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Perry prevails, but prosecution as a political weapon lives on

By   /   February 25, 2016  /   News  /   No Comments

Former Texas Gov. Rick Perry came back this week to Sandy’s, the place where he treated his legal team to custard after a Travis County court booked him for felony abuse of power.

The first trip, 18 months ago, capped a performance that began with a mug shot and fingerprinting followed by what took on an air of a campaign rally outside the courthouse.

The return on Wednesday — Perry and attorneys, cones thrust forward, captured for Instagram — was the defiant punctuation to a politically motivated prosecution that grew out of his threat to cut off state funding for the Travis County Public Integrity Unit.

The smiles, before and after, belie the deadly serious message Perry delivered after the Texas Criminal Court of Appeals dismissed the second of two felony counts. The appeals court last July dismissed a charge that Perry had coerced a public servant.

“The people of Texas don’t want a rogue organization with a rogue prosecutor to use the court system to get done what they can’t get done at the ballot box,” Perry said, answering a reporter’s question. “And that’s what you had here, allowed a rogue organization, with a rogue prosecutor, not only, I think, to cause great harm, but also possibly hurting the reputation of Texas and our legal system.”

It depends upon which reputation you’re talking about. If anything the Perry case only enhanced the reputation of the legal system in Travis County as a political weapon for Democrats to use at will against high-ranking elected Republicans, Jon Taylor, chair of the Political Science Department at the University of St. Thomas in Houston, said.

Taylor, the political science chair, says Perry's prosecution is part of a long pattern.

Jon Taylor, the political science chair at the University of St. Thomas, says Perry’s prosecution is part of a long pattern.

And until the Legislature screws up the courage to turn the authority of the county prosecutorial unit over to the state Attorney General’s office, this kind of politically driven prosecution will almost certainly happen again, he said.

“I’ve been teaching this case in my classes and even my students who are Democrats want to know where is the case,” Taylor said. “Rosemary Lehmberg (Travis County District Attorney and a Democrat) is the poster child for prosecutorial overreach.”

Lehmberg, whose drunk driving arrest, abuse of arresting officers and refusal to resign her office prompted Perry to call for the Legislature to withhold $7.5 million from her budget, is only the most recent poster child.

Her predecessor, Ronnie Earle, set an almost impossibly high bar for politically motivated prosecutions. Earle once told the Texas Tribune he started the Public Integrity Unit in the early 1980s because it didn’t seem right that cases of public corruption had no more standing in his office than street crime.

At a time when conservatives were changing their political affiliations and an overwhelmingly Democratic state was becoming overwhelmingly Republican, Earle was determined to change that.

Acting on information gathered during a special election to replace Democratic U.S. Senate appointee Bob Krueger in 1993,  Earle’s grand jury found sufficient cause to indict Krueger’s Republican successor, Kay Bailey Hutchison, for abuse while she served as state treasurer.

Prosecutors accused Hutchison of using treasury employees to take care of political and personal chores and of destroying documents damaging to her case.

The first indictment was tossed on a technicality. The second was heard by a jury in Fort Worth when Hutchison’s lawyers argued she couldn’t get a fair hearing in Austin.

The jury was out for 30 minutes before dismissing all charges. Hutchison, defiant as Perry, said at the time, “They turned around and ran because they knew the longer they went, the more embarrassing it was going to be. They thought the lady would crack. Well, the lady wouldn’t crack.”

Earle bronzed his status as a liberal hero in Austin and a showboating scoundrel pretty much everywhere else with his prosecution of Tom DeLay.

Few people were as ill-suited to the role of martyr as the former majority leader of the U.S. House of Representatives from Sugar Land, a man his colleagues affectionately referred to as The Hammer.

Loved and hated with equal passion in his own party, DeLay was perhaps the GOP’s most effective fundraiser as well as one of the most powerful lawmakers.

As DeLay’s political authority was reaching its apex, Earle convened a grand jury in 2005 to consider evidence that DeLay conspired to funnel $190,000 in corporate donations through his political action committee in Texas to the Republican National Committee. The RNC then allegedly returned the funds to seven Republican candidates for the Texas House.

The first indictment collapsed because the law under which DeLay would have been prosecuted had not been passed at the time of the donations.

Nonplussed, Earle convened a second grand jury that refused to indict DeLay. Using the grand jury’s secrecy protections, Earle failed to disclose the results of the second grand jury until he persuaded a third to indict DeLay on charges of  money laundering and conspiracy to commit money laundering.

Five years after Earle began his investigation, a Travis County court found DeLay guilty.

Out of office when the verdict came in, Earle told the Austin American-Statesman, “Our justice system works.”

DeLay would agree, in the end. He would go on to spend millions of dollars and four more years before the Court of Criminal Appeals overturned the convictions.  Justice Melissa Goodwin said the court could find no evidence DeLay had any idea that he might have been doing what he was convicted of.

If anything, Goodwin said, it appeared as if DeLay and his associates “were attempting to comply with the Election Code limitations on corporate contributions.”

“The Court of Criminal Appeals shut down a prosecution almost nine years to the day that the Travis County District Attorney’s Office embarked on this unconscionable jaunt,” Brian Wice, DeLay’s attorney said on the day of acquittal.

Free speech parallels exist between the Perry case and the John Doe case in Wisconsin, von Spakovsky says.

Free speech parallels exist between the Perry case and the John Doe case in Wisconsin, says Hans von Spakovsky.

“Tom DeLay was prosecuted for doing something perfectly legal,” said Hans von Spakovsky, who knows a little bit about campaign finance law and the use of the legal  and regulatory systems for political dirty tricks, having served for two years on the  Federal Election Commission.

He is now director of the Election Law Reform Initiative and senior legal fellow with the Edwin Meese III Center for Legal and Judicial Studies at the Heritage Foundation.

Spakovsky has paid close attention to Texas’ rich tradition of prosecutors exacting political punishment through the courts.

There are parallels, he said, between the Court of Appeals upholding Perry’s right of free speech in his veto of Public Integrity Unit Funding and the free speech rights of conservatives whose rights were violated in a John Doe investigation initiated by a Democratic district attorney in Wisconsin.

“In Wisconsin you had police raids on people simply because they came to the capital and spoke out,” Spakovsky said. “It’s something you would have expected in Nazi Germany and I am not someone who normally uses those words.”

Spakovsky and Taylor agree that as long as the Travis County District Attorney’s office maintains any authority to prosecute in political cases, political cases will be brought.

The Texas Legislature’s attempt to give that authority to the attorney general failed when a package of ethics reforms, Senate Bill 10, stalled.

The Legislature did decide to bar the unit from investigating and prosecuting legislators who live outside of Travis County, but Gregg Cox, the unit’s director, recently told the Houston Chronicle the law has changed very little about how the unit operates.

“This is where Gov. [Greg] Abbott steps in,” Taylor said. “From a purely legal standpoint, there is no reason one county district attorney’s office should have that kind of power. Abbott is a former attorney general. He understands. Because until the cycle is broken and you remove the authority from Travis County, you can expect this to happen again.”


Mark Lisheron was a former Austin-based reporter for Watchdog.org.