On August 15, 2014, Texas Gov. Rick Perry was indicted on felony counts of coercion and official oppression. After the immediate hoopla settled, the serious inquiry began focusing on the motivation for the criminal charges.
Any proper analysis of whether this indictment was politically motivated must necessarily begin with an examination of the penal statutes under which he was indicted.
The first, and most serious, statute is the “Abuse of Official Capacity.” This statute is found in Section 39.02 of the Texas Penal Code. The offense occurs when a public servant intentionally or knowingly, with an intent to secure a benefit or to harm or defraud another, (1) violates a law relating to the public servant’s office or employment; or (2) misuses governmental 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.
A violation of this statute can be anything from a minor Class C misdemeanor to a most serious first degree felony, depending upon the value of the thing misused. To be a first degree felony, which carries a penalty of 5 to 99 years, or life, in prison, the value of the thing misused must be $200,000 or more. The value of the “thing” Gov. Perry is accused of misusing is an executive veto valued at $7.5 million.
The second offense Perry is accused of violating is “Coercion of a Public Servant,” found in Section 36.03 of the Texas Penal Code. This offense occurs when a person, by means of coercion, influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty.
A violation of this statute is a Class A misdemeanor unless the coercion is a threat to commit a felony which then constitutes a third degree felony, punishable by not less than 2 nor more than 10 years in prison. Gov. Perry is accused of coercion with a threat to commit a felony; namely, the violation of Section 39.02.
The bare facts relating to Perry’s indictment are: in 2013, the Texas Legislature appropriated $7.5 million to the Public Integrity Unit operated by Travis County District Attorney’s Office. The purpose of the unit is to investigate public corruption, insurance fraud, and motor vehicle fuels fraud. The Travis County District Attorney is charged with the responsibility of enforcing the government and election codes statewide. On June 15, 2013, Gov. Perry vetoed this appropriation. The Governor of Texas has the executive power to veto legislation sent to him/her by the Legislature, including those dealing with appropriations.
But it is the back-ground facts that are particularly relevant to Perry’s indictment. In April 2013, the Public Integrity Unit (PIU) was investigating the Cancer Research and Prevention Institute of Texas (CPRIT). This is a $3 billion project funded by taxpayers. Its purpose is to award research and investment grants to newly-established firms seeking cancer cures. In October 2012, the Associated Press reported that the entire scientific review team of CPRIT resigned charging that the agency was charting a “’politically-driven’ path that puts commercial interests before science.”
This controversy began the previous May when chief scientific officer Dr. Alfred Gilman resigned after CPRIT awarded a $20 million grant for what AP called a “so-called incubator project” at the M.D. Anderson Cancer Center in Houston. The Nobel laureate angrily informed colleagues that he was trying to “prevent misuse of taxpayer dollars and funding decisions based on political considerations.” It was CPRIT’s largest grant, and because it was a “commercialization project,” it wasn’t required to undergo “scientific review.”
This ongoing controversy involving Gov. Perry’s appointees and political benefactors prompted Dr. William Kaelin of the Harvard Medical School to also resign from the scientific review team in October, saying: “In this environment, I am not confident that scientific quality and rigor will triumph over grandiose promised and hucksterism.” He was particularly concerned that state officials had pressured fellow scientists to lower their scientific review standards in favor of commercialization projects.
What does all this have to do with Gov. Perry? The governor and his appointees have control of three special funds, including CRPIT, that dole out $19 billion taxpayer dollars in business incentives each year. A significant portion of these funds have been granted to projects created or controlled by Perry’s political donors. This shady political cronyism prompted the website Progress*Texas to set up an online petition for taxpayers urging an “end to Perry’s corporate gifts.”
Revelations that CRPIT’s chairman, Jimmy Mansour, a Perry political donor and an appointee to the agency by Lt. Gov. David Dewhurst, mistakenly sent an email to colleagues expressing relief that scientists were leaving CRPIT because the agency could then focus on commercialization rather than research projects. He said the money would be re-directed from research to businesses, ostensibly to those with insider connections to the Governor and his cronies.
Various civic minded groups and individuals began to call upon the Travis County DA’s Public Integrity Unit to investigate these claims of taxpayer dollars abuse. District Attorney A Rosemary Lehmberg ordered that an investigation be opened to determine if any of CRPIT’s funds had been misused by “public servants” in the Perry administration. The Governor was not pleased that his “corporate gifts” programs, subsidized with taxpayers money, were under scrutiny and could possibly result in criminal indictments of himself, his appointees, or political donors.
Then the Governor was handed a “political gift.” In early April 2013, DA Lehmberg was stopped by Travis County sheriff deputies for erratically driving in a bicycle lane in Austin. She horribly failed field sobriety tests with an alcohol level three times the legal limit. She was arrested and hauled off to the county jail. Videos from the arrest scene and county jail vividly show she was thoroughly drunk, belligerent, verbally abusive, and generally obnoxious. She quickly entered into a plea agreement that resulted in a 45-day jail sentence, a $4,000 fine, and a suspension of her driver’s license for 180 days. She served 23 days in jail on the sentence.
Gov. Perry led the official and public chorus for Lehmberg to resign. She turned a deaf ear to these demands, vowing to finish out her elected term. And this is where the creek gets muddy. Perry reinforced his demand that she resign with the threat to veto legislative appropriations to her PIU. He justified this politically motivated blackmail by saying the DA was too “irresponsible” to be in charge of the PIU. That was typical Perry- riding roughshod over political foes that stand in the way of the Governor’s interests. In this case, Perry surely knew that if he could force DA Lehmberg to step down, he would be able to appoint her successor, and thus, would control the PIU investigation into his “corporate gifts” programs, particularly CRPIT.
This was evidenced by a recent Texas Tribune report that said Perry offered Lehmberg another state job if she would only resign. Lehmberg reportedly rejected the “deal” because she did not know if it was legal. Whether or not it was legal was of little importance to the Governor. He just wanted her removed from authority of the PIU so he would have an opportunity to control the direction of its “corporate gifts” investigation. Perry was either so desperate or determined in this matter that, according to the Tribune, he “continue to dangle a restoration of state funding or a future job offer to Lehmberg if she would leave office.”
This matter was taken out of both the Governor’s and Lehmberg’s hands on June 26, 2013, when Craig L. McDonald, director of the left-leaning political activism group Texans for Public Justice, filed a citizen’s criminal “complaint” against Perry. Lehmberg, and other Travis County officials, immediately recused themselves from the case. The case fell into the hands of Bexar County Republican Judge Bert Richardson who appointed a special prosecutor named Michael McCrum to investigate and prosecute the McDonald criminal “complaint” if probable cause justified in so doing.
Like Perry, McCrum has his own law-and-order bona fides. According to the Tribune, the San Antonio criminal defense attorney is a former Dallas police officer “who began his career as a federal prosecutor during the George H.W. Bush administration.” In 2009, former Republican Senator Kay Bailey Hutchinson and current Republican Senator John Cornyn recommended to then Republican President George W. Bush that McCrum be named U.S. Attorney for the Western District of Texas. While he enjoyed bipartisan support among Democrats, the Tribune said McCrum withdrew his name “because of gridlock over nominations on Capitol Hill.”
McCrum interviewed more than 40 witnesses during the investigation. A grand jury comprised of Travis County residents, presumably Democrats and Republicans, heard from scores of witnesses and viewed documentary evidence before handing down its indictment of the governor.
As soon as the indictment was announced publicly, Gov. Perry went on the offensive, blasting the indictment as being “politically motivated.” His legion of Republican supporters and other Republican presidential aspirants, U.S. Sen. Ted Cruz and Louisiana Gov. Bobby Jidal, joined in the political chamber outrage that the indictment reflected the worst of partisan politics.
The evidence defies these Republican, as well as a few Democratic, assertions that the indictment was solely politically motivated. A Republican judge (who, incidentally was appointed to the bench by Perry), understanding the obvious political ramifications of the inquiry, appointed an independent prosecutor to investigate the complaint against fellow Republican Perry. A grand jury heard the evidence and believed there was sufficient “probable cause” to issue an indictment. Are we to believe that a Republican judge, an independent prosecutor, and a civilian grand jury joined in a “political conspiracy” to indict a Republican governor?
That dog won’t hunt in the real woods. It appears Gov. Perry and his appointees used their official positions to grant “corporate gifts” to the governor’s benefactors, even to the point of placing commercialization projects over scientific research in efforts to find a cure for cancer—a disease that afflicts 100,000 Texans every year. And in an effort to either thwart or control the PIU investigation into these “corporate gifts” programs, the governor, by his own public admission, threaten to veto a $7.5 million appropriation to the PIU if DA Lehmberg did not resign; and he did later veto the appropriations bill when she refused to resign.
And while Gov. Perry was calling for Lehmberg resignation, because she was too “irresponsible” to head the PIU, he was trying to entice the DA’s resignation with the promise of getting her another job. Put simply, Gov. Rick Perry tried to blackmail the Travis County District Attorney into resigning for his own self-serving political motivations.
Thus, while we must agree there are political motivations involved in this case, they are not only those the governor would have the public believe. The political motivations in this case include Gov. Perry’s desire, perhaps need, to either control or thwart the PIU investigation into his typical political shenanigans. But as former Republican President Abraham Lincoln once said:
“You can fool all of the people some of the time, and some of the people all the time, but cannot fool all the people all the time.”
Now, whether the criminal allegations facing the Governor’s actions in this matter will satisfy a factual inquiry at trial, or the likely constitutional attack as to the application of the criminal laws in the Governor’s case, remains to be seen, but one thing that is certain: dirty politics beget dirty politics.