It was, according to his critics, “hurtful,” “vindictive” and “unbefitting of the high office he holds.” But was House Speaker Dennis Bonnen’s June 12 meeting with conservative activist Michael Quinn Sullivan illegal?
In June, when Bonnen met with the hard-charging Tea Party activist, he asked Sullivan to stay out of, and get into, certain electoral battles — “help us out, and maybe kill off one or two or three [moderate Republican House lawmakers] that are never going to help” — and in return offered Sullivan media credentials for the news arm of his organization — “If we can make this work, I’ll put your guys on the floor next session.”
During that meeting — a recording of which was released to the public Tuesday — Bonnen seemed to blur the line between the official and the political. It prompted the Texas House General Investigating Committee, which has subpoena power, to request a probe by the state’s elite investigative unit, the Texas Rangers.
With that investigation ongoing and little word from Brazoria County District Attorney Jeri Yenne, who is expected to make the decision on whether to bring a criminal charge, there’s been ample room for speculation — which only escalated after the secret recording was made public Tuesday morning. In Capitol circles, the rule is generally: Don’t offer official tit for political tat. But whether the smudging of those boundaries constitutes criminal activity is a case-by-case consideration, a decision ultimately made by a prosecutor and, if it gets that far, a jury.
“With just the information we know at this time, it’s not clear that a crime was committed,” said Buck Wood, an Austin ethics lawyer who helped rewrite the state’s restrictions in the 1970s after a major political scandal. “But it’s also not clear that a crime wasn’t committed.”
Bonnen’s team, which continues to fight for its political future, has been eager to dismiss the other front of the war: the potential for criminal prosecution. An hour after the recording was released Tuesday, Bonnen in a statement called it “clear evidence … disproving allegations of criminal wrongdoing.”
That’s the line he’s been toeing since the allegations surfaced earlier this summer, when Bonnen retained Brian Roark, a criminal defense attorney in Austin. In an unsolicited eight-page memo sent Aug. 22 to Brian Weatherford, the Texas Rangers investigator heading up the probe, Roark argued that Bonnen had not committed any crimes. And Bonnen’s press secretary in August promoted an opinion piece by a prominent Austin ethics attorney arguing, “Hardball politics isn’t a crime.”
Sullivan himself said Tuesday he’s “never alleged Bonnen did anything criminal.”
“What we have said is that it was unethical,” Sullivan said. “I am not someone who can judge criminality — I’m not a judge, I’m not sitting on a jury.”
In an interview Tuesday, Roark insisted that what had transpired in the meeting was not a “quid pro quo” — but said even if it had been, “there’s a lot of things that are quid pro quos, and it turns out that a quid pro quo is just not illegal.”
“There’s no crime out there called ‘quid pro quo,’” Roark said.
There is, of course, a crime called “bribery.” But it’s not clear that the “understanding” Bonnen outlined in the meeting meets that definition, experts said.
To break Texas’ law against bribery, an elected official must offer or solicit a “benefit” — but the statute narrowly defines benefit as “pecuniary gain,” meaning a personal financial boon, experts said. During the meeting, Bonnen asked Sullivan to refrain from weighing in against fellow Republicans but did suggest that a handful of moderate GOP lawmakers, as well as some Democrats, would be helpful targets for Sullivan’s deep-pocketed political action committee to pursue.
“If we can make this work,” Bonnen said, he would offer long-sought House media credentials to employees of Texas Scorecard, the news arm of Empower Texans, which has floor access in the Texas Senate but has been denied passes to the lower chamber. But Bonnen was vague about how Sullivan might “pop” such opponents and did not ask for cash or mention specific dollar amounts. Some legal experts said that constitutes a gray area.
A media credential might indirectly help a news outlet make money — greater access could lead to speedier coverage and better scoops, helping the outlet attract greater readership, for example — but that may be too far a stretch to qualify under the bribery statute, said Sam Bassett, president of the Texas Criminal Defense Lawyers Association. Similarly, Bassett said, while saving money to defend Republicans in primary challenges might be a financial boon to the Texas GOP and even to Bonnen’s political action committee, Texas Leads, it’s not necessarily a personal financial gain.
Experts pointed out that prosecutors could also look to the state’s law against abuse of official capacity or its prohibition against extortion. But those statues are similarly narrow.
Importantly, the decision on whether to prosecute the case against Bonnen appears to rest with Yenne, a Republican in a district that has stayed loyal to the speaker for decades. She did not return a request for comment Tuesday. Prosecutors, as legal experts pointed out, routinely opt not to press crimes when they appear difficult to prove in court. Resources are also often a consideration.
Beyond the criminal path, there might be a civil case against the beleaguered speaker. Democrats were in court in Travis County on Tuesday pressing forward with their lawsuit arguing that Sullivan’s recording revealed serious violations of Texas campaign finance law. The party, along with state Rep. Ana-Maria Ramos, D-Richardson, sued Sullivan in August, demanding the release of the full recording of the meeting.
The lawsuit was also filed against an “unknown political committee” that the lawsuit said includes Bonnen and Burrows. But the two lawmakers are not named defendants. At the hearing, attorney Chad Dunn argued for the Democratic Party that the newly released recording confirms there was discussion in the Capitol about political spending and requested the release of more documents about the meeting.
He said if the judge orders the information released, the party will use those documents to decide if Bonnen and Burrows should also be named as defendants in the lawsuit.
Under Texas election law, a political contribution can’t be made or authorized inside the Capitol. A violation of the law could result in up to a year in jail and a $4,000 fine. In civil court, it could mean having to pay back targeted candidates or opposing PACs. Dunn said the recording contains “a whole lot of authorizing.”
“If we live in a state of laws, there’s not going to be private conversations with the speaker in the people’s Capitol authorizing illegal political contributions and expenditures,” he said.
Roark said in the August memo to the Texas Rangers that there was no political contribution authorized at the June meeting, so the law was not applicable in this case.
Bonnen’s most immediate concern may be political. In the hours since the recording was released, most House Republicans have stayed silent, and some Democrats have unleashed criticism. The Texas House GOP Caucus is set to meet later this week.
But like the political future of the speaker, the path ahead for the investigation remains uncertain. The Texas Rangers had told Roark that the investigation’s findings would be released this week, but that deadline may be a “moving target,” Roark said. House lawmakers have been asked to submit any materials related to the investigation to the Rangers by Thursday.
“There’s too many close-to-the-line things going on here, and I don’t know what a prosecutor would do with it,” Wood said.
But laughing a little, he added, “I certainly wouldn’t want to have to be defending it.”