Key Issue in Perry Case: Taking Action Legally or Outright Abuse?

Saturday, 16 Aug 2014 10:30 PM

By Todd Beamon

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The central issue in the indictment of Texas Gov. Rick Perry is "whether it is wise to indict someone whose action is, on its face, legal," Texas A&M University presidential scholar George Edwards III tells Newsmax.

"There is nothing that he did that is apparently illegal," Edwards said Saturday. "It is certainly legal to veto. Governors do it all the time, of course. It does raise a question there.

"If you indict someone for exercising a veto, then what does that mean? It makes it a very difficult case."

But it's not Perry's veto of the funds last year that led to the felony indictment by a state grand jury. It's how he did it, Houston defense lawyer Chip Lewis told Newsmax.

"The governor shot himself in the foot," he said. Lewis prosecuted cases for more than seven years and has been in criminal defense for 15 years. "The crux is that his tactic is what got him indicted, not necessarily the act.

"He could have gone about it in a more low-key manner — probably done the same thing that he did, which was not give the funding, and not been indicted for it."

These positions took shape as Perry, 63, fired back at Friday's indictment on charges stemming from following through on his threat last year to veto $7.5 million in state aid over two years for the public integrity unit of the Travis County District Attorney's Office.

Perry was indicted on charges of abuse of official capacity and of coercion of a public servant. The offenses carry penalties of up to 99 years in prison. The three-term Republican is the first Texas governor since 1917 to be indicted.

The Travis County district attorney is Democrat Rosemary Lehmberg. The investigative unit is based in Austin, a heavily Democratic city where the grand jury was seated. The rest of Texas is largely Republican.

In April 2013, Lehmberg pleaded guilty to drunken driving after being found to have a blood-alcohol content of nearly three times the legal driving limit. She served about half of a 45-day jail sentence.

Perry openly called for Lehmberg to resign, threatening to withhold the money because of a decline in public confidence. Video taken at the county jail from her arrest showed Lehmberg shouting at staffers to call the sheriff, kicking the door of her cell, and sticking her tongue out.

Perry slammed the indictment at a Saturday news conference in Austin as a "farce of a prosecution" that "will be revealed for what it is. And those responsible will be held accountable."

Perry is not seeking re-election in the fall, but is considering a bid for the White House in 2016. He unsuccessfully ran for president in 2012.

Perry was first elected governor in 2000 and is the Lone Star State's longest-serving governor.

Michael McCrum, a special prosecutor based in San Antonio, announced the indictment. He does not work out of the Travis County District Attorney's Office. Critics of the Perry indictment told Newsmax on Friday that those prosecutors have long targeted high-profile Republicans.

They include former Sen. Kay Bailey Hutchinson when she was state treasurer and former U.S. House Majority Leader Tom DeLay. Both were investigated by Lehmberg's longtime predecessor, Ronnie Earle.

That McCrum is outside Travis County lends some credibility to the Perry indictment, Edwards told Newsmax.

"It's not quite as easy to say, 'I'm going to blame those liberal Austinites,'" he said. "That's a bit different.

"We do have a Travis County grand jury," the professor observed. "They're from the same grand jury pool, but it’s not the same office. It's not the same officials."

Lewis, who did not prosecute cases out of the Travis County office, vouched for McCrum's credibility.

"I know Michael McCrum well. I know what a fine lawyer and gentleman he is — I take him at his word," he said. "His decision is based on the law and the facts as the grand jury saw them and so be it."

Perry's openly public predication of his veto on Lehmberg's resignation is what justifies the indictment, Lewis told Newsmax.

"He'd have a lot better leg to stand on if he had never come out publicly, never said anything," the lawyer proffered. "Let the back-channel communications … handle themselves.

"Then, if she didn't resign, he'd pull the funding," he continued. "He could have said with a pretty straight face, and probably would have had a lot more support for the fact that he didn't have confidence in someone with such poor judgment to have the access to such a large amount of money for such an important position."

This approach, Lewis said, would have made Perry appear as if he made "a wise public-policy decision — not the direct threat of, 'Hey, if you don't resign, I'm pulling your funding.'"

McCrum, as a result, had no choice but to pursue a grand jury indictment.

"The way Perry handled this, it really put him in a box," Lewis said. "It is hard to ignore the law, given the factual matrix Perry created by threatening Rosemary from the outset.

"He had no choice. The law is the law. The actions that Perry committed violated the law."

Both Edwards and Lewis said that the indictment would affect Perry's 2016 chances, but in different ways.

The Texas A&M professor said it would only impact Perry "on the margins" because of the arduous Republican presidential primary season.

"If you've got three people who are similar, and you like them in essentially the same things — and one of them has been indicted and the other two haven't, the one who has been indicted may be at a slight disadvantage there," Edwards said.

"I wouldn't think, outside of desperation, that a competitor to Perry in the primaries would be smart to be running ads saying 'Perry has been indicted and, therefore, is ethically challenged.'

"That would be a stretch, and I think there might be pushback," he said.

It is probably best for the Democrats to stay silent, too.

"There's going to be a long battle of Republicans beating up on each other," Edwards said. "That's what you do in primaries.

"The Democrats, if they’re smart, won't have anything to say about any of these folks until there's a choice. That's the smart thing to do."

Lewis, however, predicted that Perry's indictment will "energize the Republican base. … The national base, to a certain extent, but certainly the Texas base."

The lawyer told Newsmax that he doesn’t expect Perry to do prison time if convicted.

"I don't think there's any real risk that he's going to go to jail or anything," Lewis said, adding that he suspects "some resolution" to be "worked out" between David Botsford, Perry's private lawyer, and McCrum.

He, further, thinks that Perry would be pardoned should Republican Attorney General Greg Abbott win the Statehouse in November.

"Let's be real: Greg Abbott's likely to get elected, no matter how we want to slice it. It's his race to lose," Lewis said. "It would likely be the first act of his gubernatorial tenure to pardon Rick Perry."

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