The Travis County District Attorney’s office is doubling down on the widely mocked legal theories used to indict Governor Rick Perry.
Rosemary Lehmberg’s office is now trying to get a grand jury to indict another prominent Texas conservative on the exact same charge—abuse of official capacity. The cases have nothing in common, other than a shameless and blackhearted prosecutor who has discovered a vague paragraph in state law that lets her bring charges against any Republican she wants for just about any reason.
There is a slight check on that power—a grand jury—but the juries in heavily Democratic Travis County have shown little inclination to check her abuses. Instead, they end up offering her insulation from the lawsuits and disbarment she deserves for her malicious prosecutions.
When Perry was indicted, I pointed out that the charge was so expansive it could make whistleblowing a crime, and now the most infamous drunk in Texas is proving me right by seeking charges against the state’s most famous whistleblower, Wallace Hall.
Lehmberg has found that Section 39.02 of the Texas Penal Code has a magic property. It turns the rest of state law— property code, education code, water code, etc.—into a vast extension of the criminal code. So long as Lehmberg can claim that the Republican was trying to “harm” someone, then just about anything can be turned into a crime. That’s how Perry’s exercise of his veto power became a crime (you can supply the air quotes). And that’s how a regent of the University of Texas System is facing actual jail time for supposed failure to “enhance the public image” of the university, or “nurture” it, or “achieve the maximum operating efficiency.”
If those don’t sound like crimes, it’s because they’re not. They’re bits of boilerplate from the state Education Code on the duties of a regent. But the magic paragraph makes a knowing violation of any “law relating to the public servant’s office” a crime if it’s done “with intent to harm or defraud another.”
The same law makes it a crime to knowingly misuse government property with intent to harm, which is the farfetched theory being employed against Perry’s veto of funding for Lehmberg’s office.
Hall, the regent facing criminal charges, has antagonized some of the most powerful politicians in Austin by asking questions about how they get their children and their friends’ children into the University of Texas. In retaliation, those politicians convened a legislative committee to build a case for impeachment against Hall, an effort that collapsed into a bit of desultory finger wagging when the answers to Hall’s questions proved to be damning. The committee settled on a face-saving censure vote after referring its findings to Lehmberg’s office for further action (or at least a few more headlines).
I almost wish we could fast-forward to the jail time, just to hear the sort of conversations Hall would have behind bars.
“What are you in for?”
“Aggravated non-enhancement of a public image,” he says, adding as he narrows his eyes, “with intent to harm. What about you?”
“I ran a school district for twenty years with no complaints, until that fateful day somebody put a suggestion in the box. There it was—indisputable proof that my operating efficiency was suboptimal.”
It doesn’t take a legal scholar to find those charges absurd, so I didn’t bother much with the details of the theory when the committee announced months ago it would seek charges, other than to report that a top-flight lawyer had already found the potential charges “absurd,” too.
Last week, the local district attorney’s office announced the evidence would be presented to a grand jury. A report by the legislative committee cites three potential crimes based on two accusations; one, Hall shared a private email with his lawyer, and two, his requests for information were burdensome to UT, to the point of violating that boilerplate language in the Education Code.
I’ve already shredded the report’s main arguments for impeachment, effectively enough that the committee’s chairman, in some weird spastic outburst of honesty, copied my arguments word for word. But I ignored the criminal aspect, assuming quite wrongly that it was too frivolous for any halfway serious prosecutor to act on. That was before the Perry indictment. I figured Lehmberg would pretend to investigate for a while, help generate negative headlines for Hall, and then drop it. Instead, she may actually try to go in front of a judge and argue seriously that it’s a crime for a defendant in a judicial proceeding to share evidence with his attorney.
A grand jury simply isn’t going to have a judge’s instant sense of outrage that Lehmberg would try to criminalize the right to defense. Now, I can’t imagine even the most gullible grand jury following the train of illogic for Theory No. 2, that a regent asking to review records is somehow failing to “enhance the public image” of a university or to “achieve the maximum operating efficiency,” which is therefore a crime, because he might find something harmful to UT President Bill Powers among those records. But Theory No. 1 is going to be chopped up into parts and presented as various potential crimes, none of them easy to grasp at first glance.
The facts underlying these legal theories are fairly simple: Hall found some emails between Powers’s office and the dean of the law school discussing whether or not to admit the son of the state House Appropriations Committee chairman, despite his poor scores on the Law School Admissions Test. (They admitted him; he’s flunked the bar three times since.) Hall showed the email to an official investigator from the state attorney general’s office, and to his defense attorney, who cited it in a letter to the legislative committee, naming no names. The name came out when a reporter bluffed the chairman into outing his son.
The persecutors and prosecutors contend that the emails are protected by the Family Educational Rights and Privacy Act (FERPA), and by nearly identical state law as well, and that Hall committed some sort of crime in showing it to his attorney or the investigator. One theory is that this “leak” is the real “abuse of office,” rather than the whole non-enhancement of the public image theory. But that would involve proving that Hall “intentionally or knowingly” leaked FERPA-protected information, when the emails are almost certainly not FERPA-protected “education records” in the first place. The Supreme Court has ruled that “FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar,” or that they’re “kept in a filing cabinet in a records room at the school or on a permanent secure database.” That wouldn’t include every last email or assignment that might include the student’s name. But that’s the sort of thing a motivated prosecutor never tells a grand jury.
The prosecutor can misrepresent the facts and the law as easily as the legislative committee did in its report. For example, the report claims that a university lawyer “specifically told Hall that he could not distribute the emails to” the attorney general’s investigator. That lawyer’s actual testimony was almost the complete opposite: “I suggested to him that he might want to discuss generally his concerns about the two e-mails with the attorney general.”
Under any of the theories, Hall would have had to leak information that is “prohibited from disclosure” under the Texas Public Information Act, which is a problem for prosecutors, as the Act doesn’t apply to education records, much less prohibit their disclosure.
The mendacity of the legislative report is perfectly captured by the footnote to a sentence asserting that “Student records are confidential under two separate provisions of the Act*…” The footnote, a bit sheepishly, is forced to admit that “neither section of the code refers to student records as ‘confidential…’”
One of those old New Yorker guys, Benchley or Perelman or one of them, had a great piece once where he got into an argument with his own footnotes. It’s somehow less amusing here.