Cross Posted at Legal Schnauzer
Hundreds of Rick Perry's biggest financial backers have benefited from actions he took in his official capacity as governor of Texas, according to a new article in The New York Times. Does that mean Perry, now a leading Republican candidate for president, will be targeted by federal prosecutors on bribery and fraud charges?
If the case of former Alabama Governor Don Siegelman establishes legal precedent, the answer is yes.
The U.S. Eleventh Circuit Court of Appeals found that the Siegelman jury was free to "infer" that an unlawful quid pro quo existedbetween Siegelman and former HealthSouth CEO Richard Scrushy. Never mind that this is contrary to U.S. Supreme Court precedent, established in McCormick v. United States, 500 U.S. 257 (1991), that an "explicit agreement" is required for bribery cases in the context of a campaign contribution.
The trial court in the Siegelman case, and the Eleventh Circuit, essentially thumbed their noses at the standard established by the nation's highest court. And the Obama Justice Department--with the handiwork of former solicitor general and current Supreme Court justice Elena Kagan--joined in by arguing that the Siegelman case was correctly decided.
Under those circumstances, couldn't a jury "infer" that Rick Perry engaged in unlawful actions with his Texas donors? It certainly could, based on the work of The New York Times. From reporters Nicholas Confessore and Michael Luo:
Two years ago, John McHale, an entrepreneur from Austin, Tex., who has given millions of dollars to Democratic candidates and causes, did something very unusual for him: he wrote a $50,000 check to a Republican candidate, Rick Perry, then seeking a third full term as governor of Texas. In September 2010, he did it again, catapulting himself into the top ranks of Mr. Perry’s donors.
Mr. McHale, a Perry spokesman said after the initial donation, “understands Governor Perry’s leadership has made Texas a good place to do business.”
Including, it turned out, for Mr. McHale’s business interests and partners. In May 2010 an economic development fund administered by the governor’s office handed $3 million to G-Con, a pharmaceutical start-up that Mr. McHale helped get off the ground. At least two other executives with connections to the firm had also given Mr. Perry tens of thousands of dollars.
McHale hardly is alone. Reports The Times:
Over three terms in office, Mr. Perry’s administration has doled out grants, tax breaks, contracts and appointments to hundreds of his most generous supporters and their businesses. And they have helped Mr. Perry raise more money than any politician in Texas history, donations that have periodically raised eyebrows but, thanks to loose campaign finance laws and a business-friendly political culture dominated in recent years by Republicans, have only fueled Mr. Perry’s ascent.
“Texas politics does have this amazing pay-to-play culture,” said Harold Cook, a Democratic political consultant.
Alabama also has been accused of having a "pay-to-play culture," and that supposedly is why the feds went after Siegelman--and still are pursuing an electronic-bingo prosecution. But transcripts in the Siegelman case show that the former governor, in fact, violated no law when he accepted a campaign donation from Scrushy and then appointed him to a state hospital board--one the former HealthSouth CEO had served on under three previous governors. After all, no "explicit agreement" instruction was given to the jury, and no evidence was presented that such an agreement existed.
If the point of the Siegelman prosecution was to discourage interactions between governors and donors, it failed. The message certainly did not get through to Rick Perry:
Mr. Perry is not the first governor to have taken contributions from contractors or appointees to state commissions and boards, which oversee many of the agencies that in other states are controlled directly by the governor.
But because he has been in office more than a decade, he has had greater opportunity than any of his predecessors to stock the government with loyalists — he has appointed roughly 4,000 people to state posts — while enacting policies that have benefited allies and contributors.
And Mr. Perry has been much more aggressive than any past governor in soliciting money from them. According to a study last year by Texans for Public Justice, a watchdog organization, Mr. Perry has raised at least $17 million from more than 900 appointees or their spouses, roughly one dollar out of every five that he has raised as governor.
Let us be clear: Under the actual law established in McCormick, that an "explicit agreement" must be present to constitute bribery, Perry probably has broken no laws. But Siegelman did not break any laws either--and he already has spent time in federal prison and could be headed back there.
Why is one legal standard applied to Rick Perry and another to Don Siegelman? For that matter, why is one legal standard applied to George W. Bush (and an almost endless list of other GOP governors) and another to Don Siegelman?
Those questions are at the very heart of the political-prosecution era that the Bush DOJ ushered into our political environment.
A Perry spokesman responded to The Times article by saying the interactions with donors did not constitute bribery:
Mark Miner, a spokesman for Mr. Perry, said there was no connection between Mr. McHale’s contributions and the grant to G-Con. He said that the purpose of the state money was to create jobs and that it was appropriate for Mr. Perry to appoint people who support his vision and policies to state oversight posts.
Under the real law, established in McCormick, Miner probably is correct. But under the law used in Siegelman, which the Eleventh Circuit has unlawfully upheld, a jury could "infer" that Perry was being bribed.
Given that Elena Kagan argued the Siegelman case was correctly decided, we have this obvious question: Why is the Obama DOJ not going after Rick Perry?