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.”
Lehmberg succeeded Earle as county D.A. in 2009. In April 2013, she was arrested for drunk driving, with a blood-alcohol level of 0.23 percent, three times the legal limit. Although convicted, she remains the D.A., and hence head of the Public Integrity Unit.
In June 2013, Perry demanded that Lehmberg step down, and threatened to veto $7.5 million in funding for the Public Integrity Unit unless she resigned. She didn’t, and still hasn’t, resigned. Perry — exercising his constitutional right to veto legislation, including line-item funding bills — vetoed the funds.
The facts in the paragraph above are in the two-page indictment that Lehmberg’s District Attorney Office, acting through a special prosecutor, have sworn out through a grand jury.
Perry, a former presidential candidate, has decried this criminalization of politics on the national campaign trail. On Thursday, speaking at the Heritage Foundation in Washington, he said: "There are fundamental principles at stake here, namely a governor’s power to veto legislation and funding and the right of free speech. I’m confident in my case and I can assure you I will fight this attack on our system of government.”
The Swallow-Shurtleff matter has led to soul-searching in Utah about curbing political corruption. The Lehmberg matter involving Perry should lead to reforms of the Public Integrity Unit in Texas. There needs to be a distinction between crime and politics. Perry’s indictment suggests indifference to that fact by the Travis County district attorney.
Drew Clark can be reached via email: email@example.com, or on Twitter @drewclark