Perry Attorneys Try to Disqualify Prosecutor

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Gov. Rick Perry appeared in court Thursday to watch his attorneys, armed with plenty of theater, try to convince a judge that the prosecutor pursuing abuse-of-power charges against him was improperly sworn in.

"Why do we raise what some people say are technicalities?" asked Perry defense attorney Tony Buzbee, his voice booming as he guided Visiting Judge Bert Richardson through an elaborate PowerPoint that featured an enlarged copy of the Texas Constitution. "Because [San Antonio lawyer Mike] McCrum is attempting to prosecute a sitting governor."

In his first court appearance since he was indicted Aug. 15 on two felony counts, Perry sat at the defense table quietly, occasionally whispering with his attorneys or rocking in his chair. Buzbee and co-counsel David Botsford made their case that McCrum, who is an appointed special prosecutor in the case, took his oath of office before signing an anti-bribery document required of such prosecutors.

That sequence was out of order under the rules dictated by the 1876 Texas Constitution, Buzbee said. 

As a result of this timing error, Buzbee argued, it's "game over." McCrum has no authority to prosecute the governor, he said, and therefore the indictment he secured is invalid.

"It's there and it's in black and white," Buzbee said. "You must first sign your oath saying, 'I have not taken any gifts.' It's a very important sequence."

Grand jurors indicted Perry over his threat in 2013 to veto funding for a state watchdog unit housed at the Travis County district attorney's office. Perry made the threat after DA Rosemary Lehmberg refused to step down from office following her drunken driving arrest and conviction. He eventually made good on the threat, withholding $7.5 million in state funds for the unit. He was charged on Aug. 15 on one count of abuse of official capacity and one count of coercion of a public official.

Since the indictment, there have been a flurry of challenges filed by Buzbee and Botsford. Thursday's hearing was an airing of the first — whether or not McCrum was properly sworn in.

McCrum, a criminal defense attorney from San Antonio who was once tapped to fill the U.S. attorney job there, countered on Thursday that there was nothing improper about the oath-taking. He was sworn in, he said, telling reporters after the hearing: "I'm not shying away from the facts. My position is that it just doesn't negate my authority."

Buzbee described challenges he and Botsford faced getting their hands on the paperwork detailing McCrum's appointment — and the repeated times they said they asked the Travis County district clerk's office for it.

McCrum countered that they were in the courthouse, just in a file in a courtroom.

"All of these documents were available for public inspection," McCrum said. "There's no question I took an oath."

The defense team also suggested that the court clerk's decision to assign a criminal case number to the grand jury file containing the oath documents — well before an indictment was returned — was suspicious because the only other time that was done was when another prominent Republican, former U.S. Rep. Tom DeLay, was investigated by an Austin grand jury.

Linda Estrada, a grand jury clerk, said that was done because in the DeLay case, attorneys filed so many motions to quash subpoenas for grand jury witnesses that the clerk's office had to keep the file organized with a case number.

In Perry's case, she said the clerk's office anticipated — but never received — motions to quash subpoenas.

"I think we all saw in the court that Gov. Perry, along with Tom DeLay, are being treated a little bit different and you should be asking those questions: Why?," Buzbee said after the hearing. "Why in 16 years have they created folders for only two people, Tom DeLay and Rick Perry? That's the question you should be asking."

McCrum, who referred to the governor during the hearing as "Mr. Perry," said there was nothing mysterious about it. "This allegation of a conspiracy is the biggest red herring I have ever seen. It's ridiculous," he said. "You have a district clerk's office here in Travis County who is trying to make it easier for Gov. Perry and his army of lawyers to find documents. And they make it seem like it's a conspiracy."

Following the hearing, McCrum was asked why he kept calling the governor "Mr." instead of by his elected title. 

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"Anytime I see evidence that a public official has committed a crime, then I don't think it's appropriate for me to call that public official by his title," he said. "At this time, he's James Richard 'Rick' Perry, accused of committing two felonies."

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In a statement delivered after the hearing, Perry said he regretted nothing about the actions that resulted in the indictment. 

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“I stand behind my authority, and I would do it again," Perry said. "I stand behind that veto, and I would make that veto again." 

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Richardson is expected to rule on the oath matter by next Wednesday or Thursday. 

Disclosure: Tony Buzbee has been a major donor to The Texas Tribune. A complete list of Tribune donors and sponsors can be viewed here.

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