The Pettiness Of Prosecution

It should come as no surprise to anyone that a large portion of the American public is becoming decreasingly confident in government. Poll after poll quantifies this deficit of trust, and low voter turnout come election time underscores just how small a portion of the populace actually thinks that those involved in the political process care about the public-service part of their job and not just political partisanship.

One recent situation very clearly makes the case for this attitude. The story can only be believed because it is actually happening; floated as a hypothetical occurrence, it would likely be dismissed as lacking credence.

Picture this. A county district attorney, who has been a thorn in the side of the opposing party in her state, is arrested for driving under the influence. A video of her berating the officers and threatening them with jail time if they did not free her is released to the public, causing her to lose their trust.

The governor of the state, a member of the opposing party which this DA’s office had spent much time investigating and bringing up on charges, jumps at the opportunity to have her replaced. Citing the public’s loss of trust after her guilty plea and prison time, he says she isn’t fit to head up the most powerful law enforcement office in the state, which is run out of her county office. The governor threatens to veto funding for this unit for as long as she remains in control. After she refuses to resign, the funding is indeed vetoed, thereby requiring county officials to come up with the money to fund her unit on their own.

An activist group with a history of opposing the governor’s policies files a complaint against him in the same county where the DA works. A judge appoints a special prosecutor who goes to a grand jury, trying to secure an indictment on four felony counts. The grand jury agrees to indict on two of them: “abuse of an official capacity” and “coercion of a public servant.”

Political and legal analysts slam the indictment. The New York Times says that the “veto still doesn’t seem to rise to the level of a criminal act” and former advisor to President Obama David Axelrod says that the indictment “seems pretty sketchy.” Harvard Law professor Alan Dershowitz slams the indictment as “outrageous,” saying, “Everybody, liberal or conservative, should stand against this indictment. If you don’t like how [he] uses his office, don’t vote for him.

To top it all off, the indicted governor whom all these liberal commentators are defending is a Republican. Not just any Republican, but Texas Governor Rick Perry, who is largely considered one of the country’s most conservative governors.

The issue here is not to decide on the merits of Perry’s decision to veto funding for the Public Integrity Unit which Travis County DA Rosemary Lehmberg continued to run after her DUI guilty plea. Nor is it whether or not Perry would have been able to replace her with a new DA more to his liking. The issue here is that the DA’s office and special-interest groups who oppose the governor have indicted a governor for exercising the authority that is given to him by the state constitution.

The fact that a grand jury chose to indict Perry does not speak to the merits of the case. There is a famous saying that “a good prosecutor can indict a sandwich.” The standard of evidence needed to find probable cause, and the fact that the party being indicted does not have the chance to offer up a defense, can result in the flimsiest of cases securing an indictment.

If Lehmberg and her office felt that Perry overstepped his authority, she should have taken the regular route and filed an ethics complaint or a civil suit. But her chances of success would have been negligible, as the legislature is controlled by Republicans and she likely would not have had standing to sue.

So, instead, we get an indictment, a political maneuver aimed at ending the presidential ambitions of a man who did nothing more than exercise his executive authority by demanding that those who serve beneath him be held to a minimal ethical standard. Legal experts seem to agree that there is nothing more to this charge than the metaphorical “sandwich.” As UCLA law professor Eugene Volokh pointed out, Texas case law (State v. Hanson) found that “coercion of a lawful act by a threat of lawful action is protected free expression.”

But the pettiness and politicization of the Travis County DA’s office in indicting Perry accomplishes most of what Perry sought to do when he vetoed its funding. Lehmberg’s office can no longer lay claim to the moral authority to investigate political corruption when everyone can see how they are willing to use the office to settle political vendettas.