Judging from the reaction of national pundits and journalists, the verdict in the case of State of Texas vs. James Richard “Rick” Perry is already in: Rick Perry is not just innocent, he’s being railroaded by liberal Democrats in a vindictive, politically motivated prosecution. The rush to judgment happened almost immediately after the indictments came down on Friday, even as our friends in New York and Washington confessed that they knew little of Rick Perry’s legal troubles and in some cases hadn’t even read the two-page indictment, much less bothered to understand the issue in the larger political context. Jonathan Chait at New York Magazine called the indictment “unbelievably ridiculous” and fulminated that Perry “is exactly as guilty as” a “ham sandwich,” referring to the old saw that a good prosecutor could indict a ham sandwich.
On Twitter, top-shelf pundits were even more dismissive:
Obama adviser David Axelrod, who knows a thing about expansive executive authority, weighed in:
Axelrod’s tweets led to headlines such as “Rick Perry: Even David Axelrod Thinks Indictment Is ‘Sketchy.’”
The New Yorker’s Amy Davidson wrote that she “felt sorry” for Rick Perry and compared the case against the governor to the congressional Republicans’ lawsuit against Barack Obama.
Even legal analysts seemed strangely lazy about the whole thing. UC-Irvine law professor and blogger Rick Hasen admitted he hadn’t “studied Texas law or the indictment closely enough” but nonetheless went on to make the sweeping claim that the indictment represents the “criminalization of politics.”
Among elite commentators, this seems to be the emerging consensus—that the pursuit of Perry somehow was a fundamental departure from legal norms and represents an attack on the very practice of politics. Incidentally, this is precisely the line that Rick Perry is taking. On Saturday, he called the prosecution a “farce” and lamented that “some would use partisan political theatrics to rip away at the very fabric of our state’s constitution.”
Since uninformed speculation is apparently the coin of the realm, allow me to opine on what I think is going on. In the last few months, political reporters have begun writing the Rick Perry 2.0 Comeback story. National Journal had a particularly credulous piece—titled “The New Rick Perry”—that spent more than a thousand words allowing Perry to explain his decision to adopt those MSNBC glasses. More significantly, the piece basically chucked out almost everything we’ve learned about Rick Perry over his decades in politics to posit that he’s suddenly, mutatis mutandis, some sort of serious “bipartisan uniter” who’s shucked off the focus groups and polling and is finally just being his charming, fun-loving awesome self. It’s at best meta-level campaign bullshit, but this is how political journalism is practiced. The indictment—and the possibility that Perry could be knocked out of the running and even facing prison time because he’s a corrupt bully—blows a giant hole in the script.
There’s also a tendency on the part of political journalists to criticize anything that sanitizes the bloodsport of partisan politics. Like those football fans who belly-ache about new safety-conscious rules that “sissify” the game, political junkies are wedded to the idea that all’s fair in politics. That’s one reason, I think, why the press outside of Texas has been so incapable of seeing this through anything other than a partisan lens. The zealousness with which that line has been pursued—and reinforced by Perry’s allies—has led to some serious factual blunders and misconceptions. In the interest of trying to bring this episode back to reality, here are a few things to keep in mind.
Partisan Democrats Are Not Leading the Perry Prosecution
The criminal complaint against Perry was filed in June 2013 by the liberal Texans for Public Justice but it was assigned to a Republican judge in Bexar County who appointed Michael McCrum—a former police officer and prosecutor in the George H.W. Bush administration—as special prosecutor. McCrum was previously tapped by U.S. Sen. John Cornyn and former Sen. Kay Bailey Hutchison (both conservative Republicans) to be the U.S. Attorney for the Western District of Texas. There is no evidence that McCrum has a partisan axe to grind—quite the contrary.
The Travis County DA’s office, including Rosemary Lehmberg, had nothing to do with the indictment.
It’s Not About Rosemary Lehmberg’s Disgraceful Behavior… Or Even Perry’s Veto
As much as Perry and some in the media would like to make this about Lehmberg’s outrageous drunk driving—Perry’s legal team played a tape of her buffoon-ish behavior at the jail—the legal case against Perry is not about that.
I was someone who thought Lehmberg should have resigned for the simple reason that it is unseemly for a prosecutor guilty of drunk driving to send people to jail for the same crime. However, the process for removing Lehmberg is a local one. The local system opted not to remove her and Lehmberg pleaded guilty and went to jail. She plans to step down at the end of her term.
The Travis County DA is no different, in almost every respect, than the more than 300 local elected prosecutors in Texas. She is locally elected and is a servant of the jurisdiction she represents. The only thing unique about the Travis County DA’s office is that it contains the Public Integrity Unit, which polices corruption in state government. Practically speaking, this anti-corruption unit is one of the few checks on the power and influence Perry has accumulated over 14 years in office.
The Public Integrity Unit is largely funded by the Texas Legislature. That money isn’t earmarked for Rosemary Lehmberg; it’s earmarked for the oversight function of the Travis County DA’s Public Integrity Unit. It is that money that Perry threatened to line-item veto if Lehmberg did not resign. When she did not, and Travis County opted not to remove her, Perry then yanked the funding. Afterwards, he continued to make offers to restore the funding in exchange for Lehmberg’s resignation, according to media reports. One account says he signaled that he would find Lehmberg another well-paying job within the DA’s office. Had she resigned, Perry would have appointed her successor.
The criminal case against Perry centers on his “coercion” of a local elected official using threats and promises. It is not premised—as has been repeatedly misreported—on the veto itself. Craig McDonald, the head of Texans for Public Justice and the original complainant, has said as much. As McDonald told CNN:
“The governor is doing a pretty good job to try to make this about [Lehmberg] and her DWI conviction. But this has never been about his veto of her budget and about her. This is about his abuse of power and his coercion trying to get another public citizen to give up their job.”
There is a Lot We Don’t Know…Yet
It is quite possible that the case against Rick Perry will fizzle. Perhaps it is “flimsy” and “thin” and all the rest. Credible legal experts have said they think the prosecution will have a difficult time securing a conviction. However, none of us is privy to the evidence and testimony presented to the grand jury. According to Peggy Fikac of the San Antonio Express-News, McCrum said he “interviewed more than 40 people, reviewed hundreds of documents and read many dozens of cases.” Fikac and other reporters who staked out the courthouse long before the national press spent five minutes reading the indictment watched “current and former Perry staffers, Travis County employees and state lawmakers” entering the grand jury room over the summer.
It is possible that McCrum has gathered more information on Perry’s motives that will come to light later. Although the indictment doesn’t mention it, the Public Integrity Unit is investigating a scandal involving the $3 billion Cancer Prevention and Research Institute of Texas, a fund close to the governor’s office that suffered from cronyism and lax oversight. The Public Integrity Unit indicted one CPRIT official in December for deceiving his colleagues and awarding an $11 million grant to a Dallas biotech firm without a proper vetting.
What else, if anything, did McCrum turn up in his interviews and document search? At this point, we just don’t know.
This doesn’t make for explosive headlines but the fact is, we’re just going to have to wait and see how the case unfolds.