Rick Perry in 2012. Photo via Flickr user Gage Skidmore
In April, as a Texas state grand jury began hearing testimony for a criminal investigation of Governor Rick Perry of Texas, Perry sought to defend himself by hiring a high-powered attorney named David Botsford. That raised some eyebrows, to say the least. Perry, a conservative Republican, had hired a politically active progressive Democrat as his defense attorney. But within Austin’s tight-knit legal community, Perry’s hiring of Botsford made perfect sense. Austin, where the grand jury is seated, is a rare progressive enclave in the reddest of states—and the majority of the grand jurors now determining Perry’s fate are Democrats.
Perhaps Perry’s supporters had reason to be concerned about his choice of attorney. An investigation by VICE has found that Botsford, in the late 1990s, had secretly provided what Botsford claimed was potentially damning information on Perry to the FBI in the hope of instigating a federal criminal investigation of his now client. At one point, Botsford even described himself as an informer for the FBI in regard to the information he was providing to the agency about Perry and spoke of furtive meetings with FBI agents. He strongly expressed his belief that he had brought the Feds hard evidence of an allegedly illegal stock-trading scheme involving Perry. In 2011, the Huffington Post even ran a false and erroneous account that Perry had been targeted by a federal criminal investigation, based in part on information Botsford provided to the website.
In short, the man now entrusted with preventing a grand jury from bringing criminal charges against Perry once worked just as hard to put Perry in jail.
Botsford did not respond to several phone messages and emails seeking comment for this story. At the time of publication a spokesman for Perry did not respond, either. A secretary for Botsford told VICE: “Mr. Botsford is a very busy man. Do you know he is currently representing the governor of Texas? If you really wanted an interview, you should have contacted him like six weeks ago.”
Perry has good reason to want to hire the most able—and loyal—attorney to defend him. A special prosecutor, Michael McCrum, impaneled the state grand jury to hear evidence as to whether Perry had broken any laws while using the powers of his office to curtail the funding of the anti-corruption unit of the Travis County district attorney’s office at a time when it was investigating an agency of the Perry administration. The Travis County Public Integrity Unit had been investigating whether officials at a Texas anti-cancer state agency had violated any laws by showing favoritism in the awarding of grants to wealthy political supporters and contributors to the campaign of Governor Perry.
In June 2013, Perry vetoed a $7.5 million appropriation by the state legislature to fund the Travis County Public Integrity Unit. The veto of the funds for the anti-corruption unit was apparently legal and within Perry’s power as governor. But Perry had allegedly offered to withhold the veto of the funds in exchange for the resignation of the Travis County district attorney, who had been arrested on DUI charges. Unsuccessful in his attempt to unseat the district attorney, he pushed the veto through while simultaneously offering to reinstate the funding for the unit if the district attorney resigned. Because of Perry’s pressure on the district attorney and the anti-corruption unit, and his offer of a quid pro quo of forgoing a veto of the funding or reinstating it in exchange for her resignation, the grand jury is investigating whether Perry allegedly abused his oversight and misused his office in what may constitute illegal coercion and bribery of a public official.
“I’m investigating the circumstances surrounding the veto and whether the governor’s actions were appropriate or not under the law,” McCrum, a former federal prosecutor for the Western District of Texas who is now a prominent San Antonio defense attorney, said in a recent phone interview. “My duty is to look at all of the laws and determine whether any were broken by the governor or anyone else.”
Solomon Wisenberg, who worked as a federal prosecutor alongside McCrum in San Antonio, said McCrum is a “stellar person and attorney in every sense of the word.” Wisenberg and others described him as meticulous and thorough—a prosecutor “who will leave no stone unturned.”
Botsford is similarly highly regarded among his peers as one of Austin’s best defense attorneys. Colleagues and adversaries alike describe Botsford as “bookish” and “congenial” and someone who works zealously but within the rules to defend his clients—descriptions echoed about his temporary adversary, McCrum.
“I think if Governor Perry had chosen a Republican lawyer from Houston or Dallas, that would have been a mistake,” Ben Florey, a former Travis County assistant district attorney, said. “David knows the nuances and practices of law in Travis County.”
Although experts say that Botsford apparently did not break any ethical rules if he did not inform Perry of his covert meetings with the FBI, Wisenberg said he believed that Botsford should have told Perry about his actions: “I think you should disclose something like this this to your client. If I were the client, I would certainly want to know.”
Federal law enforcement authorities provide a very different account of their interactions with Botsford than the more heroic one that Botsford has privately given over the years to colleagues: They say that they never conducted any criminal investigation of Perry, let alone one based on information Botsford had provided them. They say that the information Botsford turned over to the FBI about Perry allegedly being involved in insider trading was very similar to accounts that had already appeared in the Dallas Morning News. And they say that the FBI hears out virtually anyone out who has a complaint, which is what they claim they did with Botsford—and after hearing out Botsford, they saw no reason to follow up.
William Blagg, then the United States attorney for the Western District of Texas, the place where Botsford had taken his information about Perry in the late 1990s, said in an interview that he was concerned—“wary,” in Blagg’s words—that Botsford’s efforts to instigate a criminal investigation of Perry were done to affect the outcome of a state election.
Perry was at the time locked in a razor-thin race to be lieutenant governor against a Democrat named John Sharp. Perry had Karl Rove on his side, advising his campaign. And Republicans were increasingly winning office in the once Democratic state. But Sharp was proving to be a tough adversary. With Election Day growing closer, both campaigns pulled out all the stops searching for an advantage. That’s when Botsford came forward with his information for the federal authorities.
In fact, Blagg told us in an interview, Sharp had personally come to him to request that he open a criminal investigation of Perry in the closing days of the campaign. Sharp’s obvious motive aside, Blagg pointed out to Sharp that he had brought him little of substance. Sharp told Blagg that an attorney working with him—who turned out to be Botsford—would soon be in touch and have much more detailed information.
Sharp, who is today the chancellor of the Texas A&M University System, declined to comment for this story.
Today Blagg is an assistant district attorney in Bexar County, Texas. He said that he had been naturally wary of Sharp and Botsford’s entreaties because they “occurred during a political time.” The former US attorney continued: “You don’t want an investigation to further a political agenda… Even if there had been anything there, we would have waited the short time until after the election is over.”
Attempting to have opposing candidates investigated by federal or state authorities during election season is a time-honored tradition in Texas and other parts of the country. Gregg Cox, the director of the Public Integrity Unit of the Travis County district attorney's office, said in an interview that “political opponents file complaints against each other one after another” just prior to Election Day. Investigations are routinely “deferred until after the election.”
When Botsford met with the FBI in 1998, the information he brought the agents was nothing more than similar information that had already appeared in a newspaper article: a story written by veteran political reporter Wayne Slater in the Dallas Morning News on May 15, 1998, in which he raised questions about whether Perry had benefited from an alleged insider stock tip.
Slater and the Dallas Morning News reported that back in 1996, Perry had purchased stock in a company called Kinetic Concepts, Inc., which was owned by a wealthy contributor to Perry’s campaigns named James Leininger.
On the same day stock was purchased on Perry’s behalf by a stockbroker, Slater reported, “a California investment group began buying 2.2 million shares in the company, boosting the stock's value.” This suggested that Perry might have been given inside information that the stock’s value was going to skyrocket, a suspicion that was further fueled by the fact that Perry had spoken at a luncheon attended by Leininger. Perry and Leininger admitted speaking together the day of the stock purchase, but the two men denied any collusion.
During a meeting with the FBI, Botsford did little more than provide agents with “any information [other] than what was in the newspaper,” a federal law enforcement official said. “The whole thing was very amateurish. You initially had Sharp himself come in. He didn’t even use a proxy or cutout or send someone else to make it appear that it had nothing to do with the campaign. And then you have a guy Sharp sends us who has nothing.”
Blagg and two other federal law enforcement officials told us in interviews that neither the FBI nor the Justice Department had ever opened any formal investigation of Perry for the stock trades. “I never heard back anything from the FBI,” Blagg said. “And we never opened a file. There just was never any investigation.”
A second law enforcement official questioned about the matter added: “Anyone can come in and file a complaint, which is what Botsford did. But you can’t go out and say because someone listened to you that someone is under criminal investigation.”
Still, that didn’t stop the Sharp campaign and Botsford from peddling a story to Texas reporters in the final days of the campaign that Perry might be under investigation by the FBI for insider trading. But not a single news organization published a story about it—because it was impossible to confirm. It was impossible to confirm, of course, because it was untrue. Sharp and Botsford had simply been unable to convince federal authorities to investigate Perry.
In the end, Perry was elected lieutenant governor, winning 50 percent of the 3.6 million ballots cast to Sharp’s 48 percent. Had Sharp and Botsford succeeded in having the FBI open a criminal investigation of Perry—or even managed to get a major Texas newspaper to erroneously report that that was the case—the outcome could have easily been different.
While Sharp and Botsford were unable to affect the outcome of Perry’s 1998 race to be lieutenant governor, more than a decade later Botsford was presented with a second shot at harming Perry’s electoral prospects when Perry decided to run for president. For a while, Perry was a first-tier candidate and, briefly, the front-runner. Political opponents and opposition researchers scurried for not-yet-public information to discredit him.
At a pivotal moment in the campaign, on September 11, 2011, the Huffington Post published a story alleging there once had been a federal criminal investigation of Perry: “In the late 90s, federal law enforcement authorities investigated allegations that Perry had engaged in insider trading, sources involved in the inquiry tell the Huffington Post,” the news site erroneously reported.
The primary source for the Huffington Post article was Botsford, who was quoted at length in the article as an anonymous source:
It took at least two years for an Austin attorney to uncover the suspicious trade. The attorney, who would only discuss the matter on condition of anonymity… said he spoke with two sources who corroborated that Perry and Leininger had met on the day in question and that the donor had advised the politician on the stock purchase.
“Perry bought immediately,” the attorney recalled. “I mean it was immediately. It was immediately after that that the transaction was announced and the stock went up considerably. My source was telling me that Leininger told [Perry] to go buy some stock.
“I was told that such a private conversation took place and in that private conversation, Leininger told him he needed to invest a little money,” the attorney added.
The attorney took his findings to federal prosecutors. They met in an Austin ice cream parlor and he related what he knew.
Reporters for other news organizations attempted to confirm the allegations, but were initially skeptical. How could the governor of the nation’s second-largest state have been the target of a federal criminal investigation more than a full decade earlier, but somehow nobody heard about it? They were assured by their sources that there never had been any such criminal investigation, and there the matter died.
David Botsford amid a scrum of reporters in 1998, during the trial of Karla Faye Tucker, a murderer who was represented by Botsford in her ultimately unsuccessful attempt to have her death sentence commuted to life in prison. Photo by Paul K. Buck/AFP/Getty Images
The current—and very real—state criminal investigation of Perry by a special prosecutor, appointed by the Travis County district attorney, is a complex tale:
It begins with a 2012 investigation by the Travis County DA's office of a state-run agency: the Cancer Prevention and Research Institute of Texas, or CPRIT, which was set up in 2007 to dispense more than $3 billion in grants for cancer research over ten years. The little-known agency provides more funds for cancer research than any other government agency except for the National Cancer Institute.
An activist agency such as CPRIT would seem, at first glance, to be an aberration for a state with a fondness for limited government, anti-spending sentiments, and a Tea Party senator in Ted Cruz. But long before he was disgraced for doping, champion cyclist and cancer survivor Lance Armstrong was one of the state’s most respected and beloved residents, and Armstrong and his foundation pushed for the creation of the agency. Perry saw this as an opportunity to cross ideological fault lines and burnish his credentials for a presidential run. Eventually, the two became political partners in creating CPRIT.
Instead of awarding grants based on the potential of projects to save lives, however, CPRIT quickly became known for mismanagement, cronyism, and insider dealing. Preferential treatment was allegedly given to the political backers and major campaign contributors of Perry and other Republican state officeholders, according to the findings of a state audit and other official internal and governmental investigations of the agency.
Dr. Alfred Gilman, the agency’s chief scientific officer and a Nobel laureate, resigned in protest following a grant being awarded without a full scientific review, a sidestepping of the agency’s internal regulations. Almost three dozen other scientists also eventually resigned, complaining of “suspicion of favoritism” and “hucksterism.” Many of them sat on peer-review committees tasked with evaluating applications for scientific merit. Too often, they said, the committees’ recommendations were ignored and qualified applicants were turned down in favor of the politically connected.
Some former CPRIT officials said in interviews that the favoritism shown to biotech firms and companies associated with Perry came with a price. “It wasn’t like one person just got rich who should have never qualified," said one. "The money was taken from somewhere else. Some program that might help save the lives of children with a rare type of cancer didn’t get funded because someone else wanted to line their pockets.” After temporarily suspending its grant-giving, overhauling its upper management, and putting in place new safeguards to prevent similar abuses, CPRIT says the agency has now turned a corner.
In 2012, Gregg Cox, the director of the Travis County Public Integrity Unit, confirmed that it had opened a criminal investigation of the agency. The Travis County DA's office is unique in Texas: It prosecutes local criminal offenses like most other district attorneys or state prosecuting attorneys. But because it is in Austin, the Texas capital, it also has jurisdiction to investigate political corruption in state government, which is what the Public Integrity Unit was created to do.
Most famously, the unit is known for having prosecuted former US House of Representatives majority leader Tom DeLay for allegedly laundering money to conceal corporate campaign contributions. The Travis County DA won a conviction of DeLay in 2011, which resulted in a three-year prison sentence, but that decision was later overturned by an appeals court. As things currently stand, the Travis County DA has appealed that ruling to yet a higher court.
The reversal of DeLay’s conviction, the large number of Republican officeholders it has convicted, the fact that the elected DA is a Democrat, and the fact that Travis County votes primarily for Democrats have led to allegations by Perry and other Texas Republicans that the office is partisan. Defenders of the DA and the Public Integrity Unit have pointed out that the office wins convictions of most political corruption cases it brings and a disproportionate number of Republicans are charged because Republicans control the majority of the state’s offices. The Travis County DA's office has won a number of convictions against prominent Democratic politicians as well, including a powerful state legislator and even a Democratic speaker of the Texas House of Representatives.
The district attorney’s investigation of the cancer agency in part focused on major campaign contributors and supporters of Perry who allegedly got preferential treatment and thus could indirectly impact the reputations of the Perry administration and even Perry himself, according to sources familiar with the investigation.
The investigation initially brought results: In December 2013, a former senior official at CPRIT, Jerald Cobb, was indicted on felony charges that he had circumvented normal scientific or financial oversight to award an $11 million grant to a Dallas biotech firm. Cobb is currently awaiting trial.
On April 12, 2014, in the midst of the CPRIT investigation, Travis County DA Rosemary Lehmberg was arrested for drunk driving. She was three times over the legal limit, and police found an open bottle of vodka in her vehicle. While being placed under arrest, Lehmberg was caught on a tape threatening one of her arresting police officers: “I am not drunk. I am not a criminal. I’m the [bleep] damn district attorney. You better do something pretty quick 'cause I’m getting pretty pissed off.” She was so unruly during her booking that the police felt it necessary to put a net over her head to prevent her from sticking her tongue out in protest, an act that by that point she had already performed for the jailhouse-booking cameras.
Lehmberg pleaded guilty to the drunk-driving charges and agreed to a 45-day jail sentence. There were calls for her resignation, including from Democrats, but she vowed to stay in office until the 2016 election, after which she would retire.
Perry saw an opening and quickly pounced. The governor threatened to veto a planned $7.5 million for the Public Integrity Unit over the next two years unless she agreed to resign. Lehmberg steadfastly refused.
Among the reasons that Lehmberg wouldn't give in to the threats was that Perry, as governor, would be able to appoint her temporary successor if she resigned. This meant that for the first time a Republican might control the Travis County DA's office and would oversee the investigation of CPRIT.
In response to a complaint filed by a watchdog group, a Texas state judge appointed a special prosecutor, McCrum, to investigate whether Perry had broken the law in demanding Lehmberg’s resignation in exchange for not vetoing funds for her office, or, in his later offer, after the veto, to restore them if she resigned. McCrum in turn impaneled a special grand jury, which in late April began hearing evidence.
Powerful public officials—among them governors and even presidents of the United States—have long attacked prosecutors investigating them or their political associates by defunding them or simply firing them—a practice that is usually legal and constitutional.
Richard Nixon fired Watergate special prosecutor Archibald Cox in 1973 in what has become known as the Saturday Night Massacre, which galvanized public opinion against the president and was a turning point in the Watergate drama that led to his resignation from office. But the House Judiciary Committee, in drawing up articles of impeachment for Nixon, did not include the firing of the special prosecutor as one of them. Nor did Cox’s successor as special prosecutor consider criminal charges against Nixon for firing Cox. The reason: Even though Nixon had allegedly engaged in obstruction of justice and other alleged criminal actions to thwart the criminal investigations of him and the White House—and the firing of Cox was perhaps his most audacious and outrageous attempt to defeat the rule of law—Nixon’s firing of the special prosecutor was both legal and constitutional.
Perry’s vetoing of appropriations for the Travis County district attorney’s office could similarly have irreparably stymied the investigation of Perry’s managements of CPRIT and the alleged favoritism displayed toward political backers and contributors. But such a veto of funds, like Nixon’s firing of Cox, was apparently entirely legal and constitutional.
In defense of the governor’s veto at the time, his spokeswoman Lucy Nashed said, “This veto was made in accordance with the veto power afforded to every governor under the Texas Constitution.” Botsford similarly told reporters just before the grand jury started proceedings that, in his and his client’s opinion, what Perry did “pertains to the power of the governor to issue vetoes as allowed under the Texas Constitution.” The investigation, Botsford said, would vindicate that Perry’s veto and related actions were “carried out in both the spirit and letter of the law.”
Had Perry simply vetoed funding for the Travis County district attorney’s office and stopped with that, there would have been no question that his actions were within the bounds of the law. But Perry did not stop there. Even before the veto, Perry, through intermediaries, informed Lehmberg that he would forgo the veto if she were to resign. In subsequent weeks after the veto, Perry, again through intermediaries, offered to restore the funding almost as quickly as he had withheld it, if Lehmberg were to resign.
While vetoing funds for the office might be legal, offering to forgo the veto or restore the funds in exchange for Lehmberg’s resignation might be a potential crime, the state judge who had appointed the special prosecutor concluded.
The grand jury is investigating whether Perry’s offer of returning funding in exchange for Lehmberg’s resignation and perhaps other things might have constituted a bribe, according to people close to the grand jury. The grand jury is also looking into whether Perry had attempted to “coerce” Lehmberg into undertaking “a specific performance of [her] official duty”—in this case, stepping aside.
The seriousness of the investigation only underscores that Perry needed the best man possible as his legal counsel. In other words, he needed David Botsford.
In 1996, Botsford was recognized for his skill and his good relations with colleagues when he was named president of the Texas Criminal Defense Lawyers Association. Benjamin Blackburn, another Austin defense attorney, said, “Botsford is incredibly smart. He does complicated civil litigation in federal court that requires know-how and intelligence that most attorneys don’t have.”
Botsford is also a well-known figure within Travis County’s Democratic Party. “I see him at fundraisers,” Blackburn said. “You’ll see him at the big fundraisers, but he’s not active at the grassroots level; he’s more moving and shaking from the top down.”
Texas state campaign finance records show that Botsford made more than $24,000 in campaign contributions over the past decade to Texas judges, judicial candidates, and other local officeholders—a majority of whom are Democrats.
It is because of these partisan connections, not in spite of them, that Blackburn and others in the Austin legal community believe it was a shrewd move for Perry to retain Botsford before the Travis County grand jury.
“Travis County and Austin in general is an island of liberalism within Texas," Blackburn said. "There’s no politician that has won countywide office as a Republican here in nearly two decades… People, even if they lean more conservatively, give money to the Democrats.” To the uninformed it may appear that, on the surface, Perry’s hiring of Botsford might make strange “bedfellows”; yet Blackburn said it was a “smart move for Perry” that “makes sense.”
A local law enforcement official who wished to remain anonymous agreed with Blackburn’s assessment: “Rick Perry has to be thinking that if he were indicted, and a jury were seated, the jurors would be mostly Democrats in a Democratic county.”
“To me it seems the choice was assessed on merit, and that’s kind of a flat world,” says Kyle Lowe, an Austin defense attorney who has known Botsford for years. “The governor is looking to defend himself before this goes any further. David knows the [Travis County] district attorney, and he also knows Gregg Cox at the Public Integrity Unit. He’s known them for a long time.”
There are recent indications that the grand jury is wrapping up its work, although few if any specifics are known about the investigation’s potential outcome. Texas has some of the toughest grand jury secrecy laws in the country. Those who testify can be jailed for simply revealing what questions they were asked during the proceedings, although some Texas attorneys told us that any prosecution of witnesses for simply talking about their own testimony might be successfully challenged on First Amendment grounds.
In the meantime, Texas taxpayers are footing the bill to defend Perry before the grand jury. Botsford was paid more than $41,000 for his legal work for Perry up to June 18, according to information made public by the Texas state comptroller. (McCrum had submitted invoices for $22,000 over a similar time period.)
When the San Antonio-Express News recently tried to learn more about exactly what services Botsford was providing to Perry at the taxpayer’s expense by filing a public-records request with the Travis County’s attorney’s office, Botsford wrote state officials asking that they not make that information public.
Botsford’s letter to state officials underscores how seriously he and his client are taking the grand jury probe: “Disclosure would provide a road map to strategic and tactical decisions made during the course of my ongoing representation while simultaneously revealing matters subject to grand jury secrecy.”
Murray Waas is an editor at VICE. He is a former investigative reporter for Reuters, and before that, a writer for National Journal and the Atantic.