Outsiders were stunned by the August 15 indictment of Governor Rick Perry by a Travis County grand jury, but they shouldn’t have been. The common perception that Texas is uniformly red is mistaken. Yes, Texas voters have elected only Republicans to statewide office since 1994, and the GOP has controlled both houses of the state legislature since 2002, but the partisan divide in the Lone Star State is sharp and highly polarized. In 2012, Mitt Romney trounced President Obama by 16 points statewide, but over 40 percent of the Texas electorate was resolutely blue. There are pockets of liberal Democrats throughout the state, mainly in the large cities (Houston, Dallas, and San Antonio), but Travis County (encompassing Austin) is the epicenter of the liberal political establishment in Texas, which thrives on the flagship campus of the University of Texas, in the halls of the legislature, and in the ultra-liberal media organs based there: the Texas Monthly, the Texas Tribune, and the Austin American-Statesman. Democrats control Travis County and the City of Austin as thoroughly as the GOP dominates statewide offices. And Texas liberals — frustrated by decades of electoral impotence — seethe with hatred at the symbol of Republican hegemony: Governor Rick Perry, who has served longer (14 years) than any governor of any state in U.S. history.
Since 1982, the Democrat-controlled Travis County district attorney’s office has received state funding to manage the Public Integrity Unit, which has jurisdiction to investigate and prosecute political corruption by elected officials statewide. (It is odd that a local district attorney, rather than the state attorney general, has this responsibility.) Travis County politics ensure that the PIU is used as a bludgeon against Republican officials. The notoriously partisan former district attorney Ronnie Earle used the PIU to bring bogus charges against U.S. senator Kay Bailey Hutchison and House Majority Leader Tom DeLay, both Republicans. In 2009, Earle was succeeded as district attorney in Travis County by Democrat Rosemary Lehmberg, who was arrested for drunken driving in Austin in a widely publicized incident in April 2013. Her blood-alcohol level was 0.23, three times the legal limit. She refused to resign and instead pleaded guilty to DWI and served her 45-day jail sentence while continuing to hold office. The public was appalled not only by her arrest, but also by her boorish and abusive behavior while in custody (YouTube videos of which are widely available).
McCrum presented the complaint to the grand jury and, after several months of maneuvering, obtained a two-count indictment against Perry (like the proverbial ham sandwich). What are the charges? McCrum contends that Perry withheld the state funds from the PIU for “personal” reasons; had Lehmberg resigned, as governor, Perry would have been authorized to appoint her replacement. Perry would presumably have appointed a Republican to be district attorney, who might be more favorably disposed toward Perry in any inquiries involving the governor — Politics 101. In an unprecedented (and absurd) application of the Texas Penal Code, McCrum framed this as a violation of a statute prohibiting “abuse of official capacity,” which deals with the “misuse of government property . . . or any other thing of value that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” In other words, by vetoing the legislature’s appropriation of funds for the PIU, Perry committed a felony. Even though governors routinely exercise their veto powers, and Perry frequently has slashed funding for various programs during his tenure as governor, Perry became the first Texas governor to be indicted in nearly 100 years. That is “Count 1” (section 39.02).
“Count 2” is even more ridiculous. Penal Code Section 36.03 deals with “coercion of public servant” and is in the chapter prohibiting “bribery” and “corrupt influence.” McCrum’s risible theory is that by threatening to veto the PIU funding unless Lehmberg resigned, Perry was improperly attempting to influence her in the exercise of her official duties. As UCLA law professor Eugene Volokh has pointed out, Texas case law (specifically State v. Hanson) suggests that “coercion of a lawful act [i.e., resignation] by a threat of lawful action [i.e., veto of funding] is protected free expression.” In any event, the statute in question has a specific exception for “official actions taken by a member of the governing body [of a governmental entity].” The indictment rests on the novel premise that this exception applies only if the public servant being influenced is a member of the “same governing body of a governmental entity” as the member exercising influence. McCrum contends that because Lehmberg is the Travis County district attorney, the exception doesn’t apply to Perry’s threat to withhold state funds.
Whatever the outcome and the impact on Perry’s nascent 2016 presidential aspirations, McCrum’s frivolous indictment takes the use of our legal system as a political weapon to a new low. The skullduggery of this is reminiscent of the (thankfully aborted) “John Doe” criminal investigation of Wisconsin governor Scott Walker. That such an unscrupulous stunt could happen in Texas — the biggest and most influential red state — shows that partisan rancor has swept aside legal ethics. This lack of respect for the rule of law threatens us all. If a popular three-term governor can face politically motivated criminal charges for exercising his constitutional authority to veto funding of a program due to the failed leadership of a convicted (and abusive) drunken driver, ordinary citizens are at even greater risk of malicious prosecution. Perry’s opponents were never able to beat him at the ballot box, so they resorted to the ultimate dirty trick — a trumped-up indictment. Not just Texans, but all Americans, should be outraged.
— Mark Pulliam, writing from Austin, is a retired lawyer.