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Rosemary Lehmberg

Lawsuit filed over veto of legislative budget

Jun 26th, 2021
by Charles Kuffner.
2 comments

Good. And necessary.

A group of Texas House Democrats and legislative staffers is asking the Texas Supreme Court to override Gov. Greg Abbott’s recent veto of a portion of the state budget that funds the Legislature, staffers there and legislative agencies.

More than 50 Democrats, a number of state employees and the Texas AFL-CIO have signed on to a petition for a writ of mandamus, which was filed Friday morning.

“The state is in a constitutional crisis at this moment,” said Chad Dunn, an attorney involved with the petition, during a briefing with reporters Thursday.

[…]

The petition argues that Abbott exceeded his executive authority and violated the state’s separation of powers doctrine. The parties involved with the petition are asking the all-Republican court to find Abbott’s veto unconstitutional, which would allow Article X of the state budget, the section at issue, to become law later this year.

State Rep. Chris Turner, a Grand Prairie Democrat who chairs his party’s caucus in the lower chamber, told reporters Thursday there are roughly 2,000 employees in the state’s legislative branch that would be affected by Abbott’s veto if it stands.

Lawmakers receive $600 a month in addition to a per diem of $221 every day the Legislature is in session for both regular and session sessions.

“This isn’t about [lawmakers’] paychecks,” Turner said during the briefing. “What he’s doing is hurting our staff and hurting our constituents.”

See here for the background, and here for a Twitter thread from Rep. James Talarico explaining the reasons behind the petition. Rep. Talarico notes that the effect of the veto “also includes nonpolitical staff like the custodians, cafeteria workers, landscapers, and parking attendants…[who] will also lose their pay and their health insurance on September 1”, which is the end of the fiscal year. The special session for July will almost certainly include action to restore this funding, but only if Abbott puts it on the agenda, which gives him quite a bit of leverage. Way too much, if you believe what the state constitution says.

The plaintiffs have asked the Supreme Court for a ruling before September 1. I have no idea what they will do, but consider this for a moment. Beto beats Abbott in November 2022. After taking office, he issues an executive order of some kind, maybe to kill the Abbott border wall. Doesn’t really matter, whatever it is he gets sued by Jared Woodfill, who gets a writ of mandamus from SCOTX blocking the order. And then, a few months later after the Lege passes its budget, Governor Beto uses his line item veto authority to defund the Supreme Court, which he says is payback for their dumb and disrespectful ruling against him.

You may say that’s ridiculous. I would agree, but the real question is what (other than a respect for norms and not being a petty tyrant like Greg Abbott) would stop Governor Beto if it came to that? If the Supreme Court says there are no limits on what a Governor can do to exert influence over another branch of government, then surely this too is fair game.

Those of you with memories that extend past last week may remember the precursor to all this, when Rick Perry threatened to veto funding for the Public Integrity Unit of the Travis County DA’s office if then-DA Rosemary Lehmberg didn’t resign following a drunk driving arrest. Lehmberg, whatever her faults, was an elected official who did not answer to the Governor, but Perry felt it was within his power to attempt to force her out and to use the threat of cutting off funding for a division of her office as the stick. Perry was subsequently indicted by a grand jury for an abuse of office charge, but the Court of Criminal Appeals came to his rescue and tossed the indictment, buying his argument that he was being arrested for exercising veto power. But it wasn’t that – indeed, he never did veto any PUI funding – it was the threat and the coercion. Abbott’s veto, done as retaliation against a legitimate legislative action that he just didn’t like, is the next step of this progression. It’s autocratic, it’s a huge abuse of power, it’s dangerous, and it must be stopped by the one branch of government that can stop it. If SCOTX doesn’t recognize the need to do this, they will have truly failed us all.

UPDATE: A statement from Abbott about the lawsuit can be found here.

Case against Rick Perry officially dismissed

Apr 7th, 2016
by Charles Kuffner.
1 comment

So there you have it.

Corndogs make bad news go down easier

Justice for corndogs

The criminal case against former Gov. Rick Perry was officially dismissed on Wednesday, weeks after Texas’ highest criminal court ordered that it be dropped.

Judge Bert Richardson, who presided over the case in Travis County and now serves on the Texas Court of Criminal Appeals, signed an order dismissing the abuse of power indictment related to a 2013 veto threat.

[…]

Michael McCrum, the special prosecutor in the case, said he still believed that Perry committed a crime — and had drafted and printed copies of a motion for an amended indictment. But on Tuesday afternoon, he decided to halt the effort, saying the high court’s ruling had “muddied” the criminal statute at issue.

“It was our position, and our feeling that the law had been so muddied that it was not the just thing to do with any citizen,” he said.

See here and here for the background. The Express News adds on.

Perry’s lead lawyer, Anthony Buzbee, suggested he might take action to hold the appointed prosecutor, Michael McCrum, accountable for what he called an improper pursuit of the case. As he told the Express-News previously, Buzbee said Wednesday he would seek a transcript of grand jury proceedings.

“We feel like Mr. McCrum must have said some things that are probably actionable to that grand jury based on the people that we know testified and the facts as we know them and we’re going to explore that,” Buzbee told reporters after the hearing where Judge Bert Richardson signed the dismissal order.

Buzbee didn’t say exactly what action he’d seek but mentioned there are professional responsibility rules for lawyers.

McCrum said that the law doesn’t allow the release of grand jury transcripts because it’s important to protect the integrity of the process and ensure evidence is fairly reviewed. In the process, he took aim at Buzbee, a prominent Houston trial lawyer with a history of handing high-profile injury cases yielding big awards to clients.

“The law guards the confidentiality of those proceedings very, very much for good reason,” McCrum said.”Mr. Buzbee should know that. I don’t know – he handles snake bite and car wreck cases.”

McCrum said he didn’t decide against trying to resurrect the case until late Tuesday because he believes Perry committed a crime.

“We believe that he did. Strongly believe that,” McCrum said.

But the Texas Court of Criminal Appeals ordered the case dismissed in February and in doing so, McCrum said, “so muddied the law” that he didn’t think it would be the right thing to do.

Perry’s legal team defended his actions and Buzbee said took issue with “the stuff that came out of his (McCrum’s) mouth.”

“If the law doesn’t support a crime was committed, then you don’t prosecute, period. That’s how it works,” Buzbee sad. “This has all been a colossal waste of time.

The presiding judge in the case, Richardson, said the case “has not been a pleasant experience for me either.” He said he felt like a “punching bag.”

“I didn’t ask for this job and I didn’t want it,” he said, pointing out that he was running for the Texas Court of Criminal Appeals while presiding over the case.

I feel for Judge Richardson, who I thought did a fine job with this mess. I still think what Perry did was wrong and that he was handed a gift by the CCA, one that would not be available to other mortal defendants, but it is what it is at this point. I don’t really believe that Buzbee will pursue a complaint against McCrum, but at this point nothing would surprise me. Go ahead and start cashing in on that sweet wingnut gravy train, Rick Perry. It is your due.

Perry appeal briefs

Oct 27th, 2015
by Charles Kuffner.
1 comment

The latest update on the appeals before the CCA in the Rick Perry matter.

Corndogs make bad news go down easier

Corndogs, nothing but corndogs

The 3rd Court of Appeals this summer tossed one of two counts against Perry, saying the coercion law underlying it violates the First Amendment. The 3rd Court agreed with Judge Bert Richardson, however, that Perry must face the charge of abuse of official capacity because it’s too early in the case to decide upon the issues he raised.

Perry’s legal team disagreed with the 3rd Court on the remaining charge, arguing in a brief filed with the Court of Criminal Appeals and released Thursday that the count could be thrown out under existing legal precedent before a trial.

And if that’s not so, said the team led by Houston lawyer Anthony Buzbee, the case should be tossed before trial anyway given the issues at stake and to prevent “the irremediable loss of constitutional rights.”

The briefs were filed as a precursor to oral arguments scheduled for Nov. 18 before the state’s highest criminal court.

Among its points, Perry’s defense team cited the separation of powers and argued that allowing “a criminal prosecution of a political decision where there is no allegation of bribery or demonstrable corruption undermines the basic structure of state government.”

The prosecution disagreed, saying the issues raised by Perry can’t be decided at this point in the case.

The defense brief said that even assuming for the sake of argument that Perry’s claims “were not of the type that this Court has already recognized as cognizable, the Court should clarify the law to permit immediate resolution of the merits of his challenges.”

“Governor Perry’s constitutional claims pose fundamental questions about any governor’s authority to exercise one of that office’s core constitutional responsibilities—the review of legislative acts, including the possibility of veto,” said the defense brief.

[…]

State Prosecuting Attorney Lisa C. McMinn said it’s clear that the claims raised by Perry would properly be decided in a trial.

“Whether Appellant’s conduct satisfies the elements of a penal statute is a question of sufficiency of the evidence to be decided at trial, not a pretrial determination that this issue cannot be decided or that he is immune from prosecution because a political question might arise at trial,” she wrote.

“Neither the constitutional separation of powers doctrine nor the political question theory of nonjusticiability creates a right not to stand trial or shields a member of the executive or legislative branch from criminal prosecution,” McMinn wrote.

McMinn also filed a brief urging the state’s high criminal court to rescind the 3rd Court’s decision that the coercion law, at least as applied to public servants, violates First Amendment protections.

She said that “there is no evidence that in the years since the coercion statute was enacted, any public servant … has abstained from any of the valid speech the court of appeals maintains is covered by the statute.”

See here, here, and here for the background. Both sides’ briefs are embedded at the link above – the State Prosecuting Attorney’s brief follows the defense brief and begins on page 127 – so go read them if you are so inclined. I have no idea how the CCA will rule, but I feel pretty confident saying that we won’t get a ruling till some time next year.

What is coercion, anyway?

Oct 18th, 2015
by Charles Kuffner.
Comments are off for this post

It could be the defining legacy of Rick Perry’s career, depending on how things go in the courts.

Corndogs make bad news go down easier

This corndog has not been coerced in any way

The coercion law has been used only sparingly in Texas, according to records for the past five years, and some legal experts call it problematic.

Others, however, say its absence will be felt if the Texas Court of Criminal Appeals agrees with the decision to toss the law.

“I see it not just as a numbers game,” said Melissa Hamilton, visiting criminal law scholar at the University of Houston Law Center.

“To the extent you are taking away tools from prosecutors to charge as well as to plea bargain, they are going to be potentially deterred from bringing more cases. And I don’t see how that’s helpful to the citizens,” Hamilton said.

[…]

The state is appealing the 3rd Court’s decision to throw out the coercion law, saying it should stay on the books to hold public officials accountable. Perry still faces a charge of abuse of official capacity, which he is appealing.

Some agree with Perry’s team and the 3rd Court that the coercion law has problems.

“When something that could fit that coercion of a public servant statute would come in, it was almost always a better fit for bribery or for obstruction or retaliation of a public servant,” said Bexar County Assistant District Attorney Patrick Ballantyne, whose job includes handling public integrity cases.

“I think that statute needs to be more narrowly tailored by the Legislature for a lot of the reasons that the 3rd Court cited,” Ballantyne said. “Basically it encompasses too much constitutionally protected speech. Stuff that may just be impassioned criticism of a public servant may technically fall under the letter of that statute. So it’s a statute that’s just too broad a sword given the constitutional issues that are at play.”

The Texas Department of Public Safety criminal history database shows 23 convictions statewide under the coercion law in the past five years. The database is dependent on reporting by local entities.

The number of cases involving public servants such as elected officials or government employees – the category of the law targeted by the 3rd Court decision – is much smaller.

DPS doesn’t capture information on whether those convicted were public officials, according to a spokesman. Ballantyne said of three Bexar County convictions, none were public servants.

[…]

Professor Geary Reamey of St. Mary’s University School of Law said effects of the 3rd Court’s ruling will be minimal, and that lawmakers can move to address problems if need be. The Legislature previously amended the law after an appellate court found constitutional problems.

“I don’t think it’s a terribly big deal. We’ll always have statutes that try to address corruption and malfeasance and misfeasance by public officials,” Reamey said. “It may very well be that the Legislature will decide that they want to come back and address the concerns.”

See here, here, and here for the background. With all due respect to Prof. Reamey, I think the odds of the Legislature acting to clarify or rewrite the existing coercion statue are slightly less than the odds are of Dan Patrick being the grand marshal at next year’s Pride parade. It would be nice if they attempted to fix it, because I do think that what Rick Perry did should fall afoul of a coercion law. It’s not the veto, it’s the threat against another elected official. If what Perry did is okay, then what’s to stop Greg Abbott from threatening to veto every bill John Whitmire authors or sponsors unless he steps down? Again, it is well within the Lege’s capacity to tailor such a law in whatever way they think is best and to aim it at whatever behavior they think should be prohibited, but given that there’s zero incentive for them to do so, and plenty of incentive for them to not do so, I hope the CCA reverses the Third Circuit and leaves the current law standing. Oral arguments are for November 4, so we’ll have some idea soon enough which way they wind is blowing.

Perry’s pathetic pity party

Sep 18th, 2015
by Charles Kuffner.
1 comment

There isn’t a violin small enough.

Corndogs make bad news go down easier

At least the corndogs still love me

Rick Perry blamed his criminal indictment and exclusion from the Republican debate mainstage for his failed presidential bid in his first interview since suspending his presidential campaign on Friday.

“The indictment by the Travis County district attorney’s office, this drunk DA that had used this office, we think, for political purposes… it had a real corrosive effect on our ability to raise money,” he said on Fox News’ “Hannity.”

“The political opponents, they did their damage,” he later added of his legal problems.

But Perry also said his campaign effectively ended in early August, when he missed the cut for the Fox News GOP debate in Cleveland.

“The other thing that we knew had to happen was we needed to be on the main debate on Aug. 6,” he said. “We missed it by a few percentages of one point… It had a very negative impact on our fundraising through the summer.”

Poor baby. I was going to get all huffy about this, but Ross Ramsey saved me the effort:

Baloney.

Perry was indicted by a special prosecutor appointed by a Republican from San Antonio on charges related to his veto of state funding for Travis County’s public integrity unit — the part of the district attorney’s office that handles, among other things, ethical and other misdeeds of state officeholders. The then-governor had demanded the resignation of Rosemary Lehmberg, who was arrested for drunken driving and then spent a few days in jail after pleading guilty. But she didn’t resign then and didn’t quit when Perry demanded it. He vetoed the funding. The special prosecutor took that to a grand jury, which indicted Perry on charges that he misused his official powers.

The only overtly political thing about the indictments is the defendant himself, who has spent the last 30 years in one political office or another. It’s natural for him to attack his attackers, and putting it off as politics is the textbook response for someone in Perry’s position.

He goes on from there, and it’s all well deserved, but this is the point I wanted to make. Perry can whine all he wants about Rosemary Lehmberg. She had absolutely nothing to do with his current legal woes, other than being a focal point for his abuse of power. Perry may well eventually beat the rap, but he has no one but himself to blame for his predicament.

He also doesn’t understand his own party any more.

In Monday night’s interview, Perry revisited his numerous criticisms of real estate developer Donald Trump, who is leading in the GOP polls. But he also expressed frustration that public service, specifically as governor, is being overlooked on political resumes at a time when outsiders are dominating the polls.

“Donald Trump’s bullets going through Washington went through and hit people like myself, hit people like all the governors that are on the stage, for instance,” he said of his former rival. “I don’t believe this is the only profession in the world where your experience ought to be held against you.”

Dude. Remember that 2010 election? Remember how Republican politicians like you tapped into a deep vein of anger with your own voters, aimed as much at other Republican politicians as at Democrats? Your voters remember it, and they remember how politicians like you pioneered the message – since honed to a sharp edge by the likes of Ted Cruz – that Republican politicians were a spineless bunch of wimps and traitors who had sold them all out. Those same voters now say they want an outsider for President. For someone like Rick Perry to complain about that now is more than a little rich.

Perry appeals his other indictment

Aug 20th, 2015
by Charles Kuffner.
Comments are off for this post

More for the CCA to deal with.

Corndogs make bad news go down easier

Corndogs are never wrong

Lawyers for former Gov. Rick Perry are urging the Texas Court of Criminal Appeals to finish off the remaining charge in his indictment, ratcheting up their push to end the case against the presidential candidate.

The request comes a few weeks after a state appeals court dismissed one of the two counts in the case, delivering Perry’s team its first major victory in the yearlong legal saga. The remaining charge accuses Perry of abusing his power when he threatened to veto state funding for a unit of the Travis County district attorney’s office .

In a filing Tuesday, Perry’s lawyers argued that the state’s highest criminal court should toss out the rest of the indictment as a way of preventing the “judicial system from being complicit in undermining the very structure of Texas government.” Perry’s team sharply criticized how the Austin-based 3rd Court of Appeals arrived at its July decision letting the charge stand, accusing it of “drawing a wholly incorrect lesson” from previous cases and using an “erroneous framework” for assessing the charge.

Perry had one of his indictments tossed by the Third Court of Appeals, though that decision has been appealed to the CCA as well, by the Office of the State Prosecuting Attorney on the grounds that it invalidated a state law, and that’s not something a lower court should do. You can see a copy of Perry’s latest appeal in the Chron story. Both Judge Richardson – who of course now sits on the CCA and would presumably recuse himself from this hearing – and the Third Court of Appeals have rejected Perry’s claims not on their merits but on the grounds that it’s too early in the process for them to be properly evaluated. Speaking as a non-lawyer with no expertise at all in these matters, I kind of think the CCA will see it that way as well. But who knows? As they say in another context, this is why they play the game on the field. Trail Blazers has more.

Perry wins one and loses one at the appeals court

Jul 25th, 2015
by Charles Kuffner.
1 comment

He’s still under indictment.

Corndogs make bad news go down easier

This little corndog has only one felony charge against it

Former Gov. Rick Perry must face one criminal count in the abuse-of-power case against him but another would be dismissed under a Friday ruling by an appeals court.

The ruling by a three-judge panel of the 3rd Court of Appeals in Austin gives Perry a partial victory but, at least for now, leaves the cloud of an indictment over him as he seeks the GOP nomination for president.

[…]

The former governor repeatedly failed in efforts get the indictment dismissed by state Judge Bert Richardson. Perry then took his case to the 3rd Court.

The 3rd Court agreed with Richardson that it was too early in the case to decide whether one count against Perry, charging abuse of official capacity, was unconstitutional as applied to the former governor.

But the appeals court rejected the second count, coercion of a public servant, saying that the law on which it is based violates the First Amendment.

The count remaining against Perry has been presented and described as a first-degree felony, but [defense attorney Tony] Buzbee said Friday he believes it’s a misdemeanor.

“We believe the only remaining count is a misdemeanor, and raises the question of whether the exercise of a veto can ever be illegal in the absence of bribery. The appeals court is bound by precedent, meaning that the timing of this challenge they believe to be premature. We think when we put that timing question in front of the highest criminal court we will win on that. This thing is hanging by a thread, and in my view is very near to being over,” Buzbee said.

[Special prosecutor Mike] McCrum, of San Antonio, said he believes the remaining count is a felony.

“The bottom line is that he committed a crime, and you shouldn’t have sitting governors committing crimes,” McCrum said.

A 3rd Court decision can be appealed to the Texas Court of Criminal Appeals. Richardson was elected to the Court of Criminal Appeals after the case began but would recuse himself from deciding on the appeal as part of that high court.

In his opinion, Justice Bob Pemberton of the 3rd Court of Appeals pointed out that the case at this point turns on legal issues as opposed to the headline-grabbing facts.

“This appeal arises from an ongoing criminal prosecution that, as the district court observed, involves ‘unique circumstances’ that ‘have been widely reported, argued, and discussed by many with no standing in the case.’ Whatever the focus of such commentary, our disposition of this appeal turns on legal issues — primarily procedural in nature — that may be of somewhat less public renown,” Pemberton wrote.

A copy of the 97-page opinion is here. That post, by Robert Wilonsky, highlights the key bits of the ruling neatly:

To summarize the proceedings below, the appellant — James Richard “Rick” Perry, who until recently served as Governor of Texas — sought dismissal, through a pretrial writ of habeas corpus, of two pending criminal charges (“abuse of official capacity” and “coercion of a public servant”) that are predicated on alleged acts preceding or relating to his line-item veto of a proposed legislative funding appropriation. In seeking dismissal, Perry has contended chiefly that the statutes on which each charge is based, “as applied” to him, violate constitutional protections related to free expression and the separation of powers. Even while terming these “as applied” constitutional challenges “compelling,” the district court determined that it could not decide their merits at that juncture, let alone grant relief, due to procedural limitations the Court of Criminal Appeals has imposed on the ability of lower courts to address such “as applied” challenges when raised through pretrial habeas corpus, as Perry has attempted here. While Perry contends this ruling was error, we reach the same conclusion that the district court did—under the Court of Criminal Appeals’s binding precedents, Perry cannot bring his “as applied” constitutional challenges through pretrial habeas corpus.

Perry has also asserted that the statute on which the “coercion of a public servant” charge is based “facially” violates the First Amendment to the United States Constitution. While recognizing that defendants may bring such facial constitutional challenges through pretrial habeas corpus, the district court rejected Perry’s claims on the merits. As to this ruling we respectfully disagree with the district court—the statute on which the “coercion of a public servant” is based, as written, and as we are bound to construe it, violates the First Amendment and, accordingly, cannot be enforced.

As a consequence of these holdings, we affirm the district court’s denial of relief as to the “abuse of official capacity” charge, because Perry’s “as-applied” constitutional challenges cannot be addressed through pretrial habeas corpus under current Texas law. However, because the First Amendment bars enforcement of the statute on which the “coercion of a public servant” charge is based, that charge must be dismissed.

The good news for Perry, beyond the fact that one of the counts against him was dismissed – though that can be appealed by McCrum, and I expect that it will – is that the merits of his claims have not yet been decided. He can say, with some justification, that he still expects to get the charges dismissed, and he may be right. Of course, he’s still under a legal cloud, and the next step of the process could take months, by which time his Presidential campaign could be turned to dust. If he was hoping for a clean win, he didn’t get it. He’s still going to be paying those legal bills for the foreseeable future. Trail Blazers, Hair Balls, the Current, Juanita, and the Trib have more.

Prosecutors respond to latest Team Perry filings

Apr 24th, 2015
by Charles Kuffner.
1 comment

Back and forth, forth and back.

Corndogs make bad news go down easier

This corndog has done nothing wrong

The special prosecutor in the case against Rick Perry is asking a judge to deny the former governor’s latest two efforts to quash the indictment against him.

Perry, meanwhile, is once again showcasing a high-profile group of legal scholars who think the case against him should be dismissed.

The two filings by special prosecutor Michael McCrum of San Antonio – and the filing on behalf of Perry by lawyers from Republican and Democratic backgrounds – are the latest moves in a long court dance that has taken place since Perry was indicted last August.

[…]

Perry has maintained that he properly used his veto authority and that the indictment is improper, politically motivated and injurious to free speech and gubernatorial authority.

His high-powered legal team led by Houston lawyer Anthony Buzbee has said that misusing a veto “cannot constitutionally be considered a criminal act” under the statute cited by McCrum, and that McCrum’s effort to fix problems identified in the indictment is “woefully deficient.” Perry’s team also has said the indictment doesn’t give Perry enough notice to defend himself.

McCrum and Austin attorney David M. Gonzalez, who is assisting him in the case, said in a Friday filing that Perry’s third motion to quash the indictment should be denied because the indictment tracks the law, and that Perry doesn’t lack clarity about why he is being prosecuted. They said the matters raised in Perry’s indictment “may be appropriately addressed when evidence has been presented.”

McCrum and Gonzalez said in responding to Perry’s supplemental motion to quash in trial court, “Texas’ highest court for criminal cases has held that the State does not have to lay out its case in the indictment.”

See here and here for the background. The first of the filings mentioned in the third paragraph was filed after the initial ruling by Judge Richardson, which denied his first motions to dismiss but which noted some issues with the indictments. The second filing came after special prosecutor Mike McCrum refiled the charges, in response to the questions Judge Richardson raised. Perry has also filed a motion with the Third Court of Appeals, which is a separate matter. There may be more filings to come – I presume McCrum will respond to the Third Court of Appeals motion if nothing else – and then we wait for rulings. Trail Blazers has more, including a copy of the latest paperwork.

On a side note, it’s interesting that this happened on the same day as the House passing the bill to move the Public Integrity Unit out of the Travis County DA’s office. The Perry indictments have been repeatedly cited as the fulcrum for getting that long-sought legislation through. A bit ironic, given that the action has been driven by a nonpartisan special prosecutor appointed by a Republican judge, but never mind that. At this point, I’d say that if Team Perry succeeds in getting the indictments tossed, that will be a lot of ammunition for the advocates of moving this function elsewhere. If it does go to trial, I don’t know that it changes any of the office-movers’ minds, but it may take some wind out of their sails. We’ll see who if anyone winds up feeling vindicated.

House approves bill to move Public Integrity Unit

Apr 21st, 2015
by Charles Kuffner.
Comments are off for this post

Like it or not, looks like this is going to get done.

Rosemary Lehmberg

The Texas House gave initial approval Monday to a stripped-down bill that would remove public corruption cases from Travis County’s Public Integrity Unit.

Final House approval is expected Tuesday.

House Bill 1690, initially approved 94-51, was amended on the House floor to apply solely to corruption allegations against elected or appointed state officials, who would be investigated by the Texas Rangers and prosecuted, if the allegations are confirmed, in the official’s home county.

House members adopted an amendment dropping state employees from home-county prosecution, keeping the status quo that would keep those cases in the county where a crime occurred — typically Travis County, where most state employees work.

State Rep. David Simpson, R-Longview, joined Democrats in arguing that home-county prosecution would create a special privilege, and a “home-court advantage,” for state officials that is not available to other Texans.

“I just want to plead with you that you not create, with this bill, a specially protected class,” Simpson said. “I urge you not to treat yourself better than the constituents who you serve.”

A Simpson amendment to allow corruption cases also to be prosecuted in the county where the crime occurred was defeated, 93-49.

The Senate has already passed a similar bill, moving Republicans much closer toward realizing a longtime goal — removing corruption cases from Travis County, a Democratic stronghold where, they believe, GOP officials cannot receive a fair hearing.

Like the Senate version, the bill by Rep. Phil King, R-Weatherford, would not move the majority of cases handled by Travis County’s Public Integrity Unit — including fraud against state programs, insurance fraud and tax fraud.

King estimated public corruption cases affected by his bill would affect only about 2 percent of the unit’s caseload.

See here for background on the Senate bill. I don’t think this is the worst idea ever – it’s better than simply handing this off to the Attorney General’s office, for example – but I agree with Rep. Simpson about how it treats legislators versus everyone else, and I agree with RG Ratcliffe that this does not take the politics out of the process, it just changes them. It may take awhile, but I’d bet that one of these days there will be a scandal over how a future investigation into an officeholder is handled, or not handled, by the Rangers and that officeholder’s home county DA. Anyone want to bet against that proposition? Note that this isn’t a partisan thing – since the Governor appoints the head of DPS, a future Democratic Governor could be just as liable to engage in shenanigans as any other kind of Governor.

And speaking of shady officeholders and their buddies back home:

Rep. Chris Turner, D-Grand Prairie, won approval of a provision potentially affecting [Attorney General Ken] Paxton. It would require a local prosecutor who currently or in the past has had “a financial or other business relationship” with the target of a probe to ask the judge to let him be recused “for good cause.” If the judge approved, the hometown prosecutor would be considered disqualified, Turner’s amendment says.

As he explained the amendment, Turner did not mention Paxton or Willis or their offices. Bill author Rep. Phil King, R-Weatherford, accepted the amendment, which passed on a voice vote.

[…]

The question of criminal prosecution of Paxton appeared to be going nowhere until grand jury members were given information about his licensure violations. One grand jury member expressed a desire to look at the matter. Willis asked the Texas Rangers to investigate and make a recommendation.

Turner, the amendment sponsor, said the original bill would let a local prosecutor seek to be recused “for good cause.” That’s insufficient, he said.

“Obviously, it’s not appropriate for the prosecutor to be involved in that case,” Turner said.

Rep. Trey Martinez Fischer, D-San Antonio, won approval for a related amendment. It would let an investigation’s target ask a judge to recuse a prosecutor with a conflict of interest.

That’s something, but we’ll see if those amendments stick. There’s two competing bills now, so it’s a matter of which one gets passed by the other chamber first, and if a conference committee is ultimately needed. The House bill is far from great, but it’s better than the Senate bill. The question is whose approach will win. The Chron and the Trib have more.

Perry appeals to appeals court again

Apr 10th, 2015
by Charles Kuffner.
1 comment

It had been a few weeks since his lawyers filed any paperwork, so I guess they were getting twitchy.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

As the race for president shapes up, former Gov. Rick Perry is imploring a state appeals court to take quick action in the criminal case against him.

In his latest court filing, Perry said a decision is important not only for him but for his successor, Gov. Greg Abbott.

Perry believes that “time is of the essence because of the forthcoming conclusion of the legislative session and the corresponding minimal time frame afforded to Gov. Abbott to determine in which circumstances, if any, he can exercise his constitutional right to veto items of appropriation,” Perry’s legal team wrote.

[…]

In the most recent motion with the 3rd Court, filed Friday, Perry’s lawyers asked for expedited action without oral argument.

“I believe the issues are clear, and the setting of oral argument would unnecessarily delay matters,” Perry’s lawyer, Tony Buzbee of Houston, said Monday.

Oral argument was suggested as appropriate by the special prosecutor in the case, Michael McCrum of San Antonio. He said the complexity of the case warrants it and that argument would likely involve a discussion of the “limits – and abuses – of power in our representative democracy and how it can be regulated.”

Perry’s legal team said there’s no need for “the type of open-ended philosophical discussion” that it says McCrum is proposing.

If oral argument is necessary, “Gov. Perry implores the court to expedite this case and set that argument for the very earliest possible date,” Perry’s team said.

Team Perry had filed a motion to dismiss with the 3rd Court of Appeals on February 26. I guess maybe they were getting a bit impatient. Obviously, he wants to have this matter behind him before officially launching his Presidential campaign. The calendar is not his friend right now.

Bill to kneecap Public Integrity Unit stuck in the Senate

Apr 3rd, 2015
by Charles Kuffner.
1 comment

For now, at least.

Rosemary Lehmberg

A Republican bill to transfer the Public Integrity Unit out of Travis County has snagged in the Senate, where the legislation does not have enough support to force a floor vote — at least for now.

The author of Senate Bill 10, Sen. Joan Huffman, R-Houston, acknowledged Monday that she is still trying to line up support from Republican senators but added that she remains confident of success.

“I’m close,” Huffman said, raising the possibility of a vote this week. “We’re almost there.”

News that the bill had stalled came in a Monday letter by state Sen. Kirk Watson, D-Austin, to Lt. Gov. Dan Patrick, who presides over the Senate and who has made moving the Public Integrity Unit out of the Travis County District Attorney’s Office a legislative priority.

Watson said SB 10 does not have the 19 votes needed to allow a Senate vote and asked Patrick not to take advantage of the planned absence of state Sen. Eddie Lucio Jr., D-Brownsville, who will be attending funeral services for his brother Joe Lucio this week.

With one senator absent, a floor vote could be triggered by support from only 18 senators.

“I want to make you aware that Sen. Lucio has told me that he would not vote” to bring SB 10 to the floor, Watson said in the letter. “As a result, SB 10 does not have sufficient support to allow for (a vote).”

[…]

Because all Democrats oppose the bill, Watson’s letter indicates that at least two Republicans are not on board with SB 10.

Huffman said she would bring SB 10 to the floor during Lucio’s absence only if she has 19 votes. “Clearly it’s going to be close,” she said. “I’m working to make sure I am answering everyone’s questions.”

See here and here for the background. I’d love to know who the two GOP holdouts are, and what their reasons are for hesitating. As of Wednesday, an effort to find a compromise to move the bill forward came up short.

A behind-the-scenes effort to get a controversial ethics bill moving again in the Texas Senate derailed on Wednesday, after a bipartisan plan to move the Public Integrity Unit to a white-collar investigative arm of the Texas Department of Public Safety was rejected by Senate leaders.

Sen. Joan Huffman, R-Houston, author of Senate Bill 10 that would move the ethics-enforcing PIU from the Travis County District Attorney’s office to the Attorney General’s office said she declined an amendment by Sen. Kel Seliger, R-Amarillo, that was designed as a compromise to remedy strong opposition to the measure.

[…]

According to senators, the compromise proposed by Seliger and others would have transferred the PIU to a public-corruption section staffed by Texas Rangers at DPS. If an investigation warranted prosecution, the chief Justice of the Texas Supreme Court would appoint a special prosecutor, according to a copy of the plan reviewed by the Houston Chronicle.

Huffman said she did not think the proposal was as good as her bill, even as she was continuing to review options to get the measure moving again.

“I’m still listening to suggestions, and I’m still working to get the votes,” Huffman said. “It’s still a work in progress. Let’s just say that.”

Not sure if this means Sen. Seliger is one of the holdouts or if he was just acting as a broker. My expectation at the beginning of the session was that this bill would pass the Senate (its future in the House would be less certain), but now I’m less sure. Again, it would be good to know the who and the why. One way or the other, I strongly suspect we’ll be hearing more about this.

Perry goes to appeals court with latest motion to dismiss

Feb 27th, 2015
by Charles Kuffner.
Comments are off for this post

Leave no stone unturned, and no hour unbilled.

Corndogs make bad news go down easier

Corndogs are appealing

Rick Perry’s lawyers have asked a state appeals court to dismiss the indictment against the former governor, saying he lawfully used his power to veto funds to the Travis County district attorney’s office and his right to do so is protected by free speech.

“On its face, without the need for any evidence, the indictment must be dismissed because it runs afoul of these constitutional guarantees,” the defense team argued in a filing made late Wednesday with the 3rd Court of Appeals in Austin.

The filing, the second part of a two-pronged approached to get the indictment dismissed, is an appeal of a Jan. 27 decision by Judge Bert Richardson that allowed the case to proceed.

[…]

Defense lawyers Tony Buzbee and David Botsford wrote on Monday that this new “woefully deficient” indictment should be dismissed because it fails to allege a crime was committed when Perry, as governor, vetoed state funds that were to go to the Travis County district attorney’s office nearly two years ago.

In their brief before the appeals court, Perry lawyers again zeroed in on the coercion charge and whether Perry’s veto threat was allowed under free speech protections guaranteed by the state and U.S. constitutions.

Defense lawyers offer that while some threats that imply physical harm are not protected by the U.S. Constitution, most threats enjoy “broad protection” under the First Amendment.

The defense team warned that if the case is not dismissed, it will have a “a chilling effect” on any governor who may want to veto items in the state’s budget, Perry’s appeal states.

“At stake is not just the freedom of one man,” Perry’s attorneys argued.

Yawn. See here and here for the background, and here for the filing. I do agree that this indictment is a threat to any future politician who would use his or her power to try to force another elected official to resign. We’ll see which court rules first.

Perry’s lawyers try, try again

Feb 24th, 2015
by Charles Kuffner.
2 comments

The circle of life keeps on keeping on.

Corndogs make bad news go down easier

This corndog has done nothing wrong

Lawyers for Rick Perry asked the court on Monday to again end the prosecution of the former governor, saying the indictment is faulty and the actions he took in issuing a veto are allowed by law.

[…]

On Monday, Perry’s team attacked amendments that McCrum had added to the indictments that accuse the former governor of coercion and misuse of public office. The court had found that the initial indictments lacked enough specificity about the facts of the crime.

The defense team attacked the added facts, saying the “were not found by the grand jury.” The lawyers also asserted that Perry’s actions fall under an exception for “coercion.”

The law allows the governor to go back and forth, debate and in effect horse trade with legislators over bills. His lawyers are trying to argue that because his alleged criminal action involved a veto of legislative funds, that he is protected by that exception.

The prosecution is arguing that the person he supposedly coerced is not a legislator and Perry was illegally using his power because what he was attempting to control was an office beyond his scope and not connected to the Legislature.

See here, here, and here for the background, and see here for a copy of Team Perry’s latest motion. I said in my last update that I thought the prosecution was having to get mighty intricate with its explanation for why Perry’s actions were criminal, and that I thought it didn’t bode well for them. It looks like the defense is stretching a bit, too, so maybe their case is stronger than I thought. I’m still concerned that the law in question is enough of a misfit to bring the whole shebang down, but it’s in Judge Richardson’s hands again. At least, I assume it is; there may be more filings to come, and perhaps another hearing. We’ll see. The Trib has more.

McCrum refiles charges against Perry

Feb 15th, 2015
by Charles Kuffner.
Comments are off for this post

Here we go again.

Corndogs make bad news go down easier

This corndog has done nothing wrong

Former Gov. Rick Perry tried to force out a local district attorney because he wanted to stymie the work of a unit she oversees that investigates public corruption involving state officials, a special prosecutor alleged Friday.

The contention is at odds with Perry’s long-held assertion that he vetoed the funding for the Public Integrity Unit because Travis County District Attorney Rosemary Lehmberg had lost the public’s confidence after a messy drunken-driving arrest.

Perry lawyer Anthony Buzbee of Houston called the contention “total baloney. There is no evidence of that and won’t ever be.”

[…]

“The grand jury’s indictment charges, and the state will prove, that the defendant broke the law in two different ways,” said the filing by McCrum and his assistant, David M. Gonzalez of Austin.

The prosecution said Perry used a lawful power – his veto – “in an unlawful manner and for unlawful purposes,” constituting abuse of office. It said he also conveyed “an illegal threat in a similarly unlawful manner and for unlawful purposes,” constituting coercion of a public servant.

“The state will prove that defendant Perry did not approve of historical and current management decisions regarding the operation of the Public Integrity Unit and therefore wanted to coerce Ms. Lehmberg into resigning her elected position and/or stymie or obstruct the continued operation of the Public Integrity Unit under Ms. Lehmberg’s management,” said the prosecution.

McCrum in the filing said the prosecution will present evidence that Perry “is criminally responsible for the communication to Rosemary Lehmberg that unless she resigned from her official position as elected Travis County district attorney” that Perry would veto the funding.

[…]

[Judge Bert] Richardson in his previous ruling had instructed McCrum to add some wording that was missing from the original indictment, to address an exception in the coercion law for someone who is a member of a governing body taking an official action.

McCrum in his revised filing said Lehmberg and Perry were members of different branches of government, and that Perry’s attempt to influence her wasn’t an official one taken as a member of a governing body.

With regard to the abuse-of-office count, McCrum said that Perry “misused government property that was subject to his custody and possession” by using “the lawful power of gubernatorial veto for an unlawful purpose” – eliminating the unit’s funding when Lehmberg refused to resign.

“The prosecutor added more words but failed to correct the glaring deficiencies in the indictment,” said Buzbee. He said that McCrum did not negate the exception in the coercion law and failed to show Perry had custody of the funds in the abuse-of-office count.

“Throughout this case, Mr. McCrum has demonstrated a shocking misunderstanding of the budgeting process in Texas. Until the budget is approved and the taxes are collected, the funds do not exist. Thus it is legally and factually impossible for Governor Perry to have ever had custody or possession of any funding. It is our belief that both indictments should be dismissed,” Buzbee said.

See here and here for the background. The news about the Public Integrity Unit having investigations derailed by Rick Perry’s veto came out last month. That’s been an undertone to this saga all along, but this is the first time it’s become part of the official record. I have to say, though, that at this point in the case I’m less confident that the indictments will stand than I was prior to Judge Richardson’s ruling. I still believe there’s a clear story to tell about why Rick Perry’s actions were wrong and why this isn’t a simple matter of a veto being stigmatized. (Remember: Texans for Public Justice filed their complaint before Rick Perry issued his veto.) The problem is that the laws in question weren’t written to cover this sort of situation. That doesn’t mean they can’t be applied here. I’m sure that will be a critical part of the next motions to dismiss and Judge Richardson’s ruling on them. It’s just my general feeling that the more convoluted your explanation has to be for why something is true, the harder it becomes to believe it. I hope I’m wrong about this, because I do believe that Rick Perry’s actions were wrong and highly consequential. In a just world, he would face responsibility for what he did. In this world, well, we know how that goes. I’m not ready to despair, but color me concerned. The Trib and Trail Blazers have more.

No grand juror information for Perry

Feb 9th, 2015
by Charles Kuffner.
1 comment

Sorry, Rick.

Corndogs make bad news go down easier

Don’t hate the corndogs, hate the game

A state judge Friday denied former Gov. Rick Perry’s push for a list of people whose grand-jury testimony led to his indictment on abuse-of-power charges.

Judge Bert Richardson said the prosecution is not required to produce those names, which Perry’s lawyers had said he was entitled to get.

[…]

Besides denying Perry’s motion to get the witness names, Richardson set a schedule for prosecutors to provide relevant information to Perry in advance of a potential trial in the case – including any information that may be favorable to the former governor’s case. The judge said the information should be provided as soon as possible, or at least 21 days before any trial if one is set.

Richardson also ordered that the prosecution have grand jury witness testimony transcribed if they may also testify at the trial.

Not really sure what Perry’s defense team would do with a list of grand jurors’ names if they had it. Is that something defense attorneys normally ask for and/or receive? I’m failing to come up with a strategic reason for that list. Be that as it may, this Statesman story has a bit more information of interest:

Judge Bert Richardson also revealed that prosecutor Michael McCrum will amend one of the counts against Perry, an expected development because Richardson had earlier ruled that the charge — coercion of a public servant — did not include enough information.

McCrum also indicated that he intends to amend other portions of the indictment by Feb. 13, Richardson’s order said without elaborating on the proposed changes.

[…]

Perry’s lawyers asked for 10 days to respond to McCrum’s changes, Richardson’s scheduling order said.

Afterward, a hearing will be set to address any remaining pretrial motions, the order said.

See here and here for the background. Judge Richardson’s original order denying the motion to quash the indictments is under appeal. Perry still has plenty of chance to skate, but as previously noted, the calendar is working against him.

Perry re-files motions to quash indictments

Jan 31st, 2015
by Charles Kuffner.
4 comments

As expected.

Corndogs make bad news go down easier

This corndog has done nothing wrong

Following the cues provided in a judge’s ruling this week, lawyers for Rick Perry filed a request on Friday to get an indictment against the former governor dismissed.

The new request noted “serious, well-founded concerns” that Judge Bert Richardson had in his ruling on Tuesday regarding the wording of the two charges against Perry: abuse of official capacity and coercion of a public servant.

“Governor Perry asserts that the deficiencies set forth below constitute defects of form and substance,” says David Botsford, an attorney for Perry, in the new motion.

While Richardson has allowed the case to proceed, he noted in his ruling this week that both counts were vague. Richardson wrote that the first count failed to state how Perry misused the funds by exercising his power to veto legislation. And in the second, Richardson questioned how the coercion charge, as written, failed to account for an exception to the charge Perry is allowed based on his gubernatorial authority.

See here for the background, and here for the new motion. Judge Richardson more or less invited Perry’s legal team to make a new filing, but he also gave special prosecutor Mike McCrum the opportunity to refile the charges and clean up the issues he noted. I don’t know if there’s a specific deadline attached to that, but I’d guess sooner is better than later for an update from McCrum. Trail Blazers has more.

Paxton evades prosecution

Jan 30th, 2015
by Charles Kuffner.
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In Travis County, anyway.

Ken Paxton

New Attorney General Ken Paxton, who in 2014 was found to have violated the Texas Securities Act, will not be prosecuted by the state’s office that investigates public corruption, officials said Thursday.

Paxton, a former state senator from McKinney, violated the Securities Act by soliciting investment clients without being registered, as required by law, according to a disciplinary order last year from the State Securities Board. Under the order, Paxton was “reprimanded” and fined $1,000. But Thursday’s announcement signals that the case may be closed.

“Our investigation did not find any additional criminal activity over which our office has venue, so we are concluding Travis County’s involvement in this matter,” said Travis County District Attorney Rosemary Lehmberg, whose office includes the state’s public integrity unit.

[…]

Lehmberg’s office said it had forwarded a portion of its investigation to prosecutors in Collin and Dallas counties, which could investigate the securities board’s findings further.

See here for the background. In addition to possible action in Collin and/or Dallas Counties, there’s also still the SEC complaint, the state bar grievance, and the lawsuit to get his records from the State Securities Board out there. Paxton may have dodged one bullet, but he shouldn’t feel lucky just yet. Trail Blazers and the Statesman have more.

Perry still under indictment

Jan 28th, 2015
by Charles Kuffner.
1 comment

Oops.

Corndogs make bad news go down easier

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…)

The veto that keeps on giving

Jan 18th, 2015
by Charles Kuffner.
Comments are off for this post

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.

Corndogs make bad news go down easier

Corndogs make bad news go down easier

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

Nov 17th, 2014
by Charles Kuffner.
1 comment

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.

Corndogs make bad news go down easier

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

Nov 8th, 2014
by Charles Kuffner.
1 comment

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

Corndogs make bad news go down easier

This corndog is a victim of politics

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

Nov 5th, 2014
by Charles Kuffner.
Comments are off for this post

Another story to distract us from the election results.

Corndogs make bad news go down easier

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

Oct 6th, 2014
by Charles Kuffner.
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You never know what might stick when you throw everything you’ve got at the wall.

Corndogs make bad news go down easier

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

Sep 10th, 2014
by Charles Kuffner.
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Stop me if you’ve heard this one before.

Corndogs make bad news go down easier

Buy one corndog, get one free

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.

Complaint filed against Whitmire

Sep 5th, 2014
by Charles Kuffner.
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I think this is more a political stunt than anything else, but we’ll see.

Sen. John Whitmire

Sen. John Whitmire

A conservative group has filed a criminal complaint against state Sen. John Whitmire, accusing him of coercion in an exchange of text messages with University of Houston President Renu Khator that was published in the Houston Chronicle.

In the Aug. 16 conversation, Whitmire told Khator he would “stop dead and pass leg (legislation)” unless she killed a plan to require freshmen to live on campus. Khator agreed to withdraw the proposal and asked Whitmire to forgive her.

The complaint, filed Aug. 29 with Travis County’s Public Integrity Unit by the Conservative Action Fund, cites the exchange. Representatives of the unit, which investigates claims against elected officials, could not be reached for comment Monday.

“Senator Whitmire directly attempted to influence – and did in fact influence – a public servant (the UH President) ‘in a specific exercise of [her] official power,’ ” the complaint says. “He achieved such influence by means of ‘coercion,’ that is, by threatening to ‘take … action as a public servant’ in the Legislature if UH did not bow to his demand.”

Whitmire dismissed the complaint as “absolutely silly.”

“I haven’t even given it a second thought,” Whitmire said. “Obviously a group of lawyers have got too much time on their hands.”

The complaint seems intended, in part at least, as a defense of Gov. Rick Perry, who was indicted last month on similar charges. Perry threatened to, and later did, veto funding for the Travis County-based Public Integrity Unit, if Travis County District Attorney Rosemary Lehmberg did not step down after being arrested for drunken driving.

Here’s the letter they sent. I’ll leave it to the lawyers in the audience to analyze. I agree with the story’s suggestion that this is more about Rick Perry than it is about John Whitmire, but if Rosemary Lehmberg thinks it merits the attention of a grand jury then so be it. I will just note again that we have only the barest of outlines of the case against Rick Perry. Assuming the indictments survive the motion to dismiss, we’ll finally start to see what the evidence against Perry looks like. I’m going to guess that it will add up to just a wee bit more than what is being cited against Whitmire, but I guess you never know. Campos and Hair Balls have more.

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

Sep 1st, 2014
by Charles Kuffner.
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The tab has gone up.

Corndogs make bad news go down easier

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

Aug 26th, 2014
by Charles Kuffner.
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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.

Perry’s legal team to try to get indictments tossed

Aug 25th, 2014
by Charles Kuffner.
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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.

The Public Integrity Unit probably won’t have to worry about a veto next year

Aug 24th, 2014
by Charles Kuffner.
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They’ll have bigger things to worry about.

Rosemary Lehmberg

With Republican partisans campaigning loudly to strip Travis County District Attorney Rosemary Lehmberg of her control of the unit, chances of getting the funding restored under her by the GOP-dominated Legislature that convenes in January do not look good.

Senate Finance Committee Chair Jane Nelson, R-Flower Mound, said Thursday she thinks the unit should be moved elsewhere if it is funded.

“I have never thought this unit should be placed as an attachment to the Travis County District Attorney’s Office,” Nelson said. “I am certain we will have extensive discussions during the next legislative session regarding where they should be placed, but we need to move them somewhere less partisan.”

In the past, lawmakers have filed bills to move the unit to the attorney general’s office or into a separate agency. Both proposals have faltered over questions about separation of powers, as it is a judicial branch agency and not an executive branch function. Even if its investigative powers were moved out of the district attorney’s office, cases still would be referred there for prosecution.

[…]

Throughout its history, the unit has faced repeated threats of funding cutoffs or transfer of its duties to the state attorney general’s office, often when it begins a high-profile investigation or brings an indictment against a prominent official.

Sherri Greenberg, who served in the Texas House from 1991 until 2001, and is now director of the Center for Politics and Governance at the University of Texas’ LBJ School of Public Affairs, said the unit’s funding and location have been an issue off and on for years.

“That’s been looked at, but it’s never been moved, probably for a reason,” she said.

State Sen. John Whitmire, a veteran Houston Democrat who supported the PIU’s creation in 1982, has been investigated and cleared by the unit, and who has been one of its champions in recent years, said the unit was housed with local prosecutors to give it some independence from state government, which it may be investigating.

“Why would you want to fool with a unit that can investigate you? … If you’re not doing anything wrong, you shouldn’t worry about the Public Integrity Unit,” he said. “I don’t know how to handicap (the chances of restored funding), but if I were working over there, I’d probably be looking for a job.”

Republicans have wanted to move the investigative function of the PIU to the Attorney General’s office for at least as long as they’ve held the AG’s office, which is to say since 1998. That’s a part of the backdrop of the Perry indictment saga, and however one feels about that I think Sen. Whitmire is reading the tea leaves accurately. One does wonder what the fallout will be if the next Attorney General gets indicted or otherwise sanctioned by the State Bar, but I rather doubt the Republicans that are pushing for the PIU to be reassigned are thinking about that very much. I also wonder if their ardor for moving the PIU’s investigative function into the AG’s office will get cooled if Sam Houston gets elected AG, but again I doubt they’re thinking about that. So just file it away for now and we’ll see if it matters later.

Perry will pay for his own defense

Aug 22nd, 2014
by Charles Kuffner.
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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

Aug 20th, 2014
by Charles Kuffner.
2 comments

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

Aug 19th, 2014
by Charles Kuffner.
Comments are off for this post

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

Aug 18th, 2014
by Charles Kuffner.
2 comments

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

Aug 17th, 2014
by Charles Kuffner.
3 comments

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.

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