The Perry indictment: A travesty of a mockery

Governor Perry condemned his indictment yesterday as a “farce of a prosecution.” In my view, Governor Perry is guilty only of understatement. His indictment is an egregious farce of the kind Woody Allen’s Fielding Mellish captured in Bananas (written with Mickey Rose, 1971). Having been put on trial for fraud, inciting to riot, conspiracy to overthrow the government, and using the word “thighs” in mixed company, Mellish decried the case against him: “It’s a travesty of a mockery of a sham of a mockery of of a travesty of two mockeries of a sham.” Not to be too technical about it, that is the special nature of the farce in which Governor Perry now features. Christy Hoppe’s Dallas Morning News story on the indictment is here.

Exercising his lawful power as governor of Texas, Perry vetoed the appropriation for the public integrity section of the office of Travis County District Attorney Rosemary Lehmberg. Governor Perry’s veto is unchallenged. Rather, his threat to veto the appropriation if Lehmberg failed to resign from office following her drunk driving conviction and related behavior — or, rather, his statement of intention to exercise his lawful authority as governor — is characterized as criminal in the indictment (copy attached below).

Commentators who have taken a look at the Texas statutes on which the indictment’s two counts are based have rendered their judgment a la Mellish. Professor Jonathan Turley cites the statutes and quotes them in relevant part. Turley comments: “In this case, the special prosecutor seemed to pound hard to get these square facts into these round holes. A bit too hard for such a case.”

More concisely, Jonathan Chait finds the indictment “unbelievably ridiculous.” Chait also makes this salient point: “The conventions of reporting — which treat the fact of an indictment as the primary news, and its merit as a secondary analytic question — make it difficult for people reading the news to grasp just how farfetched this indictment is.”

Prosecutor Patrick Frey fills out Chait’s analysis here. Frey has emailed Michael McCrum, the special prosecutor who secured the indictment: “You should be deeply ashamed of yourself. This prosecution is a joke. It is perhaps one of the most outrageous abuses of power by a prosecutor I have heard of in years. I’m a prosecutor myself — writing you on my own and not speaking for my office — and I just want you to know that your actions tar good prosecutors everywhere. Thank God you never became U.S. Attorney. I hope you lose quickly and are drummed out of public life in disgrace.”

Eugene Volokh raises constitutional issues and discusses relevant Texas case law here. Ian Millhiser’s analysis at ThinkProgress is incomplete but worth a look.

What does McCrum have to say? The Austin Statesman quotes McCrum on the indictment. “There has been an immense amount of work that has gone into my investigation up until this point,” he told reporters after announcing the indictment. “I have interviewed over 40 people who were related in some way to the events that happened.” He later added: “I looked at the law. I looked at the facts, and I presented everything possible to the grand jury.”

Asked about his thoughts of Perry’s ability to do his job as governor, McCrum said: “I took into account the fact that we’re talking about the governor of a state and a governor of the state of Texas, which we all love. Obviously that carries a level of importance, but when it gets down to it, the law is the law, and the elements are the elements.”

We don’t know what McCrum learned in his investigation, but in his statement the clock strikes thirteen. The implication that Texas law straightforwardly supports or requires the indictment is a pretense. McCrum treats the public as tools and fools if he believes his statement is to be taken at face value.

I have to think that the indictment of Governor Perry will be thrown out before it goes to trial. The indictment of Perry befits a banana republic, and while we’re not too sure about the United States of America, Texas is not there yet.

Rick Perry Indictment – August 15, 2014