No Basis to Quash Perry Indictment, DAs Argue

Gov. Rick Perry has no legal right to receive a transcript of what witnesses told the grand jury that indicted him, prosecutors told a judge Monday.

"Texas courts have permitted the veil of grand jury secrecy to be pierced in only a few instances," special prosecutor Mike McCrum and David M. Gonzalez argued in a brief. "Defendant Perry has not established the particularized need that is required."

The response to Perry's earlier demand for a transcript came in one of two briefs prosecutors filed on the cusp of a pre-trial hearing Thursday. In a separate filing, prosecutors asked Visiting Judge Bert Richardson to deny Perry's request to dismiss the indictment entirely.

Perry is charged with abusing his official power by threatening to veto $7.5 million in state funds for the state's public integrity unit unless Travis County District Attorney Rosemary Lehmberg, a Democrat, stepped down following a 2013 drunken driving conviction. The Travis County DA's office oversees the public integrity unit. Lehmberg refused to resign, and Perry vetoed the money. 

Last month, Perry's lawyers told Richardson they need a transcript of the grand jury testimony, and believe it will prove that the grand jury was made privy to private discussions the governor had with his staff about the veto.

Perry argues those discussions are protected from prosecution by the "speech and debate" clauses of federal and state law. 

But prosecutors argue "speech or debate" clauses only apply to the legislative branch, not the executive.

"Defendant Perry argues that he needs the Speech or Debate privilege in order to protect his discussion about the veto that is pertinent to the instant case," wrote McCrum and Gonzalez. "But unlike members of the legislature who must speak in order to exert their constitutional power, a governor is not compelled to utter a single word."

There's also a risk the governor, armed with a transcript, would retaliate against anyone associated with the grand jury process, prosecutors argued.

"In particular, the defendant's own words have instilled a concern for all persons who participated in the grand jury investigation," they wrote, pointing to a statement Perry made after his Aug. 15 indictment. 

"I’ll explore every legal avenue to expedite this matter," Perry said then. "I am confident that we will ultimately prevail, that this farce of a prosecution will be revealed for what it is. And those responsible will be held accountable." 

Defense lawyers have asked Richardson to toss out the indictment, arguing in part that McCrum was not sworn in properly. Richardson said in a previous court hearing that McCrum was sworn in properly as a "district attorney pro tem."

In their filing Monday, Gonzalez and McCrum argue that state law doesn't allow Perry's lawyers to challenge McCrum's appointment in court. Only a district attorney, county attorney or the Texas attorney general has the legal standing to raise that argument.

"Defendant Perry cannot use any procedural mechanism he chooses … to fashion a remedy greater than what the law allows," the prosecutors' filing stated.

Perry is scheduled to make his first court appearance at the pre-trial hearing in Austin.