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Perry Charges Seen as Losing Bid to Criminalize Politics

Texas Governor Rick Perry stands a
good chance of defeating public-corruption charges that even
some staunchly Democratic lawyers called politically motivated.

“You can’t pay me enough to vote for Rick Perry, but this
indictment is a totally corrupt use of criminal law,” said
David Berg, a Houston attorney and contributor to Democratic
candidates. “It is clearly political, vindictive and

Perry, a possible Republican presidential candidate in
2016, is accused

of abusing his authority by trying to force out
the Democratic prosecutor whose office probes government
corruption throughout Texas after she was convicted of drunk
driving. She refused and Perry vetoed funding for her office.

Berg and other lawyers familiar with the state’s official-misconduct laws say those statutes don’t trump the governor’s
constitutional authority to veto any line item in the state
budget that he chooses — without explanation.

“This indictment basically criminalizes ordinary political
conduct, and I don’t think they can get a conviction,” Berg
said in a phone interview.

Perry, 64, was indicted on two charges, one of abuse of
official capacity and one of coercion of a public servant,
according to a copy of the Travis County grand jury indictment
issued Aug. 15 in Austin, the state’s capital.

‘Good Conscience’

Texas’s longest-serving governor, rejected the indictment,
saying he was right to call for the resignation of Travis County
District Attorney Rosemary Lehmberg and threaten to veto funding
for the public integrity unit run from her office. Last year, as
he followed through on that threat and vetoed $7.5 million in
funding, Perry said he couldn’t “in good conscience” continue
to support an office with statewide jurisdiction “when the
person charged with ultimate responsibility for that unit has
lost the public confidence.”

Michael McCrum, the white-collar defense lawyer brought in
to lead the Perry investigation, expressed confidence in charges
he said are based on more than 40 interviews and hundreds of

“I looked at the law and I looked at the facts,” McCrum,
a Republican, said in an e-mail the day of the indictment. “The
grand jury has spoken that at least there’s probable cause he
committed two felony crimes.”

Ex-Federal Prosecutor

McCrum, a former federal prosecutor in San Antonio, led
that U.S. Attorney’s office’s major crimes unit and chaired the
regional health-care fraud task force. He drew bipartisan
support to become U.S. Attorney job for San Antonio from
Austin’s Democratic congressman and the state’s two Republican
senators before withdrawing from consideration in 2010. He also
served briefly as a Dallas police officer in the 1980s.

The abuse of official capacity charge is a first-degree
felony and carries a possible prison sentence of five to 99
years, McCrum said. The coercion charge is a third degree
felony, punishable by two to 10 years in prison, he said.

An arraignment date will be set this week, according to
McCrum. It might be three months to a year before a trial
begins, he said.

Perry fired back at McCrum and the grand jurors over the
weekend, saying in an Aug. 16 statement that the prosecution a

Perry’s Defense

“I wholeheartedly and unequivocally stand behind my veto,
and will continue to defend this lawful action of my executive
authority as governor,” Perry said. “We don’t settle political
differences with indictments in this country.”

McCrum didn’t immediately respond yesterday to an e-mail
seeking comment on claims that the charges were politically
motivated. Rudy Magallanes, a spokeswoman for the Travis County
District Attorney’s office, said in an e-mail that Lehmberg
declined to comment on the charges against Perry.

In 2010, the corruption unit won a guilty verdict against
former U.S. House Majority Leader Tom DeLay, a Republican, on
money laundering charges. An appeals court threw out that
conviction last September, finding there was insufficient
evidence that he mishandled campaign funds in the 2002 election.

Perry was elected lieutenant governor in 1998 and became
governor in 2000 when George W. Bush resigned to become
president. In 2012, his campaign for the Republican presidential
nomination faltered during the primaries.

Perry’s bid to remove Lehmberg was part of a cover-up
designed to derail an investigation of a cancer research-funding
program he championed, according to the nonprofit group that
filed the complaint with the ethics unit. The Cancer Prevention
and Research Institute of Texas has been criticized for
funneling state funds to Republican donors, and a former
official was indicted last year for mishandling grant money.

Perry Charges

Perry is charged in the indictment with abusing his office
by misusing state funds in a manner “contrary to the oath of
office he took as a public servant.” He also tried to coerce
Lehmberg into failing to carry out her elected responsibilities
by threatening to veto a measure already approved by the
legislature, according to the document.

Perry’s authority to reject specific spending
appropriations after lawmakers sign off on the state budget
isn’t mentioned in the indictment.

That power is his absolute right under the Texas
constitution, said Brian Wice, a Democrat and a lawyer for DeLay
in the appeal.

“You don’t have to be a Rick Perry fan or a fan of his
politics to recognize he had every legal right to do what he
did,” Wice said.

“At the end of the day, how Perry’s actions come within
the spirit and letter of that misconduct statute has me
scratching my head,” Wice said. “This is the criminalization
of politics -– the sequel.”

Longtime Target

Travis County’s ethics task force has been a longtime
target for Republicans, Wice said. They don’t like that it gives
one district attorney authority over elected officials
statewide, without holding that prosecutor responsible to voters
beyond Travis County, the most liberal in Texas.

“In the rest of Texas, if we don’t like what the DA does,
we go to the polls and vote” them out, Wice said. “What’s my
remedy if I don’t like what the district attorney in Travis
County is doing and I live in Houston?”

Perry’s public urging of Lehmberg to step down or face
funding cuts indicates the governor didn’t think he was
committing a crime, Wice said.

Candor Penalized

“Why are we going to penalize him and put him through the
sausage factory of the criminal justice system because he
displayed the one quality so many politicians lack: candor?”
Wice said.

Lehmberg refused to step down after serving a brief jail
sentence in June 2013 for a drunk driving conviction. Widely
circulated police videos of the district attorney show her being
verbally abusive to arresting officers, kicking her cell door
and requiring physical restraints in jail. She later defeated a
lawsuit aimed at removing her from office.

“She disgraced herself with her arrest and her conduct
after her arrest –- h**l, they had to strap her down,” said
Dick DeGuerin, who was DeLay’s trial attorney. “Her conduct was
clearly enough to call her judgment into question. At bottom,
Rick Perry did what he was constitutionally authorized to do
because he lost confidence in her judgment. He didn’t have to
justify it.”

Unsuccessful Cases

DeGuerin, a self-described “yellow dog Democrat,” said
Travis County’s ethics prosecutors have drawn complaints over
the years for their pursuits of high-profile politicians. Under
an earlier district attorney, the unit unsuccessfully pressed
corruption charges against former U.S. Senator Kay Bailey Hutchison, who lost the 2010 Republican primary to Perry, and
Democrat Jim Mattox, a former Texas attorney general and U.S.
congressman who died in 2008.

Berg said there’s a “good chance” a judge will dismiss
Perry’s charges before they ever get to trial. If not, he said,
the governor should press for a speedy trial and “get on the
stand and own what he did.”

“Perry should say he used his political office to try to
force a drunk out of hers,” Berg said. “I think a jury would
buy that in a minute.”

The case is The State of Texas v. Perry, 390th Judicial
District of Travis County, Texas (Austin).

To contact the reporter on this story:
Laurel Brubaker Calkins in Houston at
[email protected]

To contact the editors responsible for this story:
Michael Hytha at
[email protected]
David E. Rovella

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