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Drew Clark: Rick Perry on clear line between politics and crime

Published: Sunday, Aug. 24 2014 12:00 a.m. MDT

Updated: Saturday, Aug. 23 2014 11:09 p.m. MDT

Texas Gov. Rick Perry talks to a group of business leaders, Friday Aug. 22, 2014, in Portsmouth, N.H.

Jim Cole, AP

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SALT LAKE CITY — On Aug. 15, Texas Gov. Rick Perry was indicted for the alleged crime of threatening to veto, and actually vetoing, a bill funding a special unit of county prosecutors.

In charging Perry with a crime, the actions of the county district attorney have been denounced nationwide from The New York Times to The Wall Street Journal, to even liberals like Jonathan Chait (“unbelievably ridiculous”) and former Obama administration adviser David Axelrod (“seems pretty sketchy”), as a new low point in the criminalization of political differences. It's not good for a state or a nation when bitterness over policies leads too often to calls for impeachment. This unhealthy political environment breeds cynicism about the rule of law, as everyone becomes more intently focused on obtaining raw political power.

Is there a legitimate comparison to be made between Perry's travails in Texas and the criminal charges brought last month here in Utah against former Attorneys General Mark Shurtleff and John Swallow?

The short answer is no. Yet the comparisons suggest some solutions to the problems of political and legal accountability for public officials.

Texas and Utah are both deeply conservative and consistently elect Republican candidates for statewide office, yet with very liberal capital cities. In the case of Austin, a stark progressivism governs the surrounding Travis County. It consistently elects Democrats as district attorney, including current occupant Rosemary Lehmberg.

In Utah, the legal investigation of Swallow started in January 2013 with federal prosecutors here. It was followed by separate investigations conducted by the office of the lieutenant governor, the district attorneys for Salt Lake County and Davis County — led by Democrat Sim Gill and Republican Troy Rawlings, respectively — and by the heavily Republican House of Representatives.

Although the U.S. Department of Justice bowed out, the inquiry by the bipartisan team of Gill and Rawlings led last month to felony charges of receiving and soliciting bribes, among other counts, against both Swallow and Shutleff.

During the July 15 press conference in which the charges were announced, Gill voiced his frustration with federal prosecutors for abandoning the investigation. He said, “This case is not something we should be prosecuting as local prosecutors.” Although unusual for county district attorneys to bring charges against state officials, our federal system of government bestows prosecutorial power and discretion upon both federal and state political officials. As Henri Sisneros explained in the Deseret News this month, “Local officials have concurrent jurisdiction. State laws proscribe corruption, and once a case is presented for screening, prosecutors must determine whether there is sufficient evidence to sustain charges and whether charges are appropriate.”

With this background in mind, let’s consider what’s happened in Texas. In 1982, then-Travis County District Attorney Ronnie Earle received state funding to create a “Public Integrity Unit” with jurisdiction to investigate and prosecute political corruption by elected officials statewide. At the time, all of Texas was predominantly Democratic. Today, Travis is heavily Democratic while the state leans Republican. That’s a recipe for partisan nastiness, including prosecutions of former Sen. Kay Bailey Hutchison, R-Texas (acquitted), and former House Speaker Tom Delay, R-Texas (conviction overturned on appeal).

“Of the 254 counties in Texas, the idea that the voters in this one would pick the prosecutor for every statewide elected official is absurd,” says retired Austin attorney Mark Pulliam. “The craziness becomes apparent when Travis County is the most liberal county in Texas.”

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