Texas Governor Rick Perry has been trying to leapfrog New Jersey Governor Chris Christie for some time—but not like this. Instead of jumping past Christie in the 2016 GOP presidential race, Perry jumped past Christie in the criminal indictment sweepstakes, scoring on two counts—abuse of official capacity, a first-degree felony, carrying a penalty of 5 to 99 years in jail, and coercion of a public official, a third-degree felony, carrying a penalty of 2 to 10 years in jail. Both carry fines up to $10,000.
An Austin, Texas grand jury handed down the two count indictment late Friday afternoon. They concern a coercive veto of over $7 million, intended to force the resignation of Travis County District Attorney, Rosemary Lehmberg in June 2013. In the near future, Perry will have to present himself to a judge and be booked like a common criminal defendant, including fingerprinting and a mug shot.
“I think it certainly will be a big deal with the liberal media – Slate, Salon – and therefore for the national media,” said Ray Sullivan, Perry’s spokesman during his ill-fated 2012 presidential campaign. Far be it for Salon to make the man a liar. But it should be a big deal in Texas as well. They haven’t removed a sitting governor in Texas since 1917. In that case, Democrat James E. Ferguson was impeached and removed from office, also for vetoing funding—in that case, for the University of Texas, after objecting to some faculty members.
"The veto in question was made in accordance with the veto authority afforded to every governor under the Texas Constitution,” said Mary Anne Wiley, General Counsel for Perry, in a statement. “We will continue to aggressively defend the governor's lawful and constitutional action, and believe we will ultimately prevail." But the fact that Ferguson was also removed from office for a coercive veto casts considerable doubt on those confident claims.
Both counts of the indictment stem from Perry’s efforts to force Lehmberg to resign from office following her conviction for drunk driving a few months earlier. Lehmberg pled guilty, served about 20 days in jail, underwent rehabilitation, and survived a civil suit which tried to force her from office in December 2013.
But Perry, who has no legal authority over Lehmberg, sought to force her to resign by first threatening to veto and then vetoing more than $7 million in state funding for the public integrity unit overseen by Lehmberg. The unit investigates possible public corruption involving state government officials, because the state capital, Austin, is located in Travis County, thus making Lehmberg the only Texas Democrat left with some form of statewide power—at least for now.
The Texas Observer summarized the full political import:
The Public Integrity Unit might be the most important office in state government run by a Democrat. Gov. Perry has been in office for 14 years—every nook and cranny of state government is filled with his appointees. The Public Integrity Unit is the rare piece that he doesn’t control. In 2005, the work of the Public Integrity Unit led to the indictment of former U.S. House Majority Leader Tom DeLay. So naturally, for years, Republicans in the state have tried to strip that power from the Travis County DA and fold it into Attorney General Greg Abbott’s office.
What’s more, the Public Integrity Unit was in the process of conducting an investigation of the Cancer Prevention and Research Institute of Texas. CPRIT received a ton of money from the Legislature to award grants to high-level medical research projects. The problem: a lot of that money was going to people who shouldn’t have gotten it. And some of those folks had close ties to Perry. Just a few months ago, Lehmberg’s office indicted CPRIT’s former director over his allegedly improper disbursement of an $11 million grant. But when Lehmberg got pulled over with the potato juice in her car last spring, the investigation was just underway.
Special prosecutor Michael McCrum was appointed by a judge from Williamson County, a conservative suburb of Austin, but the case was not expected to go anywhere, according to Austin Statesman investigative reporter Tony Plohetski [his story on the indictment here], who appeared on the Rachel Maddow show just hours after the indictment was announced.
“This was a real bombshell to a lot of people in Austin's legal community," Plohetski said. "I've been talking to attorneys, prosecutors, defense attorneys here in Travis County for several weeks leading up to [Friday's] indictment, and virtually no one thought that there would be an indictment in this case.”
But there was one exception, he noted—and that was the one who mattered. “The only signal that there might be an indictment was an interview I actually conducted several months ago, in April, with Michael McCrum, the special prosecutor in this case. At that point he did say that he is deeply concerned about the governor’s actions. But beyond that, that was really the only signal that the governor might ultimately be indicted, as he was today.”
Ian Millhiser, at Think Progress, argued that Perry might have a strong case for his veto authority:
The Texas Constitution gives the governor discretion to decide when to sign and when to veto a bill, as well as discretion to veto individual line-items in an appropriation bill. Though the state legislature probably could limit this veto power in extreme cases — if a state governor literally sold his veto to wealthy interest groups, for example, the legislature could almost certainly make that a crime — a law that cuts too deep into the governor’s veto power raises serious separation of powers concerns. Imagine that the legislature passed a law prohibiting Democratic governors from vetoing restrictions on abortion, or prohibiting Republican governors from vetoing funding for Planned Parenthood. Such laws would rework the balance of power between the executive and the legislature established by the state constitution, and they would almost certainly be unconstitutional.
So an important question facing whichever court is tasked with trying Perry’s case will be whether a law preventing Perry from using strongarm tactics to push out a genuinely compromised public official is an unconstitutional restriction on his discretion as governor or a valid means of reigning in corruption. This is not likely to be an easy question for the judges, and potentially, justices, who are called upon to resolve it.
But Lehmberg had already survived a civil trial attempting to remove her. Why should Perry have another whack? Besides, having a drinking problem—and taking responsibility for it—is not quite the same as being corrupt.
Plohetski portrayed the two sides succinctly. “His position is, ‘Yes, I vetoed the money, but I used my constitutional right, as governor of the state of Texas, to do so.’” Plohetski said. “But then you have others, including apparently this grand jury, who say, ‘Wait, not so fast. Yes, you may have constitutional veto authority, but you can’t attach a threat to that veto authority. “
“Exactly,” Maddow responded. “You may have the constitutional right to vote, for example; you don’t have the constitutional right to sell your vote. Your action is not necessarily independently evaluated from its motives, in a case like this. At least that’s the allegation.”
Maddow’s analogy appeared particularly apt as way of characterizing the first, more serious count of the indictment, which read, in part: “On or about June 14, 2013….’Rick’ Perry, with intent to harm another... intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant..."
The question for this count would ride on whether Perry had misused the funds he vetoed, as just specified, or whether his power as governor automatically ensured that he could not misuse such funds. Rightly or wrongly, this might well turn on obscure matters of Texas case law.
However, the second count appears to leave far less wiggle room for Perry, as it focuses much more directly on the act of coercion or attempted coercion, which Perry quite openly engaged in. (In April, the Texas Tribune reported that Perry even continued trying to coerce Lehmberg after he vetoed her funding.) That count reads, in part: “Beginning on or about June 10, 2013 and continuing through June 14, 2013...by means of coercion, to-wit: threatening to veto legislation... unless...Lehmberg resigned... “Rick” Perry intentionally or knowingly influenced or attempted to influence Rosemary Lehmberg, a public servant...in the specific performance of her official duty."
In bringing the indictments, special prosecutor McCrum expressed confidence.“There has been an immense amount of work that has gone into my investigation up until this point,” he told reporters after he announced the indictment. “I have interviewed over 40 people who were related in some way to the events that happened.”
Over 40 people? Chris Christie must be having himself a good laugh, right about now.