Magazine | September 8, 2014, Issue

Drunk with Power

(Roman Genn)
Corrupt prosecutors abuse their authority in political vendettas

‘You’re going to be in jail, not me.” So said the powerful Texas prosecutor Rosemary Lehmberg to sheriff’s deputies who were in the process of booking her on drunk-driving charges after she was pulled over with an open bottle of vodka in her car and a blood-alcohol content nearly three times the legal limit. When Ms. Lehmberg demanded the removal of handcuffs (and, later, the restraints that deputies were obliged to place her in) as well as the return of her cell phone so that she could “call Greg” — that being Travis County sheriff Greg Hamilton, who, she assured her captors, would immediately set things right — deputies explained to the incoherent prosecutor that she had been arrested for drunk driving and was in the process of being booked. “That’s y’all’s problem, not mine,” she huffed. “I’m district attorney — get these cuffs off me!”

Deputies would later say that she physically assaulted them as well, though she was not charged with that crime. She was charged with, and convicted of, drunk driving. During the course of her prosecution, it was revealed that she had purchased more than $4,500 worth of vodka over 15 months, or about 25 gallons. (She favored Ciroc.) It once was customary for high-ranking prosecutors to resign from office upon being convicted of a crime and dispatched to jail (Ms. Lehmberg served about half of a 45-day sentence).

Drunk driving is a serious offense, but even more offensive was Ms. Lehmberg’s attempt to use her political clout to intimidate sheriff’s deputies into giving her special treatment — she did, after all, threaten them with jail time for the crime of doing their jobs. She exhibited the worst sort of political entitlement, which was dutifully documented on video and made available to the general public, who received it with general delight, more than a half-million people having viewed her inebriated tirade on YouTube. But she did not resign — in fact, she held on through a lawsuit brought by private citizens attempting to remove her from office.

The politics of Austin being what they are, it is inevitable that Ms. Lehmberg is in charge of something called the Public Integrity Unit, a department within the Travis County district attorney’s office entrusted with policing violations of the law and abuses of political power among government officials in Texas. With Rick Perry having filled Texas government with his appointees, the PIU is the most important Texas agency controlled by Democrats, a consequence of its being located in Travis County, the overwhelmingly Democratic electorate of which is an anomaly in conservative Texas — no Republican even bothered running against Ms. Lehmberg in 2012.

The prosecutor may not have carried out her threat to jail her jailers, but she is doing her best to jail Governor Perry, whom her office has managed to indict on two felony charges that could see him packed off to prison for the rest of his life.

How did that happen?

Given the dramatic evidence of Ms. Lehmberg’s documented unfitness for public office — to say nothing of leading the Public Integrity Unit — Governor Perry demanded her resignation. She refused, and Democrats rallied around her, knowing that if she were to step aside, her successor would be appointed by Governor Perry, thereby taking from Texas Democrats their most important political weapon. There was a good deal of “Whom are you going to believe, me or your lying eyes?” going around. The Democrat-controlled PIU, which is unsurprisingly eager to prosecute Republicans, is conducting an investigation into a state grant made to a Dallas company in which an important Perry donor is an investor. That investigation, and not a prosecutor threatening to throw sheriff’s deputies into jail for booking her on charges of having gotten behind the wheel after consuming enough Ciroc to pickle a baby hippopotamus, is the real story, Democrats say. And so Ms. Lehmberg advanced a peculiar theory that the partisans in her camp have rallied around: Rick Perry is the real criminal. Governor Perry publicly said that he could not in good conscience sign off on funding the PIU so long as Ms. Lehmberg was in charge, and he carried through, vetoing a funding bill. This, Ms. Lehmberg’s office says, was a criminal attempt to coerce a public official. Which is to say: Governor Perry has been charged with a felony for using his legal power as governor to insist that Ms. Lehmberg be held professionally accountable for her misdemeanors.         

#page#Ms. Lehmberg is the successor to Ronnie Earle, the Travis County district attorney famous for his partisan persecutions of Senator Kay Bailey Hutchison — cleared on all counts — and, most notably, Representative Tom DeLay — also cleared on all counts. The DeLay prosecution was remarkable: Mr. Earle, having failed to get two separate grand juries to indict, finally managed to charge Mr. DeLay with breaking a law that had not even been passed at the time he was accused of having broken it. A combination of prosecutorial malfeasance and judicial incompetence left jurors without basic information, most critically the fact that Mr. DeLay was being accused of money-laundering in a case in which the money (campaign contributions) had been legally acquired: By definition, only illegally acquired money can be laundered. The judge who finally had the decency to throw out the case remarked archly that the evidence suggested that “the defendants were attempting to comply with the Election Code” rather than trying to circumvent it. But the PIU had accomplished its mission: Mr. DeLay’s political career was over, he himself nearly bankrupt, and untold resources were diverted from Republican campaigns and conservative causes.

The case of Senator Hutchison was equally disturbing. Mr. Earle had sought to have himself appointed to the Senate seat to which Mrs. Hutchison ultimately was elected. He conducted a raid on her office — with no warrant — and was obliged to convene three grand juries before he could find one that would indict her. And then, in perhaps the most remarkable act of cynicism in a very cynical career, he refused to present a case in court: He knew that the evidence he’d obtained in his warrantless search would be ruled inadmissible, and he would lose, but the indictment of Senator Hutchison, her harassment, and her being forced to expend substantial amounts of money on a legal defense were sufficient to satisfy his partisan bloodlust.

While Travis County Democrats are acquiring some notoriety for abusing prosecutorial powers for political ends, they are hardly alone. The case of Wisconsin’s governor, Scott Walker, is in many ways even more terrifying. Governor Walker and a number of conservative activist groups, including the Club for Growth, were subjected to a secret investigation under the state’s so-called John Doe process — a 19th-century relic that invests police with quasi-judicial powers that enable them to authorize raids, hold suspects incommunicado, compel testimony, issue gag orders, and deploy a dozen other Star Chamber tactics — all without establishing probable cause that a crime had been committed. The John Doe process dates from a time when local practice was for judges to issue warrants on mere suspicion rather than in conformity with the higher standard of probable cause, and it was intended not for the prosecution of crimes but to determine whether a crime had been committed at all; ironically, it was created to protect innocents from frivolous prosecution.

The judge who ultimately threw that case out found “no evidence” to justify the prosecution, much less the use of such extraordinary tactics. Democrats made hay and ran ads accusing Governor Walker of masterminding a “criminal scheme” — even though he was never so much as served with a subpoena and prosecutors acknowledged, when it was all said and done, that he wasn’t even a formal target of their investigation. But he could have been put in jail for saying as much in public under the John Doe rules.

As with Representative DeLay and Senator Hutchison, the case of Governor Walker ended in a courtroom defeat for Democrats that was a political victory: Conservative donors were terrorized, and conservative organizations sidelined. The public, never very keen on legal procedure, remembers the word “indicted” and assumes that something dirty was afoot.

And so it is with Governor Perry. A few days after his indictment, the Lubbock Avalanche-Journal, a West Texas daily hardly situated in a bastion of Austin-style liberalism, ran a libelous headline on its website: “Rick Perry: Newest Member of GOP Felons’ Club.” Governor Perry is not a felon, and it is almost certain that he will be acquitted, if the case even goes to trial. The story underneath that headline rehearses the indictments of Representative DeLay and Senator Hutchison, but omits the rather important fact that they were acquitted on all charges, the cases against them finally laughed out of court. Headlines like that, and not convictions, are the point of these banana-republic political vendettas. The only thing worse than an elected prosecutor is an unelected one: Quis custodiet ipsos custodes?

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