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Even liberals are skeptical of Rick Perry's indictment

Rick Perry's mugshot, taken on Tuesday.
Rick Perry's mugshot, taken on Tuesday.

On Tuesday, Texas Governor Rick Perry appeared in a Travis County jail to have his fingerprints and mug shot taken. The Republican was indicted last week after he unsuccessfully tried to use a veto threat to force a Democratic district attorney to resign.

Getting indicted is never fun, but Perry appeared to be in good spirits as he exited the Travis County criminal justice facility. He had good reason for optimism. Legal scholars say the prosecutor will face an uphill battle convincing a jury that Perry's veto threat constituted a felony under Texas law. Even some liberals worry that the prosecution represents the criminalization of garden-variety political disagreements.

Read on to learn about the charges against Perry, how experts and pundits have reacted, and how the case could affect Perry's rumored bid for president in 2016.

What is Rick Perry accused of doing?

In April 2013, Travis Count District Attorney Rosemary Lehmberg was arrested for drunk driving, a crime for which she ultimately pled guilty. Video from the night of the arrest show a belligerent Lehmberg yelling at the arresting officers and complaining that they were ruining her career.

When Lehmberg's agency's budget came up for renewal, Perry used a veto threat to pressure her to resign. Lehmberg oversees the Public Integrity Unit, an agency charged with investigating cases of misconduct by state officials. Perry threatened to use his veto pen to zero out PIU's $7.5 million budget unless Lehmberg quit. If Lehmberg, a Democrat, had resigned, Perry would have had a chance to appoint a Republican to replace her.

Lehmberg refused, and Perry made good on his veto threat. That triggered a complaint from the liberal watchdog group Texans for Public Justice. After investigating the case, special prosecutor Michael McCrum concluded that Perry's actions ran afoul of state law. He convinced a grand jury to indict him for abusing his power.

The indictment charges Perry with two specific crimes. Perry allegedly engaged in "abuse of official capacity" which makes it a crime to misuse public property for an improper purpose. Apparently, the prosecutor believes that threatening to veto PIU's $7.5 million in funding constituted misuse of that funding.

Perry is also charged with "coercion of a public servant" — using his veto threat to coerce Lehmberg into resigning.

Rosemary Lehmberg

Rosemary Lehmberg gestures to the camera on the night of her drunk driving arrest. (ABC News)

What's the case against Perry?

While Perry has said his veto threat was motivated by concerns about Lehmberg's drunk driving arrest, critics say Perry had more self-serving motives.

Democrats have pointed to the PIU's investigation of allegedly improper ties between the Cancer Prevention and Research Institute of Texas and Republican officeholders. CPRIT, a project once championed by Perry, made an $11 million grant to a company whose investors included a major Perry donor. One senior CPRIT executive has already been indicted in connection with that grant.

Perry critics have argued that the governor's goal was to stymie this investigation, or perhaps to intimidate PIU staffers into dropping the case altogether. But so far, there hasn't been much evidence for this theory. The indictment doesn't mention CPRIT or delve into Perry's motives for issuing his veto threat. But grand jury deliberations are secret, so it's possible jurors saw evidence of misconduct by Perry that has yet to be released to the public.

Is Perry's indictment a partisan witch hunt?

Republicans have been quick to portray the Perry indictment as a politically motivated abuse of power. The grand jury that indicted Perry is located in Travis County, Texas, which includes liberal Austin and is dominated by Democrats.

But one problem with this theory is that the man prosecuting the case, defense attorney Michael McCrum, isn't a Democrat. He was chosen for the job by a Republican judge. And campaign financing records show him donating slightly more to Republican candidates than Democratic ones.

In 2010, McCrum was rumored to be President Obama's leading candidate to be the US attorney from the Western District of Texas. But according to local media reports, he enjoyed support from both of Texas's Republican senators in addition to Democrats in the state.

Perry is surrounded by cheering supporters Tuesday as he surrenders to authorities for a mugshot and fingerprints. (Stewart F. House / Getty Images)

What's Perry's defense?

Perry has adopted a defiant stance, and he's assembled an all-star legal team to make his case in court. On Tuesday, Perry's lead attorney denounced the prosecution as politically motivated and "nothing more than banana republic politics."

"I wholeheartedly and unequivocally stand behind my veto," Perry said in a Saturday press conference. "I'll continue to defend this lawful action of my executive authority as governor. We don’t settle political differences with indictments in this country."

Perry's legal team argues that the Texas Constitution gives Perry broad discretion to veto legislation. They say Perry's threat to veto the PIU's funding was the kind of garden-variety fight that happens all the time in politics.

What do legal scholars think of the indictment?

Most legal scholars are skeptical of the case against Perry. The Houston Chronicle interviewed several legal experts and didn't find a single one who thought McCrum had a strong case. "One of the laws being used is hopelessly vague," said George Washington University scholar Jonathan Turley. "The other really doesn't appear to fit."

A big problem is that the indictment's broad reading of Texas law could criminalize a lot of ordinary political horse-trading. Governors and presidents routinely threaten to veto legislation if they don't get their way on related issues. While these threats are more often directed at legislators than at county officials, no one thinks this kind of threat should be a felony. The prominent legal blogger Eugene Volokh has warned that the prosecution's broad reading of Texas law could be unconstitutional.

Indeed, courts have historically shown extreme reluctance to get involved in this kind of fight. Under the "political question" doctrine, courts have tried to let elected officials sort out disagreements among themselves, using mechanisms such as elections and impeachment. It seems unlikely that the courts will want to wade into this kind of ugly partisan fight.

How have political observers reacted to Perry's indictment?

Perry's indictment has been met with widespread skepticism, even among liberals. New York magazine's Jonathan Chait called the prosecution "unbelievably ridiculous."

"The theory behind the indictment is flexible enough that almost any kind of political conflict could be defined as a 'misuse' of power or 'coercion" of one’s opponents," Chait wrote on Saturday. "To describe the indictment as 'frivolous' gives it far more credence than it deserves."

Former Obama advisor David Axelrod tweeted that the indictment "seems pretty sketchy." On Monday the left-leaning editorial board of the New York Times also weighed in on Perry's side, calling the indictment "the product of an overzealous prosecution."

Liberal defenders of the prosecution have been few and far between. The Texas Democratic Party has called for Perry's resignation, and Texans for Public Justice has defended the prosecution. But other prominent Democrats have been more circumspect. For example, Wendy Davis, a leading candidate for the Democratic nomination for Texas governor, issued a lukewarm statement on the case. She declared herself "troubled" by the allegations but stopped short of calling for Perry's resignation.

Will the prosecution derail Perry's rumored presidential campaign?

Perry is widely expected to launch a second bid for president in 2016, after failing to secure the Republican nomination in 2012. Having an indictment hanging over your head is never a great thing for someone running for office. Yet the overwhelmingly negative reaction the prosecution has gotten so far may help to limit its political fallout.

The conservative press has overwhelmingly portrayed the case against Perry as flimsy and politically motivated. So long as that remains the conventional wisdom on the right, the legal battle isn't likely to be a major political liability in the race for the Republican nomination.

On the other hand, a a prolonged court battle could reveal information that's politically damaging even if falls well short of proving that he committed a felony. And it's possible that special prosecutor McCrum has damning evidence against Perry that he hasn't revealed yet.

For now, though, Perry's confrontational stance seems to be working for him.