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Inside the Grand Jury: Why Texas Governor Rick Perry Was Charged with Two Felonies

A grand jury indicted Texas governor Rick Perry on two felony charges alleging that he had abused his public office and engaged in the coercion of another public official—a district attorney who was investigating Perry’s administration and political...

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A grand jury indicted Texas governor Rick Perry late yesterday on two felony charges alleging that he had abused his public office and engaged in the coercion of another public official—a district attorney who was investigating Perry’s administration and political backers.

The criminal charges stem from Perry using the official powers of his office as governor to attempt to remove Rosemary Lehmberg, a Travis County district attorney, from office, while Lehmberg was investigating allegations that Perry’s political allies and campaign contributors had received preferential treatment while obtaining grants from a Texas state cancer-fighting agency.

After Lehmberg pleaded guilty to drunk driving charges last year, Perry vetoed a $7.5 million appropriation by the state legislature to fund the Travis County Public Integrity Unit of the district attorney’s office. Perry said he vetoed the funding for the anti-corruption unit because the drunk driving charges proved that Lehmberg was unfit for office—while others viewed the governor’s actions as an attempt to stymie and defund an investigation of many of Perry’s closest political associates as Perry himself was preparing his second run for the presidency.

There was nothing illegal in and of itself with Perry vetoing funding for the anti-corruption unit. Perry's attorneys and backers weren't the only people arguing that Perry was acting within his proper constitutional authority. Most outside legal experts and scholars have agreed that that was the case. For that reason, most of the state's political establishment expected that the grand jury would complete its work without charging Perry.

But the grand jury alleged that Perry had committed two felonies. And the charges were not brought solely because of Perry's veto, but because Perry had told Lehmberg through intermediaries that he would refrain from the veto in the first place if Lehmberg resigned, and when that did not work, he offered to restore the funding if she resigned.

The indictment stunned both Perry and his top aides.  As a reporter for VICE last week questioned senior aides to the governor for a story that was to detail their testimony before the grand jury, suggesting that Perry might be charged, the aides said none of them had been contacted again since their grand jury testimony. The aides also said that the special prosecutor investigating the matter had given no indication to Perry or his legal counsel that any charges might be brought.

Despite the widespread belief that Perry would not be charged, Michael McCrum, the special prosecutor who led the grand jury investigation, previously said in an interview with VICE, posted on July 17, that even though the grand jurors hearing the evidence had not made, as of that time, any decision as to whether or not to charge the governor, they had heard “crucial testimony that could be a cause of serious concern.”

“I’m investigating the circumstances surrounding the veto and whether the governor’s actions were appropriate or not under the law,” McCrum said during the interview. “My duty is to look at all of the laws and determine whether any were broken by the governor or anyone else.”

Yesterday, McCrum surprised seemingly everyone, disclosing that the grand jury had decided to charge Perry with two felonies: “I looked at the law and looked at the facts, and I presented everything possible to the grand jury,” he said. “In this case, the grand jury has spoken and I am going forward with the duty bestowed upon me.”

In its first felony charge, the grand jury alleged that Perry abused his official authority as related to Perry’s vetoing the funding for the anti-government unit. (The indictment can be read in its entirety here.)

The second charge related to coercion of a public official, which, as McCrum explained, involved Perry “threatening Rosemary Lehmberg in her capacity as a public servant to resign or otherwise he would veto” funding for her Public Integrity Unit. 

News Distribution Network's footage of Special Prosecutor Michael McCrum announcing the indictment 

“Like many schemes, it started with vodka,” Christopher Hooks, a blogger and columnist for the Texas Observer, commented.

In April 2013, Lehmberg was arrested on drunk driving charges after authorities found her with an open vodka bottle in the front seat of her car, while she was parked in a church parking lot. Lehmberg pleaded guilty, was sentenced to a 45-day jail term, and served about half her sentence—and then she successfully deflected calls from Perry and others for her resignation.

At the time of Lehmberg’s arrest, virtually everyone knew that she would plead guilty to misdemeanor charges. Nobody foresaw the governor later being indicted by a grand jury on two felonies.

When Lehmberg refused to resign, Perry threatened to veto funding of her Public Integrity Unit—which investigates corruption of local, state, and federal public officials. Sources close to the investigation told me that Perry’s threat happened as the unit’s prosecutors were investigating whether Perry’s political backers and campaign contributors had received preferential and improper treatment in receiving grants from an anti-cancer state agency, the Cancer Prevention and Research Institute of Texas.

Texas Attorney General Greg Abbott, who is now running to be Rick Perry’s Republican successor as governor, sat on the CPRIT’s governing board. Abbott’s largest campaign contributors also allegedly benefited from preferential treatment and received grants.

Last December, a grand jury indicted Jerald Cobbs, a senior executive of CPRIT, on charges that he allegedly violated the law while awarding an $11 million grant to Peloton Therapeutics, a Dallas, Texas-based biotech company. A major investor in the firm had earlier made more than $440,000 in campaign contributions to Perry and his Lieutenant Governor, David Dewhurst.

And as he prepared for a suspected second presidential run, Perry obviously didn’t want to be diminished. Only last week, apparently unaware that the Travis County grand jury would indict him, Perry returned triumphantly from a four-day trip to Iowa, which holds the first presidential caucus. Perry was also readying to go to New Hampshire and South Carolina, the two states that hold the first and second presidential primaries. Frustrated statehouse Texas newspaper reporters complain that they can go months and months without being able to ask the governor a single question while Perry has eagerly made himself available to any obscure radio station or small Iowa weekly paper that wishes to speak to him.

Had Perry simply vetoed funding for the anti-corruption unit, he probably wouldn’t be facing criminal charges today. But before the veto, Perry, through intermediaries, said he would not veto the funds if Lehmberg resigned. After the veto, he then offered to restore the funding if she resigned from office. Sources close to the investigation say that the Travis County grand jury, which indicted Perry, heard testimony from at least four of Perry’s senior aides. They allegedly described to the grand jury Perry’s strategy to remove Lehmberg. Two other people testified in detail about how they had served as intermediaries in an effort to convince Lehmberg to leave. 

The grand jury indictment of Perry is further complicated by VICE’s recent disclosures that over a decade ago Perry’s own defense attorney, David Botsford, brought evidence of alleged wrongdoing to the FBI in an unsuccessful effort to initiate a federal criminal investigation of Perry.

The man entrusted with defending Perry before a jury of his peers and keeping him from going to prison once worked just as hard to put Perry in jail.

So far, Texas taxpayers have been footing the bill to pay Botsford to defend Perry. According to state records, the defense attorney has received more than $80,000 to date. Now that a criminal indictment has been brought, the price tag will almost certainly increase by hundreds of thousands of dollars and possibly millions. Some in the Texas state legislature have also questioned whether public funds should be used to pay for Perry’s legal defense. The issue will almost certainly intensify in coming days, a senior legislative staffer told me yesterday.

In a statement last night, Botsford said: “The facts of the case conclude that the governor’s veto was lawful, appropriate, and well within the authority of the office of the governor. Today’s action... is nothing more than an effort to weaken the constitutional authority granted to the office of Texas governor, and sets a dangerous precedent by allowing a grand jury to punish the exercise of a lawful and constitutional authority afforded to the Texas governor.”

Conservative backers of the governor and a news article in the Washington Post last night also questioned the validity of the prosecution, pointing out that Perry’s veto was carried out as part of his constitutional responsibilities. But the grand jurors alleged in their indictment that Perry’s threats to Lehmberg and pressure to have her resign, coupled with the veto, led to the criminal charges.

The Washington Post’s article and many conservative blogs suggested that the criminal justice process might have been politicized because the grand jury that indicted Perry was empanelled in progressive Travis County. Botsford echoed these beliefs, alleging that his client’s indictment was the result of politics. He said in his statement yesterday: “This clearly represents political abuse of the court system.” 

As VICE first reported, however, Perry largely hired Botsford because he’s a progressive Democratic activist whom Perry believes can more effectively represent him because of his political connections.

“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, told me in an interview. “David knows the nuances and practices of law in Travis County.”

But the charges of partisanship appear not to stand up to scrutiny in this particular instance. McCrum is a former federal prosecutor and considered non-partisan. In 2009, both of Texas’s conservative Republican Senators, John Cornyn and Kay Bailey Hutchison, recommended to President Obama that he nominate McCrum to be the United States Attorney for the Western District of Texas. San Antonio’s Democratic Congressman, Lloyd Doggett, initially held back his support for McCrum to be US Attorney because he was upset that the Obama administration was too deferential to Republicans when they made such appointments. Later he also supported McCrum.

Earlier, McCrum had been an assistant US attorney in the Western District of Texas for the better part of a decade. Solomon Wisenberg worked as a federal prosecutor alongside McCrum in San Antonio and considers McCrum a friend. Wisenberg told me that McCrum is a measured and careful lawyer—“a stellar person and attorney in every sense of the word.”

Some news organizations and blogs also erroneously suggested that McCrum was associated with or had even been appointed by the Travis County’s district attorney’s office. In fact, McCrum was appointed as a special prosecutor in the case by a judge from a conservative county. The only role that the district attorney’s office had in the investigation was that Lehmberg and others were questioned as witnesses, sources close to the investigation told me.

Texas Republican and Tea Party Senator Ted Cruz went even further. In a Facebook post supporting Perry after his indictment, Cruz suggested to his 802,978 followers that Perry had actually been charged by the Travis County district attorney’s office: “Unfortunately, there has been a sad history of the Travis County district attorney’s Office engaging in politically-motivated prosecutions, and this latest indictment of the governor is extremely questionable,” Senator Cruz wrote. “Rick Perry is a friend, he’s a man of integrity—I am proud to stand with Rick Perry.”

Whether Cruz’s misinformation was intentional of not is unclear—his office was unavailable for comment as this article was posted—but 28,301 of his Facebook supporters liked his comment as of early Saturday evening.

Perry is the first governor of Texas to face criminal indictment while in office in nearly a hundred years. A Travis Country jury charged Governor James E. “Pa” Ferguson in 1917 with embezzlement and other alleged crimes. Facing impeachment, he resigned from office. Seven years later, however, Ferguson’s wife was elected governor, and he returned to help running the state—only for the couple to be turned out of office once again after facing new allegations of malfeasance.

Perry has also been the longest-serving governor of Texas—and one of the state’s most powerful governors in the modern era.

Unsurprisingly, much of the news coverage of Perry’s indictment last night, such as this Politico article, focused on how the criminal charges might affect his presidential bid.

But there is much more at stake for the governor. If convicted of the first felony count of abusing his office, Perry would face a penalty of between five and 99 years in prison. Perry also faces two to ten years in prison if he is convicted of the second charge of the indictment.

The governor is expected to be arraigned sometime next week in the Travis County courthouse, not too far from the governor’s mansion.

When at a press conference yesterday a reporter asked McCrum whether the governor will be fingerprinted and also have to endure his mugshot being taken, McCrum replied: “I imagine that’s included in that.”

Additional reporting by J.P. Olsen

Editing by Mitchell Sunderland

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 Atlantic