It has come to this after six years of Barack Obama’s Chicago-style community-organizer governance: The hard Left no longer believes it necessary to pretend that the rule of law matters. It is politics as combat. The devolution can be measured from the trumped-up indictment of Tom DeLay to the trumped-up indictment of Rick Perry.
Back in 2005, the idea of exploiting prosecutorial power to criminalize one’s political opposition was still sufficiently noxious that Democrat apparatchiks in Austin understood the need for camouflage. Tom DeLay of Texas was among the GOP’s most effective leaders and fundraisers, having risen to congressional leadership not long after he helped Newt Gingrich lead the 1994 GOP takeover of the House. Democrats decided he had to be sidelined. They also knew they had the raw power to make it happen: a political operative ensconced as the chief prosecutor in a reliably Democratic county. In politics as combat, raw power is all you need – just cause has nothing to do with it.
But nine years ago, it was still unacceptable for the rub-out to look too much like a rub-out. It was not possible to charge DeLay with the non-crime of raising money for Republican candidates – his real offense as far as his adversaries were concerned. So he was indicted for a convoluted money-laundering scheme.
Money laundering is not, as we say in the law biz, a malum in se crime – an offense that is blatantly wrong, like murder or robbery. Money laundering, instead, is malum prohibitum. That is to say, it is an exercise in social engineering: behavior considered criminal only because society (or those who are running society) choose to regulate it narrowly. The details of such “crimes” make normal people’s eyes glaze over.
Some of us legal beagles pointed out, in DeLay’s defense, that his allegedly criminal money transfers did not qualify as money laundering because, at the time he touched the funds in question, they were not proceeds of illegal activity. But as the hard Left anticipated, the reaction to this solid but technical defense to a highly technical offense was a big, collective yawn. As far as the public was concerned, DeLay was charged with money laundering, just like a drug kingpin. He sounded like a terrible guy . . . and to draw a different conclusion would have required more time than most people had to grapple with the allegation and the facts.
That’s why the First Amendment carves out a special place for the media. It expects that journalists will do the grappling that the public doesn’t have time to do, exposing prosecutorial abuses. But when the ideological media collude with the party in power, the system doesn’t work. We don’t learn that, when you dig through the underbrush, an indictment is a transparent effort to obliterate political opposition. We just hear that Tom DeLay is a money launderer.
The case was finally tossed by the courts only after DeLay was forced to spend years and a fortune defending himself. That is just what the Left intended. The absence of a crime was irrelevant. In politics as combat, the process is the penalty: No conviction was required to end DeLay’s career and to serve as a cautionary admonition to others who would oppose the Left. All they needed was an indictment – and owning the Travis County prosecutor’s office in Austin gave them the power to get one. And mind you, nine years later, even after their case has been exposed as a fraud, Democrats are still trying to nail DeLay. It doesn’t matter if they get him or not; all that matters is that every Republican in Texas knows he’s a target.
Which brings us to Rick Perry. The Republican governor of Texas was indicted last week on two felony counts of . . . wait for it . . . acting as a chief executive and opposing Democrats.
Under Texas law, Perry has incontestable constitutional authority to veto legislation – he doesn’t need a reason. But in this instance, he had abundant reason. Quite apart from the pernicious, politicized law enforcement for which the Travis County district attorney’s office is notorious, Rosemary Lehmberg, the district attorney, was arrested last year for drunken driving. Though she is hardly fit to run a public corruption unit, Democrats in the Texas state legislature nevertheless pushed through a $7.5 million appropriation. Perry responded with an ultimatum: Either Lehmberg would tender her resignation, or he would veto the funds.
Mind you, if Perry had said nothing and simply vetoed the measure, no one would have a plausible objection. Instead, he reasonably explained his position and indicated that Austin could have the money if the compromised district attorney stepped down. But somehow, in the telling of Austin’s partisan prosecutors, such a veto is no longer a political exercise; it’s felony extortion for which Perry could be sentenced to decades in prison.
The Founders gave us a republican democracy which, at the federal and state levels, divides authority among the political branches and assumes – indeed, demands – that the branches flex the muscles they’ve been given to check each other’s excesses. The competition plays out at the ballot box, not in the courts – much less the criminal courts. Perry’s veto, to block funding for a prosecutor’s office with a checkered record and an unfit leader, is plainly what the founders contemplated: an exercise of legitimate political authority to rein in the excesses of a competing branch. Yet, the politicized Austin prosecutors depict it not as normal political give and take; they frame Perry as if he were a mafia don.
In essence, they have charged him with two counts of extortion for saying, “If you don’t do this, I will do that” – the routine threat that has been made in every political confrontation, every contract negotiation, every union-management tussle, every marriage, every jury deliberation, and every arm’s-length transaction in the history of human intercourse.
At this very moment, President Obama is threatening to grant amnesty to millions of illegal aliens if congressional Republicans do not accede to Democratic demands that the amnesty be codified by legislation. Unlike Perry, whose power to veto state spending is beyond dispute, Obama has no constitutional authority to decree an amnesty – what he is threatening is flatly illegal. Yet, while some (myself included) argue that a unilateral executive amnesty directive would be an impeachable offense – i.e., a breach of the president’s fiduciary duty to execute the laws faithfully – no sensible person claims he is committing actionable extortion. He is committing politics.
But of course, Obama is a left-wing Democrat. He gets a different set of rules: Alinsky’s Rules for Radicals which, when the press joins the radical side, become politics as combat.
Less than a decade ago, in DeLay’s time, the Left sensed that you couldn’t accuse an opposition politician of a crime without at least making it look like an actual crime. But now, the rules for radicals boil down to one: If the target is an effective conservative leader, especially one with presidential prospects, anything goes. Today, if a blue-blue state subdivision elects a lawyer-Left activist district attorney, a Republican governor can be indicted for the felony of . . . being a Republican governor.
A version of this piece previously appeared on National Review Online.