Thursday, September 11, 2014

Rosemary Lehmberg Resumes the Warpath

"He who is often rebuked, and hardens his neck,
Will suddenly be destroyed, and that without remedy."
Proverbs 29:1

Sigh, some people never learn...
The Travis County District Attorney’s office is doubling down on the widely mocked legal theories used to indict Governor Rick Perry.

Rosemary Lehmberg’s office is now trying to get a grand jury to indict another prominent Texas conservative on the exact same charge—abuse of official capacity. The cases have nothing in common, other than a shameless and blackhearted prosecutor who has discovered a vague paragraph in state law that lets her bring charges against any Republican she wants for just about any reason.


When Perry was indicted, I pointed out that the charge was so expansive it could make whistleblowing a crime, and now the most infamous drunk in Texas is proving me right by seeking charges against the state’s most famous whistleblower, Wallace Hall.

Lehmberg has found that Section 39.02 of the Texas Penal Code has a magic property. It turns the rest of state law— property code, education code, water code, etc.—into a vast extension of the criminal code. So long as Lehmberg can claim that the Republican was trying to “harm” someone, then just about anything can be turned into a crime. That’s how Perry’s exercise of his veto power became a crime (you can supply the air quotes). And that’s how a regent of the University of Texas System is facing actual jail time for supposed failure to “enhance the public image” of the university, or “nurture” it, or “achieve the maximum operating efficiency.”

If those don’t sound like crimes, it’s because they’re not. They’re bits of boilerplate from the state Education Code on the duties of a regent. But the magic paragraph makes a knowing violation of any “law relating to the public servant's office” a crime if it’s done “with intent to harm or defraud another.”

The same law makes it a crime to knowingly misuse government property with intent to harm, which is the farfetched theory being employed against Perry’s veto of funding for Lehmberg’s office.

Hall, the regent facing criminal charges, has antagonized some of the most powerful politicians in Austin by asking questions about how they get their children and their friends’ children into the University of Texas. In retaliation, those politicians convened a legislative committee to build a case for impeachment against Hall, an effort that collapsed into a bit of desultory finger wagging when the answers to Hall’s questions proved to be damning. The committee settled on a face-saving censure vote after referring its findings to Lehmberg’s office for further action (or at least a few more headlines).


The facts underlying these legal theories are fairly simple: Hall found some emails between Powers’s office and the dean of the law school discussing whether or not to admit the son of the state House Appropriations Committee chairman, despite his poor scores on the Law School Admissions Test. (They admitted him; he’s flunked the bar three times since.) Hall showed the email to an official investigator from the state attorney general’s office, and to his defense attorney, who cited it in a letter to the legislative committee, naming no names. The name came out when a reporter bluffed the chairman into outing his son.

The persecutors and prosecutors contend that the emails are protected by the Family Educational Rights and Privacy Act (FERPA), and by nearly identical state law as well, and that Hall committed some sort of crime in showing it to his attorney or the investigator. One theory is that this “leak” is the real “abuse of office,” rather than the whole non-enhancement of the public image theory. But that would involve proving that Hall “intentionally or knowingly” leaked FERPA-protected information, when the emails are almost certainly not FERPA-protected “education records” in the first place. The Supreme Court has ruled that “FERPA implies that education records are institutional records kept by a single central custodian, such as a registrar,” or that they’re “kept in a filing cabinet in a records room at the school or on a permanent secure database.” That wouldn’t include every last email or assignment that might include the student’s name. But that’s the sort of thing a motivated prosecutor never tells a grand jury.


Under any of the theories, Hall would have had to leak information that is “prohibited from disclosure” under the Texas Public Information Act, which is a problem for prosecutors, as the Act doesn’t apply to education records, much less prohibit their disclosure.

The mendacity of the legislative report is perfectly captured by the footnote to a sentence asserting that “Student records are confidential under two separate provisions of the Act*…” The footnote, a bit sheepishly, is forced to admit that “neither section of the code refers to student records as ‘confidential…’”

One of those old New Yorker guys, Benchley or Perelman or one of them, had a great piece once where he got into an argument with his own footnotes. It’s somehow less amusing here.
Read the whole thing here.

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