Judge refuses to toss out Perry charges

AUSTIN – Rick Perry, actively eyeing a presidential run, was in the midst of a South Carolina trip Tuesday when a state judge's ruling guaranteed the indictment shadowing him won't go away any time soon.

Judge Bert Richardson refused to throw out charges that Perry abused his veto authority to try to force out a local prosecutor, saying the former governor's legal team asked for the action on grounds that are incompatible with state law.

"Simply put, the court's hands are tied," wrote Richardson, who like Perry is a Republican. He said state law doesn't allow him to decide before trial whether the law was unconstitutional as applied to Perry, as his lawyers contended.

Perry, who has maintained he acted properly, quickly filed notice that he'll appeal.

"Continued prosecution of Governor Perry is an outrage and sets a dangerous precedent in our democracy," said Perry lawyer Tony Buzbee, who leads a defense team that's been paid more than $1 million from Perry's campaign account.

Taxpayers previously picked up $132,000 in legal fees to protect Perry's interests during a grand jury investigation, before Perry bowed to public pressure and turned instead to his political funds.

Buzbee said he'll press the case at the 3rd Court of Appeals in Austin. It could take a year to get an appellate opinion, said professor Geary Reamey of St. Mary's University School of Law in San Antonio.

"It is an extraordinary case," Reamey said.

Perry was indicted last summer on charges stemming from his 2013 threat to veto funding for a public corruption unit overseen by Travis County District Attorney Rosemary Lehmberg unless she resigned after a drunken-driving arrest.

Lehmberg stayed in office after serving jail time, and Perry axed the funding. Perry said that Lehmberg, a Democrat, had lost the public's confidence.

Texans for Public Justice, a government accountability group, filed a complaint saying that Perry went too far in trying to force out a locally elected official.

A grand jury indicted Perry on two counts: abuse of official capacity, a first-degree felony punishable by five to 99 years in prison; and coercion of a public servant.

That second charge was described by special prosecutor Michael McCrum as a third-degree felony.

Richardson, however, said Tuesday the second count as presented in the indictment was instead a Class A misdemeanor.

Richardson also said the state must amend its filing to meet a concern over wording raised by Perry's lawyers.

Despite those points, the indictment stands, a decision that McCrum said was proper.

"The court followed the law and exercised a bunch of wisdom," said McCrum, who like Richardson is from San Antonio.

The decision has political implications for Perry, who wrapped up a visit to Iowa on Monday before heading to South Carolina on Tuesday.

Perry, who left the governor's office this month, has long been laying the groundwork for a potential second White House run.

He has had policy briefings and traveled extensively as he tries to redeem himself after his error-plagued bid for the 2012 Republican nomination. His "oops" in that race, when he could remember only two of three federal agencies he wanted to close, has become standard fare in debate-flop reels.

"There's no positive spin you can put on this in the context of the assumed campaign he's making for the Republican nomination. That's not the story line he wants being developed," said political scientist Jerry Polinard of the University of Texas-Pan American. "You first have the 'oops' moment followed up by he's the candidate who's under indictment … A magician wouldn't put any positive spin on that."

Larry Sabato, director of the Center for Politics at the University of Virginia, said the case won't hurt him among Republicans and might even help a bit with those who believe it's politically motivated, as Perry contends.

But Sabato said, "In a general election context, an indictment would be a disaster. I'm sorry – Americans are not going to elect an indicted politician to be president."

Democratic groups piled on Perry, with Edward Espinoza of Progress Texas saying the judge's message is, "Rick Perry might be out of the governor's mansion, but he's still in hot water."

Top Republican officials rallied around him, including U.S. Sen. Ted Cruz; Gov. Greg Abbott, Perry's successor; Lt. Gov. Dan Patrick; and Attorney General Ken Paxton.

"The Texas governor is endowed by our Constitution with the authority to veto legislation, and it is outrageous and inappropriate that a governor would be prosecuted for exercising that authority," Abbott said, while Cruz called the indictment "a political witchhunt.".

Patrick said, "The decision to indict Governor Perry was wrong and undermines our democratic principles and separation of powers. These actions have a chilling effect on the legislative process and on every member of the legislature and executive branch."

Paxton called Perry "an exceptional and trustworthy leader" who "has treated his office with dignity and respect."

Political scientist Brandon Rottinghaus of the University of Houston said Richardson's ruling "implies that the case is … firm and serious, and so any attempt to paint this as a frivolous prosecution, I think, has gone out the window now. So rhetorically, that's a limitation for the Perry team."

The decision "also gives credibility, frankly, to the prosecutor, to McCrum, who has taken some shots from the defense with the idea that he's just an incompetent partisan," Rottinghaus said. The judge's ruling suggests "there is some faith to be put in the prosecution itself and to the prosecutor personally," he said.

The issues addressed Tuesday by Richardson represented the second time Perry's lawyers have sought to free him from the case before it goes to trial.

His team last year sought to disqualify McCrum and invalidate his actions in the case, effectively negating the indictment. Richardson, in overruling that objection last year, said procedural irregularities didn't invalidate McCrum's authority and that Perry's team waited too long to bring up its technical objections.

Richardson had appointed McCrum as special prosecutor after Lehmberg recused herself.

The judge has been overseeing Perry's case since 2013 and now serves on the Texas Court of Criminal Appeals, a post to which he was elected in November. Assuming the case eventually is appealed to the high criminal court, Richardson would not participate in that appeal.

On Tuesday, Travis County commissioners approved allocating additional funds to pay McCrum and a lawyer working with him on the case, David Gonzalez. A total of $109,795 has been paid so far, according to county documents. Commissioners okayed another $200,000 to cover costs through March.