The case for Rick Perry

by Jacob Daniels

Rick Perry’s indictment looks like the ultimate political gift… as of today.  Regardless of your opinion of America’s Longest Serving Governor, political junkies and those who avoid politics seem to agree: Rick Perry is a victim of a political witch hunt led by an overreaching government.

Even President Obama’s longtime friend and architect of his 2008 presidential campaign tweeted that the indictment seems “sketchy.” Furthermore a well-known Harvard Law professor has spoken against the indictment.  It is rare when Perry and a Harvard Law professor agree on anything.

But the question remains, will this indictment turn into a nightmare?

The legal process is complicated and will allow many opportunities for Perry opponents to spin public opinion against him.  Add to that another layer of complication; the upcoming 2016 presidential election.

Perry is indicted for “Abuse of Official Capacity” and “Coercion of a Public Servant.” The first charge is a Felony in the First Degree and carries a sentence of 5 to 99 years in prison and the second charge is a Felony in the Third Degree and carries a sentence of 2 to 10 years in prison.

In order to convict Perry of Abuse of Official Capacity, under Texas Penal Code, section 39.02, a prosecutor must prove beyond a reasonable doubt that Perry, with intent to obtain a benefit or with intent to harm or defraud another, intentionally or knowingly violated a law relating to the his office or misused government property, services, personnel, or any other thing of value belonging to Texas that is under the control of the Governor.

Perry’s best defense to the first charge is that he did not “intentionally or knowingly” violate Texas law.  The Texas Constitution grants the Governor the line-item veto.  Perry and his aides decided that $7.5 million of Texas taxpayer dollars should not be allocated to a “public integrity unit” headed by Travis County District Attorney Rosemary Lehmberg, who, in the words of Perry, “had lost the public’s trust.” So he threatened a veto and then followed through with his promise.

It is easy to understand why Texans lost their trust in DA Lehmberg.  She served 45 days in jail for a DUII where she was filmed violently kicking and screaming throughout her booking, making faces at the camera, requiring physical restraints and attempting to use her power as DA to demand that the Travis County Sheriff, who she refers to simply as “Greg,” come talk to her.  Her clear intent is to seek preferential treatment from the Sheriff and she is astonished when she finds out that “Greg” submitted the affidavit for the warrant. Further, as DA, she threatened deputies that “y’alls will be the ones in jail.”

Her conduct and appearance was reminiscent of the possessed child in “The Exorcist.”

The videos went viral and Perry knew that Texas taxpayers didn’t want to fund DA Lehmberg’s leadership of a unit that ironically investigates state and federal officials for corruption.  So naturally, Governor Perry stated that he would veto the funding if the DA remained in office.

Perry announced his veto threat publically on many occasions.  Does that seem like someone “intentionally or knowingly” violating the law? Or does that sound like a seasoned Governor, surrounded by competent advisors, exercising the powers granted to him and his predecessors under the Texas Constitution?

In order to convict Perry of Coercion of a Public Servant, the special prosecutor has a major hurdle.  Texas Penal Code 36.03 protects Perry from punishment if Perry is a member of a governing body or governmental entity, and his attempt to influence the DA was an official action taken by Perry.

As Governor of Texas, Perry has the power to exercise the line-item veto (e.g., take official action).  Governors can veto whatever they want (subject to legislative override) and Perry decided that Texas taxpayers didn’t want to fund a unit headed by DA Lehmberg

In fact, in her letter from jail to the residents of Travis County, the DA wrote that she could never “convey the magnitude of the shame I feel for breaking the law and therefore, the trust with the people I serve…” (Nonetheless, the same letter informed Travis County that she intended to remain in office).

Governor Perry and Texas taxpayers agreed with her assessment and therefore Perry vetoed funding on the basis that the person leading the unit was untrustworthy and morally unfit.

Perry’s veto was a demonstration of how the political process works, whereas the recent indictment represents an overt attempt to manipulate the judicial system to end Perry’s political career.

Time will tell how this ultimately impacts his 2016 presidential aspirations.

The bigger question is this: Why isn’t DA Rosemary Lehmberg under indictment for abuse of power?

Jacob Daniels is an Oregon attorney who works in politics. He served in 2012 as Oregon Political Director of Americans 4 Perry