Stopping short of saying he thinks a crime was committed, a special prosecutor said he is troubled by the actions of Gov. Rick Perry in carrying out a threat last year to withhold state funding from Travis County District Attorney Rosemary Lehmberg’s office unless she resigned after a DWI charge.
“I cannot elaborate on what exactly is concerning me, but I can tell you I am very concerned about certain aspects of what happened here,” San Antonio attorney Michael McCrum said in an interview with the American-Statesman and KVUE-TV.
Asked if his concerns pointed specifically at Perry or his staff, McCrum said, “Yes.”
McCrum said he hopes to soon begin presenting results of a nearly seven-month investigation to a special Travis County grand jury, expected to be impaneled in mid-April. The grand jury could take weeks or months to render a decision.
McCrum — who has worked as a prosecutor under both Democratic and Republican presidential appointees and is now involved in an ethics-related dispute in a Bexar County criminal case — wouldn’t discuss possible charges. A complaint filed by a government watchdog group that helped launch the investigation accused Perry of crimes such as coercion, bribery and abuse of official capacity.
Following Lehmberg’s guilty plea to drunken driving, the American-Statesman reported June 10, 2013, that Perry was vowing to veto funding to the state’s ethics enforcement office based in Lehmberg’s office — unless Lehmberg resigned. Five days later, the governor followed through and vetoed a $7.5 million, two-year allocation to the Public Integrity Unit.
“I and others have conducted numerous interviews of people to try to understand what happened,” McCrum said. “I’ve reviewed materials, we’ve done research into applicable law, and we’ve done everything we can do to investigate this thing thoroughly.”
Such proceedings involving a sitting governor are uncommon, indictments even rarer. Gov. James “Pa” Ferguson was indicted in 1917 for misusing his office, according to the Handbook of Texas. In the early 1970s, Gov. Preston Smith was named an “unindicted co-conspirator” in the Sharpstown stock-fraud scandal.
On Wednesday, a Perry spokeswoman reiterated his office’s stance: “As he has done following every session he’s been governor, Gov. Perry exercised his constitutional veto authority through line-item vetoes in the budget.”
Lehmberg said, “It would be totally inappropriate for me to comment on that in any way. I’m sure the grand jury will give it a fair hearing.” Soon after the veto, Lehmberg had said that she thought Perry’s move was “partisan” and “misguided.”
Deputies arrested Lehmberg on a DWI charge a year ago this month. She later pleaded guilty and was sentenced to 45 days in the Travis County Jail, checked herself into an out-of-state rehabilitation center and prevailed in a civil trial that sought to remove her from office. She is a Democrat, and, had she resigned, Perry, a Republican, would have appointed her replacement.
In vetoing the state funding to Lehmberg’s office, Perry said, “Despite the otherwise good work (of) the Public Integrity Unit’s employees, I cannot in good conscience support continued state funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”
The Public Integrity Unit had been funded by the state since the early 1980s and prosecutes state corruption crimes committed in Travis County, as well as some tax and insurance fraud committed statewide. The unit had 35 employees, and the state funding paid their salaries as well as other costs.
Travis County scrambled to help fund the unit. County commissioners voted in August to give about $1.7 million to the office, allowing Lehmberg to retain 15 employees. Lehmberg also used $730,000 in money from forfeited property to keep about eight employees, and several others sought jobs outside the agency on their own, retired or were transferred within the district attorney’s office.
Still, the Public Integrity Unit laid off two employees.
“My responsibility is to the citizens of Travis County, to the citizens of the state of Texas and to the people who lost their jobs at the Travis County district attorney’s office as a result of this veto,” McCrum said.
Gregg Cox, who supervises the Public Integrity Unit, said the office must again ask for county funding for next year, and it is unclear whether it will have enough money to pay existing salaries.
A grand jury had been put in place last year to possibly hear evidence in the Perry case, but its term has since expired. That grand jury also heard a separate matter stemming from Lehmberg’s arrest — whether her behavior inside the county jail immediately after she was booked violated any laws — but the grand jury declined to indict.
A special-appointed judge is expected to seat a new grand jury April 14.
Craig McDonald, executive director of Texans for Public Justice, which filed the Perry complaint, said he is pleased by the seriousness with which McCrum appears to have taken the investigation. The group has said its concern isn’t the governor’s veto authority but any actions to withhold state money to force Lehmberg to resign.
“We believe a crime was committed, and we believe it was committed in broad daylight, and we believe the governor overstepped his authority,” he said. “If those laws don’t apply in this situation, and if those laws don’t apply to our governor, then the question becomes, ‘When do they apply?’”
For more than a decade, McCrum worked as an assistant U.S. attorney in the Western District of Texas and was hired during President George H.W. Bush’s administration, spending his final three and half years there as the chief of the major crimes unit. Since 2000, he has worked largely as a criminal defense attorney and was selected by President Barack Obama for a U.S. attorney position in Texas before he withdrew his name from consideration.
In January, he was accused by Bexar County District Attorney Susan Reed of directing a witness in a client’s intoxication manslaughter case to “get lost for a while” to avoid testifying at an upcoming trial, the San Antonio Express-News has reported. That matter is unresolved, and McCrum’s lawyers have said the claim is “personal, vindictive and untrue.”
Statesman and KVUE
This story is reported in partnership with KVUE-TV. See more of reporter Tony Plohetski’s exclusive and investigative reports on-line at MyStatesman.com and on-air on KVUE.
Chronology of the Lehmberg-Perry dispute
April 12, 2013: D.A. Rosemary Lehmberg is arrested by Travis County sheriff’s deputies on a drunken driving charge near Lake Travis. She vows not to resign.
April 17, 2013: Attorney Kerry O’Brien files a petition in Travis County civil court to remove Lehmberg from office.
April 19, 2013: Lehmberg pleads guilty to DWI and is sentenced to 45 days in jail. She ends up serving about half that because of good behavior. Calls for her resignation increase with evidence that her blood alcohol content was nearly three times the legal limit and that she was belligerent and combative during her arrest and booking.
June 10, 2013: The American-Statesman reports that Gov. Rick Perry has been pushing for Lehmberg to resign and is threatening to withhold state funding from her office’s Public Integrity Unit.
June 15, 2013: Perry vetoes the money. Texans for Public Justice seeks an investigation into the legality of his veto pledge.
July 15, 2013: Senior District Judge Robert “Bert” Richardson of San Antonio is appointed to oversee an investigation.
Aug. 19, 2013: San Antonio lawyer Michael McCrum appointed as special prosecutor to look into the Texans for Public Justice complaint.
Sept. 4, 2013: Richardson impanels a special grand jury to consider whether Perry’s veto threat broke any laws and whether Lehmberg obstructed justice or broke other laws during her arrest.
Oct. 4, 2013: Special grand jury declines to indict Lehmberg.
Dec. 11, 2013: Visiting Judge David Peeples of San Antonio rules after three-day civil trial that he won’t remove Lehmberg from office.
April 3, 2014: American-Statesman reports thatMcCrum plans to present the Perry case to a second grand jury.