2014-08-22 / View From Here


The Politicians And The Prosecutors

This week, Texas supplied an example of how the sport of politics should not be played. Let's hope this is not the wave of the future.

The district attorney of Travis County, which includes Austin, the Texas state capital, was arrested in 2013 on a drunk driving charge in which she tested nearly three times the legal limit and then was reportedly extremely abusive to police. Eventually, she pleaded guilty and was sentenced to 45 days in jail. Under Texas law, her office has special statewide powers including overseeing an ethics office funded with state money. Rick Perry, the governor of Texas, termed the district attorney a disgrace and demanded that she resign following her conviction. She refused and Mr. Perry threatened to veto an appropriation for the ethics office, later carrying out his threat.

After the veto and following the filing of an ethics complaint, a grand jury was persuaded to indict the governor on first degree felony charges for allegedly abusing his powers by threatening to veto the funding and also for a third degree felony of coercion of a public servant.

You can agree or disagree on whether Governor Perry should have threatened a veto of the ethics office funding. Reasonable minds could differ over whether the district attorney's conviction was serious enough to warrant her resignation. The governor's opponents said that the office was investigating some of Mr. Perry's sup-porters, although he had no problem if the office continued in business with local funding.

But the basic concept is that, absent extreme situations, most issues involving elected officials and candidates should be decided by the voters, not in judicial, particularly criminal, proceedings.

Former Clinton administration counsel Lanny Davis, a Democrat, made the case well. "Whether or not Perry was right or wrong in vetoing that funding, motivated by good reasons or bad reasons, is not relevant. The voters get to decide that issue. But it is a perversion of the criminal justice system, a classic case of prosecutorial abuse, to indict Perry as a way of deciding the wisdom of his veto. Voters should decide that, not a prosecutor."

Hopefully, the Texas case will be decided appropriately (by that, I mean dismissed summarily) by the appropriate courts. Notably, the Lone Star State has a tradition of weak criminal charges being brought against politicians (for example, Kay Bailey Hutchinson and Tom De Lay) and then foundering.

It would be a big problem if this Texas case were to set a precedent. In Wisconsin, a local prosecutor has attempted to bring down Governor Scott Walker by empanelling secret proceedings on seemingly questionable campaign finance violations, but two courts have basically quashed these panels. This is generally the way it should be.

For their part, Republicans are not always immune to trumping up charges. While there was real criminality (perjury, which eventually led to disbarment) related to the Bill Clinton scandals, it seems to me in the cold light of 15 years later, that these matters were probably not sufficiently related to his official conduct to warrant his impeachment or attempted removal.

We actually have a good example New York of how the system should work. Governor Andrew Cuomo is under fire, pretty justified in my view, for disbanding his Moreland Commission panel after it seemed to get a bit too interested in the activities of political supporters of the governor. However, unless there is much, much more than meets the eye here, the proper remedy against the governor is at the polls, not by any attempt to indict, impeach or remove him.

None of this is to say that the judicial system does not have a role in cases where there is real criminality, for example overt bribery. But gener-ally speaking, we are better off when the people rather than prosecutors, who are often politically motivated, decide who remains in office and who must leave. Basically, let the voters decide.

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