Althouse: "They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole."

August 16, 2014

"They say a prosecutor could get a grand jury to indict a ham sandwich, and this always seemed like hyperbole."

"... until Friday night a Texas grand jury announced an indictment of governor Rick Perry. The “crime” for which Perry faces a sentence of 5 to 99 years in prison is vetoing funding for a state agency. 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."

Writes Jonathan Chait in "This Indictment Of Rick Perry Is Unbelievably Ridiculous."

72 comments:

Michael K said...: That DA needs Dean Wermer to tell her, "fat, drunk and stupid is no way to go through life."; 8/16/14, 4:02 PM
YoungHegelian said...: Remember, this is Jonathan "I really & truly HATE Pres. George W. Bush" Chait saying this. David Axelrod thinks it's a crock of shit, too.

As Democrats at the national level run from this like it's a volcanic eruption, expect the Democrats in Texas to find some face-saving way of quashing the indictment.

The Demos know that the Republicans attack ads are writing themselves as they dither. "Gov. Perry tried to clean up a corrupt bureau in state government, but the Democrats took him to court to defend THIS (play youtube video of drunken driving arrest)!"; 8/16/14, 4:09 PM
Quaestor said...: Gotta love the visual pun!; 8/16/14, 4:10 PM
The Godfather said...: Chait says, "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." If I were the Dems, I'd lay low and let Perry try to persuade folks that it's a ridiculous charge. What have they got to lose?

Thanks Quaestor, I'd missed the pun.; 8/16/14, 4:16 PM
Quaestor said...: This whole imbroglio may redound to excellent rhetorical advantage for Perry if he makes another presidential bid. Imagine Perry's smiling mugshot visage and under-writ his new sobriquet, Rick "Don Veto" Perry.; 8/16/14, 4:20 PM
Bill, Republic of Texas said...: I can't wait until Obama is charged with the crime of fraud for his intentional false statements about ObamaCare.; 8/16/14, 4:24 PM
retired said...: If you've lost Jonathan Chait...; 8/16/14, 4:25 PM
bbkingfish said...: In other words, this could be Rick Perry's Benghazi.; 8/16/14, 4:35 PM
furious_a said...: Forget it, Jake. It's Travis County.; 8/16/14, 4:38 PM
Hagar said...: The State of Texas has some strange laws as a result of previous misbehavior by its governors, such as Ma and Pa Ferguson and others. Thus Rick Perry, though governor, could not just fire the lady from her state office.

However, a veto is a veto, and I never heard of an executive officer with veto power having to justify his use of it.
That would be quite contrary to the meaning of the word "veto," no?; 8/16/14, 4:44 PM
Brando said...: These morons couldn't have found a better way to give Perry favorable press with this asinine overreach. When even Chait defends the guy, you've stepped in it.

Hopefully the morons behind this indictment are out on a rail soon. This is offensive to the notion of rule of law.; 8/16/14, 4:48 PM
jr565 said...: As Democrats at the national level run from this like it's a volcanic eruption, expect the Democrats in Texas to find some face-saving way of quashing the indictment.

They already tweeted "When do you turn yourself in?" So they're doubling down on this.; 8/16/14, 5:13 PM
Hagar said...: That an executive should have to defend a veto before the very people whose actions he has been granted the power of the veto against, is an absurdity.

Politically, it may be wise to explain a veto, but it is not a legal requirement.

In this case, Rick Perry's line is:
"Good governors do not let prosecutors drive drunk!"; 8/16/14, 5:22 PM
Skeptical Voter said...: Well any Governor has a bit of ham in him.

But who knew that Rick was a sandwich?

Even David Axelrod is walking away from this stinkburger of an indictment.; 8/16/14, 5:23 PM
Greg Hlatky said...: This indictment brought to you by DADD (Democrats Aiding Drunk Drivers).; 8/16/14, 5:28 PM
Marty Keller said...: Do the morons in the Travis County DA's office talk to the morons in the Milwaukee County DA's office?; 8/16/14, 5:28 PM
The Godfather said...: @furious-a: I did the Chinatown quote on the other thread, but you beat me by 3 minutes. Congrats!; 8/16/14, 5:34 PM
richard mcenroe said...: Hey, if the Democrats want their 2014/2016 campaign strategy to be set by a second angry drunk woman (Hillary can't do EVERYTHING herself) let them.; 8/16/14, 5:55 PM
Hagar said...: CBS News is playing it as a legitimate suit and intimating dire consequences for the governor.

The 2016 campaign is on!; 8/16/14, 6:15 PM
Gospace said...: The only reason none of us had ever heard of this woman before this little kerfluffle is- she had a "D" after her name.

Imagine, just for a moment, a Republican DA caught drunk driving who refused to resign- EVEN AFTER CONVICTION. It would be on every news broadcast in the country. With updates every half hour on CNN of the Republican scandal. And if the state Repuublican Partry stood behind the DA? Great wailing and gnashing of teeth on every news broadcast!

And it is telling that more then one MSM outlet has repoted the indictment of Perry- without mentioning he was trying to oust a convicted drunk driver from a law enforcement position.

This is going to turn out the Republican base in Texas, and possibly have a spillover effect in other states. The internet doesn't allow the MSM and Democrats complete control over the narrative anymore. The indictment has already backfired on Democrats.; 8/16/14, 7:09 PM
Left Bank of the Charles said...: Under this theory of coercion, wouldn't an indictment of a public official be coercion? After all, the prosecutor is threatening to put the official on trial.

Still, isn't this in the same category as using state police to round up missing legislators?; 8/16/14, 7:10 PM
Zach said...: A link to the indictment might be helpful. Thee indictment itself contains barely more information than the nontechnical summary.

Strange behavior by the prosecutor, I must say. Threatening an indictment might be a powerful weapon. It has the potential to be a big embarrassment for somebody who is probably thinking of another presidential run.

Actually filing an indictment that has no chance of resulting in a conviction is throwing that weapon away. It will do nothing more than draw attention to your DWI, which is a pretty good motivation for Perry's actions.; 8/16/14, 7:14 PM
khesanh0802 said...: YoungHegelian has it right! The video is a doozy and will get play everywhere. How do you post a video of a veto? Some people do really dumb stuff! But we knew that.; 8/16/14, 7:32 PM
Opus One Media said...: On the other hand Perry is enough of a moron to have actually done this.; 8/16/14, 7:36 PM
Anonymous said...: I'm a little confused.

Was the drunk driving DA lady the one who brought the indictment, or someone else?; 8/16/14, 7:40 PM
Drago said...: Harold House said...
On the other hand Perry is enough of a moron to have actually done this.

There is no "this" there.

Idiot.

Par for the course for the Travis County DA's office.

They went after Kay Bailey Hutchison as well as Delay.

This is the inevitable endgame for leftists regardless of where they come to power.; 8/16/14, 7:41 PM
madAsHell said...: I'm a little confused.

It was the drunk driving DA. Because Perry wanted to take her budget away.; 8/16/14, 7:46 PM
Paco Wové said...: "Par for the course for the Travis County DA's office."

And par for the course for H. House.; 8/16/14, 7:56 PM
cubanbob said...: This is a perfect example of why prosecutors should not have immunity.; 8/16/14, 7:57 PM
hombre said...: This "Special Prosecutor" should be disbarred for this. Of course the Texas Bar Association let Ronnie Earle railroad Tom DeLay and Kay Hutchison without taking visible action against him.

The Travis County DA's Office is a cesspool.; 8/16/14, 8:28 PM
Bobber Fleck said...: My money says Peg "the keg" Lautenschlager is providing advice to Rosemary Lehmberg in this matter.; 8/16/14, 8:33 PM
rhhardin said...: Drunk driving is one of those new crimes that used to be just a personal moral failing.

Most drunks get home okay and always have.

She's probably operating under the old rules.; 8/16/14, 8:50 PM
Beldar said...: Some Dem operatives must have done some snap polling/focus group stuff, probably inside and outside Texas, to see how this will play.

It'll play in Travis County, but nowhere else in Texas. If anything this will polish back up Perry's badly tarnished image here from his disastrous showing in the 2012 GOP presidential primaries.

But Perry's not running for reelection, his all-but-certain successor isn't touched by this, and Texas isn't turning purple, much less blue, any time in the next decade under any scenario, with or without Rick Perry.

This has always been about trying to spoil Perry's 2016 presidential hopes, and if the likes of Axelrod and Chait are already bailing out on it, that means the indictment must not be polling at all well outside of Texas even among low-information voters.

Basically anyone intelligent enough to understand the concepts of (1) a gubernatorial veto and (2) a drunken D.A. abusing and threatening law enforcement officers is also smart enough to see through this charade.; 8/16/14, 8:52 PM
Beldar said...: Zach, here is the indictment.; 8/16/14, 8:56 PM
Beldar said...: I think there's an excellent chance that the "public integrity" function may be stripped from the Travis County D.A.'s office by the Texas Legislature and re-fashioned into something run by the Texas Department of Public Safety, Texas Rangers, or some other state-wide law enforcement organization, perhaps in combination with the Texas Attorney General. (In Texas, the AG is separately elected and constitutionally independent of the governor.)

To really drain the swamp, though, they'd need to also establish mandatory venue somewhere other than Travis County, and that's going to be hard to justify unless they also move the entire state government.

It's possible -- not likely, not not inconceivable either -- that the backlash from this will be so big that it could peel off enough Dems to get the required 2/3rd majority in each chamber of the Legislature to pass an amendment to the Texas Constitution; the public would surely provide the necessary majority to approve it. But far more likely, any fix is going to have to come from the Texas Legislature acting by simple majorities through legislation, and probably therefore will be structurally limited.; 8/16/14, 9:03 PM
Beldar said...: And finally, FWIW, as a practicing lawyer in Texas since 1980 who has taught legal ethics in Bar-approved continuing legal education courses, I would not support disbarring the prosecutor. That this is a ridiculous indictment ought to result in its being dismissed, and in him being publicly shamed, and in him never again being selected as a special prosecutor. But one bad, obviously political indictment should have political consequences to him without stripping him of his entire profession and livelihood. The worst part of this is not a breach of legal ethics, it's just bad prosecuting (independent of any ethical considerations).

The Travis County D.A., however, in my judgment could and should be disbarred. She's the one who ought be indicted for and convicted of a felony — not for the aggravated drunken driving, but for her attempts to abuse her official position once she was already under arrest and in custody. I'm ashamed to be a member in the same club with the likes of her, but I must confess that the Texas Bar is not a very exclusive club and she's not the first scoundrel who'll likely hang onto a bar card she doesn't deserve.; 8/16/14, 9:10 PM
Birkel said...: Beldar:

Since I know you practice in Texas, can you offer any insight into the likely disposition of this case? The statute does not read, to me, like it could be interpreted to include the threat of a veto.

And the second charge, in particular, reads as an abuse of the English language. I cannot square how a promise to exercise a veto (at the governor's plenary discretion) could ever be an attempt to influence the specific performance of the elected officer's duty.

Anything?; 8/16/14, 9:12 PM
Wayne said...: Dane county DA would do this to Walker in a heartbeat. Austin is Madison without snow.; 8/16/14, 9:14 PM
Zach said...: Thanks for the link, Beldar -- I read it already, but I think it informs the discussion so see just how flimsy it is.

I'm curious about your claim that this indictment does not constitute a breach of legal ethics, though. It seems to me that seeking a completely meritless indictment just to hurt the target would -- at least in principle -- be a breach of legal ethics.

Is it your position that this would never be the case, or just that this indictment doesn't rise to the occasion?; 8/16/14, 9:26 PM
David said...: "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."

Which is why I said no to the question of whether this would actually help Perry.; 8/16/14, 9:40 PM
David said...: eric said...
I'm a little confused.

Was the drunk driving DA lady the one who brought the indictment, or someone else?

Do you read the news, or just comment on it?

The indictment was made by the grand jury for Travis County, after presentations to the grand jury by a "special prosecutor." You can bet he was a piece of work. You can also bet that the DA had her chubby little trembling hand in the selection of the special prosecutor and the decision to focus on this issue in the first place.

Grand juries basically hear only one side of a case, and a slanted one at that. Throw in the jury pool, the special prosecutor, and God knows what else an indictment was pretty much a slam dunk.; 8/16/14, 9:45 PM
David said...: Nice to have your commentary, Beldar.

You might want to give a little more prominence to the idea of moving the state government from Travis County.

Is there an equivalent of the location of Brasilia in Texas?; 8/16/14, 9:50 PM
Original Mike said...: "Do the morons in the Travis County DA's office talk to the morons in the Milwaukee County DA's office?"

In the previous thread, it was stated that both Dems and Repubs flaunt the law in this manner for political advantage. I'm not remembering Republicans flagrantly using their position for their team in such a lawless manner. I'm not saying they don't; I'm asking to be educated. Can anyone provide examples?; 8/16/14, 10:05 PM
Writ Small said...: The problem Chait and other Democrat partisans have is that they have been arguing that any talk of lawsuits and impeachment against Obama is unhinged and politically motivated.

The case against Perry is far weaker than the case against Obama. Perry was indicted for exercising his (state) constitutional authority. Obama is accused - completely credibly - of grossly exceeding his.

Defending the Perry indictment makes Dems look like huge hypocrites. Chait has some integrity, but he also knows that giving R's more ammo against Obama is not worth the cost of damaging a long-shot Republican presidential hopeful.; 8/16/14, 10:42 PM
richard mcenroe said...: "Hopefully the morons behind this indictment are out on a rail soon. This is offensive to the notion of rule of law."

Sadly Democrats in Texas have no more moral fiber and character than Democrats anywhere else. They won't lift a finger.; 8/16/14, 11:20 PM
RecChief said...: moderated...not moderated...moderated.

cheese and rice, what a mess this place has become.; 8/16/14, 11:20 PM
Beldar said...: @ Birkel (8/16/14, 9:12 PM): I practice civil litigation in Texas, so there are many better sources for procedural analysis of the case than I could ever be. Caveat emptor, then, on what's below:

My educated guess is that there are pretrial motions available to Perry's defense team through which he can raise a number of purely legal challenges. The underlying objective facts are already indisputably clear, including those which trigger the built-in exception to the statute for situations in which "the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body."

In particular, though, I don't know (and haven't done any checking at all to find out) whether there are any opportunities for Perry to seek an interlocutory appeal — that is, to make a quick trip up to the court of appeals even before final judgment is entered — if his pretrial motions to dismiss are denied. There's some ugly history in Travis County whereby these political witch-hunts are undertaken without much real expectation of a conviction that will hold up on appeal (see, e.g., Tom DeLay's saga), but with the full and fervently desired expectation that the indictment will serve to smear the target's reputation so badly that it effectively destroys the target's political chances and career long before all appeals can be concluded. If there's no interlocutory appeal available in a case like this, though — and I suspect there won't be — then Perry's got to hope for a quick, brave, and favorable ruling from the trial judge there in Travis County. There might also be some chance of an appellate court being persuaded to intervene before a final judgment via a writ of mandamus, but that's always a harder way to go (i.e., higher threshold showing required, and greater reluctance of the appellate courts to get involved).

You'll find a very nice analysis of the indictment and statute by California prosecutor (but Texas Law School grad) Patrick Frey a/k/a Patterico.

I'm certain that the case ought to be dismissed long before trial, and pretty sure that a conviction wouldn't survive the appellate courts (potentially including, on a case like this, the SCOTUS). But Travis County being what it is, whether what ought to happen actually will happen — well, that's pretty much anybody's guess.

And a special prosecutor having been unleashed, the Democratic operatives who've manipulated this whole thing might have a hard time pulling him back, even if their political calculations suddenly change (now that they've already been under-bussed by the likes of Chait and Axelrod).

So: It's a b*llsh*t case that nevertheless has to be taken very seriously by Perry and his lawyers. And I'm sure they will.; 8/16/14, 11:23 PM
Beldar said...: @ David (8/16/14, 9:50 PM): My nomination for the relocation of the Texas Capital would be Washington-on-the-Brazos, a lovely hamlet outside Houston, where the Texas Declaration of Independence was signed. But the north Texas folks would never go along with that.; 8/16/14, 11:23 PM
richard mcenroe said...: Beldar, the DA bringing the indictment is already under investigation for other irregularities.; 8/16/14, 11:23 PM
Beldar said...: @ Zach (8/16/14, 9:26 PM): It's possible to re-cast just about every legal dispute — criminal or civil, private or public — in which the winning side can say of the losing side, "Their positions were crazy from the get-go, so much so that it was unethical for their lawyers to make those arguments, and they ought to be disbarred!" Bar committees are comprised mostly (but not exclusively) of lawyers, and it is and should be hard to get a lawyer disbarred for taking a particular position in court. An ethics complaint against the prosecutor strikes me as a disguised or collateral attack on the indictment he's pursuing. It's just the wrong sort of remedy for this problem, and there are better remedies which are (or at least ought to be) available to Perry.

An ethics complaint would also take years to resolve; the lawyers who get caught stealing red-handed from clients or who are convicted of a felony are the only quick disbarments.

Oh -- and such a complaint would probably be sent automatically from the State Bar to the relevant Texas county's standing committee on fitness to practice. That means the complaint would be heard in Travis County by Travis County lawyers, whose political sentiments trend ... well ...

I don't see such a complaint ever getting any traction in this case. But I suppose that I could probably construct a hypothetical so extreme that I'd talk myself into it under other circumstances.; 8/16/14, 11:23 PM
Revenant said...: I suspect that one of the reasons national Democrats are defending Perry is that he's a weak candidate. Why take him out and give stronger candidates a chance to solidify their support?; 8/16/14, 11:37 PM
Beldar said...: If I were advising the Texas GOP, I'd suggest that they immediately focus-group this proposition: "The Texas Legislature needs to strip the Travis County D.A.'s office of public integrity oversight through prompt and retroactive legislation." I'd try to figure out if this would play as a potential offensive issue — for use in the Fall 2014 race, statewide, for state representatives, state senators, and the governor and lieutenant governor's positions. I'd be testing whether some nice attack ads could make Ms. Lehmberg the new face of the Texas Democratic Party. My hunch is that the videos of her are more compelling, and substantially less appealing, than videos of Wendy Davis.; 8/16/14, 11:40 PM
Alex said...: Rick Perry is a jingoistic creep and 2012 proved he can't even win the GOP nomination against a hack like Romney. So I honestly don't care what happens to this creep.; 8/17/14, 1:30 AM
Anonymous said...: Alex wrote;

"Rick Perry is a jingoistic creep and 2012 proved he can't even win the GOP nomination against a hack like Romney. So I honestly don't care what happens to this creep."

This is how poisoned our politics have become. Someone railroaded by a political party? Hey, I don't like him, so I don't care.

It's going to get a lot worse before it gets better.; 8/17/14, 1:40 AM
Douglas B. Levene said...: I hope that an ethics charge is brought against the prosecutor in this case because (i) he ought to be disbarred for bringing an obviously frivolous criminal case for patently political reasons - if that's not an abuse of power, what is? and (ii) even if the local Bar is biased towards the prosecutor and likely to find in his favor, the mere fact of having to defend an ethics case is a form of punishment.; 8/17/14, 6:10 AM
NotWhoIUsedtoBe said...: The Dems around Obama are protecting executive branch authority from lawsuits... like the one the House filed.

It's not the same thing, but they can say they've been consistent by supporting Perry.; 8/17/14, 7:31 AM
stlcdr said...: Rule number one of driving drunk: don't get caught. Rule number two, if you do, don't try and make it everyone else's fault. Rule number three, if you are famous (sic) in any way, see rule number one. The court of public opinion is generally not very nice. However, with the help of the media, it seems you can switch it around and make everything the fault of the 'accuser'.; 8/17/14, 8:24 AM
furious_a said...: NOW TRENDING": #RosemaryLembergDrinkingSongs.

The only way the Democrats ever turn Texas 'purple' now is from laughter at their vodka-sodden Joan-of-Arc.; 8/17/14, 8:59 AM
furious_a said...: The best Texas Democrats can do:

Abortion Barbie -- has to take breathalyzer for court-mandated visitation with her daughters.

Rosemary GinBlossom -- strapped into restraints and spit guard for DUI testing.; 8/17/14, 9:02 AM
furious_a said...: This comment has been removed by the author.; 8/17/14, 9:06 AM
furious_a said...: This comment has been removed by the author.; 8/17/14, 9:08 AM
furious_a said...: "...some nice attack ads could make Ms. Lehmberg the new face of the Texas Democratic Party."

Please, gawd, no. Think of the children.; 8/17/14, 9:10 AM
richard mcenroe said...: Law enforcement models...

http://tinyurl.com/po7c68o; 8/17/14, 9:10 AM
Anonymous said...: "I can't wait until Obama is charged with the crime of fraud for his intentional false statements about ObamaCare"

There is only one reason why Obama hasn't been impeached already, and that is because the Republicans are in bed with him. We need to throw ALL the bums out, and never again vote for an incumbent.; 8/17/14, 11:10 AM
tim in vermont said...: rhhardin,

"Most drunks get home okay and always have."

That is fucking ridiculous. I know you have a purposeful asshole persona going on but honestly. My brother is currently raising two children, one OK except that her sister and mother are dead, the other a boy who is paraplegic for life, who also deals with a dead mother and sister. His wife deals with losing a daughter, a granddaughter, and they both deal with the aftermath of a drunk trying to get home every day, ten years after this happened. But to your point, yes, the drunk was OK after the accident.; 8/17/14, 11:42 AM
Yancey Ward said...: The only reason Chait and Axelrod are questioning this indictment is because the Lehmberg video had been released publicly. Had she just been arrested and quietly pled out, without the video being made public, they both would have been justifying the indictment.; 8/17/14, 1:42 PM
Gospace said...: tim in vermont said...
rhhardin,

"Most drunks get home okay and always have."

That is fucking ridiculous.
**************
If you have lived with an alcoholic (I have.) or known a few (I've known more then a few.) you would know rhhardin is correct. Especially when using .08 as the definition of drunk. Most drunk driving accidents are from people well more then 2 times that limit.

In my current job had an employee drive safely to work- and blow .36 on arrival. Not quite on arrival- after facility police responded.

At .36 I'd be passed out. As would most occassional drinkers. Heavy drinkers can get up there and walk around. Honestly, some drunks can probably drive better at .08 then they can sober- because their bodies are accustomed to that as a normal state. Completely sober they're jittery, jumpy, and unable to focus at the task at hand, like for example- driving. My observations, FWIW.; 8/17/14, 4:15 PM
Paul said...: Let me tell you folks...

All the charges are gonna do is keep Ricks' name in the papers, make him famous, and end the end help him far more than they ever dreamed it would.

And the courts, after dicking around abit, will throw out the case, WITH PREJUDICE, and that will be that.

As was said in Star Wars, "If you strike me down, you will make me more powerful than you can possibly imagine."; 8/17/14, 4:18 PM
Brando said...: Alex, whether Perry is a creep or you hate his politics is beside the point. If this sort of tactic became acceptable it would subvert democracy, leaving public officials at the mercy of corrupt law enforcement. Remember it could always someday be your ox getting gored.; 8/17/14, 4:42 PM
Michael Ejercito said...: The Texas Democratic Party is apparently going all in on the indictment. https://twitter.com/TXDemParty/status/501109462254768128; 8/17/14, 7:38 PM
tim in vermont said...: Watching Morning Joe. When Joe Scarborough is foursquare in defense of Perry, even Morning Joe can't find a reason to undermine the Republican on this issue, then it may even redound to Perry's benefit.

I first heard about it from my daughter's twenty something friend. She received an "email alert" from the NYT. Ha ha ha. Like the whole MSM isn't a political operation.; 8/18/14, 5:27 AM
tim in vermont said...: " Completely sober they're jittery, jumpy, and unable to focus at the task at hand, like for example- driving."

Then they should never be allowed to drive. Maybe I should have been more precise and said that the implication of his statement, that driving drunk is somehow a victimless crime, is ridiculous.

How many victims of drunk driving do you know? How many paraplegics who lost use of their legs as a boy of six do you know? How many motherless daughters do you know?

What do you think is a reasonable risk to impose on your fellow human beings in order for an untreated alcoholic to be able to get back and forth to work?; 8/18/14, 5:35 AM