The news of the indictment against Texas Governor Rick Perry on charges of abuse of official capacity and coercion of a public official surprised the country and shook up the early presidential race for 2016. Debate ranged from how the charges would affect Perry’s chances at winning the Republican nomination and the White House to whether Perry would be convicted. A surprising number of liberals and Democrats have broken ranks to defend what many call an unconstitutional attempt to criminalize politics as usual. This is not the first time in recent memory that prosecutors have pressed charges against Republicans on dubious grounds. This harassment of conservatives is likely to worsen in the absence of penalties for malicious prosecution.
In Texas, the Travis County DA office has prosecuted other high profile Republicans. In 1993, Rosemary Lemberg’s predecessor, Ronnie Earle, indicted newly elected U.S. Senator Kay Bailey Hutchison on charges of misusing her previous office of state treasurer according to National Review. Hutchison was originally elected in a special election and faced the prospect of running for reelection in 1994 with the indictment hanging over her head. She pressed for a quick resolution and, when the case went to trial, Earle told the court that he could not proceed without the admission of records seized from Hutchison’s office without a search warrant. The judge promptly ordered the jury to return a verdict of not guilty.
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After the acquittal, Hutchison requested that the records be released, saying, “The case was not there. They turned around and ran because they knew the longer they went, the more embarrassing it was going to be. . . . They thought the lady would crack. Well, the lady wouldn’t crack.”
In 2010, it was Tom Delay’s turn to face the Travis County DA. Delay was convicted on money laundering charges stemming from accusations that he funneled corporate money to Republican candidates. Delay, a former Speaker of the U.S. House of Representatives, was sentenced to three years in prison, but remained free on bail while he appealed. His conviction was overturned in 2013 by a three judge panel of a Texas appellate court. The decision said that evidence in the case was “legally insufficient” according to the Washington Post.
In 2008, Senator Ted Stevens (R-Alaska) was indicted on felony charges of failing to properly report gifts less than four months before that year’s election. He was found guilty of making false statements on Oct. 27 and promptly lost his reelection fight to Mark Begich. A few months later in February 2009, an FBI agent became a whistleblower and revealed that prosecutors and FBI agents had withheld key evidence and witnesses that would have supported Stevens’ claims of innocence as well introducing evidence that they knew to be false. In April 2009, a federal judge vacated Stevens’ conviction. Politico reported in 2012 that a special investigator’s review of the case found that misconduct by the prosecutors and FBI had tainted the trial. Stevens died in a plane crash in 2010 and his Senate seat remains in Democratic hands.
Two other Republican governors, Chris Christie (N.J.) and Scott Walker (Wisc.), are also potentially under investigation according to Salon. In New Jersey, prosecutors are trying to tie Chris Christie to the “Bridge-gate” scandal as well as diversion of Port Authority money to New Jersey road and bridge projects and real estate deals by David Samson, Christie’s appointee to chair the Port Authority’s Board of Commissioners. According to Esquire, anonymous “sources with intimate knowledge” of U.S. Attorney Paul Fishman’s investigation say Christie’s Port Authority appointees and former chief counsel “face near-certain indictment and are being pressed to hand up Christie.”
Walker may come under investigation for illegally coordinating with outside groups in his 2012 fight against recall. Walker triumphed in the election, but, as described by the Milwaukee Journal-Sentinel, the Milwaukee County prosecutor, a Democrat, launched a John Doe probe, an investigation allowed under Wisconsin law that allows the government to “compel people to produce documents and give testimony, as well as bar them from talking publicly about the investigation.” A federal judge ordered an end to the probe in May 2014, according to MSNBC, noting that no laws had been broken. Under Wisconsin law, issue ads that do not endorse or attack a specific candidate are not considered expenditures for a campaign and are not subject to laws regarding coordination with the candidate. This issue was previously decided in Wisconsin Right to Life v. Barland.
Republicans do not have to be prominent elected officials to attract the attention of partisan prosecutors. Since 2013, a series of articles in the Wall St. Journal have detailed how prosecutors in Wisconsin have subpoenaed 29 conservative groups in the John Doe probe. In June 2014, the Journal noted that so far prosecutors have failed to show probable cause that any crime had been committed and pointed out that the coordination in Wisconsin strongly resembled the President Obama’s 2012 campaign. Nevertheless, recent reports by the Milwaukee Journal Sentinel and Fox News indicate that personal information from members of conservative groups such as Wisconsin Club for Growth were released by a federal appeals court and posted online, allegedly by mistake.
The John Doe probe in Wisconsin is reminiscent of the IRS harassment of conservative groups that has been ongoing under the Obama Administration. Far from targeting high profile Republicans, the IRS focused its abuse on grassroots leaders of Tea Party groups. In one instance, cited by the Chicago Sun-Times, Catherine Engelbrecht, a small business owner involved with two nonprofit political groups beginning in 2010, was suddenly subjected to more than 15 federal audits and inquiries. In addition to the IRS, she was contacted by OSHA, the FBI, and the Bureau of Alcohol, Tobacco and Firearms, among others.
The IRS admitted to both the harassment of conservative groups and illegally leaking confidential tax information to liberal groups during the 2012 presidential election. In June 2014, the Daily Signal reported that the IRS had agreed to pay $50,000 to the National Organization for Marriage. The IRS had leaked the group’s donor list, including names and contact information to the gay activist group, the Human Rights Campaign, which then published the data. Even though leaking confidential tax information is a felony, no criminal charges have been filed against anyone at the IRS.
There are also indications that Lois Lerner, the official at the center of the IRS scandal, may have had a history of malicious prosecutions at the Federal Election Commission as well. The Illinois Review reported that Republican senate candidate Al Salvi was the subject of several FEC complaints regarding campaign finances in the last weeks of his 1996 campaign against Dick Durbin. The complaints were ultimately dismissed in 2000, but not before Salvi received a strange offer from an FEC official he identified as Lois Lerner. Salvi says that, in a conversation that included Mike Salvi, his brother and attorney, Lerner told him, “If you promise to never run for office again, we’ll drop this case.” Salvi refused. Four years and $100,000 in legal fees later, the FEC case against Salvi was dismissed.
These high profile cases are likely not the only instances of malicious prosecution of conservatives. At the state and local level, it is easy for such cases to avoid national scrutiny. The Wisconsin John Doe probe has largely been ignored by the national media. (Those aware of similar cases can contact the author.) In many other instances, such as harassment of California supporters of Prop 8 and the demonization of the Koch brothers, there was no prosecution, but a blatant attempt to intimidate and silence conservatives.
It is increasingly evident that the harassment, intimidation and malicious prosecution of Republican officeholders and conservative activists, often in the name of campaign finance reform, are an integral part of the Democratic playbook. As long as such attempts at stifling free speech succeed with no consequences for the left, they are likely to continue.