Articles

A Texas-Size Abuse Of Power

August 20, 2014

The indictment on Friday of Texas Gov. Rick Perry on charges that he abused his powers is an outrageous—but not unprecedented—abuse of prosecutorial power. And it may come back to haunt those responsible.

The indictment itself caused a storm of denunciation, including by liberals. Former Obama senior adviser David Axelrod dismissed it as "pretty sketchy." Harvard law professor Alan Dershowitz said this is "what happens in totalitarian societies." The Washington Post, Boston Globe and New York Times were critical.

The events that led to these condemnations can be traced to April 15, 2013, when Travis County (Austin) District Attorney Rosemary Lehmberg was arrested for drunk driving. There was an open vodka bottle in her car and her blood alcohol was nearly three times the legal limit. She abused her jailers, had to be restrained, and was fitted with a spit mask. It's all on YouTube. Ms. Lehmberg pleaded guilty and served 45 days in jail.

Since 1982 the Travis County district attorney has supervised the state's Public Integrity Unit. Mostly funded by the legislature, the office investigates public corruption in state government. Rightly believing Ms. Lehmberg had lost the public's confidence, Mr. Perry and other state leaders demanded she resign. The governor apparently signaled that he would appoint her chief deputy, a Democrat, to replace her. Ms. Lehmberg ignored the calls. On June 10 the governor threatened to veto the Public Integrity Unit's appropriation unless she stepped down. She refused, and he vetoed the funding.

Enter a left-wing public interest group, Texans for Public Justice, funded by personal injury lawyers, George Soros and liberal out-of-state foundations. Mr. Perry and the trial lawyers have a long, fractious relationship because of his strong support for legal reform. TPJ filed a complaint and found a judge willing to appoint a special prosecutor, Michael McCrum, who took the case to a grand jury. It indicted Mr. Perry on two counts. The first, "abuse of official capacity," was for vetoing the funding. The second, "coercion of public servant," was for demanding Ms. Lehmberg resign.

This is ludicrous. Mr. Perry was acting within his broad constitutional power under the Texas Constitution to veto legislation. Speaking out about the controversy hardly qualifies as "coercion." According to Mr. McCrum's logic, Mr. Perry's veto is a criminal act because he announced what he was going to do. If he had simply vetoed the appropriation without comment apparently he would not have been charged. Since when is political free speech a felony?

If Mr. McCrum's logic was applied to the U.S. Congress, any member who threatened to cut an agency's funds over leadership issues could be charged with "abuse of official capacity." And any member who browbeat agency heads over their actions and attached riders to appropriations bills prohibiting or requiring certain practices could be charged with "coercion of public servant."

Texas courts have already considered the coercion issue in Texas v. Hanson , according to UCLA Law School Prof. Eugene Volokh. A county judge (the Texas term for county executive) threatened to end funding for salaries of two county employees unless the district court judge fired the county auditor and forced the county attorney to revoke a local misdemeanant's probation. In 1990 the Texas Tenth Court of Appeals found these coercion charges were "unconstitutionally vague" and had "a chilling effect on the exercise of free expression." It upheld a lower-court decision to dismiss them. The remedies for those who don't like a governor's veto are clear: override, impeachment and the ballot box. They don't include indictment.

Travis County's Public Integrity Unit has a long-standing reputation for partisan witch hunts. In 1993, then-Travis District Attorney Ronnie Earle indicted Republican U.S. Senator Kay Bailey Hutchinson on charges so flimsy he did not proceed with the case. His 2011 conviction of House Republican Leader Tom DeLay for election-law violations—also prompted by a TPJ complaint—was thrown out on appeal two years later for insufficient evidence.

Mr. Earle's reputation was ruined by his abuse. The same will happen to Mr. McCrum, a fitting reward for a prosecutor who shamefully tried to criminalize political differences.

It is never ideal for a political figure to be indicted. But this indictment is so unfair that Mr. Perry has become a sympathetic figure. He'll be even more so when he beats the rap.

A version of this article appeared August 21, 2014, in the U.S. edition of The Wall Street Journal, with the headline A Texas-Size Abuse Of Power and online at WSJ.com.

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