Perry Gets His “Gate”

by Dish Staff

On Friday, a grand jury in Travis County, Texas indicted governor Rick Perry on charges of abuse of official capacity and coercion of a public servant after he threatened to veto funding for a government oversight program, allegedly to pressure the Democratic DA who ran it into resigning, and subsequently made good on the threat:

A special prosecutor spent months calling witnesses and presenting evidence that Perry broke the law when he promised publicly to nix $7.5 million over two years for the public integrity unit run by the office of Travis County Democratic District Attorney Rosemary Lehmberg. Lehmberg was convicted of drunken driving, but refused Perry’s calls to resign. … The unit Lehmberg oversees is the same that led the investigation against former U.S. House Majority Leader Tom DeLay, a Texas Republican who in 2010 was convicted of money laundering and conspiracy to commit money laundering for taking part in a scheme to influence elections in his home state.

The emerging consensus among legal and political commentators is that the indictment is entirely specious. Eugene Volokh lays out the many reasons why:

[T]he Texas Constitution expressly reserves the veto power to the governor. The governor is entitled to decide which laws he “approv[es]” and which he disapproves — without constraint from the legislature, or from county-level district attorneys. The legislature certainly can’t make it a crime for the governor to veto its appropriation bills; that would deny the governor the power that the Texas Constitution gives him.

Nor can the legislature make it a crime, I think, for the governor to veto its appropriation bills as an attempt to influence some government official’s behavior — behavior that is commonplace in the political process, and that is likewise within the governor’s exclusive power to decide which bills to give his “approval.” To be sure, the legislature can make it a crime for the governor to accept bribes in exchange for a veto; but there the crime is the acceptance of the bribe, not the veto itself.

Chait calls it “unbelievably ridiculous”:

The prosecutors claim that, while vetoing the bill may be an official action, threatening a veto is not. Of course the threat of the veto is an integral part of its function. The legislature can hardly negotiate with the governor if he won’t tell them in advance what he plans to veto. This is why, when you say the word “veto,” the next word that springs to mind is “threat.” That’s how vetoes work. The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a “misuse” of power or “coercion” of one’s opponents. To describe the indictment as “frivolous” gives it far more credence than it deserves. Perry may not be much smarter than a ham sandwich, but he is exactly as guilty as one.

But Alec MacGillis argues that the charges, though unlikely to hold water, are illustrative of how Perry operates:

[R]egardless of how strong the charges against Perry are, it is worth noting how fitting they are. Put simply, the case against Perry points to an aspect of his political persona that is well known in Texas but has too often been overlooked in the national portrayal of Perry. On the national stage, Perry is alternately depicted as a hardened ideologuethe states’ rights gunslinger who openly flirted with secessionand as a bumbling buffoon who watched his high-octane 2012 presidential campaign flame out in a moment of debate-stage befuddlement. Both of these caricatures miss Perry’s essence. As I argued in a 2011 profile of him for this magazine, Perry is both more conniving and less ideologically-motivated than the national perception of him would have one believe. He is, at heart, a political operator and a striver who has wielded the many levers of power available to him as governor of the second largest state less to advance a coherent conservative agenda than for his own aggrandizement and that of his cronies.

But then, he’s not the only one. The indictment itself is a crystal-clear case of politics in the courtroom, as the Bloomberg View editors lament:

This would be ordinary partisan tit for tat, except that a law enforcement office is involved. Political disputes should be resolved in political venues — legislative bodies and public debates — not in criminal courts. If Perry’s veto is an abuse of power, then the state legislature could impeach him, as it did Texas Governor James “Pa” Ferguson nearly 100 years ago. Impeachment, however, is entirely unnecessary: The legislature could simply vote to override Perry’s line-item veto. For failing to do so, should the entire legislature be indicted? Of course not. Perry is guilty of partisan behavior, not felonious conduct.

Ross Ramsey raises the question of how the indictment might affect Perry’s ambitions in 2016:

This job is ending, but the governor is at the beginning of his next run for office, and the indictment is national news, like Chris Christie’s bridge. The governor’s supporters blame Democratic politics — Travis County is liberal, and the prosecutors are hard on Republicans, they say — but this is catnip for other Republicans. Perry isn’t competing with Democrats, but with other Republicans for the chance to compete with the Democrats.

Maybe his lawyers can get the indictment snuffed before there is a trial. Maybe there will be a trial, and a jury will find nothing criminal has taken place. Meanwhile, the governor and others are already haunting Iowa, the home of the first presidential primaries almost two years from now. This indictment could be to the Perry presidential campaign what a sewer leak is to the opening of a new restaurant: The food might not be the diners’ strongest memory of the meal.

But Harry Enten and Walt Hickey cast some doubt on that suggestion:

A lot of reporters and pundits will spend the next several weeks trying to answer that question, but the truth is we won’t know for quite some time. It looked like Perry would have had a difficult time capturing the nomination even before Friday’s indictment. According to recent polls by NBC/Marist, Perry was at 7 percent in Iowa and 5 percent in New Hampshire. His Iowa numbers are especially depressed from where he was polling when he first declared his candidacy in 2012.

Perhaps more importantly, Perry’s repeated gaffes in 2012 would have made it difficult for the GOP establishment to support him again in 2016. As we’ve noted in the past, establishment support (or at least a lack of opposition) is key to winning a Republican primary. It’s one of the reasons Newt Gingrich lost in 2012. The establishment wants to nominate electable candidates. Perry’s past missteps and misstatements may have rendered him unacceptable to Republican power brokers.