The indictments announced Friday against Rick Perry don’t fully detail the prosecutor’s evidence against him, and it’s possible that when all the evidence is presented Texans will be united in their desire to see him sent to the pokey. On the basis of the facts as we know them, though, the case against Perry seems no more dispositive to me today than it did in April, when the special prosecutor announced that a grand jury would be seated.
To review those facts, in 2013 the Travis County district-attorney, Rosemary Lehmberg, was arrested for drunk driving and sentenced to 45 days in jail. It was a penalty that no one could find fault with after viewing video footage of the field sobriety test and her subsequent behavior at the station that evening (she served about half the sentence and entered a treatment program after leaving prison). A number of Texans felt that she should resign, among them Perry, who publicly warned that he would use his line-item veto to remove state funding to the Public Integrity Unit—an anti-corruption outfit located in the Travis County DA’s office—unless she stepped down.
At the time, Democrats grumbled that Mr Perry’s threat was politically motivated. The Public Integrity Unit investigates corruption among statewide officials, which means, in the context, that it’s a check on Republicans like Perry and his pals. If Lehmberg stepped down, Perry would, in theory, have had a chance to replace a Democrat with a Republican appointee more friendly to his agenda. And after Lehmberg refused to resign and Perry vetoed the funding, the watchdog group Texans for Public Justice filed a complaint, charging that the veto had been politically motivated. That led to yesterday’s indictments; the charges are coercion and abuse of power.
Perry, unsurprisingly, responded Saturday by doubling down, dismissing the indictment as “outrageous.” More surprising, perhaps, is how quickly public opinion has moved in his favor, or at least in favor of proceeding with caution. Republicans were quick to rally round, but even independents and Democrats, after the initial fizzle faded, seemed skeptical of the indictment.
I’m skeptical too. It’s worth emphasizing that the indictments don’t lay out all (or even much) of the special prosecutor’s evidence, and I suspect the focus on the veto, which is mentioned in the second count, will prove to be a red herring. Perry’s stated reasoning with regard to the veto is defensible, given Lehmberg’s travails, but that’s apparently neither here nor there, from a legal perspective. The Texas constitution gives the governor the right to veto funding for any reason, including pure malice or a passing whim; as the Texas Tribune’s Ross Ramsey observes, if Perry had simply vetoed the funds without warning, there would clearly be no criminal charges. At issue, then, is not the veto itself, but whether the governor used other means to apply inappropriate or even coercive pressure to an elected official. The threat of a line-item veto, which Perry made publicly, is the tool that has received the most scrutiny. The case against the governor there too seems flimsy. As Lehmberg noted, she was elected by Travis County voters, and is accountable to them, not the governor. State funding, though, is subject to the governor’s oversight, and his threat was in a sense against the funding rather than the district-attorney. In his public comments at the time, he clearly anticipated the possibility that Lehmberg wouldn’t resign and said that if so, Travis County could fund the Public Integrity Unit itself.
More intriguing, to me, is the chatter that around the time of the veto, Perry’s camp had some behind-the-scenes discussions with Travis County officials about a potential deal wherein, if Lehmberg resigned, he would appoint a Democrat to replace her. These rumors have been reported before, and several Democratic sources have suggested to me there’s something to it. This has always struck me as plausible. Perry’s critics argue that he was targeting Lehmberg opportunistically, as a way to stifle the PIU, either by removing its funding or by appointing a Republican to oversee it. But if Perry wanted to stifle the PIU, he could have simply vetoed its funding years ago (or, for that matter, left it in the care of the beleaguered Lehmberg). It would have been more shrewd, actually, to proceed quietly.
Worth considering is an alternative account of Perry’s political motivation. In June 2013, when he vetoed the PIU funding, he was signing the overall budget for the 2014-2015 biennium—a budget that restored billions of dollars of funding to public schools and expanded funding to worthy priorities such as higher education and mental health care. It was a budget that had been passed by the legislature with widespread bipartisan support and that was opposed only by a handful of tea partiers, who accused the Legislature and the governor of taking the state on a California-style spending spree. They were wrong, but they were clamorous, and Perry’s defense of the budget risked costing him some standing with the Republican base. My impression, at the time, was that the governor was aware of those risks. On a Monday, he said that his critics needed remedial math lessons; he then turned around and added abortion to the call for the special session that was already in progress. And on the day he signed the budget, to widespread applause, he made a point of using his line-item veto to remove state funding from a unit overseen by a Democratic district-attorney who had just spent several weeks in prison.
If my thinking is correct—if his goal was to cover his right flank rather than to gut the PIU—it’s not hard to believe that months later, Perry (or his people) would let Democrats know that he was open to replacing Lehmberg with a Democrat, that he would help find another job for Lehmberg, and even that he would restore funding to the PIU if they proceeded with such a deal. In such negotiations, though, the governor may have extended his constitutional authority, and so if Perry did have such discussions, I suspect that the prosecutor’s evidence will have more to do with those backroom agreements than with a public warning about his intention to exercise his constitutional powers. If so, the legal case against Perry might be more serious. The ethical case against him would potentially less so, though.
(AP Photo/Austin American-Statesman – statesman.com, Laura Skelding)