Rick Perry's controversy snowballs: How his indictment spawned a new flap

Prominent voices on the left have called the indictment trash. They know there's a better way to turn Texas blue

Published August 25, 2014 11:43AM (EDT)

Rick Perry                                 (AP/Manuel Balce Ceneta)
Rick Perry (AP/Manuel Balce Ceneta)

The indictment of Rick Perry on felony charges by a Texas grand jury has revealed a split among left-of-center Americans, dividing progressives and Democrats who think the indictment is dubious or worse from others who defend it.  The first category includes the New York Times editorial board, Clinton adviser David Axelrod, progressive pundits Jonathan Chait and Matthew Yglesias, Ian Millhiser at the Center for American Progress, Alan Dershowitz and many others, along with yours truly.

Prominent center-left individuals who support the indictment are … well, they aren’t easy to find.  To be sure, there are lots of hyperpartisan trolls who hide their identities behind juvenile screen names in comments sections and accuse those of us on the center-left who have raised doubts about the indictment of being shills for Rick Perry or secret conservatives.  The pseudonymous trolls should acquaint themselves with John Adams, who, his Patriot values notwithstanding, defended the British soldiers in the Boston Massacre Trial of 1770 and got them acquitted:  "Facts are stubborn things and whatever may be our inclinations, or the dictums of our passions, they cannot alter the state of facts and evidence."

The two most high-profile defenders of the Perry prosecution in recent days have been James C. Moore, who defended the indictment against “poorly informed Democrats” in an Op-Ed at the Huffington Post, and Jason Stanford, who did the same in a piece for Politico.  Moore and Stanford are the co-authors of "Adios, Mofo:  Why Rick Perry Will Make America Miss George W. Bush" (2011).  Asking them for their opinion of the legal merits of the case against Gov. Perry is like asking Dinesh D’Souza whether Republicans in Congress have adequate legal and constitutional grounds to consider suing or impeaching President Obama.

The same two major talking points are repeated by Moore, Stanford and other defenders of the indictment:  First, key figures in the prosecution are not all partisan Democrats, and second, the indictment will avert a massive Watergate-style coverup by Gov. Perry.

Here’s Stanford on the first point:

… Perry should explain why a Republican judge [Bert Richardson] appointed Michael McCrum special prosecutor. McCrum once served in the George H.W. Bush administration, and in 2009, Sen. John Cornyn, who said the indictments smacked of prosecutorial overreach, nominated McCrum to be a federal prosecutor again in the Western District. For a Democratic conspiracy, there sure are a lot of Republicans in key roles.

No politics here, folks, move along!

A couple of points. Imagine what partisan Democrats would have written if Bert Richardson, a Republican judge, had not appointed McCrum to decide whether there was anything to the complaints against Perry, after disgraced Democratic Travis County District Attorney Rosemary Lehmberg had recused herself.  Imagine the headline in the partisan Democratic media:  “Republican Judge Squelches Perry Corruption Probe!”  As for the motives of McCrum, it is not impossible that a sincere and nonpartisan career prosecutor has succumbed to the bias of prosecutors toward … prosecuting.

In any event, beginning the tale with Richardson and McCrum, and ignoring the political warfare that preceded it and provides its context, is the equivalent of the following hypothetical summary of the impeachment of Bill Clinton:

In August 1994 a three-judge division of the D.C. Circuit appointed well-respected attorney Kenneth Starr to replace Robert B. Fiske as the head of the independent counsel investigation into the Whitewater scandal.  Starr unearthed wrong-doing by the president.

Politics?  What politics?

Then there’s the claim that Perry’s real motive, in trying to get the disgraced Rosemary Lehmberg removed from supervising the statewide public integrity office before vetoing an appropriation for it, was to prevent that unit’s investigations into alleged wrongdoing in other matters.  The theory is that Perry might have appointed a Republican to replace Lehmberg, whereupon that Republican appointee might have criminally abused his or her power as part of a far-reaching coverup.

Those are a lot of hypotheticals, which add up to an accusation against Perry of a “pre-crime” of the Philip K. Dick kind.  What is more, those who take this line of defense of the Perry indictment find it necessary to introduce an entirely new and perhaps nonexistent character — a possible criminal Republican appointee who would agree in advance of appointment to carry out a future coverup to protect Perry. A pre-crime with an imaginary accomplice! This plotline might make for a gripping episode of “House of Cards” or the new “Dallas,” but it seems pretty flimsy as a justification for the first felony indictment of a Texas governor since the indictment of Gov. Jim “Pa” Ferguson in 1917 by another Travis County grand jury.

In their defenses of the Perry indictment, neither Moore nor Stanford mention Texans for Public Justice. But neither this nor the earlier prosecution of Tom DeLay can be understood without understanding the central role of this group, which acts more like an attack dog than a public interest watchdog.

Texans for Public Justice filed the complaint that led to the Perry indictment.  It also filed the complaint that led to the earlier indictment of Tom DeLay.  According to the Texas Tribune:

Over the years, TPJ has also filed dozens of complaints against elected officials, mostly Republicans but also some Democrats. The majority of the complaints have been filed with the Texas Ethics Commission. Before last week, the complaint that had drawn them the most attention came in 2003, when TPJ noticed discrepancies between paperwork filed by DeLay’s Texans for a Republican Majority PAC with the Texas Ethics Commission and the IRS.

The founder and head of Texans for Public Justice is a native of Michigan, Craig McDonald, who rose through the ranks of the public interest movement on the left.  He worked for Ralph Nader’s Public Citizen activist group and created the Texas office of Public Citizen in 1984.  According to TPJ, its board of directors includes, in addition to McDonald, two other veterans of Nader’s Public Citizen; a former aide to the late Texas Democratic Gov. Anne Richards who was also a Clinton-Gore organizer; and a journalist who, according to TPJ, “has written for numerous progressive publications.”

Curiously, this group that pores over campaign donation reports and other public records in order to file ethics complaints and criminal complaints against elected and appointed officials refuses to disclose its own individual donors.  When I emailed Texans for Public Justice and asked why, McDonald was kind enough to reply:

It is true we do not disclose individual donors. Because we often challenge the powerful, we do not subject our supporters to the retaliation or intimidation that we face. If our organization endorsed political candidates or contributed to political campaigns which we don't, we would disclose those names. In recent years our top individual donors, such as they are, have principally come from the hi-tech sector.

While its individual donors are hidden from public scrutiny, Texans for Public Justice does disclose its institutional donors, which are progressive or centrist foundations:  the Piper Foundation, the Open Society Foundations, the Sunlight Foundation, the Winkler Foundation, and Good Jobs First.  The fact that George Soros created and funded the Open Society Foundations is catnip for the right, which can claim that a “Soros-funded” liberal group has tried to bring down both Tom DeLay and Rick Perry.

I believe that anybody who publicizes genuine corruption or even run-of-the-mill sleazy and perfectly legal wheeling and dealing in Texas or anywhere else is doing God’s work.  But then, I think that the Salvation Army with its office in Times Square in the musical “Guys and Dolls” was doing God’s work, too.  When Brother Arvid and Sister Sarah start to spend much of their time filing criminal and ethics complaints against New York City politicians, we are entitled to wonder whether the Salvation Army has crossed a line.

I grew up in Austin in a family of liberal Democrats, worked in the state Senate for a liberal Democrat, and even during the period in my youth when I was a neoconservative (Cold War liberal) I remained a registered Democrat and considered myself a “paleoliberal” in the FDR-LBJ tradition, as I do today.  Without being a well-paid (or even poorly paid) “Democratic strategist,” I know exactly how to make Texas a Democratic-majority state.  All the Democrats need to do is to persuade great numbers of Texans who now vote for Republicans, including the nearly 40 percent of Texas Latino voters who voted for Perry in 2012, that the Democratic Party better represents their values and interests.

To turn Texas blue, it is not necessary to raise money from out-of-state progressive foundations and secretive rich people in order to file great numbers of harassing ethics and criminal complaints against Republican officeholders.  Indeed, that strategy is counterproductive.  It is bad in itself, because it criminalizes ordinary politics.  It is ineffectual, because few if any voters make the procedural purity of politicians their criterion for choosing one party over another.  And last but not least this “Gotcha!” strategy provides a template for the Republican right to follow in the future to the detriment of progressive politicians in Texas and elsewhere.

I don’t know whether Gov. Perry will be found guilty and imprisoned or not.  But I think it is safe to predict that, because of its success in triggering Perry’s indictment, Texans for Public Justice will inspire right-wing imitators in Texas and other states in the years and decades to come.  If liberal “public interest groups” can be funded by out-of-state foundations and rich individuals to specialize in “lawfare” against state officials of whose policies they disapprove, why can’t conservative “public interest groups” do the same thing?  If Texans for Public Justice refuses to make public the names of its individual donors, isn’t that a precedent that right-wing activist groups can cite in the future, when they, too, try to manipulate the judicial system to bring down Democrats and moderate Republicans?

By Michael Lind

Michael Lind is the author of more a dozen books of nonfiction, fiction and poetry. He is a frequent contributor to The New York Times, Politico, The Financial Times, The National Interest, Foreign Policy, Salon, and The International Economy. He has taught at Harvard and Johns Hopkins and has been an editor or staff writer for The New Yorker, Harper’s, The New Republic, and The National Interest.

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