District Attorney Earle was forced to present his case. He began by telling the court he couldn’t go forward without knowing for certain whether records seized from Hutchison’s office without a search warrant only five days after her Senate victory would be allowed into evidence. Judge John F. Onion Jr. declined to make such an early decision — and ordered the jury, which had been seated only minutes before, to return a verdict of not guilty.

After her acquittal, Hutchison requested that all records seized during the raid be publicly released. “The case was not there,” she said at a press conference. “They turned around and ran because they knew the longer they went, the more embarrassing it was going to be. . . . They thought the lady would crack. Well, the lady wouldn’t crack.”

For his part, Earle had only excuses for his fiasco. As the Los Angeles Times reported, he said he was “shocked by the speed with which the judge proceeded in the case, and in general we feel that justice has been denied.” He accused Judge Onion of running a “rocket docket.”

The Public Integrity Unit has continued to be a source of controversy. A decade after the Hutchison case, Earle indicted then–House majority leader Tom DeLay. Earle won a jury conviction, but in 2013 a Texas appeals court overturned it. The court ruled that the state’s evidence was “legally insufficient” and rendered judgments of acquittal. Lehmberg, who took over the case from Earle, has insisted with Inspector Javert–like intensity that she will appeal that decision — but lately she has been preoccupied with her own legal issues, which brings us to the Rick Perry indictment.

I covered the Hutchison case from Texas, and what strikes me is just how much it has in common with Perry’s current trouble. Politics in Texas is a contact sport in which every weapon — both electoral and legal — is employed and ethical boundaries are easily crossed.

Boiled down, the indictment contends that Perry tried to coerce Lehmberg into resigning after her conviction on drunken-driving charges. Even liberal partisans are divided over whether it crosses the line into criminalizing political behavior. Former Obama campaign manager Jim Messina couldn’t contain his glee: “Here’s to suddenly loving the Texas legal process: Rick Perry indicted.” But David Axelrod, President Obama’s former top strategist, had a different take: “Perry indictment seems pretty sketchy.” Several noted liberal legal scholars, ranging from Alan Dershowitz to Jonathan Turley, are also troubled by the vague and mushy charges.

The story behind the indictment begins in April of 2013, when Lehmberg was arrested on DWI charges, resisted arrest, and tried to pull rank by telling officers to “call Greg” — meaning her friend the local sheriff, Greg Hamilton. She even told officers, “Y’all are gonna be in jail, not me.” She was fined and sentenced to 45 days in jail after she was shown to have a blood-alcohol content of three times the legal limit.

Following the incident, Governor Perry called on her to resign, saying she had lost the confidence of the public and the legal community. When she refused to resign (which would have allowed Perry to name her replacement), the governor threatened to veto a $7.5 million budget item for her Public Integrity Unit. That is the basis of the Travis County grand jury’s charging Perry with abusing his office and coercing a public servant.

Ed Mallett, a Houston attorney and former president of both state and national criminal-defense lawyers’ associations, says the indictment makes no sense given that Texas governors have unbridled veto authority in the state’s constitution. “Under this scenario, Perry’s mistake was going public with his reason for the veto, saying he was thinking about doing it,” he told the Houston Chronicle.

Turley, a law professor at George Washington University, told the Houston Chronicle that “there is a real danger when you allow such an ambiguous standard to be used” in indicting a governor exercising his powers. Liberal columnist Jonathan Chait derided the indictment on New York Magazine’s website. “The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a ‘misuse’ of power or ‘coercion’ of one’s opponents,” Chait noted. “To describe the indictment as ‘frivolous’ gives it far more credence than it deserves.”

Rather than search for a legal explanation of the indictment, one might better turn to a political one. Texas Democrats have pounced to proclaim Perry’s guilt. Will Hailer, executive director of the Texas Democratic party, told reporters the governor has “violated the public’s trust” and must resign. He promised to make the indictment a key issue in this fall’s election. Hailer’s comments were echoed by Democratic congressman Joaquin Castro, who said Perry must leave office “for the sake of Texas.”

Castro was more on the mark two years ago at a festival sponsored by the Texas Tribune website, when he said: “We are the state that has now gone the longest without electing a Democrat statewide. It has been since 1994 that a Democrat has been elected in Texas.” Given that Texas has 15 elected officials, that is indeed a long and extensive drought.

But the way to overcome political obstacles is with superior ideas and better political organization. That’s how you win elections, and that’s something Texas Democrats haven’t done well at. Criminalizing political differences and celebrating indictments is a poor substitute for winning votes. It also undermines public confidence in the very system that all elected officials — regardless of party — depend upon for their legitimacy.

— John Fund is national-affairs correspondent for NRO.