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Perry still under indictment

Oops.

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This corndog has done nothing wrong

A judge on Tuesday rejected former Gov. Rick Perry’s attempt to throw out a two-count indictment against him, saying it’s too early in the case to challenge the constitutionality of the charges.

Perry’s attorneys immediately filed notice that they will appeal the 21-page ruling, which was issued Tuesday afternoon by Bert Richardson, a Republican; the appeals process could take months. The appeal will be considered by the Texas 3rd Court of Appeals. All five justices elected to that court are Republican; a sixth justice, who has not yet run in a partisan race, was appointed by Perry before he left office.

[…]

Attorneys for the former governor have been trying to get the two-count felony indictment thrown out. Perry’s attorneys have argued that the indictments — one count of abusing official capacity and one count of illegally coercing a public servant — violate both the Texas and U.S. constitutions.

“Texas law clearly precludes a trial court from making a pretrial determination regarding the constitutionality of a state penal or criminal procedural statute as that statutes applies to a particular defendant,” Richardson wrote.

However, the judge agreed with Perry’s attorneys that the second count of the indictment – coercion of a public servant – did not “sufficiently” explain why Perry’s actions were not protected because he was acting in his official capacity as governor.

Rather than dismissing this count, the judge said state law allows prosecutors to amend that count, and he granted them permission to do so.

You can read Judge Richardson’s order here. It gets technical in places, but it’s worth your time to read it; it will make enough sense even if you don’t possess a law degree. Judge Richardson has clearly not foreclosed Perry’s claims about constitutionality, but unless the appeals courts grant him his wish – which my reading of the order suggests would be unusual – those would be questions to ponder after the trial concludes. Needless to say, Perry doesn’t want to wait that long; as this companion Trib story reminds us, that could take years to play out. My guess at this point is that we’re headed towards a trial. I welcome any feedback from the lawyers out there. The Statesman has more, and a statement from TPJ is beneath the fold.

(more…)

Judge Richardson will stay on the Perry case

Good to know.

Bert Richardson

The way is cleared for Judge Bert Richardson of the Texas Court of Criminal Appeals to continue presiding over former Gov. Rick Perry’s criminal case, under an order by the judicial region’s presiding judge.

The order was necessary to allow Richardson to rule on a pending effort by Perry’s lawyers to dismiss the case, because Richardson has stepped up to the state’s high criminal court since he first was assigned the case.

[…]

Richardson has overseen the Perry case since 2013, when he was a visiting judge who presided over cases in different counties. He won the Texas Court of Criminal Appeals seat in the November election.

Richardson since last year has been considering a Perry effort to dispose of the indictment on constitutional grounds. He ruled against Perry in November when he sought to get the case dismissed on technical grounds.

Presiding Judge Billy Ray Stubblefield of the Third Administrative Judicial Region on Friday signed an order assigning Richardson to preside in the case. The step was necessary to authorize Richardson to make rulings in the case.

It was Judge Stubblefield who originally assigned Judge Richardson to the Perry case, so I suppose the circle of life is complete. I had wondered before if Richardson’s election to the CCA would force his removal here, but as a commenter on this post noted, Texas law allows for this, and so here we are. We’ve been waiting on that ruling regarding the motions to dismiss on constitutional grounds for quite some time now. At least now we know that it will be Judge Richardson making that ruling.

Expect to hear more about Perry vetos and no-bid contracts

Bring it on.

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Democratic lawmakers and government watchdog groups on Saturday called for the reopening of an investigation into no-bid state contracts that ended in 2013 after Gov. Rick Perry vetoed funding for the team conducting it.

The critics decried the millions of dollars in Department of Public Safety contracts and another set of similar deals given by the state health commission under Perry, who will step down Tuesday after 14 years in office and is considering a 2016 presidential run. They said a thorough evaluation of contracting is needed to assure taxpayers that their money is being spent responsibly.

“Hell, yes, we need to review everything,” said state Sen. John Whitmire, a Houston Democrat who has served in the upper chamber longer than any other member. “There seems to be an awful lot of no-bid this and no-bid that, and I just think we need to look at it all so we can tell where the problems are and what needs to be changed.”

[…]

Democratic state Reps. Garnet Coleman and Armando Walle of Houston were among those calling Saturday for the investigation of no-bid contracts to be reopened.

“Using state resources to bolster a political career by fomenting a non-existent border crisis, then giving no-bid contracts to a company that has limited experience in border security seems like an issue the Public Integrity Unit should be investigating,” Walle said.

Craig McDonald, director of Texans for Public Justice, an Austin-based government watchdog group whose complaint initiated the investigation that led to Perry’s indictment, agreed. He added that if the investigation had continued, it may have prevented some of the issues now surfacing with state health contracts.

Four high-ranking Texas Health and Human Services Commission officials have so far resigned as a result of those issues, stemming from no-bid Medicaid fraud detection contracts with Austin technology company 21CT that got tentative approval to balloon to $110 million before being canceled.

The deal is now being investigated by the Public Integrity Unit.

Unit director Gregg Cox on Saturday cited that investigation as a reason why it was unlikely that his office could reopen the probe into DPS contracts.

“I just don’t have the horsepower right now to open new investigations, with everything else we have going,” said Cox, who added that he would review the option next week. He added that for now, he “would prefer to see other agencies investigate this, and then we can work with them.”

See here for the background. If nothing else, one hopes this is the fulcrum by which the Public integrity Unit gets its funding restored, which is something the House budget would do but not what Dan Patrick wants. Regardless, this is a giant turd that Rick Perry is leaving in Greg Abbott’s punch bowl, and I plan to enjoy watching the fallout.

The veto that keeps on giving

I haven’t closely followed the burgeoning scandal at the Texas Health and Human Services Commission, which involves no-bid contracts, up front tuition reimbursements for top level staffers, and rampant cronyism. It’s already cost three people their jobs and will likely eventually result in the HHSC Commissioner, Kyle Janek, either falling on his sword or getting defenestrated. If nothing else, it’s been a nice little stink bomb for Greg Abbott and a timely reminder as Rick Perry exits the main stage that there’s a damn good reason why everyone should be glad to see him go. And since this is a scandal that happened on Rick Perry’s watch, there is as always more to it than meets the eye.

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A year and a half before a no-bid state contract collapsed in scandal last month, a criminal investigation into tens of millions of dollars worth of deals awarded through the same process by Rick Perry’s administration was derailed by the funding veto that got the governor indicted, according to the prosecutor who led the probe.

The earlier inquiry, which concerned Texas Department of Public Safety contracts for Perry’s highly touted and controversial border-security program, lasted more than a year before abruptly shuttering, said Gregg Cox, director of the Public Integrity Unit at the Travis County District Attorney’s office.

“We lacked the resources to continue that investigation,” Cox said. “Because the staff was cut when our budget was vetoed.”

[…]

The news also raises questions about whether a continuation of the inquiry could have alerted officials much earlier to vulnerabilities in the so-called “Cooperative Contracts” process.

The process, which allows state agencies to bypass competitive-bidding, but was designed for smaller purchases, was used for both the Department of Public Safety contract and the scandal-ridden Medicaid fraud detection deal given by the Texas Health and Human Services Commission to Austin technology company 21CT.

That contract, which eventually was set to cost $110 million before abruptly being canceled last month, already has led to the resignations of four high-ranking state health officials, led some lawmakers to call for Executive Commissioner Kyle Janek to step down and triggered investigations by Cox’s Public Integrity Unit, Gov.-elect Greg Abbott and the State Auditor’s Office.

Officials said the earlier Public Integrity Unit investigation focused on more than $20 million in no-bid contracts given to Virginia defense contractor Abrams Learning and Information Systems, Inc., to help Texas develop its border security strategies.

The Virginia firm, founded by retired Army Gen. John Abrams, initially got a $471,800 contract in March 2006 to help the state establish a Border Security Operations Center in Austin, according to a state documents. The deal went through the no-bid process because officials said it was in response to “an emergency.”

An internal memo that later surfaced in news reports showed that the declaration of an emergency was based on public statements by Perry, who at the time was in a tough re-election campaign in which border security was a big issue.

Three months after its first contract, Abrams received a second emergency deal, for $679,600, that greatly expanded the company’s responsibilities.

Over time, state records show, officials quietly added more and more responsibilities to the contracts until they grew to more than $20 million and covered work in most segments of the state’s growing border-security programs.

See, that’s the sort of thing that happens when the one law enforcement authority over state government gets declawed. At the time that the threat and the veto were happening, the conspiracy theory was that Perry wanted to cut any investigations into the scandal-plagued Cancer Prevention and Research Institute of Texas (CPRIT). I don’t think there was any specific intent like that – though if some evidence turned up to suggest there was, I would hardly be shocked – I think Perry just didn’t care about any collateral effects of his actions. He had his own objective, and that was all that mattered. And stuff like this is the result. Thanks for interminable years of service, Rick.

While we wait for a ruling in the Rick Perry case

This story about a group of big-name lawyers filing a brief in support of Rick Perry’s motion to dismiss the charges against him ran a week ago. I put off writing about it because it looked like we might get a ruling on the motions from Judge Bert Richardson, but since he’s still thinking about it I figured I’d go ahead and finish what I’d started to write. I have what you might call a stylistic beef with the story as well as a substantive disagreement with the argument these gentlemen have put forward.

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This corndog will not be silenced

A bipartisan group of lawyers and legal scholars is asking a judge to dismiss a criminal indictment against Gov. Rick Perry, arguing their objections to the case transcend politics.

“We have no personal or political stake in this case,” said James Ho, a Dallas lawyer who helped organize an amicus brief filed Monday morning. “We come from different political backgrounds. But Republican or Democrat, conservative or liberal, what unites us is our commitment to the Constitution, and our belief that this prosecution is profoundly mistaken.”

[…]

The brief filed Monday concludes the “prosecution must end immediately,” calling it “disturbing” that Perry could be indicted for actions he took during a political dispute. The groups cite a few examples of politicians using threats to work their will without facing the same consequences Perry has, most recently President Barack Obama telling congressional Republicans he’d issue an executive order on immigration reform if they didn’t act.

The 24-page brief has the backing of legal experts with Democratic backgrounds such as Jeff Blackburn, founder of the Texas Innocence Project; Paul Coggins, former U.S. attorney in Dallas; and Harvard Law professor Alan Dershowitz, whose skeptical remarks shortly after the indictment were used by Perry to argue even his political opponents think the case is bogus. Republicans on the brief include former U.S. solicitors general Ted Olson and Ken Starr, who now leads Baylor University.

See Texas Politics for more. The stylistic grievance I have is with the description of this group as “bipartisan”, since the term is being used to plant the idea that “see, even Democrats think the case against Rick Perry is bogus”. Look at the names highlighted in the story. One one side, you have three high profile professional Republicans – Ted Olson and Kenneth Starr, both former Solicitors General in Republican administrations, plus James Ho, a former Solicitor General for Texas under Rick Perry. On the “Democratic” side, you have one former US Attorney who – with all due respect – no one who doesn’t already know him has heard of, and two high-profile people that aren’t Democrats in a meaningful sense. Neither Alan Dershowitz now Jeff Blackburn has worked professionally for a Democratic administration or organization as far as I could tell by looking at their bios online. Dershowitz is an outspoken and often controversial academic whose stated beliefs are iconoclastic and not easily pigeon-holed into a left/right dichotomy. Blackburn heads up a well-respected non-profit that by its nature works closely with Democrats and Republicans. Folks in the criminal justice reform business tend to be single-issue focused and will gladly work with whoever supports them – see, for example, this recent Observer story and the remarks within it by Ana Yáñez-Correa, head of the Texas Criminal Justice Coalition, which include a warm endorsement of the newest Republican State Senator, Charles (no relation to Rick) Perry. Take these two “Democrats” out and you’re left with a group of mostly powerful Republicans standing in support of Rick Perry. There may or may not be merit to what they’re saying, but as a story it’s a lot less sexy this way.

As for my substantive objection, comparing Perry’s action to the standoff over immigration and a threatened executive order on DACA is so laughable I have to wonder if any of these high-profile signatories are even familiar with the case at hand. What this case is about is very simple: An elected official may not use the power of his or her office to try to coerce the resignation of another elected official. It’s not in dispute that this is what Rick Perry did. His defense boils down to 1) the laws that he is charged with violating were not intended for this use and are not applicable in this instance, and 2) he has a First Amendment right to make the kind of veto threats that he made. There may well be merit to point #1 – I have seen attorneys of the Democratic persuasion take pause with this. I’m not qualified to assess the legal fine points, but I recognize that Mike McCrum is tilling a new furrow here. Of course, Rick Perry did something no one had done before, too, so we’ll leave that up to Judge Richardson. As for the First Amendment argument, I claim no expertise but it seems to me that the exception being carved out here is narrow and well-defined. I see a bright line, not a slippery slope. Your mileage may vary, and so may the judge’s. If that’s the case, then so be it. I’m just not impressed by the smoke that these attorneys are trying to blow my way.

Finally, there’s a partisan question, raised in the comments here. Would I be so supportive of this prosecution if I didn’t have such a hearty dislike for Rick Perry? It’s always hard to objectively evaluate one’s own biases, and the partisan contours of this dispute were evident from the beginning, which makes it more difficult. But here’s a thought experiment to consider. We just elected ourselves an Attorney General that has some legal baggage of his own, including a criminal complaint, an SEC complaint, and a state bar grievance. It is possible that in the near future Ken Paxton could be in even more hot water than Rosemary Lehmburg once was. Now imagine that the gubernatorial election had turned out differently. How would you feel if Governor Wendy Davis was threatening to veto some piece of funding to the AG’s office unless Paxton stepped down? I would suggest that how you feel about that and how you feel about the Perry indictment should be about the same. If they’re not the same – in particular, if the way you feel about one is the polar opposite of how you feel about the other – that may mean you’re letting partisan feelings cloud your judgment. Just something to think about.

Perry’s first day in court

Hopefully not his last, but that’s up to the judge at this time.

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Gov. Rick Perry appeared in court Thursday to watch his attorneys, armed with plenty of theater, try to convince a judge that the prosecutor pursuing abuse-of-power charges against him was improperly sworn in.

“Why do we raise what some people say are technicalities?” asked Perry defense attorney Tony Buzbee, his voice booming as he guided Visiting Judge Bert Richardson through an elaborate PowerPoint that featured an enlarged copy of the Texas Constitution. “Because [San Antonio lawyer Mike] McCrum is attempting to prosecute a sitting governor.”

In his first court appearance since he was indicted Aug. 15 on two felony counts, Perry sat at the defense table quietly, occasionally whispering with his attorneys or rocking in his chair. Buzbee and co-counsel David Botsford made their case that McCrum, who is an appointed special prosecutor in the case, took his oath of office before signing an anti-bribery document required of such prosecutors.

That sequence was out of order under the rules dictated by the 1876 Texas Constitution, Buzbee said.

As a result of this timing error, Buzbee argued, it’s “game over.” McCrum has no authority to prosecute the governor, he said, and therefore the indictment he secured is invalid.

“It’s there and it’s in black and white,” Buzbee said. “You must first sign your oath saying, ‘I have not taken any gifts.’ It’s a very important sequence.”

[…]

McCrum, a criminal defense attorney from San Antonio who was once tapped to fill the U.S. attorney job there, countered on Thursday that there was nothing improper about the oath-taking. He was sworn in, he said, telling reporters after the hearing: “I’m not shying away from the facts. My position is that it just doesn’t negate my authority.”

Buzbee described challenges he and Botsford faced getting their hands on the paperwork detailing McCrum’s appointment — and the repeated times they said they asked the Travis County district clerk’s office for it.

McCrum countered that they were in the courthouse, just in a file in a courtroom.

“All of these documents were available for public inspection,” McCrum said. “There’s no question I took an oath.”

See here, here, and here for the background. The Chron notes one of the oddball aspects of this case:

Richardson, a Republican who was elected to the Texas Court of Criminal Appeals Tuesday, is in the odd position of having sworn in McCrum, and now deciding on issues related to his oath. He asked the lawyers on both sides whether they wanted a different judge to hear the motion, but they declined.

Richardson initially predicted Thursday’s hearing could be as short as 15 minutes. Instead it lasted close to two hours. Toward the end, Perry’s lawyers asked whether they could file more documents with the court on one of the issues before it.

“If you want a quick ruling, I could make one,” the judge told Buzbee. “If you want to bury me in paperwork, then I have to wait to get it to read it. My intent would be to read anything that either side wants me to look at.”

We’ll see if the urge to delay is greater than the urge to get a ruling, which according to the stories is expected next week. Place your bets on the outcome in the comments. Trail Blazers has more.

McCrum responds to Perry’s motions

Another story to distract us from the election results.

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This corndog claims executive privilege

Special prosecutor Michael McCrum filed court papers on Monday, saying the governor, who was indicted for abuse of office, shouldn’t have access to grand jury testimony because he could intimidate witnesses.

McCrum filed two lengthy briefs in answer to a barrage of pre-trial motions filed by Perry’s attorneys. It is the first time the prosecutor has rebutted assertions by the governor’s vigorous defense team. But McCrum didn’t reveal many details in the case that led a grand jury to charge Perry with abuse and coercion.

The first pre-trial court hearing in which Perry will be present is scheduled for Thursday.

On the issue of whether Perry should be provided transcripts of grand jury testimony, McCrum cited centuries-old common law that uses secrecy to help protect all parties involved with criminal allegations.

“Indeed such a principle is even more compelling where the defendant seeking disclosure is a governor, a ‘ruler’ within our structure of government, possessing all the power that led to the initiation of the principle of confidentiality,” McCrum stated.

He cited that the issue of intimidation of witnesses is based on Perry’s own actions.

Not only was he indicted for abusing his power, but “the defendant’s own words have instilled a concern for all persons who participated in the grand jury investigation,” the brief states.

It then quotes “prepared, written comments” used in a press conference the day after the indictments were returned when the governor said, “this farce of a prosecution will be revealed for what it is, and that those responsible will be held accountable.”

[…]

McCrum, a former federal prosecutor from San Antonio who was appointed by a Republican judge, is fighting the unusual request. He asserted parts of the transcripts might be made available as part of pre-trial discovery, but the defense lawyers should not have unfettered access to the grand jury testimony nor have it this early in the process.

He stated in the brief that the Texas Court of Criminal Appeals already ruled “that illegal conduct is not part of the legislative process and is not deserving of privilege.”

McCrum pointed out that two other indicted governors – Marvin Mendel of Maryland and Rod Blagojevich of Illinois – both tried to use legislative immunity and their “appeals were flatly rejected.”

The prosecutor also pointed to Perry’s decision not to appear before the grand jury.

“Mr. Perry chose to not testify before the grand jury, therefore any privilege he now asserts necessarily rests on other witness testimony,” the brief states.

See here for the background. The original court date for this was last Friday, but it got rescheduled to Thursday. While he doesn’t have to appear in court in general, Perry will be there for this hearing. The other brief has to do with Team Perry’s claim that McCrum wasn’t properly sworn in. I have a hard time seeing that one gain traction, but I suppose it can be fodder for future appeals. The Trib, Texas Politics, and Bloomberg News have more.

Perry’s lawyers are earning their paychecks

You never know what might stick when you throw everything you’ve got at the wall.

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These corndogs don’t come cheap, ya know

Lawyers for Gov. Rick Perry on Friday filed a request to dismiss the indictment against the governor, saying paperwork needed to properly swear in the prosecutor appointed to shepherd the case was not properly filled out or filed.

“Insofar as the records on file in these cases reflect, [special prosecutor Michael] McCrum, the purported attorney pro tem, is acting illegally because the basic procedural requirements have been overlooked,” attorneys Tony Buzbee, Tom Phillips and David Botsford wrote in their filing with Travis County’s 390th District Court. The lawyers wrote that their allegations were based upon the district clerk’s files in the case.

McCrum, who obtained the indictment against Perry in August, told The Texas Tribune that he was indeed sworn in.

“I don’t know what they’re talking about,” said McCrum, who was sworn in as special prosecutor in August 2013 and again in 2014.

[…]

According to the Texas criminal code, an oath by someone like McCrum, who is operating in the place of an assistant district attorney or a district attorney “pro tem,” must be filed with the clerk.

As for the forms and how they are supposed to be filled out, that’s not specified in the code.

However, Perry’s attorneys point to how the clerk’s office does not have paperwork verifying DA Rosemary Lehmberg’s recusal from the case and other paperwork.

An email to the clerk’s office regarding those forms was not immediately answered.

Here’s the latest motion by the defense, which joins the other two in awaiting a response from McCrum. I’ll leave it to the real lawyers to evaluate, but my layman’s interpretation is that this is either an egregious bit of straw-grasping by a squadron of attorneys that would really rather not have to face a jury, or an amateur-hour level oversight by someone whose reputation would seem to make such an oversight unthinkable. Perhaps we’ll get some insight into that on October 13, which is the date for the next hearing – you know, the one Perry doesn’t have to attend – though I suspect we won’t really know till well after that. You lawyers out there, what do you think? Trail Blazers has more.

Perry’s lawyers ask again for indictments to be tossed

Stop me if you’ve heard this one before.

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Attorneys for Gov. Rick Perry, indicted last month on charges related to his veto threat of money for the Travis County District Attorney’s office, have filed another request for a judge to throw out the case.

The motion to dismiss the indictment filed Monday makes many of the same claims as a previously filed writ of habeas corpus and largely cites “Constitutional grounds.”

The petitions contend the “Texas Constitution imposes no limits on the governor’s right and duty to veto; he exercises unbounded discretion in exercising his veto power, subject only to the Legislature’s right to override that veto,” among many other claims.

They also contend that the prosecution threatens to violate Constitutional separation of powers and said that Perry, in vetoing the money, was acting in his legislative capacity.

“Nothing in the Texas Constitution or law permits the judicial department to scrutinize Governor Perry’s legal decision,” the Monday filing said.

Yes, there was a similar motion filed last month. The Trib explains the logic behind the double filing.

“They say the same thing but they’re very different things,” explained Philip H. Hilder, a Houston defense attorney. “The writ is saying the judge doesn’t have the authority to move forward on the indictment, while the motion to dismiss is acknowledging that the court has the authority to act on indictment but it ought to be dismissed as a matter of law.”

In effect, the lawyers are asking the judge to toss the indictments no matter how he rules on the court’s authority to proceed.

Paul Coggins, a Dallas attorney said filing both challenges is just good lawyering.

“If you can’t get through the front door, you go through the back door,” Coggins said. “I think they’re covering their bases.”

Yes, it’s good lawyering. And those hours ain’t gonna bill themselves, if you know what I mean. But wait, there’s still more.

While both challenges — the motion to quash and the habeas writ — may make the same arguments, but the order in which siting Judge Bert Richardson considers could make a big difference in the pace of the proceedings.

“We hope the court will consider them both at the same time,” Buzbee said. “The grounds are essentially the same but this filing gives the court the ability to dismiss completely both counts of the indictment if he feels some issues are better addressed via a dismissal motion rather than a writ.”

The judge’s decision on the motion to quash cannot be appealed by the defense, Hilder said. His decision on the writ can be and an appeal could freeze action on the case for months.

“The danger of filing the writ here is the losing party will appeal, and that is going to slow matters to a griding halt for a while,” Hilder said, adding that all action in the trial court would stop until the appeals court makes its ruling on the writ.

So settle in and get comfy, because this could take while. The next hearing is October 13, and while special prosecutor Mike McCrum will file a response to this motion, he doesn’t have a specific deadline and may well not get to it by then, since there’s not much expected to happen on that date. The Chron and Trail Blazers have more.

Now how much would you pay for Rick Perry’s lawyers?

The tab has gone up.

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This corndog came at no cost to the taxpayers

Gov. Rick Perry has billed taxpayers $133,000 to hire several lawyers to defend him against public corruption allegations, his office confirmed Friday.

That’s more lawyers and more state money spent than previously disclosed.

After Perry was criticized about the taxpayer expenditures, the governor’s office announced he would use campaign funds from now on to compensate his legal team.

But taxpayers have already spent $98,000 to hire Botsford & Roark, the firm of his lead criminal defense attorney David Botsford, who charges $450 an hour. Previously, state records — which take a while to show up in the government’s accounting system — showed taxpayers had spent $80,000 on Botsford’s firm.

Perry’s office also spent $15,000 to hire the Houston-based law firm Baker Botts and $19,890 to hire attorney Jack Bacon. The total came to $132,890.

Perry spokeswoman Lucy Nashed said in an email that the cost of the legal fees were “associated with the grand jury case involving Gov. Perry and Governor’s Office staff.”

Mm hmm. Look, I’ve already that Perry has a decent argument to make that at least the grand jury portion of his legal bills ought to be paid for by the state, even if that would be unprecedented. The total cost isn’t up that much, and I’m sure this was just a matter of some paperwork being filled out later than some other paperwork. But I’m also sure that Perry’s team knew when they made that announcement about his campaign paying his legal costs going forward just how much we the people were about to be stuck with. They could have been up front about it, but given their usual desire to hide the facts plus Perry’s self-serving reasons for the change in policy, I wouldn’t be surprised if this figure isn’t the full and final total, either. It’s just how Rick Perry operates.

Rick Perry was actively searching for Rosemary Lehmberg’s replacement

The plot thickens.

Rosemary Lehmberg

Gov. Rick Perry personally called a well-known Austin Democrat to discuss her interest in replacing Travis County District Attorney Rosemary Lehmberg days before the public learned Perry was threatening to withhold state funding from Lehmberg’s office unless she resigned.

Austin defense attorney Mindy Montford, who previously ran as a Democratic candidate for state district judge and district attorney in Travis County, confirmed her conversation with Perry — which took place in early June 2013 — to the American-Statesman and KVUE-TV on Sunday.

She said Perry informed her he intended to veto money to the Public Integrity Unit unless Lehmberg stepped down following her high-profile drunken driving arrest. Under the law, Perry, a Republican in his 14th year in office, would have named Lehmberg’s replacement pending an election.

“I think I told him, of course, it would be an amazing opportunity, and I thanked him for considering me,” Montford said. “The fact that I am a Democrat was surprising, and I think I mentioned that to him. I told him I would think about it, and thanked him.

“There was no acceptance because I didn’t feel like it was timely at that point,” she said. “We never spoke again because it became irrelevant when she did not resign.”

[…]

The revelation shows the level at which Perry was directly involved in attempts to force Lehmberg’s resignation and appoint a successor in the days leading up to his June 14 veto — rather than high-level aides coordinating the effort and briefing the governor.

To be clear, this information doesn’t add anything to the first round of legal arguments over whether or not the indictments are valid. Perry’s high-priced lawyers are arguing that the statute is unconstitutional, and if that’s true it’s true whether or not Rick Perry was behind the curtain trying to shove Lehmberg off the ledge. What it does is definitively ties Perry to the alleged criminal action of trying to coerce Lehmberg’s resignation. Remember that in the Tom DeLay case, one of the weaknesses of the prosecution’s case was the lack of direct evidence that linked DeLay to the money transfer. Mindy Montford provides that evidence for the Perry case quite nicely. No question, if there’s a trial, she’ll be a star witness.

This also brings up a point that Christopher Hooks in the Observer illustrates. Perry kind of needs the indictments to go away quickly, because the longer this plays out, the more revelations like this we’re likely to get, and the more dots that can be connected. Ed Sills in his email newsletter riffed off that Statesman piece to show the lengths that Perry spokespeople went to back in April to avoid saying anything that would later prove to be false. Hooks elaborates:

Separately, the story of the indictments is set to give new life to old stories about Perry’s improprieties, in much the same way Chris Christie’s bridge-related indiscretions gave rise to a narrative about his temper and vindictiveness toward political opponents. And Perry’s personality—best suited to offense—was well tailored to the first stage of this ordeal, but may trip him up going forward.

Here’s Perry’s story about the indictments, as outlined in a video released by his political action committee, PerryPAC: He saw a damaged public official, a woman who shouldn’t possibly hold office or any kind of responsibility, and took firm, narrowly targeted action to try to remove her. Now he’s facing political retribution from Democrats.

Parts of that narrative fall apart as soon as you look at them closely—particularly the notion that special prosecutor Michael McCrum, appointed to the case by a Republican judge in San Antonio, is an agent of Battleground Texas. But much of the rest of it could fall apart over the course of a trial, too.

Perry says his veto was about unseating Lehmberg, but it had significant consequences. As the Quorum Report’s Harvey Kronberg wrote on Thursday, Perry’s veto of the funding for the Public Integrity Unit “derailed more than 400 felony level tax and insurance fraud investigations allegedly committed against the State of Texas.”

In other words, Perry’s action didn’t just punish Lehmberg for her refusal to step down—it punished the state as a whole and Texas citizens generally. Think about that: Perry zeroed out the funding for more than 400 felony investigations because a local official wouldn’t step down when he wanted. Kronberg:

The Travis County Public Integrity Unit is the most under-appreciated law enforcement apparatus in the state. Fully 95% of what it does is pursue white collar crime in Texas and on behalf of the State of Texas – motor fuels tax fraud, insurance fraud and legal support for the smaller of Texas 254 counties that do not have the funding or expertise to pursue white collar crimes in their jurisdictions.

When Perry derailed the unit, the Travis County Commissioners Court stepped in and restored a portion of the funding—but the PIU had to slash staff and caseload. The state’s side in serious criminal cases that had nothing to do with Lehmberg’s troubles—or even, politics generally—suffered needlessly.

But the PIU investigates political corruption too. Kronberg dismisses the relevance of the investigation into the Cancer Prevention and Research Institute of Texas as a factor in Perry’s motivation for wanting a friend in control of the DA’s office, but points to other possibilities.

“It is far more interesting to look at the Public Integrity Unit investigation of Republican AG candidate Ken Paxton and Perry Regent appointment Wallace Hall,” Kronberg writes. “Had Lehmberg resigned, it is doubtful Perry’s appointed replacement would be very interested in either criminal referral.” There’s no shortage of possible motives for Perry’s intervention in the PIU, even if those motives don’t necessarily matter to the legal case against him.

If the trial gets going, there’s really no telling what’s going to get dredged up in the discovery process. What internal communications, what private conversations will we become privy to? This trial might be the most penetrating look at Perry’s workshop in the 14 years since he took office. There’s no politician that comes away from that level of scrutiny looking good.

Some of this will come out anyway, but in the context of a trial, it’s going to look worse. And Perry may not get to hide behind privilege as much as he usually gets to. There are a lot of rocks to look under, and who knows what we’ll find. Harold Cook and Grits have more.

Shine a light on dark money

I totally favor this.

BagOfMoney

Secret campaign donors in Texas may soon be forced out of the shadows.

The Texas Ethics Commission, already fighting a conservative group in court over whether it can regulate dark money disclosure, appears poised to approve a proposal aimed at requiring some politically active nonprofits to start revealing their anonymous donors.

The eight-member commission rolled out a draft proposal Thursday, signaling how the state campaign finance regulator plans to move forward on tackling the growing concern over secret campaign spending in Texas elections.

Under the draft regulation, the commission would require a nonprofit to start disclosing donors if 25 percent or more of the group’s expenditures can be classified as politically motivated. It also would require disclosure if political contributions account for more than 25 percent of the group’s total contributions in a calendar year.

“We’re tying to figure out how we get to the public information about who is contributing to candidates,” said commission Chairman Jim Clancy, appointed by Gov. Rick Perry.

Separately, the commission on Thursday clarified that dark money groups may spend up to 20 percent of their revenue on politics without having to disclose donors.

The commission referred to it as a safe harbor, of sorts, in an opinion that represents one of the first concrete pieces of guidance provided to campaign finance lawyers since a landmark U.S. Supreme Court ruling in 2010 allowed corporations to spend unlimited sums on electioneering.

As I’m sure you know, I am all in favor of more disclosure. I honestly don’t understand the argument against it, though I’m aware that the courts don’t necessarily share my view. The usual anti-transparency suspects are kicking up the usual fuss and threatening to take this to court, where they unfortunately will have a good chance of prevailing. It’s still the right thing to do, and who knows? Maybe some day we’ll have better judges. Texas Politics has more.

Perry’s legal team to try to get indictments tossed

It’s what any defense attorney would try to do.

Corndogs make bad news go down easier

This corndog has done nothing wrong

A lawyer for Gov. Rick Perry said Friday he will challenge felony charges that the governor overstepped his authority when he said he would veto state funding for Travis County prosecutors if District Attorney Rosemary Lehmberg would not resign her post.

David Botsford, an attorney for Perry, informed Visiting Judge Bert Richardson he plans to file a writ of habeas corpus challenging the constitutionality of the laws underlying the two-count indictment against Perry.

“It will speak for itself,” Botsford told reporters. He said his challenge would be based on the governor’s power to veto and his First Amendment rights.

[…]

Both Botsford and Michael McCrum, the San Antonio defense attorney who was appointed the special prosecutor in the case, met with Judge Richardson Friday. After a 35-minute meeting in the judge’s chambers, the two attorneys came out and Richardson informed the court Botsford would turn in his challenges to the indictment by Aug. 29.

Once those objections have been filed, McCrum will file his responses and the first full hearing in the Perry criminal case will be scheduled.

Outside the courtroom, McCrum declined to talk about his strategy or address criticism about the indictment returned against the governor.

“I think it’s appropriate to approach this case in a court of law,” said McCrum, who anticipated that a trial in the matter would not take place until next year.

Novel idea, that. Just as a reminder, the complaint was filed before Rick Perry vetoed the Public Integrity Unit funds, so we’ll see how far that gets with the judge. Costs them nothing to try, and hey, you never know.

An earlier story about the defense strategy contained some interesting legal analyses.

“If I was on the Perry defense team, I would be asking for the quickest trial date I could get,” said Paul Coggins, a defense attorney with the Locke Lord law firm and a former U.S. attorney in Dallas. “Let’s load it up in 30 days. Let’s go.”

Coggins, a Democrat, said the next thing to watch for is Perry’s team challenging the Texas statute behind the two felony counts.

“They’ll take a swipe at the statute,” he said. “The statute is too vague. You’re going to do that at least. I think the judge is going to have some real issues with the statute.”

The two-page indictment gave few clues as to how grand jurors were convinced Perry may have done something illegal. And Coggins said that unless McCrum can prove to jurors that Perry’s veto threat was illegal, it will go nowhere.

“Based upon what we know so far, if there isn’t some incredibly powerful, smoking gun that we’ve heard nothing about, then I don’t think this case should have gone to the grand jury,” Coggins said.

Not so fast, says Bill Mateja, a defense attorney in the Dallas office of Fish & Richardson. Mateja is a former federal prosecutor who knows McCrum, the San Antonio defense attorney tapped by Richardson, well.

“I’ve worked with Mike McCrum,” Mateja said. “I cannot believe that Mike McCrum decided to indict Rick Perry based solely on Rick Perry playing politics. I can believe that Mike McCrum indicted Rick Perry because there is something more than we’ve seen.”

Mateja, who described himself as a conservative Republican and a Perry supporter, said that if McCrum’s case doesn’t show more than what is already known, then it’s a “bad indictment.”

I think we all agree on that. As for McCrum, he had a few things to say as well.

McCrum said he would respond in court to Perry’s filing.

“At this time, I feel confident of the charges. I feel confident of the facts as applied to the law, and I will move forward,” he said.

McCrum said he expects the case to go to trial because “I anticipate that Mr. Perry will never plead guilty.” He said he thinks a trial would not be until next year.

[…]

McCrum was asked by reporters about the drumbeat from Perry and his team that the case against him is politically motivated.

The San Antonio lawyer said he didn’t plan to discuss strategy or evidence in the case, pointing out that Perry’s lawyers are “talking about the theories of law and whether or not the facts support those theories.”

“On this situation, I think it’s important that I approach it with dignity and respect for our system of justice,” McCrum said.

He also declined to supply his own political affiliation.

“I don’t feel that anything about politics is relevant to this case insofar as my politics are concerned,” McCrum said in response to a reporter’s question. “And so with all due respect, sir, I can’t dignify the question because by answering it, I give it relevance, and I don’t think it has relevance.”

It shouldn’t have any relevance, but you know how that goes. Going back to the earlier story, Mateja also predicted the defense would try to get the indictments tossed. If that happens, that would be a huge victory for Perry and an equally huge egg to Mike McCrum’s face. Again, I’m not a lawyer and I have no expertise in this matter, but again there’s nothing in Mike McCrum’s history to suggest that he’s gone off half-cocked. There’s plenty of evidence to suggest that McCrum has more up his sleeve than he’s shown so far. Maybe that won’t be enough. We’ll get some idea of that this week.

On a side note, the two-man team at Texans for Public Justice wrote a piece for Politico that called out various liberal pundits for their embarrassing ignorance in the Perry matter. They didn’t break any new ground, but at least the word is getting out there that the indictment isn’t about what a lot of people leaped to conclude it was about.

Perry will pay for his own defense

Wise decision, something our Governor is not known for.

Corndogs make bad news go down easier

This corndog came at no cost to the taxpayers

Gov. Rick Perry, who has been using taxpayer dollars to pay his defense lawyers, will tap campaign funds from now on to compensate the attorneys who are fighting his felony indictments, his spokesman said Wednesday night.

Perry spokesman Felix Browne said the governor, who has blasted the indictments as a “farce,” did not want to saddle taxpayers with the cost of a wrongful prosecution.

“This is an assault on the Constitution,” Browne said. “We don’t want it to be an assault on the taxpayers as well.”

Perry will use funds in his state campaign account, he said. As of June 30, the account had more than $4 million in it.

State records show taxpayers have spent about $80,000 so far to represent Perry as he faced criminal investigation. He was indicted last week on two felony counts stemming for allegedly abusing his office with a threat to veto funds destined for the state’s public integrity unit, which oversees public corruption cases.

Yeah, I know, not much of a hiatus from talking about the Perry indictment, but this counts as actual news. I’ve previously said that one can make a case for the state picking up the tab for Perry’s legal bills given the connection of the indictment to his official duties, though I would not have to be the one defending that position to the voters. Turns out, according to that Trib story from which I quoted the late update, Perry billing the state for his attorneys would have been unprecedented. Nice bit of research by the Trib, and it undercuts the argument I had been willing to accept, in addition to making the optics even worse what with Perry having millions in his Rick PAC. If that means he has to cut back a bit on the high-priced legal talent or hustle that much harder to be able to afford it, well, welcome to real life as the vast majority of people know it.

Possibly the last thing I’m going to say about the Perry indictment for now

Certainly not the last thing I’ll ever say, since there’s a vast amount of the story left to be told, and I reserve the right to change my mind. But for now, since the indictment came down on Friday there’s been very little actual news. There’s been the over-the-top response from Perry’s legal team, there’s been the predictable tribal responses, there’s been a crap-ton of woefully ignorant pontificating from mostly non-Texas writers, but not much else worth talking about. So, until there is a new development, I’m going to leave with these two thoughts.

This Trib story about Texans for Public Justice, the group that filed the complaint that led to the indictment, contains a little tidbit of information that even I hadn’t realized but which ought to be a required inclusion in everything anybody writes about this saga from here on out.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

TPJ didn’t plan to delve into the complex game of political chicken going on between Perry and Travis County District Attorney Rosemary Lehmberg near the end of last year’s legislative session. Lehmberg had been immersed in a political scandal since April, when a video of her aggressive behavior during her drunken driving arrest drew national attention. TPJ had stayed out of the drama until June 10, when [TPJ Director Craig] McDonald read in the Austin-American Statesman that Perry was threatening to veto the state’s funding of the Public Integrity Unit, housed in the Travis County DA’s office, unless Lehmberg resigned. Perry has said he only acted within the authority he has under the state Constitution.

“We decided [to get involved] that Tuesday morning,” McDonald said. “I said to Andrew [Wheat, TPJ research director], ‘This has got to be illegal. The governor can’t threaten the district attorney to do something that is out of his power. She doesn’t work for him. Never has.’”

Soon after, TPJ filed its complaint against Perry, hours before Perry vetoed the PIU’s $7.5 million budget.

Perry and his legal team have made his right as governor to veto state funding, and Lehmberg’s behavior during her drunken driving arrest, as central to the indictment. Various national political reporters and pundits have dismissed the indictment as overreaching or politically motivated, often pointing, like Perry, to a governor’s right to use his veto power.

McDonald said those critics are missing a crucial point: TPJ’s original complaint was filed before Perry implemented his veto because the veto is irrelevant.

“The threats are the issue, and I think that’s what the grand jury listened to,” McDonald said. “The only role the veto played and the only reason it’s relevant is that’s the club he held over his head to try to get her to leave her job. The veto is a side player to this. It’s not the subject of the charges.”

Emphasis mine. Did we all catch that? The complaint was filed before the veto was made. Let me repeat that, with formatting and an active voice construction: TPJ filed their complaint before Rick Perry vetoed the Public Integrity Unit funds. It wasn’t about the veto, it was about the threat, the coercion, of a duly elected public official that did not answer to Rick Perry. Anyone who opines about this in any fashion and doesn’t grasp that fact has no frigging idea what they’re talking about and should be ignored.

Another test for ignorance by those who bloviate about this case, in particular those who go on about Rosemary Lehmberg’s DUI arrest and of course it was sensible for Rick Perry to want a drunk DA to step down: Rosemary Lehmberg was the third District Attorney in Texas to be arrested for drunk driving during Rick Perry’s time as Governor. She was the first such DA to come under any pressure from Rick Perry about it. She was also the first such DA to be a Democrat. And yet it’s Rick Perry who’s the victim of a partisan vendetta, by a non-partisan special prosecutor appointed by a Republican judge who was appointed to hear the case by another Republican judge.

Oh, and one more thing, from Lisa Falkenberg:

In Harris County and other Texas jurisdictions where judges use the “pick-a-pal” system to empanel grand jurors, bias and corruption are natural byproducts. The judge picks a pal, called a “commissioner,” to go out and find some more pals to serve on a grand jury and supposedly mete out justice. The process, as I’ve written, has been outlawed in the federal system, and is still only used in Texas and California.

But it wasn’t used in this case.

[judge Bert] Richardson didn’t ask a buddy to empanel the grand jurors. The members were randomly selected from Travis County jurors who answered a summons – a similar process to the one used to select regular trial juries.

See this story as well. Grand juries are the prosecutors’ show, and we all know what they say about them. But still, a jury of ordinary citizens thought there was sufficient evidence of a crime to return two indictments. Mike McCrum didn’t indict Rick Perry, the grand jurors did.

Now it’s certainly possible for an informed observer to examine the indictments and think they’re a stretch. We really have never seen anything like this before, and generally speaking our laws about official misconduct have to do with money and/or influence in fairly direct ways. It’s fair to say that the laws Perry is accused of breaking weren’t really written with this situation in mind, probably because no one ever imagined this sort of situation might happen. That doesn’t mean that these laws don’t apply or that a fair jury couldn’t find Rick Perry guilty. It does mean that the appeals courts are someday going to perform fine surgery on some legal hairs, and one way or another we’ll have a clearer understanding of what these laws do mean, at least based on this experience.

But once we start down that path, we are – to borrow a legal phrase we all know from “Law and Order” – assuming facts not in evidence. We don’t know what Mike McCrum’s case is yet. We’ve heard plenty from Rick Perry and his high-priced legal team – the best lawyers the taxpayers can provide for him – and from his hackish sycophants in the national press. What have we heard from Mike McCrum, other than the indictment itself? Not much.

McCrum, asked in an interview earlier Monday about criticism that the case is weak, calmly defended it.

“The case is going to bear itself out in the long run, both from a legal standpoint and from a factual standpoint,” he said.

I’ll say it again: We just don’t know what cards Mike McCrum is holding. It’s certainly possible that he’s gone off on a wild hunt against Rick Perry for some reason. It’s possible he’s tendentiously misreading the law in an attempt for, I don’t know, fame and glory and a lifetime of being a legal expert on CNN or something. It’s possible he’s shooting from the hip and didn’t really think through how his actions would be scrutinized by criminal defense attorneys. There’s nothing in his history to suggest these things are true, but I don’t know Mike McCrum and I have no idea what’s in his head right now. What I do know is that we don’t know what his case will look like once it’s all been laid out in a courtroom. Maybe we’ll look back someday and say “Holy moly that was a load of crap, what in the world was Mike McCrum thinking?”, maybe we’ll say “That was a strong case but ultimately the jury/the Court of Criminal Appeals/SCOTUS didn’t buy it”, or maybe we’ll say “Where were you when Rick Perry was hauled off to the slammer?”. I for one am not making any predictions. And until there’s something new to talk about, I’m going to let it rest.

Look behind the scenes

There’s another angle to consider the Perry indictment saga, which is that the indictment isn’t so much about what Rick Perry said publicly regarding Rosemary Lehmberg and the Public Integrity Unit but what he was saying behind the scenes. Erica Greider explores this, with a minor detour first.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

To review those facts, in 2013 the Travis County district-attorney, Rosemary Lehmberg, was arrested for drunk driving and sentenced to 45 days in jail. It was a penalty that no one could find fault with after viewing video footage of the field sobriety test and her subsequent behavior at the station that evening (she served about half the sentence and entered a treatment program after leaving prison). A number of Texans felt that she should resign, among them Perry, who publicly warned that he would use his line-item veto to remove state funding to the Public Integrity Unit—an anti-corruption outfit located in the Travis County DA’s office—unless she stepped down.

At the time, Democrats grumbled that Mr Perry’s threat was politically motivated. The Public Integrity Unit investigates corruption among statewide officials, which means, in the context, that it’s a check on Republicans like Perry and his pals. If Lehmberg stepped down, Perry would, in theory, have had a chance to replace a Democrat with a Republican appointee more friendly to his agenda. And after Lehmberg refused to resign and Perry vetoed the funding, the watchdog group Texans for Public Justice filed a complaint, charging that the veto had been politically motivated. That led to yesterday’s indictments; the charges are coercion and abuse of power.

Perry, unsurprisingly, responded Saturday by doubling down, dismissing the indictment as “outrageous.” More surprising, perhaps, is how quickly public opinion has moved in his favor, or at least in favor of proceeding with caution. Republicans were quick to rally round, but even independents and Democrats, after the initial fizzle faded, seemed skeptical of the indictment.

“Skeptical” is an overbid, some national pundits notwithstanding. (Some of those national pundits would do well to read Forrest Wilder. Or Progress Texas. Or me.) If Democrats here have tempered their response to this news, it’s not because we think Rick Perry is being railroaded, it’s because we’ve seen this movie before and we’ve learned the hard way how long a distance it is from “indictment” to “conviction”, especially a conviction that sticks. KBH walked. Tom DeLay may be let off the hook by the most pro-prosecution court in the country. We know better than to count our chickens before they hatch.

Back to the main thesis:

It’s worth emphasizing that the indictments don’t lay out all (or even much) of the special prosecutor’s evidence, and I suspect the focus on the veto, which is mentioned in the second count, will prove to be a red herring.

[…]

More intriguing, to me, is the chatter that around the time of the veto, Perry’s camp had some behind-the-scenes discussions with Travis County officials about a potential deal wherein, if Lehmberg resigned, he would appoint a Democrat to replace her. These rumors have been reported before, and several Democratic sources have suggested to me there’s something to it. This has always struck me as plausible. Perry’s critics argue that he was targeting Lehmberg opportunistically, as a way to stifle the PIU, either by removing its funding or by appointing a Republican to oversee it. But if Perry wanted to stifle the PIU, he could have simply vetoed its funding years ago (or, for that matter, left it in the care of the beleaguered Lehmberg). It would have been more shrewd, actually, to proceed quietly.

Worth considering is an alternative account of Perry’s political motivation. In June 2013, when he vetoed the PIU funding, he was signing the overall budget for the 2014-2015 biennium—a budget that restored billions of dollars of funding to public schools and expanded funding to worthy priorities such as higher education and mental health care. It was a budget that had been passed by the legislature with widespread bipartisan support and that was opposed only by a handful of tea partiers, who accused the Legislature and the governor of taking the state on a California-style spending spree. They were wrong, but they were clamorous, and Perry’s defense of the budget risked costing him some standing with the Republican base. My impression, at the time, was that the governor was aware of those risks. On a Monday, he said that his critics needed remedial math lessons; he then turned around and added abortion to the call for the special session that was already in progress. And on the day he signed the budget, to widespread applause, he made a point of using his line-item veto to remove state funding from a unit overseen by a Democratic district-attorney who had just spent several weeks in prison.

If my thinking is correct—if his goal was to cover his right flank rather than to gut the PIU—it’s not hard to believe that months later, Perry (or his people) would let Democrats know that he was open to replacing Lehmberg with a Democrat, that he would help find another job for Lehmberg, and even that he would restore funding to the PIU if they proceeded with such a deal. In such negotiations, though, the governor may have extended his constitutional authority, and so if Perry did have such discussions, I suspect turn out that the prosecutor’s evidence will have more to do with those backroom agreements than with a public warning about his intention to exercise his constitutional powers. If so, the legal case against Perry might be more serious. The ethical case against him would potentially less so, though.

Peggy Fikac followed the grand jury investigation as it was going on, and she fills in some details from her perspective outside the jury room.

The grand jury meets behind closed doors, but we sat in the hallway with our laptops, getting an idea of where the case was going by the people who came and went during a half-dozen meetings before the big one last Friday.

There were current and former Perry staffers, Travis County employees and state lawmakers.

Each had a part – directly or through their expertise – in the drama surrounding Perry’s threat to veto funding for the public corruption unit overseen by Democratic Travis County District Attorney Rosemary Lehmberg unless she resigned after an ugly drunken-driving arrest.

The Republican governor had the clear right to veto the money, but the road to his indictment started with his use of that power to try to force out a locally elected official.

Each person’s presence was a piece of the story, even though it wasn’t clear how many of them actually testified to grand jurors.

There was Perry spokesman Rich Parsons. He was quoted in last year’s initial story on the threat, conveying Perry’s concerns to the Austin American-Statesman about “the integrity of the Public Integrity Unit” and saying his position had been relayed to Sen. Kirk Watson, D-Austin.

Watson was tapped to convey the veto threat to Lehmberg. At some point after the funding was killed, Travis County intergovernmental relations coordinator Deece Eckstein set up a meeting among Perry’s legislative director and former Democratic state Sen. Ken Armbrister from Victoria, Perry deputy chief of staff Mike Morrissey and Travis County Commissioner Gerald Daugherty, a Republican. Daugherty earlier told my colleague, Nolan Hicks, that he reached out to Perry’s office to see if there was a way to restore the two-year, $7.5 million in funds.

Sources told Hicks that if Lehmberg had been willing to resign, Perry aides offered to restore funding, allow Lehmberg to continue working at the DA’s office in some capacity and pick her top lieutenant as her successor.

All went into the grand jury room this summer; Armbrister did so several times.

Besides them were a former Perry chief of staff; his former and current general counsel, and an assistant general counsel; an adviser; and his former communications director.

Perry’s technology manager was among them; so was a Travis County Attorney’s office employee who works closely with the commissioners court; and Rep. Phil King, R-Weatherford, who last year pressed for Lehmberg’s resignation and said he couldn’t support using state dollars for her “utter disrespect of the law.”

Perry – who didn’t testify – told reporters in June that he didn’t initiate any sort of deal, and that he didn’t personally make phone calls with regard to asking Lehmberg to step down.

Asked about the post-veto machinations on Saturday, Perry said his decision making was clear. He said he had promised to “veto those dollars as long as they had someone in that office who I lost confidence in, and I did exactly what I said I would do.”

The takeaway from all this is that there’s almost certainly more to this than what we can see right now. If Mike McCrum is as smart and capable as people say he is, he’s surely got a few cards up his sleeve, which he’ll reveal when he’s ready. That doesn’t mean this can’t come crashing down around him once it hits a courtroom, but it does mean we don’t know enough to judge how this case will go just yet. Perry’s over the top response may be more of his usual bluster, or it may be because he knows what shoes are out there waiting to drop on him. We’ll know soon enough. Campos, Ed Kilgore, Alec MacGillis, the Trib, and Jim Moore have more.

On Mike McCrum and Pa Ferguson

There were two stories from Sunday about special prosecutor Mike McCrum that were worth flagging. First, here’s the Express News with an angle that I think has been underappreciated.

Mike McCrum

People who know McCrum said he is not the type to use a case to play politics. San Antonio defense attorney Patrick Hancock said McCrum is known for spelling out just the facts in court, while Alan Brown said McCrum does not care for politics and tries to steer clear of courthouse politics.

Brian Wice, who’ representing former House Majority Leader Tom DeLay, R-Sugar Land, in his appeal of money-laundering and conspiracy charges, looked askance at the indictment. But he simultaneously spoke highly of McCrum, saying he had “the utmost respect” for him.

McCrum, a former assistant U.S. attorney, was considered the frontrunner for a presidential appointment to be the U.S. attorney in the San Antonio-based Western District of Texas, which includes Austin, Waco and El Paso. But he withdrew his name from consideration in October 2010 after more than a year of waiting to be officially nominated by the White House, saying he had to get on with his career.

“I have not been able to take any cases for the past six to nine months, and as a result my practice has dwindled to almost nothing,” he told the San Antonio Express-News then.

At the time, he had the support of the state’s Democratic congressional delegation and both Republican senators, in addition to many local attorneys.

“I heard he was a hands-on kind of guy, kick the tires and get down in the weeds,” former Assistant U.S. Attorney Glenn MacTaggart told the Express-News when McCrum was being considered. “He pushed the proper due diligence in order to investigate and determine whether an indictment was justified.”

[…]

One of McCrum’s first jobs as an attorney was at the firm then known at Davis & Cedillo. Ricardo Cedillo described McCrum as “one of the best associates” he had ever hired, echoing others’ comments about McCrum’s thoroughness and analytical skills.

“He had street smarts as well as legal knowledge,” Cedillo said while McCrum was under consideration for the U.S. attorney position. “That’s a very rare combination in young lawyers. That goes to who he is and where he’s from.”

McCrum’s clients as a defense attorney have included former NFL star-turned-drug trafficker Sam Hurd; Dr. Calvin Day, who is awaiting a new trial after McCrum successfully lobbied to have his jury conviction for sexual assault of a patient thrown out; fellow lawyer Mikal Watts, a Democratic Party stalwart who has hosted President Barack Obama at his home; and Mark Gudanowski, the former driver for District Attorney Susan Reed accused — and acquitted — of illegally selling Southwest Airlines vouchers.

We were briefly introduced to Mike McCrum when he was named special prosecutor for this case, but that was much more cursory. What this story reminds us is that McCrum isn’t just a prosecutor. He’s also been a very successful defense attorney. As we saw yesterday, there are a lot of quotable defense attorneys out there poking holes in the indictments. One would think – at least, I would think – that someone like Mike McCrum, who has been on that side of the courtroom, would have analyzed this case and the evidence from that perspective as well, to better prepare himself for the courtroom battles to come. It’s certainly possible McCrum has missed the mark or gotten caught up in the job and focused too much on an end result, but I wouldn’t count on that. If he’s as diligent and as smart as people say he is, he’s got to have considered all this.

The DMN takes a more political angle.

Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.

Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.

“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”

Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.

“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.

“He’s very fair-minded and balanced, the kind of guy who would prosecute something only if he thinks the evidence is there,” Reamey said. “When I think of overzealous prosecution, he is not someone who comes to my mind.”

[…]

According to campaign finance records, McCrum has made only a handful of contributions to state and federal candidates.

He gave $300 in 2007 to Steve Hilbig, a Republican judge on the state appeals court based in San Antonio.

Also that year, McCrum donated $500 to U.S. Rep. Charlie Gonzalez, a San Antonio Democrat.

The next year, he contributed $500 to Republican Robert “Bert” Richardson, a Bexar County district court judge. Richardson assigned McCrum as the special prosecutor after a watchdog group filed its abuse-of-office complaint against Perry.

A little history here. When the complaint was filed by Texans for Public Justice against Perry, Travis County DA Rosemary Lehmberg recused herself from investigating it. That sent the complaint to the district courts of Travis County, where it was assigned to Judge Julie Kocurekof the 390th District Court. Kocurekof, a Democrat, recused herself as well. That kicked the case to the 3rd Circuit Court of Appeals, where presiding Judge Billy Ray Stubblefield got it. Stubblefield then assigned the case to Senior Judge Bert Richardson, who I presume will be the judge from here on out barring anything weird. Richardson named McCrum as special prosecutor, since the Travis County DA had taken itself out, and the rest you know.

Well, actually, there’s one more thing you might not know. Both Judge Stubblefield of the 3rd Court of Appeals, and Judge Richardson, who is a Senior Judge after losing election in 2008, were originally appointed to their positions. By Rick Perry. Quite the liberal conspiracy working against him there, no?

One more piece of history, from the Trib. Rick Perry isn’t the first Texas Governor to run afoul of the law in this way.

A Travis County grand jury’s allegations on Friday that Gov. Rick Perry improperly threatened to veto funding for the state’s anti-corruption prosecutors marked the first time since 1917 that a Texas governor was indicted. That year, Gov. Jim “Pa” Ferguson was indicted by a Travis County grand jury on allegations that he meddled with the state’s flagship university amid a squabble with its board of regents.

In Ferguson’s case, he vetoed $1.8 million over two years (about $34 million in today’s dollars) for the University of Texas; in Perry’s case, it was $7.5 million for the Public Integrity Unit, which is overseen by Travis County District Attorney Rosemary Lehmberg. After Lehmberg pleaded guilty to drunken driving, Perry threatened to pull state funding from her office unless she resigned.

Ferguson’s indictment led to impeachment by state legislators in September 1917. That’s highly unlikely for Perry, a lame duck with an overwhelmingly conservative Legislature who is facing felony charges for his threat — one he made good on — to veto funding for of the unit charged with investigating public offices in Texas, including that of the governor.

But there are striking similarities. Ferguson, a Bell County native who worked as a rancher and a banker before becoming governor in 1914, got in trouble for trying to remove public officials who had opposed him. Two of the articles of impeachment that removed Ferguson from office accused him of having “invaded the constitutional powers of the [University of Texas] board of regents” and “sought to remove regents contrary to law,” wrote Cortez Ewing in the journal Political Science Quarterly in 1933. Ferguson’s veto of the university’s entire legislative appropriation also prompted outrage, though he was not impeached on that point.

And the regents were goading a legislative investigation into embezzlement of state funds and improper campaign finance by Ferguson, while today, some believe Perry wanted the Public Integrity Unit gone because it was investigating possible corruption of state programs — including the Cancer Prevention and Research Institute of Texas. Perry has adamantly denied that, saying that he was entirely motivated by Lehmberg’s bad behavior.

I wouldn’t read too much into any of that, but it’s an interesting piece of history. We may as well learn as much as we can about this case, because for sure they’ll be teaching it to our kids and grandkids some day.

More on the Perry indictment

Just some more thoughts and links relating to the big story that turned a relatively quiet Friday into one of the busiest news day of the year so far. Let’s start with a reality check from Harold Cook.

Corndogs make bad news go down easier

This corndog has done nothing wrong

First of all, I’m a bit puzzled by the indictment. It seems weak to me. When the criminal complaint was first made following Perry’s veto of Lehmberg’s Public Integrity Unit, it seemed weak to me then, too. But then, Special Prosecutor Michael McCrum remarked publicly that he was especially concerned about Perry’s actions post-veto, which might rise to the level of breaking the law.

Finally, an aspect of this that made sense to me. Except that in reading the actual two-count indictment, it appears to focus on Perry’s veto, and his threatening words before the veto. A layman reading between the lines of the indictment would conclude that, while it’s perfectly legal to line-item veto a DA’s budget, it’s illegal to threaten to veto a DA’s budget, if you then subsequently veto that budget.

Don’t get me to lying – I’m not going to practice law without a license on this situation, but personally that seems like (good)hair-splitting. I’m left wondering whether the case is weak, or whether there are smoking gun-like aspects of a strong case which aren’t spelled out in the indictment. Either thing, or both things, are entirely possible. Only time will tell.

The trial, if there is one, may come down to whether the Governor was within his Constitutional rights, threat or no threat, in vetoing a line item, or whether he was out of his lane by trying to circumvent a legal process by which a district attorney may legally be removed from office (a process in which, incidentally, Lehmberg prevailed).

The second notable item related to the indictment is that I have seldom seen such breathless hyperbole, misdirection, and misinformation launched in any situation than I have in this one. Opinion leaders from the left, the right, and even from some journalists, are guilty of it.

I’m no more a lawyer than Harold is, but I think if it comes to a trial, the prosecution has a pretty straightforward story to tell. If I were in charge of this case – Lord help us if I were, but stay with me here – what I would present to the jury is a simple tale of coercion. One elected official does not have the right or the authority to force another elected official to resign, especially by making threats. The only authority Rick Perry has over Rosemary Lehmberg is what any other registered voter has over her. Let’s pretend for a moment that the DUI never happened and there is no CPRIT investigation to speak of. We all agree that if Rick Perry had just out of the blue told Rosemary Lehmberg in 2013 to resign or he’d veto funding for the Public Integrity Unit, that would be suspicious, right? Perry’s always been free to veto the PIU funding. It’s actually a little surprising that he hasn’t put pressure on the Lege to cut that function out of the Travis County DA office and give it to the Attorney General or something like that. But he hasn’t, maybe because it wasn’t worth the effort and the political fallout, or maybe he just had other fish to fry. Then Lehmberg goes and gets herself busted for drunk driving, and now maybe Perry has a wedge. That doesn’t give him any more right to threaten the duly elected Lehmberg than he’d had the day before she made the poor choice to get behind the wheel after downing too much vodka. One elected official cannot coerce another. I think a jury will have an easy time grasping that.

Harold also muses about how odd it is for Perry to get indicted for doing something he could have easily done on the QT without raising any eyebrows. It’s absolutely true that in the aftermath of Lehmberg’s arrest Perry could have joined the calls for her to resign without explicitly mentioning the PIU funding, and he could have vetoed the PIU funding later saying that it made no sense for someone who lacked integrity to head up a Public Integrity Unit. It was publicly connecting the two that landed him in the soup. Isn’t that often how it is with criminal activity? The perpetrator could have gotten away with it if only someone – usually but not always the perps themselves – had kept their big mouth shut. I find a deep well of irony and humor in this, but I don’t see any contradiction.

Against all that you’ve got the Chron and the Statesman running stories with lots of quotes from defense attorneys and law professors saying that McCrum has a high bar to clear to get a conviction. I can only presume he thinks that he can, because by far the path of least resistance would have been to drop the whole thing. I’m glad this is his job and not mine, that’s for sure.

Harold has a lot more to say at his post and you should go read it all because he makes a lot of sense. On the subject of keeping one’s mouth shut, it’s interesting to see the reactions to this so far from Wendy Davis and Greg Abbott. Here’s Davis:

State Sen. Wendy Davis, the Democratic nominee for governor, passed on the opportunity Saturday morning to call for Gov. Rick Perry’s resignation following his indictment by a Travis County grand jury.

Speaking with reporters before a block walk in Plfugerville, Davis reiterated her statement Friday that she was troubled by the charges against Perry, which stem from his threat to veto funding for the state Public Integrity Unit unless Travis County District Attorney Rosemary Lehmberg resigned. Lehmberg’s office controls the unit, which aims to enforce ethics among public officials.

Asked whether Perry should step down, Davis told reporters: “As I said, there will be, I’m sure, more information that comes to light. I trust that the justice system will do its job, and these indictments handed down by the grand jury demonstrate that some very seriously potential crimes have been committed.”

As the story notes, the Texas Democratic Party and at least one elected official, Rep. Joaquin Castro, have called for Perry to step down. It’s very much in Davis’ interest to not get invested in this. For one thing, there is a non-zero chance that the indictment could get tossed. For another, it does her no good for this to be seen as just another partisan dispute. Her story line is one of a “culture of corruption” that Perry embodies and Abbott represents, and it’s much better for her if the evidence for that is as objective and non-partisan as possible. There’s also a principle at play here, which Juanita captures:

I am not one of the folks calling for Rick Perry to step down as Governor and I believe it is a major mistake to do so.

I am a Democrat and therefore I believe in the rule of law. You are innocent until proven guilty. Period. No exceptions. None.

Additionally, we Democrats were all outraged when Rick Perry asked District Attorney Lehmberg to step down. We were right to be angry. We even supported her when she was found guilty and served her jail sentence. Her behavior was unacceptable but we stood behind her. It seems more than a tad duplicitous for us to now call for Perry’s resignation.

Hard to argue with that. As for Abbott, he expressed his doubts about the indictment on a Fox News appearance but declined to say more than that, saying he hadn’t read it yet. My guess is that after he does read it he won’t say much more than that. Like Davis, there are risks for him if he throws his full weight behind defending Perry. Perry is highly unlikely to go to trial before November, but Abbott has to think longer term than that. It would not be good for him as Governor if there’s a trail of full-throated statements of support by him of Perry and he winds up going down in a way that leave no doubt about his guilt. Enough bad information could come out about Perry and the evidence against him between now and November to have a significant effect on public opinion, and he doesn’t want to be too closely associated with that.

A bit of history, since the name Tom DeLay has come up quite a bit and will no doubt continue to do so. DeLay was indicted in October 2005, and eventually resigned in June 2006 after trying to withdraw from the race in CD22 by claiming that he was a citizen of Virginia and thus ineligible to be the nominee. The goal there was to get another nominee on the ballot, as DeLay’s shenanigans meant that CD22 was in danger of being won by Democrat Nick Lampson in a year where Republicans were (rightly) worried about losing their majority in the House. DeLay’s gambit ultimately failed and Lampson prevailed over the epic write-in candidacy of Shelley Sekula Gibbs. My point in bringing this up is that while DeLay did resign, he did so for his own reasons and with other considerations in mind. Democrats were happy to have him on the ticket for as long as possible.

There is one clear-cut line of attack Davis can take that Abbott could be vulnerable to. Here’s Burka to point it out.

The indictment of Rick Perry turns Texas politics upside down. He can’t be a serious presidential candidate when he is facing a potential jury trial. But it also has serious affects for the state party. An obvious issue is that Greg Abbott has previously ruled that the state could pay for Perry’s defense. Does anyone think the Democrats are going to sit idly by and allow Perry to continue to spend large sums of money on his defense when he stands accused of breaking the law? Not a chance.

My archives show that Abbott was asked for an opinion about this, but it appears that request is still pending. Given the other ways in which Abbott has helped Perry it’s easy enough to imagine a similar ruling, and it’s easy enough to imagine the attacks even in the absence of such a ruling. One can certainly make a case that criminal defense of an action taken in the official capacity of the office of Governor should be paid for by the public, but boy is that a tough thing to stick up for when the chips are down. I’d feel sorry for the position Abbott is in if I were a better person.

And finally, the Trib has the official word from the man of the hour his own self.

A steamed Texas Gov. Rick Perry on Saturday decried a Travis County grand jury’s indictment of him on two felony counts, saying allegations that he abused his power by threatening to veto funding for the state’s anti-corruption unit were politically motivated.

“We don’t settle political differences with indictments in this country,” Perry said in a short press conference. “It is outrageous that some would use partisan political theatrics to rip away at the very fabric of our state’s constitution. This indictment amounts to nothing more than abuse of power and I cannot and I will not allow that to happen.”

Perry — who followed through on the threat because Travis County District Attorney Rosemary Lehmberg, who had pleaded guilty to drunken driving, refused his request to step down — said his actions were protected by the state Constitution, and that he and his attorneys would aggressively fight the charges. They include abuse of official capacity, which carries a potential penalty of five to 99 years in prison, and coercion of a public servant, which has a penalty of two to 10 years.

“I intend to fight against those who would erode our state’s constitution and laws purely for political purposes and I intend to win,” he said. “I’ll explore every legal avenue to expedite this matter. I am confident that we will ultimately prevail, that this farce of a prosecution will be revealed for what it is. And those responsible will be held accountable.”

Mighty big words there, cowboy. Fasten your seatbelts, y’all. BOR, Main Justice, Trail Blazers, the AusChron, Texas Politics, the Trib, Juanita, and Martin Longman have more.

Perry indicted

Wow.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

A grand jury indicted Gov. Rick Perry on Friday on charges of abuse of power and coercion as part of an ethics inquiry into his veto of funding for the state’s public integrity unit.

The inquiry began last summer after an ethics complaint was filed alleging that Perry had improperly used a veto to deny funding for the unit, which is housed in the Travis County district attorney’s office and focuses on government corruption and tax fraud.

The indictment throws a major wrench in Perry’s possible presidential ambitions; he was in Iowa last week and was expected in both New Hampshire and South Carolina in coming weeks. Perry is the first Texas governor to be indicted in almost a century.

Perry had been riding high and making national headlines in recent weeks, railing against the Obama administration for a perceived lack of response to the humanitarian crisis on the Texas-Mexico border, then reallocating funds to send National Guard troops there himself.

Now, he’ll be playing defense.

The first count, abuse of official capacity, is a first-degree felony with a potential penalty of five to 99 years in prison. The second count, coercion of a public servant, is a third-degree felony with a penalty of two to 10 years.

Michael McCrum, the special investigator in the case, said he interviewed more than 40 people and reviewed hundreds of documents in the case.

He said that a time would be set up for Perry to come to court, be arraigned and given official notice of his charges.

I’ve done a ton of blogging on this, so click away for the backstory, or read the NYT story and this Observer explainer to get caught up. You can also see the original complaint and press release from TPJ. The key thing to keep in mind is that while a lot of headlines (like this one) will say that Perry was indicted because of the veto of the Public Integrity Unit funds, that’s really not quite accurate. It was the threat of the veto combined with the demand that Travis County DA Rosemary Lehmberg – elected by the people and not answerable to Rick Perry – accede to Perry’s order or else. That’s where he overstepped his bounds, and it’s what the veto is all about. What happens from here – other than the you-know-what hitting the fan – is anyone’s guess. Remember how Tom DeLay was indicted in 2006 and his legal fate is still unresolved? We could be here for awhile, is what I’m saying. Texas Politics, Trail Blazers, the HuffPo, the Statesman, the Observer, Hair Balls, Burka, the Current, Juanita, the AusChron, PDiddie, Ross Ramsey, and Progress Texas have more.

Rick Perry really wanted Rosemary Lehmberg to quit

From the Trib.

Rosemary Lehmberg

Even after Gov. Rick Perry stripped funding for the agency that prosecutes state public corruption cases, his emissaries worked to swap the resignation of embattled Travis County District Attorney Rosemary Lehmberg for restoration of the money, several sources told The Texas Tribune this week.

The Tribune learned of the proposal as a grand jury considers whether Perry overstepped his authority last year when he threatened to veto the public integrity unit’s state funding if Lehmberg did not step down after she was arrested for drunken driving. The sources said the offer was made to Lehmberg through several back channels: If Lehmberg — a Democrat whose office was in charge of investigating state officeholders — would resign, Perry would restore the two years in state funds, about $7.5 million, that he had vetoed following her April 12, 2013, arrest and subsequent guilty plea.

“It was communicated to me if she stepped out, [Perry] would restore the funding,” said Travis County Judge Samuel T. Biscoe, a Democrat who said he was one of several people made aware of the proposal from Perry’s office. “I was told his office made the representations.”

[…]

Several sources, who asked not to be identified, citing the grand jury investigation, told the Tribune that Lehmberg was informed of the proposal last July. She was also told, they said, that the proposal came from the governor’s office, about a month after Perry made good on his threat to veto the state funds to the public integrity unit.

“It happened,” one of those sources told the Tribune.

The same sources said Lehmberg rejected the proposal outright because of concerns that such an offer may be illegal.

Reached late Tuesday, Lehmberg declined to comment for this story because of the ongoing grand jury investigation.

Rich Parsons, a spokesman for Perry, said no one from the governor’s office met with Lehmberg.

“Neither the governor nor any member of staff met with or spoke with Ms. Lehmberg,” Parsons said.

Asked if anyone from the governor’s staff told others to convey any offer, he declined to comment, citing the pending grand jury investigation.

That’s a pretty specific, and pretty limited, denial. It does not in any way negate the thesis of this story. Turns out, according to Texas Politics, that’s because Travis County Commissioner Gerald Daugherty, the lone Republican on that Court, was the go-between. He confirmed that the key point was Lehmberg resigning; Daugherty blamed her refusal to budge as the reason nothing happened. Now can we agree that – if this story is true – this is about more than just a run-of-the-mill veto by Rick Perry? The Observer, which points out what may turn into Perry’s defense strategy, has more.

The Rick Perry grand jury convenes

Game on.

Rosemary Lehmberg

A grand jury was sworn in Monday to look into whether Gov. Rick Perry acted improperly last year when he threatened to kill funding for the Travis County district attorney’s public corruption division unless District Attorney Rosemary Lehmberg resigned after her drunken driving conviction.

The office of the governor – who carried through on the veto threat – has hired defense lawyer David Botsford to “ensure the special prosecutor receives the facts in this matter,” Perry spokeswoman Lucy Nashed said.

“The facts will show this veto was made in accordance with the veto power afforded to every governor under the Texas Constitution,” she said. “As we have from the beginning, we remain ready and willing to assist with this inquiry.”

Because the inquiry concerns actions by Perry in his official capacity, Botsford’s $450-an-hour fee is expected to be paid from general revenue, Nashed said.

Much as it pains me to say it, that is appropriate. Perry could of course offer to pay for it from his ample campaign funds, and I’m sure he’d have no trouble getting a sugar daddy or two to cover the tab, but he’s not required to do so.

Texans for Public Justice, which tracks money in politics, last year filed a complaint with prosecutors over Perry’s threat, contending he violated laws against coercion of a public servant, abuse of official capacity, official oppression and, potentially, bribery.

Craig McDonald, director of Texans for Public Justice, emphasized that the group’s focus is on Perry’s threat. He said the group does not question Perry’s right to veto the funding itself.

“He’s got the authority to veto whatever he wants. He just can’t threaten to use his official pen or his official act against anyone, let alone the DA,” McDonald said.

[…]

Political experts suggested a criminal case against Perry for the veto threat is a long shot.

“I don’t think anybody’s going to prison for signaling that they would utilize their veto power to try to encourage an outcome. If that were the case, then I think pretty much every governor in the United States at one point or another would be guilty as charged,” Rice University political scientist Mark Jones said.

Oh, for crying out loud. Can we not agree that there’s something problematic with an elected official demanding that another elected official resign her office, and using the power to veto funding for her office as a threat to make her resign? As District Attorney, Rosemary Lehmberg can convene a grand jury to investigate anyone she thinks might have committed a crime. If she had demanded that a member of Austin City Council resign for whatever the reason, and threatened to convene a grand jury to investigate every member of that Council person’s staff if he didn’t resign, then followed through on it afterward, would we not agree that that is an abuse of her power? It doesn’t matter if this hypothetical Council member has done anything that might merit a grand jury investigation. The point is that there are limits on the power, and going beyond those limits is at the least a concern and may be a crime. I don’t see what’s so hard to grasp about that. If the grand jury comes back with a no-bill based on their understanding of the law and the evidence presented, then so be it. We built limits on the powers of our elected officials in Texas for a reason. It’s appropriate to check when we think an elected official may have attempted to exceed the power of his or her office. Texas Politics has more.

Perry lawyers up

It’s getting real.

Rosemary Lehmberg

Texas Gov. Rick Perry has hired a high-profile Austin defense lawyer to represent him in an investigation into whether he illegally withheld money from the Travis County District Attorney’s office.

KVUE News and the Austin American-Statesman confirmed Sunday evening the hiring of David L. Botsford.

The hiring comes as a special Travis County grand jury is set to be seated Monday to hear evidence into whether Perry broke state laws concerning bribery, coercion and abuse of authority.

[…]

Botsford said Sunday night, “The matter at hand pertains to the power of the governor to issue vetoes as allowed under the Texas Constitution. I have been retained to ensure that (the special prosecutor) receives all the facts, which will show that the governor’s veto was carried out in both the spirit and the letter of the law.”

See here, here, and here for the background. Attorney Botsford must be good at what he does, because he’s already obfuscating the facts. The issue, as I’ve said repeatedly, is not that Perry vetoed the funds but that he threatened to veto them unless Travis County DA Rosemary Lehmberg resigned. Trying to force out another elected official in this manner is the no-no. Had Perry simply vetoed the funds without yapping about it beforehand, there would be no allegation of wrongdoing. I can’t wait to see what the grand jury, which has been seated, makes of this. Jason Stanford and Juanita have more.

No, there won’t be a flood of equal pay lawsuits in Texas

There wasn’t one before, when the federal Lilly Ledbetter Act passed. There’s no reason to believe there will be one if a state version of the Ledbetter law is approved.

Candidates for statewide office have wrangled recently over an effort to address sex-based wage discrimination by extending the window for lawsuits. But as the campaigns have kicked up dust, the issue has gotten cloudy.

Opponents of the proposed Texas Lilly Ledbetter Fair Pay Act, which Gov. Rick Perry vetoed last year, say it duplicated federal law and would increase unfounded lawsuits. Meanwhile, Democrats say conservatives are standing in the way of equal pay for women.

Experience with the federal law, which was enacted in 2009, suggests both claims are overblown. The federal law hasn’t brought about a flood of frivolous discrimination charges. But there’s little evidence that the pay gap between men and women has narrowed.

The issue of equal pay is important, but the Ledbetter act is “a very narrow fix,” said University of Texas professor Joseph Fishkin, who teaches discrimination law. Among the reasons it hasn’t had much impact, he said, are that pay gaps are driven in part by difference in education and types of job. But the fight, Fishkin said, is nonetheless significant.

“This has become an argument between the parties about equal pay in general. That’s a good discussion to have,” he said. “I don’t think the Ledbetter act is a cure-all, but it is a focal point. The politics go beyond this bill, but I don’t think that’s a bad thing.”

[…]

“There’s no indication that the Ledbetter act would increase lawsuits,” said Fatima Goss Graves, vice president of education and employment at the National Women’s Law Center, which supported the federal measure. “It hasn’t at the federal level, and there’s no indication that it would do so in Texas. It certainly wouldn’t increase the number of lawsuits without merit.”

The number of charges filed with the Equal Employment Opportunity Commission, which handles claims of wage discrimination on the federal level, didn’t increase substantially after President Barack Obama signed the Ledbetter law.

Data from the EEOC going back to 1997 shows that an average of 250 charges a year originated in Texas before the act passed. Afterward, the state averaged 259. The most came in 2002, when 339 sex-based wage discrimination charges originated in Texas.

The charges represent complaints made under both the Equal Pay Act of 1964, which targets sex-based wage discrimination specifically, and broader provisions under Title VII of the Civil Rights Act, which prohibits employment discrimination on the basis of race, color, sex, religion, and national origin.

The numbers don’t include every charge filed, but they do present a picture of the Ledbetter act’s minimal impact on the volume of sex-based wage discrimination charges. Though women filing under the Equal Pay Act don’t have to go through the commission, “many charging parties do,” said EEOC spokeswoman Justine Lisser.

The Ledbetter act reinstated a long-standing position by the commission that the 180-day time frame to file wage discrimination lawsuits starts over with each individual discriminatory paycheck, Lisser said, explaining the lack of an increase in charges.

Not really a whole lot to add to this. Litigation is never an easy path to take, and hand-wringing about “frivolous” lawsuits, especially in a state as hostile to (non-corporate) plaintiffs as Texas, is just fearmongering. The reason a state law is needed when a federal law exists, as Katherine Haenschen patiently explains to Matt Mackowiak, is that a state law makes bringing a suit just a little easier for someone who has been wronged. Not easy, mind you, just easier. Fixing the underlying problem will take a lot more of that, and most of the things that will be needed to accomplish that will likely be even less palatable to Mackowiak and the interests he represents. No one ever said life was fair, fellas.

Perry special prosecutor is “concerned”

As are we all.

Rosemary Lehmberg

A special prosecutor investigating whether Gov. Rick Perry abused his authority when he eliminated state funding of the Texas public integrity unit — which investigates government corruption and is housed in the Travis County district attorney’s office — said what he’s found so far is “concerning.”

“I cannot elaborate on what exactly is concerning me, but I can tell you I am very concerned about certain aspects of what happened here,” San Antonio attorney Michael McCrum said in an interview with the Austin American-Statesman and KVUE-TV.

In that same interview, McCrum would not indicate whether he thinks a crime was committed when Perry withheld $7.5 million in state funding from Travis County District Attorney Rosemary Lehmberg’s office because she didn’t resign after she pleaded guilty to a drunken driving charge a year ago.

Asked by the Statesman and KVUE if his concerns pointed specifically at Perry or his staff, McCrum said, “Yes.”

Perry announced last summer that he would veto funding to the state’s public integrity unit if Lehmberg didn’t step down once the guilty plea was made public. Lehmberg didn’t resign, and the governor followed through on his threat, vetoing the two-year, $7.5 million in funding.

McCrum, who plans to present his investigation results to a special Travis County grand jury next month, could not be immediately reached by The Texas Tribune for further comment.

Lucy Nashed, a spokeswoman for the governor’s office, said Perry stands by his actions.

“As he has done following every session he’s been governor, Gov. Perry exercised his constitutional veto authority through line-item vetoes in the budget,” she said.

See here, here, and here for some background, and here for the KVUE story. As has been discussed before, the point of contention is not that Perry vetoed the Integrity Unit funds, but that he threatened to do so unless Lehmberg resigned. It’s the threat plus the demand that may add up to a coercion charge. I have no idea what will happen with the grand jury, but I do know that if you take a shot at the king, you’d better bring him down. I look forward to seeing how this plays out. Juanita has more.

Just a reminder, the Ledbetter bill was bipartisan

I mean, it had to be bipartisan to pass in the Lege, but let’s keep that in mind as the debate continues.

State Rep. Senfronia Thompson

Rep. Senfronia Thompson

After 42 years in the Texas House, Rep. Senfronia Thompson has earned a nickname – “Miz T” – that evokes equal parts respect, affection and fear. When she filed the Texas version of the Lilly Ledbetter Act to promote equal pay last session, “Miz T” called some old friends at the Texas Civil Justice League, a business group dedicating to fighting lawsuit abuse, and drafted them as allies.

Aided by the group’s credibility with conservatives – and by the force of her own personality – the Houston Democrat gained bipartisan support for the measure and it narrowly passed, although her efforts eventually fell victim to Gov. Rick Perry’s veto pen.

Now, the issue has resurfaced in the Texas governor’s race, with Republican nominee Greg Abbott saying he would veto the bill if it is passed again. His comments drew a rebuke from Democratic nominee Wendy Davis, who had sponsored the bill in the Texas Senate.

The GOP candidates for lieutenant governor also jumped into the fray this week. Incumbent David Dewhurst tweeted that Davis’ bill would have “unleashed torrents of lawsuits,” while his challenger, Houston Sen. Dan Patrick, said the government should stay out of the issue.

Some political observers, however, say conservatives may be having a knee-jerk reaction against the Lilly Ledbetter legislation simply because it was championed by President Barack Obama, and Davis, a rising Texas Democratic star. The policy it advances is not that controversial, they argue.

The vote favoring the bill “can absolutely be defended on conservative grounds,” says TCJL general counsel George Christian, whose group helped win passage of Thompson’s bill. “I would urge stepping back and taking another look.”

Lisa Maatz, vice president for government relations for the American Association of University Women, called Dewhurst’s claim that the law would unleash a torrent of lawsuits “a tired argument.” The predicted “torrent” has not occurred since the federal bill was signed into law in 2009, she said.

Emphasis mine. I think there’s a lot to this; we’ve all seen how a health care law that had its genesis in the Heritage Foundation has become synonymous with socialism. The question is whether people who once crossed the aisle to support it will continue to do so or if they’ll be swayed back by partisan considerations. The original bill passed by a 78-61 margin in the House after being amended in the Senate. Here’s the record vote of the House concurrence of the Senate changes. In addition to 53 Democrats (Anchia and Burnam were absent), these Republicans voted for final passage:

Anderson; Aycock; Bohac; Crownover; Dale; Darby; Davis, S.; Geren; Harless; Huberty; King, S.; Kuempel; Lozano; Otto; Patrick; Ratliff; Riddle; Ritter; Sheffield, J.; Sheffield, R.; Smith; Villabla; Workman; Zerwas

Some of these folks are not coming back – Pitts retired, while Patrick, Ratliff, and Ralph Sheffield all lost primaries. That might make passage in the House trickier when it comes up again in 2015; of the No votes, only Linda Harper-Brown and Stefani Carter, both of whom are in primary runoffs, might get replaced by a Democrat, while the retiring Craig Eiland could be replaced by a no-voting Republican. Lord only knows what might happen in the Senate, too, but the point is that we need to keep an eye on the overall attitudes. As with evangelicals and contraception, attitudes do change. We should keep track of that and note when they do change, so we can remind ourselves that it wasn’t always this way.

No pay equity problems here

No sauce for the gander, either.

Sen. Wendy Davis

Sen. Wendy Davis

Women in Democrat gubernatorial candidate Wendy Davis’ Senate office last year averaged about $3,000 more in earnings than the male employees, according to data acquired by Austin bureau chief Peggy Fikac.

Out of 12 employees in Davis’ office, women averaged $43,050 and men averaged $40,378. There are six men and six women who work in Davis Fort Worth and Austin offices.

[…]

Equal pay for women has been the focus of the Texas governor’s race this week and the issue has placed the two candidates on starkly different sides of the issue. Abbott said as governor he would have vetoed the equal-pay legislation sponsored by Davis last year.

See here for the background. Davis has only 12 employees in her Senate office, while the AG’s office has over 7,000, so it’s not really a direct comparison. But it does nothing to derail the story line, and that’s the big thing. Abbott can strain to reach for a counter-argument, but he’s fighting on inherently hostile turf, and he’s his own worst enemy with his admission that he’d have vetoed the Ledbetter bill. He needs to change the subject, but this won’t go away. It’s a key difference between the two candidates, and it’s a relevant, resonant issue.

By the way, I’m sure you’ll be unsurprised to learn that Dan Patrick opposes the Ledbetter bill, too. “Women should be should be paid the same as a man, but I don’t believe government should enforce it,” Patrick said. You’re on your own, ladies! I recommend taking negotiation classes, if you can find the money to pay for them. Also, too, David Dewhurst doesn’t oppose Ledbetter, but he’s too wishy washy to come out and say it. Honestly, it’s like they’ve got Democratic saboteurs writing their position papers for them.

Abbott comes out for inequality

Turns out he’s been a practitioner of it for some time.

Still not Greg Abbott

Equal pay for women is in the spotlight of the Texas governor’s race, and figures from Attorney General Greg Abbott’s state agency show most female assistant attorneys general make less on average than do men in the same job classification.

Abbott’s office said the difference is explained by the amount of time that the men have been licensed as lawyers and have served at the agency.

But drilling down into different classifications of assistant attorney general, the figures provided by Abbott’s office show there isn’t always a direct correlation between such experience and pay.

And of the top 20 highest-paid employees at the agency, just three are women, February salary figures provided to the San Antonio Express-News show. Of the 100 top positions, 37 are held by women.

Abbott’s office said that since he became attorney general in December 2002, the number of female lawyers in his office has increased by 71, or 23 percent.

[…]

The Texas attorney general’s office has more than 4,000 employees, nearly 2,900 of them women. The office defends state laws, serves as legal counsel to state agencies and provides legal opinions, including hundreds of open records requests every year. The office also oversees the collection of court-ordered child support and administers the state crime victims compensation fund.

Overall, male employees make an average of $60,200 a year, and women make $44,708. Those averages, however, don’t take into account differing job classifications.

Looking at the 722 assistant attorneys general under Abbott, the average salary for 343 men is $79,464 while the average salary for 379 women is $73,649.

Abbott’s office said the men on average had more than 16 years of being licensed, while the women had nearly 14 years. The men had an average of nearly 104 months of service, while the women had more than 92 months, his office said.

Of seven different classifications of assistant attorneys general, the average salary for men is higher than the average salary for women in six of them, with the difference ranging from $647 to $4,452. In one category, the average salary for women is $3,512 higher than that for men.

In three categories, the women on average either had more years of service or had been licensed longer, or both, despite being paid less, according to figures from the attorney general’s office. In the latter case, the attorney general’s office noted the salaries were almost identical — the men’s average salary was $122,528, while the women made $647 less while having more experience.

In the one category of assistant attorney general in which women were paid more than men, the women on average had more years of service at the agency, but fewer years licensed.

[…]

Katie Bardaro, lead economist for Seattle-based PayScale, cautioned that a number of factors go into setting pay, even for people with the same job title. PayScale collects data from employees and people with job offers and conducts studies that include a look at men and women in the workforce.

“Even though they have the same title, it doesn’t mean they have the same characteristics. They might not have the same day-to-day responsibilities. They might not have the same years of experience, the same education, the same management responsibilities,” she said.

There’s something to what Ms. Bardaro says, but 1) if the male attorneys generally have the kind of duties and responsibilities that come with higher pay, that in itself is telling, and 2) one might expect there to be more examples of women having higher pay if this were just a matter of chance and distribution and not something systemic. Clearly, there’s a bunch of bad negotiators in that office. The bottom line is that this is a pretty inconvenient set of facts for a guy who’s trying to say that no, really, he does support equal pay.

And then there’s this.

Republican Attorney General Greg Abbott would have vetoed the equal-pay measure sponsored by his Democratic opponent for governor, state Sen. Wendy Davis, his campaign said Wednesday.

Abbott’s answer meets a key Davis campaign issue head on and puts the candidates squarely on opposite sides of it.

[…]

Davis has been pressing Abbott to say whether he would have vetoed the state version of the federal Lilly Ledbetter law if he were governor, just as GOP Gov. Rick Perry did last year.

The federal law, named after a woman who sued over pay discrimination, changed the statute of limitations in federal cases so that allegations could be brought 180 days after the last alleged discriminatory paycheck was received. Previously, the clock started running in federal cases when the discriminatory payments began.

Davis’ bill would have made the same change in state law. Backers said that would allow people to bring their cases in state court, a potentially quicker and less expensive avenue.

Abbott spokesman Matt Hirsch said in a statement, “Because wage discrimination is already against the law and because legal avenues already exist for victims of discrimination, Greg Abbott would have not signed this law.”

Asked whether Abbott would have vetoed the measure, Hirsch said yes.

Because why should they make it a little easier for someone who’s been getting screwed to seek justice? And to think, a few hours earlier Abbott was distancing himself from Republican Party of Texas Executive Director Beth Cubriel and her “women are bad negotiators” remark. Honestly, I don’t know what there is to say. PDiddie, BOR, Texpatriate, the Feminist Justice League, and the Observer have more.

Perry special prosecutor seeks to hire investigator

Moving right along.

Rosemary Lehmberg

The special prosecutor in an ongoing investigation into whether Gov. Rick Perry violated state law by vetoing funding for the Travis County ethics-enforcement unit is seeking to hire an investigator and researcher, the first public hint the probe is moving forward past its initial stage.

In a request filed Tuesday in Travis County district court, Michael McCrum of San Antonio sought court approval to fill the temporary staff positions at a maximum cost of $2,500.

[…]

“I want to look into some matters, some issues that need to be examined and answered as a part of this case,” McCrum told the American-Statesman. “It will be cheaper for an investigator and a researcher to do it, and will keep me from being a witness in the case if I do the research myself.”

McCrum, a former assistant U.S. attorney who is now a criminal defense attorney, said the staff positions will begin work as soon as Senior District Judge Bert Richardson of San Antonio approves the hiring.

The ethics enforcement unit at the Travis County district attorney’s office normally would investigate such a complaint, but the case was referred outside the county because the Public Integrity Unit is involved in the political drama over its funding precipitated by District Attorney Rosemary Lehmberg’s drunken driving conviction in April.

[…]

As the special prosecutor, McCrum could have looked at the complaint and dismissed it as unfounded — or he could move to further investigate it, which he has done. If the complaint is eventually validated through an investigation, officials said charges could be filed or presented to a grand jury.

Craig McDonald, executive director of Texans for Public Justice, applauded the move by McCrum. “We’re happy to see that the special prosecutor is moving ahead to look into these serious allegations, as we think he should,” he said.

See here and here for some background. I don’t know about you, but I like having the opportunity to put “special prosecutor” and “Rick Perry” in the same sentence. Rosemary Lehmberg was no-billed by her grand jury, so she has one less thing to worry about. Perry, not so much, at least at this time. Texas Politics and Progress Texas have more.

Grand jury convening in Perry/Lehmberg veto threat case

Can’t wait to see how this turns out.

Rosemary Lehmberg

A visiting state district judge began convening a special grand jury Wednesday to consider two possible criminal cases stemming from the April drunken driving arrest of Travis County District Attorney Rosemary Lehmberg.

The 12-member panel with two alternates, which may be seated as early as Friday, will help determine whether Gov. Rick Perry broke any law when he threatened to veto millions of dollars in state funding to Lehmberg’s office unless she resigned.

The grand jury will also help determine whether Lehmberg violated any state laws, including those concerning obstruction, resulting from her behavior in the Travis County Jail immediately after her arrest.

The grand jury will meet, hear evidence and deliberate in private. It can issue indictments or can decide criminal court action isn’t merited.

See here and here for other recent developments. According to KVUE, the grand jury is “expected to possibly consider jailhouse recordings that show Lehmberg dropping the names of both Travis County Sheriff Greg Hamilton and Austin Police Chief Art Acevedo”. I hadn’t known that Lehmberg’s behavior was also in scope, but it makes sense. Let’s get to the bottom of this once and for all and see what if anything needs to be done from here. Juanita has more.

UPDATE: Patricia Kilday Hart adds on.

San Antonio State District Judge Bert Richardson notified the special prosecutors he plans “to put together a grand jury to be at our disposal as we may need it,” said former Brazos County District Attorney Bill Turner, who was named special prosecutor for the complaint against Lehmberg. “It’s not at all unusual in an investigation to use a grand jury. They have the ability to subpoena witnesses and recover records. It’s part of an investigation.”

Turner said he expects the panel to be sworn in Friday. He will be working in concert with San Antonio attorney Michael McCrum, who was named as special prosecutor to handle the complaint against Perry.

[…]

The term of a Travis County grand jury is three months, unless the panel seeks additional time to complete an investigation.

I hadn’t realized there was a second special prosecutor involved. Good to know, as is the time frame. We may be done with this phase of the saga by the end of the year.

Special prosecutor appointed in Perry/Lehmberg veto threat case

Meet Mike McCrum.

Mike McCrum

District Judge Robert Richardson named Mike McCrum to look into a complaint filed by Texans for Public Justice against the governor. The watchdog group alleges that Perry abused his power by threatening to cut funding to the Public Integrity Unit if Travis County District Attorney Rosemary Lehmberg didn’t resign. The Democrat pleaded guilty to driving while intoxicated, served time in jail but pledged to remain in office for the rest of her term, which ends in 2016.

Perry subsequently used his line-item veto power to cut off state funding to the part of her office responsible for investigating state elected officials. Perry said he’d lost faith in Lehmberg’s ability to perform her duties. If Lehmberg had resigned, Perry would have appointed her successor. Perry has denied any wrongdoing

“As he has done following every session he’s been governor, Gov. Perry has exercised his constitutional veto authority through line item vetoes in the budget,” said Josh Havens, a spokesman for Perry.

[…]

McCrum is a criminal defense attorney and former federal prosecutor, who said in that role he has investigated public officials in the past. His role is to act as the acting district attorney in the case, determining if there is evidence of wrongdoing and prosecuting the case if necessary.

“I think the first steps are for me are to go and get a preliminary analysis as to what is really necessary (to complete an investigation),” McCrum said. “This matter requires that no rash judgment be made, that there be some careful consideration of all options.”

As noted before, the legal issue is not the veto itself but the “resign or else” demand that preceded it. Had Perry not shot his mouth off before issuing the veto, there would be no complaint. I look forward to seeing how McCrum proceeds. Trail Blazers and the Trib have more.

Special prosecutor to be appointed in Perry/Lehmberg veto case

Moving forward.

Rosemary Lehmberg

A San Antonio senior state district judge confirmed Thursday that he will name a special prosecutor to investigate possible charges of coercion and abuse of official capacity against Gov. Rick Perry.

Judge Robert “Bert” Richardson said he expected to name someone early next week, at which time “an order will be prepared and filed with the court.”

The investigation stems from the governor’s veto of $3.7 million annual funding of Travis County’s Public Integrity Unit.

Perry acknowledged that he let it be known that if Travis County District Attorney Rosemary Lehmberg, a Democrat, did not resign her office following a DWI conviction, that he would cut off funding for the integrity unity.

Perry, a Republican, would name Lehmberg’s replacement.

Lehmberg did not resign and Perry subsequently vetoed funding for the unit, which prosecutes corruption and public malefeasance. Among other cases, the unit has been investigating the Cancer Prevention and Research Institute of Texas — one of Perry’s landmark accomplishments. CPRIT is facing allegations of favoritism and mismanagement of public funding.

After the Austin American-Statesman reported Perry’s challenge to Lehmberg, Texans for Public Justice filed a criminal complaint against Perry. The complaint cited state laws that prohibit public officials from abusing their office in coercing or bribing others.

See here, here, and here for the background, and here for a copy of the complaint. Note that the issue is not the actual veto, but the demand Perry made for Lehmberg to resign under the threat of his veto, that is the basis of the complaint. It’s the “resign or else” statement that the TPJ alleges is coercion. Had Perry simply issued the veto, there’d be no allegation of wrongdoing. It’s certainly open to debate whether Perry’s actions really did rise to the level of lawbreaking – that will be a question for the special prosecutor, and possibly a judge and jury, to decide – but let’s be clear that it was the demand for Lehmberg to resign and not the veto itself that is at issue. Texas Politics, Juanita, and Texpatriate have more.

Travis County to fund Public Integrity Unit

Not optimal, but better than the alternative of shutting it down till 2015.

Rosemary Lehmberg

The Travis County Commissioners Court agreed [last] Tuesday to restore some money to the Travis County district attorney’s Public Integrity Unit after Gov. Rick Perry in June eliminated state funding for the office. The five-member commissioners court voted 4-1 on the proposal, which will cost Travis County taxpayers about $1.8 million next year.

[…]

Lehmberg told the commissioners on Tuesday that continuing the unit’s work was vital and that it affects both Travis County and all of Texas.

She said the staff had already “scrubbed down our budget” to eliminate unnecessary costs.

The new budget will be substantially less than the unit’s previous annual operating budget of $3.7 million, which had been funded by the state. Its annual budget will now total $2.5 million, including $1.8 million from county tax funds and up to $734,422 from forfeited property controlled by the county.

The smaller budget will require the unit to reduce some of its responsibilities. At least 52 of its current 425 cases — primarily in insurance and tax fraud — will be returned to the referring state agencies, and the unit will no longer take statewide cases, Lehmberg said.

The plan will also reduce the number of employees from 34 to 24.

The proposed budget for the unit will take effect in October, when its new fiscal year begins.

Commissioner Gerald Daugherty, who was the only vote against the proposal, argued forcefully against using taxpayer money to fund the unit.

“Is it fair to the taxpayers of Travis County to take [the unit’s budget] on?” he asked.

Though the other four commissioners acknowledged the difficulty of asking taxpayers to shoulder the burden, “we have to make some of the tough decisions here,” said Commissioner Margaret Gomez.

“We have a moral responsibility as well as the district attorney to prosecute crime,” said Commissioner Bruce Todd. “My fear is that some of that would be lost by simply saying, ‘no.’”

See here for the last update. I think this was the right thing for them to do, but Commissioner Daugherty’s question is valid. Really, the thing I’d be worried about is that the Lege will take this as a precedent and try to foist responsibility for funding the PIU on Travis County going forward. If they did it once, they can do it again, right? I hope Travis County has a good lobbyist on retainer, for its own sake. Perhaps the eventual adjudication of that complaint about Perry’s veto threat will help clarify things. BOR has more.

Unfair pay

Patricia Kilday Hart uncovers some skulduggery in one of Rick Perry’s vetoes.

State Rep. Senfronia Thompson

State Rep. Senfronia Thompson

Gov. Rick Perry vetoed a bill that would have let victims of wage discrimination sue in state court after receiving letters against the measure from the Texas Retailers Association and five of its members, mostly grocery stores, according to records obtained by the Houston Chronicle.

Rep. Senfronia Thompson, D-Houston, who authored HB 950 mirroring the federal Lilly Ledbetter Fair Pay Act, said she unaware that the group and the businesses opposed her bill, or that they sought a gubernatorial veto.

Among the businesses advocating for a veto was Kroger Food Stores.

“I shop at Kroger’s for my groceries,” Thompson said. “I shopped there just last week. I’m going to have to go to HEB now. I am really shocked.”

Also writing to seek a veto were representatives of Macy’s, the Houston grocery company Gerland Corp., Brookshire Grocery Company, Market Basket, the Texas Association of Business and the National Federation of Independent Businesses.

Here’s HB950, which received 26 Republican votes in the House on third reading. I take no pride in noting that I predicted the veto, though I did so on the usually reliable grounds of Rick Perry being a jerk. I had no idea that he had help in that department this time.

Two other prominent business groups – the Texas Association of Business and the National Federation of Independent Businesses – also wrote Perry urging a veto, but those groups opposed publicly during committee hearings. Thompson said she heard “not one time” from any of the retailers.

In his veto proclamation, Perry did not mention the opposition of any business groups, but cited Texas’ positive business climate as a reason to oppose the bill: “Texas’ commitment to smart regulations and fair courts is a large part of why we continue to lead the nation in job creation. House Bill 950 duplicates federal law, which already allows employees who feel they have been discriminated against through compensation to file a claim with the U.S. Equal Employment Opportunity Commission.”

In his request for a veto, Ronnie Volkening, president and CEO of the Texas Retailers, said the bill was “unnecessary, in that existing law provides adequate remedies against employment discrimination; and harmful, in that it undermines opportunities for timely resolution of employment dispute in favor of fomenting expensive and divisive litigation.”

[…]

The retailers complained to Perry that under HB 950, the statute of limitations would be reset every time a worker received a retirement check. Not so, said Thompson, who said she rewrote the bill to exclude retirement benefits to win Republican support in the Texas Senate.

“They didn’t read the bill or someone get them the wrong information,” she said.

Gary Huddleston, Kroger’s director of consumer affairs, said he relied on the retailers association for his information on the bill. “I regret that Representative Thompson is upset and I am sure Kroger, along with the Texas Retailers Association, would like to discuss the issue with her,” he said.

Yo, Gary. You think maybe the time to “discuss the issue” with Rep. Thompson might have been during the session, when the bill was being written, heard in committee, and voted on? Because at this point, Rep. Thompson would be fully justified in discussing the issue of putting her foot up your rear end.

Let me refer once again to Nonsequiteuse for the reasons why this bill was a good idea and a necessary law.

The Lilly Ledbetter Fair Pay Act, a federal law, doesn’t mandate that women should receive equal pay for equal work, and it doesn’t make it illegal to discriminate (another law takes care of that). It is a more technical law that deals with the amount of time someone has to file a lawsuit if they discover that they are facing pay discrimination.

The law used to be that you had a relatively short period of time from the first time you were paid unequally. So, you are hired for a job on January 1st, and get your first paycheck on the 5th (I know, bear with me), and it turns out you are being paid less than a man doing the exact same job. Before this act, you were presumed to know that and to have only 180 days to file a lawsuit to remedy it. If you didn’t discovery the discrimination until the following January (or even the following October, or whenever 180 days is from January 5th), you were out of luck.

Realistically, of course, we all know that no one walks around on day 5 of a new job comparing paychecks. People are socialized not to talk about salary, and some companies (and I’ve always wondered if this is legal) explicitly tell you not to talk about salary.

The outcome, of course, was that if you didn’t learn early in the game that you were being discriminated against, you were out of luck, and your employer got away with it.

The Lilly Ledbetter Act changes the game, and says the statute of limitations starts afresh with each discriminatory paycheck. So, as long as you’re getting a discriminatory paycheck, you have a cause of action.

In other words, as long as the employer is violating your rights, you have a chance to remedy the situation in court.

Seems fair, doesn’t it? I mean, nowhere in life do we say that if you break the rules long enough without anyone noticing that you get a free pass, so why would we do it with discriminatory pay?

Note that this law isn’t a guarantee that you’ll be able to prove discriminatory pay. It merely extends your time frame for filing a lawsuit.

The allowance to file in either state or federal court is important, too. State courts are less expensive and easier to access–consider that every county has a courthouse, but few have federal ones (just 29 places for federal courts to meet in Texas).

It’s about making it just a tad bit harder to screw the little guy. I’m not surprised that Rick Perry couldn’t care less about that – he has a long and established record of not caring about that sort of thing – and his heir apparent Greg Abbott has a similar record of indifference. While I can’t say it’s surprising that these business interests would go skulking about under what they hoped would be the cover of darkness to maintain their unfair advantage over their workers, it is nonetheless shocking and appalling, and it deserves to come with a price tag attached. To that end, there is a push to boycott Macy’s and Kroger until they reverse their stance on this. Rep. Thompson and Sen. Sylvia Garcia have already canceled events at Macy’s having to do with the annual sales tax holiday as a result of this. I never know how much to expect from this kind of action, but I fully support making sure people know what the businesses they support are up to when they think we’re not looking. The long term answer is of course to elect better legislators and especially better Governors, which is much harder to do but will reap much bigger rewards. In the meantime, go ahead and heap all the shame you can on the retailers that pushed for this veto. They deserve every bit of it. BOR, Stace, PDiddie, Texas Leftist, and Progress Texas have more.

Judge assigned in complaint about Perry veto of Public Integrity Unit

Moving along slowly.

Rosemary Lehmberg

A San Antonio judge on Tuesday was assigned to hear a complaint that alleges Gov. Rick Perry committed coercion, bribery and official oppression by vetoing funding for the Travis County District Attorney’s Public Integrity Unit.

Senior Judge Robert Richardson of the 379th District Court will hear the complaint, which was filed byTexans for Public Justice after the Austin American-Statesman reported that Perry threatened to veto funding for the unit unless embattledTravis County District Attorney Rosemary Lehmberg resigned.

[…]

Lehmberg recused herself from hearing the complaint in late June, and it was assigned to Judge Julie Kocurekof the 390th District Court in Travis County. Kocurek then also recused herself, and on Tuesday, 3rd Circuit Presiding Judge Billy Ray Stubblefield assigned the case to Richardson, who was defeated in 2008.

See here for more on the complaint. I thought at first that the first sentence in that last paragraph above contained an error, then I realized that the complaint had been filed with the Travis County DA’s office, so of course Lehmberg had to recuse herself, and her office, from deciding whether or not it merited further investigation. I presume handing such things off to a judge is the standard procedure in this kind of situation. I have no idea what kind of hearing there will be, whenever one is set. Who actually presents the case for the complaint, and is there some kind of defense representative? If the judge decides there’s something actionable here, who would then handle the case? My guess would be the Travis County Attorney, but I have no idea about the other questions. I’d love to hear from the lawyers about that. Texas Vox has more.