Just as I suspected -- and, to be honest, just as anyone with half a brain must have suspected -- the Texas Department of Public Safety's claim that federal regulations mandated its records destruction turns out to be laughably bogus.
As predicted, the law they're trying to hang this on is a rider that goes along with a certain kind of federal aid to state law enforcement. The regulation is intended to prevent law enforcement from compiling intelligence dossiers on people unless there is a "reasonable suspicion" that they are involved in criminal conduct.
The intent of such a regulation isn't hard to understand and seems quite well-reasoned. The federal government doesn't want to be subsidizing any state-level penny-ante J. Edgar Hoovers. But this, on it's face, seems altogether inapplicable to the current situation. And it's not just me saying so.
According to a late report in the Star-Telegram, a Stanford law professor agrees ...
Still, several legal scholars found trouble with the feds-made-us-do-it argument. William Gould, a law professor at Stanford University, said the code only applies to individuals engaging in criminal activity.The very destruction of the records, says another law prof quoted in the Star-Telegram, may have been a violation of federal regulations that require the preservation of records. And the Austin American-Statesman adds that the same federal guidelines also require state law enforcement agencies to "make assurances that there will be no harassment or interference with any lawful political activities as part of the intelligence operation" -- a requirement which at least arguably might apply here.
It says an agency shall "collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity ..."
In this case, the absconded Democrats did not break any laws, and they were not considered criminals, said Gould, who has expertise in both federal and state law.
"In order for the state laws to be overridden, there has to be relevance," Gould said. "I don't see that conflict here."
More to the point is Texas state law, a point Gould makes oblique reference to in the passage quoted above.
The DPS seemed to be relying on a demonstrably inapplicable federal regulation to override a demonstrably applicable state law. Texas state law, according to an expert quoted in the Star-Telegram, mandates the retention at least of all correspondence related to an investigation for at least three years. And the DPS's destruction order specifically requires the destruction of "correspondence."
And there's one more thing. The very federal regulation the DPS says forced it to destroy the records of investigations of non-criminal conduct also explicitly forbids the investigation of non-criminal conduct.
Now, clearly, the ridiculousness is flying pretty fast and furious here. So let's take a moment to review. The DPS appears to have violated Texas state law by destroying the records. To justify this, they point to a federal regulation which a legal expert says is plainly inapplicable. And the very regulation they're trying to hang their hat on seems to bar the original conduct itself.
So how does the DPS argue it's way out of this? Well, you can't say they aren't creative. According to DPS spokesman Tom Vinger, it was a criminal investigation. So they were entitled to conduct it. But only for a while! When they discovered that the legislators were out of state and couldn't be arrested, then it stopped being a criminal investigation. As Vinger told the Austin American-Statesman, "That's when this (federal code) kicked in, because clearly we had records now that were of a noncriminal variety."
This stuff pretty much defies editorial humor since it's difficult to find an analogy more ridiculous and bamboozliferous than the actual argument they're making. Texas Governor Rick Perry disagrees. His spokesperson says he accepts the DPS's explanation.
However that may be, it's hard to see how the DPS -- and probably some politicians giving them orders -- haven't stepped in it pretty deep. Whether some of that stickiness reaches back to the puppeteers in DC is another matter.