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Texas Gov. Rick Perry has sabotaged the only reliable check on unbridled, one-party Republican rule in his state. When will the national media report it?

Last week Texas Special Judge Robert “Bert” Richardson appointed former prosecutor Michael McCrum to investigate and potentially prosecute Texas Gov. Rick Perry for potential abuse of power, as reported by the August 20 Dallas Morning News. Perry is accused of unsuccessfully attempting to force the resignation of Travis County Texas District Attorney Rosemary Lehmberg, and then removing funding from her office’s Public Integrity Unit in retaliation for her failure to resign.? This potential prosecution is a serious possibility but has been almost completely ignored by the national media.

McCrum will have all of the powers of a district attorney and will effectively function as a special prosecutor.





Lehmberg, a Democrat, became a target for Perry after she was arrested for and pleaded guilty to drunken driving, again, according to DMN. Perry demanded that Lehmberg resign and threatened that, if she did not, he would use his veto to eliminate funding for the Public Integrity Unit which the Travis County District Attorney administers. Lehmberg refused to resign, and Perry followed through with the veto. In his veto message Perry stated that he could not in “good conscience” support continued funding for the Unit after its leader had “lost the public’s confidence.”

The “public” about which the governor was writing refers to the voters of Travis County. He is no great expert on that constituency, based on political history. Travis County, which includes the state’s capital, Austin, is the second most populous Democratic-controlled county in Texas. In 2010, for instance, when Perry defeated his Democratic opponent, Bill White, in the general election, while Perry bested White by 12 percentage points statewide, White defeated Perry by a staggering 60-37 in Travis County. President Obama, in 2012, also received more than 60% of that county’s vote. (for more voter statistics on Travis County, click here.) Had Lehmberg resigned, Perry would have appointed a successor to serve until the next election.

For decades, the Public Integrity Unit has acted as the primary institution that acts to check and/or prosecute political crimes committed by elected officials in Texas. Because such crimes tend to be committed in the venue of the capital, the Travis County District Attorney’s Office has long had special funding to oversee and investigate public abuses of power. Since 1974, the Unit has prosecuted numerous powerful politicians for various abuses, many successfully, and some not.? Most of the prosecutions have been against Democrats, but in recent years some major ones have been Republicans as their party has assumed power in all of the statewide offices and a majority of both houses of the Legislature.

The Texas Attorney General’s office does not have any significant criminal prosecution function. Accordingly, even if its head, Greg Abbott, were inclined to crack down on Republican power abuses in Austin, which he is not, he lacks the power. Thus, the Travis County District Attorney has developed a major and unique role in Texas to serve this necessary function.

At the time of the veto, the Unit was investigating whether any malfeasance occurred in connection with grants by the Cancer Prevention and Research Institute to political allies of Perry. Meanwhile, Travis County itself has produced some limited funding so that the Unit can continue to exist, albeit in much reduced form. Without the state funding, it will have to abandon much of its staff and caseload.

Players In The Emerging Scandal

There is no question that Texas Gov. Rick Perry’s actions constitute a grotesque abuse of power. The powers of the Texas governor do not include dictating the identity of the District Attorney of Travis County, a duly elected official in no way beholden to the governor. Moreover, the veto of funding of an essential service that operates as check on the governor’s power, a brazen retaliation for not resigning, is an abuse of the veto power. The only question is whether these actions add up to a crime, or crimes.

This investigation was prompted by a complaint by the watchdog group Texans for Public Justice. Normally the matter would be handled by the Unit itself, but it recused due to its involvement in the matter, and this commenced the procedure that led to the appointment of the special prosecutor.

TPJ alleged in its complaint that Perry’s conduct my have violated one or more of four Penal Code provisions, including those dealing with Bribery, Coercion of Public Servant or Voter, Abuse of Official Capacity, and Official Oppression.? While these titles sound promising in view of the nature of the abuse, some of them do not clearly apply to the conduct involved. Probably the most likely to be on point is Official Oppression which makes it a crime for a public official intentionally to deny or impede another in the enjoyment of any right, privilege or power, with knowledge that the conduct is unlawful.

Here, Perry clearly impeded Lehmberg in exercising her legal power as district attorney. There would also have to be proof, however, that Perry knew that the conduct was unlawful. Though it is obvious to most that the governor cannot legally attempt to determine the identity of the Travis County District Attorney, what was in Perry’s mind would be a jury question. Given that we are dealing with a person who also has it in his mind that Texas has a legal right to secede from the union, it’s anyone’s guess what he might have thought about the legality of these actions.

The special prosecutor, Michael McCrum, will not, however, be limited to the four statutes identified by TPJ.? Perhaps a better fit is Texas’s penal code section on Obstruction or Retaliation. That statute makes it a crime for someone intentionally to harm another person in retaliation for or on account of the service of that person as a public servant. Moreover, that statute constitutes a third degree felony (two to ten years in prison) while the four noted by TPJ are all Class A misdemeanors (up to one year of prison). All of the statutes also authorize fines.

McCrum was nominated by President Obama for a position as one of Texas’s U.S. Attorneys. According to his website, he was supported by all of the Democratic members of the Texas Congressional delegation. After a long delay, he withdrew his name from consideration and resumed his private criminal defense practice. Recently, he has been in the news due to his representation of Mikal Watts, a south Texas attorney and large Democratic donor, in connection with a governmental investigation into alleged irregularities in connection with large settlements stemming from the BP Gulf of Mexico oil explosion and spill.

Ultimately, this story may be more important for the future of the Public Integrity Unit than whatever effect it has on Texas Gov. Rick Perry. If the Public Integrity Unit remains materially damaged and sabotaged, it will have the effect of incapacitating the only remaining significant check on unbridled one party rule in the state.

Featured photo of Texas Gov. Rick Perry from www.rickperry.org.

edited by eap