Less to the Perry Indictment Than Meets the Eye

The Pilot Newspaper: Opinion

There was certainly a lot of liberal schadenfreude at the news that Texas Gov. Rick (“Oops”) Perry had been indicted by a grand jury in Austin on two felony counts.

Schadenfreude, as you may remember, is a German word meaning “pleasure at another’s misfortune.” (I love how those Germans have a word for every emotion.) But, as so often happens when it comes to legal matters in the news, there may be less to this supposed “crime” than meets the eye.

I’ll admit, there was a certain amusement value to seeing Perry’s mug shot plastered all over the news and to learn that he’d lost his concealed carry permit while the charges are pending. Heavens! How will he fight off the coyotes on his morning jog, the way he once bragged of doing to The Associated Press? It was even more amusing to watch Perry defenders twist and turn trying to spin this charge.

For example, The Wall Street Journal’s Wingnut Laureate Peggy Noonan appeared on ABC’s “This Week” (or as I like to call it, “David Brinkley Spins in His Grave”) and blasted the indictment as “local Democratic overreach.” When host George Stephanopoulos pointed out that the prosecutor who brought the case was a Republican, Noonan simply handwaved that away: “That may be. But when you look at this case, it just looks crazy.”

In fact, Michael McCrum, the prosecutor in question, worked in the Bush/Quayle White House and was appointed by a Republican judge. Democratic officials in Travis County recused themselves from the case. But Peggy Noonan, like any good conduit for right-wing persecution fantasy, isn’t going to let something like facts turn her aside.

All that said, Rick Perry deserves the same presumption of innocence as anyone else, and he shouldn’t be convicted of a crime unless a crime was actually committed. So let’s look at the case.

It seems there’s this district attorney, a Democrat as it turns out, named Rosemary Lehmberg. Lehmberg was the head of what was called the Public Integrity Unit (PIU), which investigates wrongdoing by public officials.

One fine night in April 2013, Madame DA not only got arrested for drunk driving, but also made a grade-A, world-class ass of herself while doing it. On video. Lehmberg pleaded guilty to the charges, which is about all one can do when the cops find a bottle of vodka in your passenger seat and have video of you raving like lunatic down at the station.

Perry demanded that Lehmberg resign her position. Lehmberg refused, claiming that just because she was convicted of breaking the law, it didn’t mean she couldn’t go on being a DA. (Say what you like about Texans, you have to admire ’em for pure chutzpah.)

Perry threatened to veto the funding for the PIU, then did so when Lehmberg remained defiant. So Special Prosecutor McCrum got a grand jury to indict Perry for “abuse of official capacity” (on the theory that vetoing funding to compel or punish behavior was using said public funds for an improper purpose) and “coercion of a public servant.”

It probably didn’t help that the Public Integrity Unit was, at the time, investigating misuse of public funds in a grant to a major Perry donor. It also didn’t help that Perry didn’t demand the resignations of two other Texas DAs, both Republicans, who’d also been involved in drunk driving arrests.

And let’s be honest: Had Barack Obama pulled a stunt like this, Republicans would be screaming about “tyranny” and “Chicago Thug Politics” and adding it to their long list of impeachable offenses (right after "mentioning that he has things in common with other black people” and right before “inappropriate golfing.”)

However, “failure to do right,” as an old DA in this district once used to put it, isn’t a crime. You have to have violated some actual law, and several legal scholars have pointed out that interpreting the law the way McCrum wants to might very well be unconstitutional.

The Executive Branch, state and federal, uses the veto and/or the threat of the veto all the time to bargain or to get its way. It’s the way checks and balances and separation of powers work. There’s also what’s called the “political question” doctrine, which states that if the question is “fundamentally political and not legal,” the courts should stay out of it.

In other words, hardball politics may be distasteful, even unfair, but they’re not necessarily criminal. If you don’t like the way an executive uses executive power, don’t vote for him. Which is exactly what I suggest when it comes to Rick Perry.