The fight over keeping presidential front-runner George W. Bush off the witness stand in an influence-peddling scandal intensified Thursday when Texas Attorney General John Cornyn asked a state court to quash a subpoena issued to Bush. Bush's testimony is being sought in a whistleblower lawsuit filed by a fired state employee. The move by the attorney general, which also seeks to prevent the plaintiff's attorneys from seeking additional documents from the governor's office, is the latest development in the case alleging that Bush and other state officials tried to thwart an investigation into Houston-based Service Corporation International, the world's largest funeral company.
Bush, who is not a defendant in the lawsuit, submitted a one-page affidavit to the court in which he says he has "had no conversations with Texas Funeral Services [sic] Commission officials, agents or representatives concerning the investigation of SCI by the Texas Funeral Services Commission or any dispute arising from it. I have had no conversations with SCI officials, agents or representatives concerning the investigation or any dispute arising from it."
It's still unclear if Bush, who has received $35,000 in campaign contributions since 1996 from SCI's political action committee, will be deposed. A hearing on the matter has been set for August 30 in the Travis County Courthouse in Austin. An elected state district court judge will decide if the facts in the case merit Bush's testimony. All but one of the judges who could be assigned the case are Democrats.
If the judge decides that Bush must testify, the case will almost certainly be appealed directly to the Texas Supreme Court, where Bush has a decided advantage. All nine justices on the Texas high court are Republicans and four of them were appointed to the bench by Bush. A fifth justice was appointed by Bush to a lower court and recently won election to the Texas Supreme Court. Political observers in Austin are already speculating that if the case goes before the justices, they could simply sit on the case for a year or more, thereby preventing the matter from becoming an issue in Bush's bid for the presidency.
Bush's allies are desperately trying to avoid a high-profile legal proceeding for the governor in the middle of the budding campaign season. In his motion to keep Bush off the stand, the attorney general argues that a plaintiff "does not gain the right to depose high level corporate or state officials simply by virtue of naming a corporation or state agency as a defendant in a lawsuit." The motion also argues that the deposition is being "sought purely for purposes of harassment."
The argument has a familiar ring to it. Bush's efforts to avoid the deposition are similar to those taken by President Clinton in the Paula Jones case. In the Jones case, the U.S. Supreme Court ruled that even sitting presidents are not immune from subpoenas if they have information that is relevant to a case, thus forcing the testimony for which Clinton was impeached on charges of perjury. The clear difference between the two cases is that Bush is not a defendant in the whistleblower case in Texas.
Despite Bush's claims to the contrary, the facts in the lawsuit filed by former Texas Funeral Service Commission Executive Director Eliza May suggest that the governor may, indeed, have information that is relevant.
May's lawsuit, filed March 23, says that Bush, state officials and SCI officials "appear to have been involved as co-conspirators" in an effort to block the agency's investigation into SCI's embalming practices. It also alleges May was fired in February because she was reporting on violations of state law. Last year, under May's direction, the agency began investigating two of SCI's Dallas-area funeral homes, which were allegedly operating without proper licenses. The investigation ultimately led the agency to recommend a fine of $445,000 be levied against SCI, which had revenues last year of $2.8 billion. So far, the company hasn't been required to pay a dime and the matter is still pending.
The state investigation was stopped in its tracks after May was required to attend a meeting in the office of Joe Allbaugh, Bush's chief of staff. (Allbaugh currently serves as Bush's campaign manager.) During the May 1998 meeting in Allbaugh's office in the Texas Capitol, May was asked numerous questions about her agency's ongoing investigation, even though SCI's CEO, Robert Waltrip, was sitting in the same room. After the meeting in Allbaugh's office -- which May says was "clearly designed to intimidate me" -- her agency's investigation of SCI was halted.
The Funeral Service Commission completed no more inspections of SCI's facilities and the agency's general counsel quit. In February 1999, May was fired. A few months later, the Republican-controlled Texas Legislature passed a bill to reorganize the agency and strip it of its general counsel position. The legislation, written by a lobbyist hired by SCI, also forced out the agency's current chairman, Dick McNeil, a Fort Worth funeral director who had approved the investigation into SCI's operations.
In addition to Allbaugh's involvement, documents issued by SCI in May's lawsuit also appear to show that Bush knows more than he's admitting. On June 11, Waltrip's lawyers issued documents that say Waltrip talked with Bush on April 15, 1998, in the governor's office about SCI's problems with the state investigators.
Five days later, the lawyers changed their story. In a highly unusual "supplemental" response to the interrogatories, the lawyers said Waltrip did not talk to Bush about his problems with state investigators. The supplemental document says that while Waltrip was in Bush's office waiting to talk with Allbaugh, the governor "passed by on the way to a press conference or other appointment," and although Bush "exchanged pleasantries" with Waltrip, their discussion was "not substantive; they did not discuss the content" of a letter Waltrip wrote complaining about the investigation.
May's attorneys are also likely to argue that the personal relationship between the Bush family and Waltrip justifies questioning the governor. Former president George H.W. Bush has known Waltrip for decades and has flown on SCI's airplanes. In March, the elder Bush appeared at a meeting of the International Cemetery and Funeral Association in Houston. The former president charges up to $100,000 per appearance and is known for being selective in accepting offers. According to sources in the funeral industry and articles in the Death Care Business Advisor, a trade newsletter, Bush's appearance at the confab was paid for by SCI.
Former Texas Attorney General Jim Mattox is an expert on subpoenas issued to public officials. During his eight years in office, Mattox, a dyed-in-the-wool Democrat, fought numerous attempts to depose state officials. But he says that Bush will likely lose his fight on this subpoena. Bush, says Mattox, is "probably close enough to this thing to justify a deposition." And he adds that Waltrip's conflicting interrogatories combined with the Bushes' friendship with Waltrip "probably justify an inquiry as to whether Waltrip talked to the governor."
So now it appears that Bush, as well as Allbaugh and Bush's general counsel, Margaret Wilson, will all be deposed in a growing whistleblower and influence-buying scandal that just won't go away, a persistent hangnail in Bush's well-manicured run for the presidency.