by Robert Emmett Murphy, Jr.
STOP THE PRESSES: “All Things Crime Blog” provides better reporting than most professional journalists on a story of national importance! Blogger without law degree provides better legal analysis than rich and famous celebrity Judge with thirty-plus years legal experience.
This is a follow-up to my summary of the Rick Perry indictment: So Do You Want to Understand What Just Happened to Rick Perry?
With the exception of the law suit the US House of Representatives voted to file against President Barack Obama, the most politically-charged action currently unfolding in our legal system is the indictment of Rick Perry. I chose to write about it because most news agencies were not devoting the ridiculously large amount of column space required to really explain what was going on – the focus was the political implications, not the fascinating conundrum that an indictment grounded in uncontested facts and explicit law would also be so deeply problematic at the same time.
As the days went by, the reporting on this story didn’t get better, it got worse.
The indictment’s critics seem to be dominating the national conversation, and as few challenge the fact that the indictment is problematic, that, in of itself, is not necessarily the hijacking of the story by partisan political interests. Moreover, a number of the indictment’s opponents are on the opposite side of the political fence from Perry, like Alan Dershowitz and David Axelrod. But in what is a disturbing pattern, almost none of the critics address the contents of the indictment or the letter of the law.
The worst offender was Fox News’ legal expert, Judge Jeanine Ferris Pirro. Whatever merits the case does, or does not have, Judge Jeanine Ferris Pirro makes a fool of herself during what her admirers gleefully call an “epic rant.” (https://www.youtube.com/
A famous court of appeals judge once said, “A grand jury could indict a ham sandwich.”
As it happens, that judge, Sol Wachtler, had just been indicted himself, and later pled guilty. Want to read a really wild true crime story? Read that one. But not his version (he wrote a book); despite confessing to the crime, he never stopped blaming his victim.
Now I believe in the rule of law, but I am not going to sugarcoat this one.
The indictment of Texas Gov. Rick Perry for abuse of his veto power and coercion of a public servant is pure unadulterated hogwash! It makes DAs like me cringe in embarrassment. And it’s not just me – even former Obama White House political advisor David Axelrod calls the indictment “pretty sketchy.”
Now, I’ve spent my career in the assignment of blame – more than three decades as a prosecutor, superior court judge, and elected district attorney. I have empaneled grand juries, instructed grand juries, and ruled on grand jury actions.
Nothing about this indictment makes sense.
A sitting governor facing 109 years in prison because he threatened to veto funding to a drunk district attorney’s public integrity unit. Really?
No one disputes that the law gives the governor the power to veto funding. Period. End of the story.
No, not end of story, as demonstrated by Judge Pirro’s failure to address the contents of the indictment and the letter of the law that has been broken. Governor Perry is charged with coercion, using treats and taking actions against a Public Official he had no authority over to force that Public Official to bend to his will. No one disputes that the Constitution of the State of Texas gives the governor really broad powers to veto funding – except when that specific veto is explicitly in violation of a criminal statue in the penal law. To give a real-world example:
Boeing Corporation has every right to open up a new plant anywhere it wants, even if that new plant will be in a state that is legislatively hostile to unions, and the plant itself will have a non-union workforce. What Boeing is not allowed to do is publicly threaten to open up a non-union plant in another state as a strong-arm tactic during negotiations with the union workforce in its existing plant – that’s flat-out illegal under Federal law. Well, it made the threat, and started making steps towards carrying out the threat, and the Feds hit them like a ton of bricks. This sparked a huge partisan outcry because the Obama Administration was allegedly using a law enforcement agency to show favoritism to the union at the expense of the company owners, but it was ultimately settled out of court with terms largely favorable to the union, because the law is the law.
So now every time a governor vetoes funding or legislation, will he or she be subject to an investigation or an indictment because people complained it was political?
Here she hits on the key problem with the indictment, it may threaten separation of powers. The Texas Governor is really granted broad veto power under the Constitution, more power than the President of the United States enjoys. Undermining this it changes the power relationship between the Governor and the Legislature. But she doesn’t put it in terms of “separation of powers” probably because the indictment’s key vulnerability is also the back-bone of its legitimacy. By defunding a District Attorney’s Public Integrity Unit, part of the Judiciary, which is supposed to operate independently of the Governor, just because they won’t allow him to exert direct influence over their day to day operations, seems to be an even more explicit violation of separation of powers, and with a more demonstrable threat to the public good.
A little back story here – the DA, Rosemary Lehmberg, is a drunk. Yes. The chief law enforcement officer of Austin County, Texas, is not just a drunk – she’s a convicted drunk driver. She has actually spent time in jail. Imagine: the chief law enforcement officer is a convict who served jail time!
Now, I have no sympathy for drunk drivers. They don’t have to get behind the wheel of a car, especially a DA who certainly had other options. On the night she chose to drive her Lexus, she had an open vodka bottle on the front seat and was weaving in and out of a bicycle lane.
I have seen the consequences of driving drunk. Innocents slaughtered by thousands of pounds of steel because a drunk chose to get behind the wheel of a car.
And folks, it’s even worse than this. Her blood alcohol level was three times the legal limit. And her behavior – both before and after her arrest – was so outrageous, so threatening, so belligerent, so combative, the woman had to be strapped down.
And this woman actually thinks that she should remain the person who decides who gets indicted and who doesn’t?
Now we have to count the words.
Judge Pirro devotes 197 words to bash Rosemarie Lehmberg. (Well, more, actually, she also bashed Lehmberg earlier in the rant, but without going into detail.)
How many words did she devote to explain the contents of the indictment and the law broken? Depending on how you understand the word “explain,” between 23 and 45. In those spare number of words, she failed to mention that another Texas Governor was indicted, impeached, and convicted for doing essentially exactly the same thing Perry did. His name was James E. “Pa” Ferguson, look him up.
So, Gov. Rick Perry says that someone like this is not fit to be DA or certainly to run the public integrity unit, adding that he would veto funding for that program.
Now, DA Rosemary doesn’t like that, takes umbrage at this along with a watchdog group that filed a complaint against Perry, and a special prosecutor is appointed.
Now, I created a public integrity unit in my office for the specific purpose of investigating public officials and maintaining the integrity of their offices.
What she skips is that Perry never took this action against two other Texas DAs that had DUI convictions on his watch. They were both Republicans. In addition to being a Democrat, and the last holder of an office with State-wide authority that was not his ally/appointee, Lehmberg was actively investigating Perry’s closet associates and signature projects. Had he successful forced her out of office, he was empowered to appoint her replacement, which may have threatened the integrity of the investigations that would directly impact Perry and his friends. That’s the very definition of conflict of interest.
You may recall that the Austin County District Attorney’s Office is known for ridiculous political prosecutions. Evidence: Republican Gov. Kay Bailey Hutchison indicted three times, acquitted every time. Republican Congressman Tom Delay indicted, conviction immediately overturned.
The difficulty in getting a true bill on Hutchison, and then her acquittal when Travis County finally did, was certainly an embarrassment, but DeLay’s a different story. He was part of the Jack Abramoff circle, a literally nation-wide network of dirty political operators. That scandal proved to the most impactful series of mostly successful anti-corruption prosecutions of Federal-level elected offices since ABSCAM in the 1970s. A jury of citizens saw there was evidence to convict DeLay of money laundering, but then a Republican Judge (an elected official and therefore a political figure) said there was no evidence. The overturning of the conviction, which is the process of being appealed, is more controversial than the conviction itself.
Austin County – in case you don’t know – is the only Democratic county in a completely red state of Texas.
Bigger picture: Gov. Rick Perry is frequently mentioned as a 2016 presidential candidate. As of late, his handling of immigration at the Texas border has been applauded nationwide.
Republican Gov. Chris Christie also under federal investigation for a traffic jam, and Republican Gov. Scott Walker under federal investigation, both of them frequently mentioned as possible 2016 candidates.
This is where she launches into charges that this is part of a nationwide conspiracy of Democrats to subvert democracy and establish single party rule, Communism, atheism, and mandatory gay-porn training films in our nation’s elementary schools and Sharia law in all our communities.
Am I being snide and factually absurd? Yes, but no more snide and factually absurd than she, because of something else she failed to mention.
Perry public threatened to veto funding if Lehmberg didn’t resign. That, in and of itself, is technically illegal, but also it is a weak enough charge that it really would’ve been absurd to pursue it. When the threat was made, the illegality of the threatened act was made clear to him. And he went and did it anyway.
As the law was clear, and the facts not in dispute, no one had any choice but to present the facts to a Grand Jury. But no one wanted to. This case was kryptonite because of the obvious partisan over-tones. This case was both a no-brainer and a career wrecker. Travis County recused themselves because of the obvious conflict of interest issues (note how Judge Pirro hinted this 
was Lehmberg’s indictment without really saying so? Well, it isn’t Lehmberg’s indictment). In fact, every Democrat presented with the complaint (filed by a citizen’s watch-dog group) recused him/herself. That meant it landed on the desk of Judge Billy Ray Stubblefield of the 3rd Judicial District, who is now officially the third most unhappy person working in the Texas Criminal Justice system. You see, he’s a Republican, and was in fact appointed by Perry. He was thus placed in a lousy position — the law was very clear, so he was without a choice in the matter; he had to assign a Special Prosecutor and a Judge to preside over the grand jury. He had to make sure this went forward even though to do so would make him guilty of the sin of apostasy in the eyes of Texas Republican power-structure.
Stubblefield named Mike McCrum as Special Prosecutor. McCrum’s much admired, with no party affiliation, and has been publicly critical of the Obama Administration in the past. McCrum was the figure most responsible for establishing fact before the citizens sitting on the Grand Jury. Stubblefield named retired Judge Bert Richardson of Bexar County to preside; he’s another Republican. Richardson was the one most responsible for making sure the citizens sitting on the Grand Jury understood the laws in play. These two are now officially the first and second most unhappy persons in the Texas Criminal Justice system.
Currently, McCrum is getting most of the brunt of the ire of the pundits, who usually do name him in their rants. But remember, the facts are not in dispute. This case will hinge on if the facts reflect what is illegal under the law, and if the law itself is Constitutional. So really, only Richardson was the guy in the position to unfairly manipulate the process, and will be accused of doing this whether he did so or not. Is it any wonder a retired Judge was given this thankless job?
So there’s not a single Democrat in any official capacity involved in the Grand Jury that reviewed the charges against Rick Perry, but the indictment is still part of a nationwide conspiracy of evil Democrats.
Pirro’s last line:
Like I said, a judge was famously quoted as saying a grand jury could indict a ham sandwich. Apparently they like ham in Texas.
No. But they certainly like it when you ham it up at Faux News.
The take-away is this; whether or not the indictment holds up, Perry brought this upon himself. Lehmberg was holding her office legally, and he had no authority to remove her from that office. And attempt to do so via veto was explicitly illegal, and he was fore-warned of that, but did it anyway. His withholding of funds did the public harm (lawyers and investigators within PIU were laid off), and of course she was actively investigating him, or at least his close associates. It is the obligation of all public servants to avoid misconduct or the appearance of misconduct, and Perry clearly failed in that obligation.
You will not be surprised when I say that the indictment should hold up, and Perry should be convicted. I go one step farther; because here, typing away in my windowless room receiving no tan except from the blue lift of my computer monitor, I’ve decided on the most appropriate sentence for Mr. Perry:
No, not 109 years in jail. A mere 100 weekends (or about 1,600 hours) of community service assigned to a facility housing undocumented minors awaiting processing.
Click here to read Robert Emmett Murphy, Jr’s previous post on the Rick Perry indictment:
So Do You Want To Understand What Just Happened To Rick Perry?