Texas Governor Rick Perry’s recent indictment by a grand jury in Travis County, Texas, might seem familiar to the people of Oklahoma County, if they’ve been following the case of Albert Gustava Gerhart, founding member of the Sooner Tea Party.
These cases call into question the definitions of blackmail and coercion—and whether those words ought to be defined differently for people engaged in politics.
In April 2013, Oklahoma County District Attorney David Prater filed a felony blackmail charge against Gerhart, stemming from an email Gerhart had sent a couple weeks prior. The email went to State Senator Cliff Branan, R-Oklahoma City, and concerned a bill pending before Senator Branan’s Energy Committee.
The bill, introduced into the Oklahoma House of Representative by that wily Puritan Sally Kern, had passed the lower chamber by a margin of 67 to 13, and sought to protect the property rights of Oklahomans against all government action fairly traceable to the United Nations, or any other organization committed to “sustainable development.”
In truth, the measure was really an attempt to combat “Agenda 21,” a hard-right bogeyman that folks like Kern think is an opening gambit in the UN’s Bond-villain plan to subdue the entire American population. Gerhart was sympathetic to Kern’s position, and when he noticed the Kern bill had gone to Branan, he figured the so-called “Establishment Wing” of the Oklahoma Republican Party wanted the bill axed.
“All they (the GOP mainstream) care about,” Gerhart told me in a telephone conversation last year, “is that Oklahoma doesn’t look backwards to people on the East and West coasts.” Gerhart believes business-minded Republicans want to downplay Oklahoma’s cultural conservatism to attract business to the state.
Knowing Branan was likely to kill the Agenda 21 bill in committee, Gerhart sent him an email saying: “Get that bill heard or I will make sure you regret not doing it. I will make you the laughingstock of the Senate if I don’t hear that this bill will be heard and passed. We will dig into your past, your family, your associates and once we start on you there will be no end to it. This is a promise.”
Branan, alarmed at the email’s tone, reported it to the Highway Patrol, who reported it to David Prater’s office. Shortly thereafter, Gerhart was stunned to find himself facing felony blackmail charges.
“What I did was just hardball politics, pure and simple,” he told me. “And how is what I did to Branan any different from what Prater did to the Pardon and Parole Board, huh? Resign or I’ll prosecute? How’s that not blackmail?”
Gerhart was referring to the high-profile dispute between David Prater and the members of Oklahoma’s Board of Pardon and Parole over the application of Oklahoma’s criminal sentencing statutes. The dispute began in July 2012, when David Prater received a call from the family of a man killed by MaeLene Chambers. Chambers had been convicted of manslaughter for this man’s death back in March of 2008. She was sentenced to 10 years in prison. Oklahoma has an “85 percent” law, which requires that felons convicted of certain serious crimes serve 85 percent of their prison sentences before becoming eligible for parole. Manslaughter is one of those offenses, so Chambers shouldn’t have come up for release until September 2016.
The deceased’s family told Prater a different story. They’d received a message through Oklahoma’s automated victim notification program. Chambers was coming up for parole later that month—more than four years early.
Prater dug into this. It turned out the Pardon and Parole Board ran a docket called “Pre-Docket Investigation” (PDI). Any of the five board members could move to place a prisoner on the PDI docket. If their motion got a second, the prisoner received a vote by the full board. If a majority voted yes, the prisoner was approved for early parole consideration, regardless of the 85-percent law.
Prater had never heard of this PDI business, and neither had any of his assistant prosecutors. He called Richard Dugger, the member of the board who’d moved Chambers up for early parole. In Prater’s words:
He began by telling me that the board had the power to consider anyone they want. He said that “Lee” contacted him and requested that Chambers be considered for early release. I asked who “Lee” was. Dugger told me he was referring to Leamon Freeman, a retired Oklahoma County Judge. Dugger revealed that he and Freeman were law school classmates and friends. I asked Dugger if he thought that was proper. He responded by saying, “I have the authority to do it. He (Freeman) asked me to do it and I did.” I again asked what authority he had to place Chambers on a parole docket early. Dugger said, “The Constitution.”
Soon after, Prater gave the board an ultimatum. Since Oklahoma’s Open Records Act applies to Pardon and Parole proceedings, and since violation of the act is a criminal misdemeanor (carrying up to a year in the
county jail), Prater determined he had the authority to file criminal charges against the board for running this secret PDI docket. But first, he gave them all a chance to resign in lieu of facing charges. None of the board members took the option, and charges were filed (though eventually dismissed).
Which gets back to Gerhart’s question. What’s the difference between, on the one hand, “resign or face charges” and, on the other, “get that bill heard or I will make you the laughingstock of the Senate”? How’s what Gerhart did different from what Prater did?
I talked that over with Brady Henderson, legal director for the Oklahoma ACLU. For a time, Henderson served as one of Gerhart’s lawyers. And he thought his client had a good argument. Moreover, it wasn’t only the similarities that disturbed Henderson, but the appearance that politicians live under a different set of rules from the rest of us.
“How is it that a citizen doesn’t have the right to do this, but an important, powerful public official can do it with no problem, and little if any question about it? Why is it one public official can tell another, ‘Do this or else’—but a citizen can’t?”
“Blackmail,” as defined in Oklahoma law, is any verbal, written, or printed communication made with “intent to extort or gain any thing of value from another or to compel another to do an act against his or her will” (my emphasis). And there are several ways a person can commit blackmail. One, and this is the way it’s alleged in Gerhart’s case, is by “exposing or threatening to expose any fact, report, or information concerning any person which would in any way subject such person to the ridicule or contempt of society.” Gerhart said, “I will make you the laughingstock of the Senate if I don’t hear that this bill will be heard and passed. We will dig into your past, your family, your associates and once we start on you there will be no end to it.” That seems to fit.
But the other way blackmail can happen is by “accusing or threatening to accuse any person of a crime or conduct which would tend to degrade and disgrace the person accused.” So Gerhart and Henderson have a point, too. If David Prater tried to get the board of Pardon and Parole to resign (something they obviously didn’t want to do) by threatening to accuse them of a crime if they didn’t, isn’t that blackmail, too?
Of course, Henderson’s point was not to get David Prater charged with blackmail, or even to suggest that he had actually committed blackmail. The point was to establish that when political action looks like criminal action, it puts everyone in a really tight spot. And if we don’t have a solid grip on how to work our way out of it, then we’re not doing right by the better angels of our political nature.
Which gets us to Rick Perry. According to the Texas Observer, the story of Perry’s indictment began when the Travis County district attorney, Democrat Rosemary Lehmberg, got drunk and went driving around. Cops pulled her over, found an open bottle of vodka in her car, and placed her under arrest. She took a breathalyzer test and blew .239, about three times higher than the legal blood-alcohol limit. She refused to resign, for several reasons—one of them, though, was pure politics. If she resigned, Perry would appoint a Republican to replace her. For Texas Democrats, who don’t hold much power at all in the state, this would have been a tremendous blow.
The Travis County DA is quite a bit more powerful than your typical state prosecutor. Since the office has jurisdiction over the state capital, the DA has power over a host of important state issues, including control of the state’s Public Integrity Unit, which investigates ethics complaints against state politicians. (The unit’s work led to the indictment of former U.S. House Majority Leader Tom Delay, e.g.)
The unit was in the process of investigating the Cancer Prevention and Research Institute of Texas, which receives boatloads of money from the state—money that has been going to lots of people who maybe shouldn’t have received it, people with close ties to Rick Perry.
So on one hand, Rosemary Lehmberg had handed her political enemies a vodka-soaked sword to stick in her and twist with relish (to paraphrase Nixon); but on the other, getting Lehmberg out and putting a Republican in her place was an excellent way for Perry, eyeballing 2016, to get rid of a nasty investigation before heading back up into prime time.
Perry issued an ultimatum: If Lehmberg insisted on staying in office, Perry would use a line-item veto to defund entirely the Public Integrity Unit. As Christopher Hooks noted in the Texas Observer, “This kind of threat isn’t unusual. Executives use veto threats all the time to get what they want. The difference this time was that Perry had the audacity to do it all publicly. It’s unusual for an elected official to bully another elected official into resigning.” Lehmberg stayed on, and Perry made good on his threat.
And that’s why Rick Perry got indicted on two charges: abuse of official capacity and coercion of public servant. The elements of the first offense are met if the prosecution proves that Rick Perry intended to harm Rosemary Lehmberg and the Public Integrity Unit by “misusing” the unit’s budget when he dropped it down to zero. Perry’s guilty of the second offense if the prosecution proves that he used coercion (defined relevantly as “a threat… to take or withhold action as a public servant”) by threatening to cancel the Public Integrity Unit’s budget if Lehmberg didn’t resign.
But, like with David Prater, and like with Al Gerhart, it seems a really solid case can be made that Rick Perry is just stone guilty of these crimes. He definitely meant to harm both Lehmberg and the Public Integrity Unit by exercising his veto—it’s an open question whether that amounts to “misuse” of those funds, however—and he definitely threatened to take action as governor to influence the Travis County DA to resign her office. Still, a big problem for the prosecution on this count is going to be the part of Texas law that says it’s not a crime to coerce a public servant if you, like Perry, are a public servant yourself. But should it really be illegal to play what Al Gerhart calls “hardball politics”? If political action looks like criminal action, shouldn’t the First Amendment get to break the tie?
Law professors like to place cases that raise similar questions on a continuum. It’s a practice that throws relevant differences into relief, and makes order out of the chaos that is our common-law system.
If we do that here, and if the question is When does political coercion cross the line from “hardball” to “criminal,” then Perry appears as an interesting midway point between the cases of Gerhart and Prater. Prater made his threat, and nobody batted an eye. Gerhart made his, and was ultimately convicted of blackmail. Perry’s headed for trial, but odds look bad for his prosecution. Maybe Rick Perry doesn’t get to run for president because of this, but it’s hard to see the story ending too badly for the governor.
Things ended worse for Al Gerhart, who went to trial and lost. On the blackmail count, the jury only gave him a $1,000 fine—not too bad.
But Gerhart is the only one of these guys who wasn’t a public official, and now he’s likely to stay that way. Absent a pardon, a felony conviction bars him from being elected to the Oklahoma Legislature.
It could have been worse. If he’d been given a jail sentence, or even probation, he would have lost his right to vote.
1. Chambers, while driving drunk, had rear-ended the deceased man’s vehicle at a high rate of speed, killing him instantly and hospitalizing his wife, who was a passenger.
Originally published in This Land, Vol. 5, Issue 19, October 1, 2014.