I’m slightly hesitant to say much about Governor Rick Perry's indictment that came down Friday (overview here), since I’m surely no expert on the relevant Texas laws. What I can say is it certainly doesn’t smell kosher to me. As I scanned some of the various commentaries, the consensus seemed to be that the indictment lay somewhere between highly dicey and totally without merit.
If those commentaries are correct, about the best argument that I can summon in favor of the indictment is a pox-on-both-their-houses defense: If Perry was exceeding the norms of politics in his vendetta against Travis County District Attorney Rosemary Lehmberg and the public integrity office at the heart of this case, then it’s only natural that Travis County prosecutors would fight back with whatever they had. That’s not to say that it was proper to go so far as an indictment, but instead that Perry may only be (unfairly) reaping exactly what he (unfairly) sowed.
Rick Hasen argues that this is part of a “criminalization of politics.” I’m not fully sold on that idea. It’s certainly true that prosecutors have been known to go overboard, using “novel legal theories” (to borrow a phrase from Hasen) in search of high-profile criminal action, whether for partisan political motives (surely the case here) or just for favorable publicity. Even worse are instances of flat-out prosecutor malfeasance, as was apparently the case in the episode with former Senator Ted Stevens. But does that add up to a useful concept of “criminalization of politics”? That, to me, remains unclear.
As far as Perry’s presidential prospects: Republican operative Mike Murphy suggests, “This comedy indictment is actually going to help Perry if he runs for the GOP nomination.” Perhaps. It’s certainly true that resentment sells better than anything else in Republican contests. On the other hand, as long as the indictment is live (along with the possibility of conviction and even jail time), it’s hard to believe that Republican party actors would risk supporting a candidate who could potentially have to go to trial in the middle of a presidential campaign.
Basically, if Perry can get this thing behind him quickly, it becomes a somewhat useful talking point for him on the campaign trail. If not, it really could be a severe problem.
While Perry is on paper a viable nominee, no one has ever done what he’s trying to do: enter on presidential cycle as a solid candidate, flame out spectacularly and then recover to win the next time around. Doesn’t mean it can’t happen, but if Perry couldn’t defeat the weak Republican field in 2012, it’s hard to see why he would have much success against the much deeper, much stronger field of candidates currently buzzing around Iowa and otherwise getting started in this cycle. It’s not as if they can’t do resentment, either.
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Jonathan Bernstein at firstname.lastname@example.org