Rush to Judgment on the Rick Perry Indictment

I don’t know whether Gov. Rick Perry is guilty of anything, or – assuming he is – whether the special prosecutor has the goods to prove it, let alone whether the right-leaning Texas Court of Criminal Appeals would sustain such a conviction. (Since Perry isn’t an innocent person on Death Row, the court will tend to give him all the breaks.)

I do know that most of what has been written about the case since the indictment has been nonsense, with Blue and Red pundits competing to see who can say the nastiest things about the prosecutor. See Simon Maloy and Kevin Drum on the Hack Gap.)

Worse, everyone seems to be ignoring the obvious fact that, even if Perry can’t be convicted of a crime, his conduct in this case ought to disqualify him for the Presidency.

Forrest Wilder of the Texas Observer offers some facts and analysis in rebuttal, and Jeffrey Toobin of The New Yorker demolishes the “But Mom, all the kids do it!” defense.

Here are the facts, as currently understood:

1. The Public Integrity Unit of the Travis County (Austin) DA’s office prosecutes public corruption cases involving the Texas state government, since Austin is the capital. Since that unit carries out what is in effect a statewide function, it – unlike the rest of the DA’s office, which is supported by local taxes – is paid for by a special appropriation from the Texas Legislature.

2. One of the cases brought by the PIU involved a grant of $11 million from a scandal-ridden state cancer research fund to a politically-connected company owned by donors to Perry and Greg Abbott, the AG and Republican candidate to succeed Perry. The grant application had not been adequately reviewed, and allegedly that fact was kept from the grant-making committee.

3. Travis County is Democratic, while the state government is solidly Republican. Neither the legislature nor the state Attorney General is going to hold Perry and friends accountable. So if Perry were to gain control of the Public Integrity Unit, he and other Republican office-holders could commit crimes with impunity.

4. The Democratic DA of Travis County got nailed for drunken driving, and the post-arrest videotapes don’t show her in a very good light.

5. If she were to quit, the Governor would appoint her successor.

6. Perry demanded the DA’s resignation. She refused, and the county officials who could have fired her decided not to do so.

7. Perry threatened to veto the appropriation for the Public Integrity Unit if the DA didn’t resign. She didn’t. He did.

8. That veto had the effect of shutting down the cancer-institute investigation until the Travis County board voted to support the Public Integrity Unit with local tax money.

8. A local NGO demanded and got a judge appointed to look into the matter. He appointed a special prosecutor. Neither is an obvious partisan; the special prosecutor had the backing of both Texas Senators for appointment as United States Attorney.

9. After months of grand jury proceedings, the special prosecutor indicted Perry for abuse of power. The indictment makes two charges – coercion of a public official and abuse of office – and does not specify the underlying facts.

So much for the facts. Now some comments.

1. In contemporary practice, white-collar crime indictments often read like the prosecutor’s opening statement, laying out all of the evidence to be introduced. That’s a good way for the prosecutor to get good press, and perhaps poison the minds of potential jurors who have read press accounts of the indictment. But it’s not legally necessary, and may not be good courtroom tactics, since every fact alleged in the indictment must be proven at trial.

2. The fact that Perry had the lawful power to issue a veto, and therefore to make a veto threat, is not dispositive. Lawful powers can be used for criminal purposes, and doing so is a crime. The Saturday Night Massacre was the exercise of President Nixon’s lawful power order his Attorney General to fire Archibald Cox.

3. If in fact, as Forrest Wilder hints, Perry through an intermediary promised the DA to give her a cushy job if she would resign, that seems to me like straight-up bribery, and obviously criminal. Yes, that sort of thing happens all the time. But as Toobin points out, that’s not a legal defense. No, I don’t know why the indictment doesn’t include a bribery count; maybe that’s covered by the abuse-of-office and coercion charges.

4. Assuming for the sake of argument that Perry is innocent in law, or alternatively that he is guilty of an attempt to obstruct justice but that the prosecutor does not have sufficient evidence to prove that charge (that is, he might have intended to interfere with the criminal probe of cancer funding, but have been careful enough not to leave fingerprints), his attempt to take over the one agency that could hold him and his cronies accountable constitutes an outrageous abuse of power. And doing so in the context of stealing millions of dollars from cancer research to enrich political cronies makes it morally disgusting, to boot.

Look, I’m glad and proud that the Blue team prefers accuracy to partisanship, but would it really be too hard to add that Perry is, at best, a legally innocent scoundrel, grossly unfit for the office he holds, let alone the Presidency?

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.