Rush to judgment on the Rick Perry indictment

Yes, Rick Perry was exercising his lawful powers. So was Richard Nixon in ordering the Saturday Night Massacre.

I don’t know whether Gov. Rick Perry is guilty of anything, or – assuming he is – whether the special prosecutor has the goods to prove it, let alone whether the right-leaning Texas Court of Criminal Appeals would sustain such a conviction. (Since Perry isn’t an innocent person on Death Row, the court will tend to give him all the breaks.)

I do know that most of what has been written about the case since the indictment has been nonsense, with Blue and Red pundits competing to see who can say the nastiest things about the prosecutor.  See Simon Maloy and Kevin Drum on the Hack Gap.)

Worse, everyone seems to be ignoring the obvious fact that, even if Perry can’t be convicted of a crime, his conduct in this case ought to disqualify him for the Presidency. 

Forrest Wilder of the Texas Observer offers some facts and analysis in rebuttal, and Jeffrey Toobin of the New Yorker demolishes the “But Mom, all the kids do it!” defense.

Here are the facts, as currently understood:

1. The Public Integrity Unit of the Travis County (Austin) DA’s office prosecutes public corruption cases involving the Texas state government, since Austin is the capital. Since that unit carries out what is in effect a statewide function, it – unlike the rest of the DA’s office, which is supported by local taxes – is paid for by a special appropriation from the Texas Legislature.

2. One of the cases brought by the PIU involved a grant of $11 million from a scandal-ridden state cancer research fund to a politically-connected company owned by donors to Perry and Greg Abbott, the AG and Republican candidate to succeed Perry. The grant application had not been adequately reviewed, and allegedly that fact was kept from the grant-making committee.

3. Travis County is Democratic, while the state government is solidly Republican. Neither the legislature nor the state Attorney General is going to hold Perry and friends accountable. So if Perry were to gain control of the Public Integrity Unit, he and other Republican office-holders could commit crimes with impunity.

4. The Democratic DA of Travis County got nailed for drunken driving, and the post-arrest videotapes don’t  show her in a very good light.

5. If she were to quit, the Governor would appoint her successor.

6. Perry demanded the DA’s resignation. She refused, and the county officials who could have fired her decided not to do so.

7. Perry threatened to veto the appropriation for the Public Integrity Unit if the DA didn’t resign. She didn’t. He did.

8. That veto had the effect of shutting down the cancer-institute investigation until the Travis County board voted to support the Public Integrity Unit with local tax money.

8. A local NGO demanded and got a judge appointed to look into the matter. He appointed a special prosecutor. Neither is an obvious partisan; the special prosecutor had the backing of both Texas Senators for appointment as United States Attorney.

9. After months of grand jury proceedings, the special prosecutor indicted Perry for abuse of power. The indictment makes two charges – coercion of a public official  and abuse of office – and does not specify the underlying facts.

So much for the facts. Now some comments.

1. In contemporary practice, white-collar crime indictments often read like the prosecutor’s opening statement, laying out all of the evidence to be introduced. That’s a good way for the prosecutor to get good press, and perhaps poison the minds of potential jurors who have read press accounts of the indictment. But it’s not legally necessary, and may not be good courtroom tactics, since every fact alleged in the indictment must be proven at trial.

2. The fact that Perry had the lawful power to issue a veto, and therefore to make a veto threat, is not dispositive. Lawful powers can be used for criminal purposes, and doing so is a crime. The Saturday Night Massacre was the exercise of President Nixon’s lawful power order his Attorney General to fire Archibald Cox.

3. If in fact, as Forrest Wilder hints, Perry through an intermediary promised the DA to give her a cushy job if she would resign, that seems to me like straight-up bribery, and obviously criminal. Yes, that sort of thing happens all the time. But as Toobin points out, that’s not a legal defense. No, I don’t know why the indictment doesn’t include a bribery count; maybe that’s covered by the abuse-of-office and coercion charges.

4. Assuming for the sake of argument that Perry is innocent in law, or alternatively that he is guilty of an attempt to obstruct justice but that the prosecutor does not have sufficient evidence to prove that charge (that is, he might have intended to interfere with the criminal probe of cancer funding, but have been careful enough not to leave fingerprints), his attempt to take over the one agency that could hold him and his cronies accountable constitutes an outrageous abuse of power. And doing so in the context of stealing millions of dollars from cancer research to enrich political cronies makes it morally disgusting, to boot.

Look, I’m glad and proud that the Blue team prefers accuracy to partisanship, but would it really be too hard to add that Perry is, at best, a legally innocent scoundrel, grossly unfit for the office he holds, let alone the Presidency?


Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

25 thoughts on “Rush to judgment on the Rick Perry indictment”

  1. I have two major problems wit the indictment. The first is that the post-arrest tapes don't just show Rosemary Lehmberg in a bad light. They show her abusing her power in much the same way that Perry is getting indicted for. She was threatening the officers processing her with the powers of her office. That sort of behavior goes beyond indefensible and all the way to completely unacceptable. She needed to go and handed Perry a good excuse (and it is just an excuse) to force her out.

    The second is that Perry wasn't just using some obscure reading of his powers to behave in a criminal way. The Texas legislature, in its vastly less than infinite wisdom, wrote a law that is nothing but a conflict of interest and abuse of power. Giving the governor veto power over the budget of the Office of Public Integrity was an idiotic and corrupt act. But it's what the legislature intended. They handed the governor the power to do what he did on a silver platter. And I don't like indicting someone just because they used their powers in such an obvious way.

    Now, if anyone can prove the bribe aspect of this, that I could see being a crime. But the charges as specified leave me cold. Someone could probably talk a Travis County jury into a conviction but, like the case against Tom Delay that everyone got so excited about until the conviction was overturned, I just don't see this case as withstanding appeal.

    1. I think that you miss the broader point. A candidate for public office should be held to a higher standard than "I haven't been convicted yet." Take Chris Christie (please). When should it be clear that his actions relative to the tunnel funding, bridge closing, Hurricane relief, etc., bar him from public office: Conviction of a crime? A mere charge of a crime? Or a review of what we may call the gestalt of his administration–bullying of anyone who dares to cross him and his blatant misuse of his public powers to promote the political advancement of Chris Christie?

      One of the unhappy legacies of Watergate is that we're always looking for the smoking gun that proves criminal culpability. Yet, that is simply too strict a standard for throwing out the Christies and Perrys who are clearly rascals.

      1. Stuart, I think you are conflating "held to a higher standard" with the prosecutorial power of the D.A. in pursuing a felony indictment. That, specifically, was the subject of J. Michael's comment, and I think he is correct–a prosecutor using his power of indictment to get a charge that can't stand appeal is also an abuse of power.

  2. It's not an abuse of power to do the right thing and to thereby benefit on the side. The DA behaved in a manner grossly inconsistent with her professional obligations. She should have resigned, and failing that she should have been fired. When she did not, the Governor was well in the right to apply legally permissible pressure to encourage her to resign and/or to encourage her superiors to fire her.

    Yes, the Governor stood to benefit from her removal from office given his power to appoint a successor. But so what? If he did not hold this power nobody in their right mind would have concluded that he acted poorly in doing what he did. So what was he supposed to do? Ignore a gross abuse of power by Travis County officials because taking action to rectify it would vaguely and indirectly benefit him? The structure of the Texas government is what it is. There is a much stronger case that Ms. Lehmberg and her superiors in Travis County abused their power and the public trust by refusing to do what was clearly called for because "the other team" would get to appoint her successor.

    1. The governor has no right whatsoever to remove another elected public official. They do not work for him they represent their voters and those are the only people who should remove them from office. Is democracy that hard to understand?

      In making offers to the DA to get her to resign, even after the veto, is where criminal acts occurred. Probably not prior to the veto at all.

    2. According to other pieces I've seen, DAs in two other counties were convicted of DUI during the time this was going on, with no call by the governor for their resignations. If true, that would make Lemberg's actions less material to the discussion.

      And even if you think the head of an organization is unfit, defunding the entire organization seems just a mite excessive. (And yes, the legislature placed the power to do so in the governor's hands, but not in an explicit fashion, merely as a side effect of the fact that the legislature was appropriating money in the first place.)

      1. Again, it's not the DWI conviction that's the biggest problem with Lehmberg's behavior. Did those other DAs arrested threaten the officers in the course of their arrests? And the governor was in a different position with them: he only has control over a part of the budget of the Travis County DA's office and none of the budget for DAs. So he wasn't in a position to in any way affect those other DAs.

  3. If I recall correctly, Perry did much worse than direct a few million bucks in a state-administered cancer charity go to his cronies: he took the state's entire pension scheme and public university endowments, and put them under the management of a political crony (on a commission basis, so that's quite a payday). Some of the investments those moneys subsequently went to were neither sound nor free of political connections.

  4. It seems to me that Siegelman and Blagojevich were convicted on the same or less. I didn't hear any Republicans screaming about those convictions.

    1. Very different cases (from each other, I'm not trying to compare to Perry): Siegelman was convicted for being a Democrat, in a nakedly corrupt and unfair process. Blagojevich was convicted because he was on tape selling a US Senate seat.

  5. If I'm the governor, do I have to fund an agency whose integrity I have cause not to trust, if I have the authority to do otherwise?

    Reading only the lede of the story about the scandal-ridden cancer center, I see that its former director has been indicted. I don't see (and maybe it's deeper in paywall-land) what that has to do with Gov. Perry.

    1. Rod Blagojevich had the authority to appoint Senator Obama's replacement. That didn't save him when he tried to use that power for his unjust personal enrichment.

      The fact that Perry has the authority to veto the agency's budget doesn't change the fact that he's in deep trouble if a prosecutor can show that the agency he was striving to eradicate was investigating corruption in Perry's circle.

      The case against Perry isn't that he claimed powers he doesn't have. The allegation is that he used those powers for improper ends. Many of his defenders seem willfully blind to the actual charge against which they're defending their guy.

      1. I've seen no allegation that Perry did anything for personal enrichment. Hardball politics ain't corruption.

        Interesting detail here, though, from the Texas Wayback Machine:

        "It's the first time in nearly 100 years that a Texas governor has been indicted. The last one was Democrat James Ferguson, who was convicted and removed from office for vetoing funding for the University of Texas after objecting to some faculty members."

    2. The deal is that Perry practiced crony politics. The cancer center rewarded campaign contributors. See here:

      Again, the issue is not "What did Perry know and when did he know it." Rather, it is that the cancer center and other sorts of sources for research dollars were operated as an extension of Perry's political apparatus. Just because Perry didn't know specifics doesn't clear him if he established a system that was designed to use state funds to reward his political contributors.

  6. "even if Perry can’t be convicted of a crime, his conduct in this case ought to disqualify him for the Presidency. "

    Well, "disqualify" is an ambiguous word, isn't it. If you mean "show the electorate how unfit he is" then I have bad news for you about our electorate.

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