AUSTIN (CN) – Legal arguments in former Texas Gov. Rick Perry’s criminal saga will unfold Wednesday when the state’s highest criminal court weighs whether to send the case to trial or dismiss the remaining felony count.
It’s been a long and tangled road for the former governor still facing charges in his home state while trying to settle into private life after his second unsuccessful presidential campaign.
Perry, 65, has maintained a busy calendar in the 10 months since walking out of the governor’s mansion in January after 30 years in state government. His campaign for the Republican nomination for president lasted just 99 days this year until low poll numbers and lack of funding sank it.
Now Perry must plead his case not to voters but to a panel of appellate judges.
The two-count felony indictment handed down in August 2014 charged Perry with abuse of official capacity and coercion of a public servant.
The all-Republican Third Court of Appeals struck down the lesser coercion charge in July, but left intact the abuse of official capacity count. The remaining felony is punishable by 5 to 99 years in prison.
The indictment came after Perry followed through on threats to pull funding from Travis County District Attorney Mary Lehmberg’s ethics investigation unit if she did not resign after a drunken-driving arrest.
When Lehmberg, a Democrat, refused to resign, Perry used his veto power to strip her office’s Public Integrity Unit of more than $7 million that had been earmarked by the Legislature during its 2013 session.
When news of the indictment broke last summer, some legal and political observers were skeptical that charges brought by a Travis County grand jury seated in Austin would stick. Travis County, home of the state capital, is one of the few Democratic strongholds in Texas.
Perry called the indictment “baseless political charges.” He says that his veto threat was “not only lawful and legal but right.”
His attorneys have called the charges politically motivated, “banana republic politics.”
They said in court documents that prosecuting a Texas governor for exerting his veto power would have “a chilling effect” on governors across the country who want to veto funding.
“At stake is not just the freedom of one man,” one filing said.
But a Republican judge has refused repeated attempts by Perry’s legal team to dismiss, first on a technicality and then on constitutional grounds.
Prosecutors say that Perry’s First Amendment challenge is wrong and his veto threat criminal. They say Perry is not immune from prosecution for extortionist and quid pro quo threats he made in an attempt to unseat the district attorney in the wake of her 2013 drunken-driving arrest.
The state’s case has survived for 15 months, winding its way from Travis County Court and the Third Court of Appeals to the Court of Criminal Appeals.
Both sides have buried Visiting Judge Bert Richardson, a Republican elected to the Court of Criminal Appeals last year, with legal filings. As the visiting trial court judge in the case, Richardson recused himself from the appeal, and left it for the remaining judges on the Court of Criminal Appeals.
When Richardson rejected defense efforts to throw out the charges, Perry’s legal team appealed his ruling to Third Court of Appeals, where half of the court’s six justices are Perry appointees.
The strategy paid off. In late July, the Austin-based appeals court dismissed the coercion of a public servant charge as unconstitutional.
The court left standing the abuse of official capacity charge and Perry’s legal team appealed to the Court of Criminal Appeals in August. They say the remaining charge is vague and unspecific.
Jerry Polinard, a political science professor at the University of Texas Rio Grande Valley, said Richardson’s refusal to dismiss the indictment indicated that the case would go to trial.
“The sitting judge seemed to suggest that this basically should go to trial and let it be decided then,” Polinard said.
He called Perry’s case unique and said that there is no recent precedent for it.
“I don’t think we’ve ever seen this back-and-forth spectacle at that level, particularly with all the ramifications in virtually every area,” he said.
Perry entered Texas politics in 1984 as a Democratic state legislator. He switched parties in 1989, and climbed his way to the governorship in 2000, never losing an election. He faced tough challenges in the 2002 general election and from former Sen. Kay Bailey Hutchinson in the 2010 Republican primary, but maintained his longstanding winning streak, and his signature swagger.
Perry’s national campaigns never got off the ground. He never recovered after stumbling in a televised debate in 2012 by saying he would kill three Cabinet departments if he were elected, then couldn’t remember what the third one was. He added a trendy pair of black, thick-rimmed glasses for his run this year, but never made it out of single digits in polls in the crowded Republican field.
Now, as Texas’ longest-serving governor, with 15 years in office, Perry’s political legacy hangs on the outcome of his criminal case.
Anthony Buzbee, the Houston attorney leading Perry’s legal team, predicted a win.
“At the end of the day he will prevail because he is on the side of the rule of law. The governor acted lawfully and properly exercised his power under the law and frankly his obligation as governor under the law to protect the public safety,” Buzbee told reporters this year.
“The appeals court made clear that this case was questionable. The remaining charge is hanging by a thread, and we are confident that once it is put before the court, it will be dismissed on its face.”
Perry’s legal team includes Bobby Burchfield and Ben Ginsberg, both of whom served as general counsel to President George W. Bush, and retired Chief Justice of the Texas Supreme Court Thomas Phillips. Also on board is Austin criminal defense attorney David Botsford, who will present defense arguments Wednesday.
Perry will not attend the hearing, Buzbee told the San Antonio Express-News.
Oral arguments are slated for 9 a.m. at the Court of Criminal Appeals in Austin.
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