Mike McCrum’s Bogus Adventure

The indictment of Texas Governor Rick Perry has made for some strange bedfellows.  Many on the left who detest Perry’s politics and deride his intellect (in spite of his nerdy new specs!) view the charges as bogus and politically motivated.  As the New York Times put it:

Gov. Rick Perry of Texas is one of the least thoughtful and most damaging state leaders in America, having done great harm to immigrants, abortion clinics and people without health insurance during his 14 years in office. But bad political judgment is not necessarily a felony, and the indictment handed up against him on Friday — given the facts so far — appears to be the product of an overzealous prosecution.

Others suggest that the charges against Perry are a political vendetta launched by beleaguered Texas Democrats, ensconced in the liberal bastion of Austin.  But this claim doesn’t really hold up under scrutiny:  for one thing, the special prosecutor who investigated and indicted the case, Michael McCrum, was appointed by a Republican state judge and has been described as an “totally straight arrow,” in the mold of Patrick Fitzgerald, who successfully prosecuted high-profile Republicans (Dick Cheney’s chief of Staff Scooter Libby) and Democrats (Illinois Governor Rod Blagojevich).

What Perry did is undisputed.  Travis County District Attorney Rosemary Lehmberg, a Democrat, had been using her Public Integrity Unit to probe whether the state’s Cancer Prevention and Research Institute had improperly awarded millions of dollars to projects sponsored by Perry donors.  Then Lehmberg got arrested for drunk driving (plastered driving, actually, with a BAC of .23). Videos of her arrest and booking show her staggering, being handcuffed, ranting at the police, kicking at cell doors, and being strapped to a gurney.  It was a disgrace to the office and Perry was not the only one who felt strongly that she should resign.

When she refused, Perry flexed the powers of his office.  Texas governors enjoy the line-item veto, and Perry threatened to defund the Travis County Public Integrity Unit if Lehmberg didn’t leave.  When she dug in he made good on that promise and vetoed funding for the unit.  In most states this conduct wouldn’t come close to a crime.  But in Texas a pair of broadly-worded corruption statutes gave Special Prosecutor McCrum hooks to hang the case on.

The first statute, Penal Code § 39.02, Abuse of Official Capacity, prohibits public servants from “intentionally or knowingly . . . misus[ing] government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.”

So, what government “property, services or personnel” did Perry allegedly “misuse”?   Per the indictment, it was property — “monies having a value in excess of $200,000” that were supposed to fund the Public Integrity Unit.  How did he allegedly misuse these funds?  Not just by withholding them, since Perry had a right to exercise his line item veto. Presumably, it was using these funds as a threat to force Lehmberg’s resignation.  Is that really misuse of government property within the meaning of the statute?  For that matter, doe a threatened veto of funds actually constitute use of the funds themselves?  This is an extremely aggressive reading of the statute taking it into uncharted territory.

The second statute, Penal Code § 36.03, Coercion of Public Servant or Voter, bars the use of coercion to “influence[] or attempt[] to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influence[] or attempt[] to influence a public servant to violate the public servant’s known legal duty.”

How did Perry’s threat to defund the Public Integrity Unit “influence” Lehmberg in the “specific exercise” of her “official power” or “specific performance” of her “known legal duty”?  Perry wanted her to resign:  is her resignation really the exercise of her official power or the performance of her legal duty?  I suppose you could read this into the statute but once again it really seems to be a stretch.

On balance, this seems like an aggressive indictment drafted by a smart special prosecutor who went the extra mile to make the case.  A good prosecutor is not afraid to use a longstanding criminal statute in new ways.  But a great prosecutor has the courage not to indict a case, even after a lengthy and expensive investigation, when the conduct in question is not clearly illegal.  This can be especially difficult for a special prosecutor to do: Mike McCrum had only one case to investigate and would have pilloried as a Republican lackey if he had failed to bring charges against Perry.  But based on the evidence to date, McCrum instead stretched a pair of ambiguous statutes cover conduct that has never before been found illegal.  That was the wrong call to make.

Leave a Reply

Post Navigation