Late yesterday, Texas Gov. Rick Perry was indicted by a grand jury in Austin on charges of abuse of power. The charges stem from Perry carrying out a threat to veto funding the budget for the Travis County Public Integrity Unit, which handles political corruption investigations.
District Attorney Rosemary Lehmberg had been arrested for drunk driving and was widely criticized for her conduct while in custody. She refused to resign even after been sentenced to jail and Perry carried out his threat. I have been critical of Perry in the past and I believe that his veto was wrongheaded. However, I view the indictment as very troubling on a separation of powers basis and the result of the extension of criminal provisions with tangential applicability to this type of dispute.
This controversy began with the arrest of Lehmberg. Here are the videos from the arrest to booking to holding. Police say that she had to be restrained (the mask was put on her allegedly to protect her identity):
She eventually pleaded guilty and received a 45-day jail sentence under the plea agreement. She served half of that time before being released and then she resumed her work in office.
Perry (and, in fairness, various state groups) called for her to resign. Lehmberg refused. The conflict had, at the outset, obvious political dimensions. Lehmberg is located in the very liberal and very Democratic city of Austin. The governor hails from an extremely conservative part of the state and Lehmberg is one of the few Democratic officials in a major position in the state.
Perry ratcheted up the conflict by giving Lehmberg an ultimatum to resign or he would veto the budget for the office. When the budget came through, he made good on the threat and cut $7.5 million in funding for the Travis County Public Integrity Unit.
Perry was then made the subject of a complaint filed by Texans for Public Justice, a liberal watchdog group. That led to San Antonio lawyer Michael McCrum being appointed the special prosecutor and investigating the matter for months with numerous witnesses called before a grand jury.
The indictment (which can be seen here) is based on two state provisions.
The first (§ 39.02. ABUSE OF OFFICIAL CAPACITY) is a statute prohibiting public servants from “intentionally or knowingly . . . misus[ing] government property, services, personnel, or any other thing of value belonging to the government that has come into the public servant’s custody or possession by virtue of the public servant’s office or employment.” That statute is extraordinarily vague and ambiguous. It is also not clearly intended for this type of conflict where a governor uses his right to veto a budgetary provision, even if his motives are viewed as an effort to replace one of the last Democrats holding a statewide office.
The second (Section 36.03: COERCION OF PUBLIC SERVANT OR VOTER) law criminalizes the use of coercion to “influence[] or attempt[] to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influence[] or attempt[] to influence a public servant to violate the public servant’s known legal duty.” Once again, the use of this provision is highly problematic in this circumstance. The “specific exercise of his official power or . . . specific performance” in this case would be the resignation from office. That is not likely the intent or purpose of this law. Perry made this threat publicly and openly. He was using (in my view unwisely) the threat of a budget cut to deal with someone that he viewed as a disgrace to her office.
From what I can see, these provisions are rarely used and prosecutors have waited for the strongest possible grounds for such charges. Indeed, such laws are written broadly in reliance on prosecutorial discretion. In this case, the special prosecutor seemed to pound hard to get these square facts into these round holes. A bit too hard for such a case.
Article 4, Section 14 of the Texas Constitution states:
Sec. 14. APPROVAL OR DISAPPROVAL OF BILLS; RETURN AND RECONSIDERATION; FAILURE TO RETURN; DISAPPROVAL OF ITEMS OF APPROPRIATION. Every bill which shall have passed both houses of the Legislature shall be presented to the Governor for his approval. . . . If any bill presented to the Governor contains several items of appropriation he may object to one or more of such items, and approve the other portion of the bill. In such case he shall append to the bill, at the time of signing it, a statement of the items to which he objects, and no item so objected to shall take effect. If the Legislature be in session, he shall transmit to the House in which the bill originated a copy of such statement and the items objected to shall be separately considered. If, on reconsideration, one or more of such items be approved by two-thirds of the members present of each House, the same shall be part of the law, notwithstanding the objections of the Governor.
That is precisely what he did. However, it appears to be the fact that Perry made the threat before the veto that is the basis for the charges. Had he simply vetoed the budget, he presumably could not be accused for coercion since there was no threat. It is the fact that he used the threat of a veto that is being cited as the basis for the charges. If you look at the indictment, the entire office of Lehmberg is being treated as property worth “more than $200,000” and treated as misused given Perry’s oath as governor. The indictment is very short and sheds little light on how or where to draw the line for criminal as opposed to political actions. The case has some disturbing similarities to the trial of Democratic Governor Rod Blagojevich who was given a 14-year sentence in a case that I viewed as questionable. It is a cautionary tale for Perry. Blagojevich was hurt by witness testimony and recordings with vulgar and raw exchanges between politicians. It reaffirmed the view of many of politicians are distrustful and a bit sleazy. However, I felt the indictment of Blagojevich dangerously blurred the line between the political and the criminal realms.
In fairness to the prosecutor, we have not seen the evidence, including witness testimony. This includes testimony from the state senator who first went with the message to resign to Lehmberg. That type of testimony can color a case and distract from what may seem abstract arguments based on inherent executive authority. Yet, I view this type of dispute is more appropriately a matter for an impeachment rather than an indictment controversy. I would have serious qualms about an impeachment on this basis alone, but that would be a more obvious route than a criminal charge. Putting aside the partisan passions on both sides, the jailing of a top prosecutor raises a legitimate question of her competence to continue in office. Perry decided to use the one means that he could to try to push her to resign. I think he was wrong given the public integrity role of the office and jurisdiction over state officials like Perry himself. Perry had every right to call for her resignation but to threaten to effectively kill the office was unwise. Yet, none of this supports the indictment in my view. This was not an effort by Perry to coerce a favor for a friend or force an official to drop an investigation. It was not a secret communication made between politicians. It was a public commitment made in response to a public scandal.
I recognize that the threat can be viewed as seeking to force Lehmberg to take an official action — i.e., her resignation — however that seems materially different from what the law was primarily designed to achieve. In the very least, this would seem an area for prosecutorial discretion that the charge in this individual case does not advance the purposes of the provision. As for the first charge, I view it as hopelessly ambiguous and facially unsuitable in this case.
There are significant constitutional concerns raised by this type of indictment. Perry is essentially being indicted for his use of constitutional power to veto an appropriations item. Most people seem to recognize that he could have done this if he had not threatened to do it in advance. That seems to be the determinative factor: that he announced what he would do in advance if Lehmberg did not resign. That does not make for a particularly compelling criminal charge.
In fairness to McCrum, one could foresee such an effort that was based on trumped up charges or no charges at all. If a governor were to announce that an official from an opposing party would have to resign or face defunding of the office, it would present a far more serious issue. From McCrum’s perspective, the difference between that circumstance and the current controversy is dangerously subjective. Perry gave an official a ultimatum: resign or face defunding. Once again, however, that sounds like an impeachment rather than an indictment question. The Constitution gives the Governor the right to strike out an appropriations item and the right of the legislature to overcome that veto. What if a governor objected to an office being used to investigate and prosecute particularly areas of business or society? So long as governors are not engaging in obstruction of justice or seeking to influence a particular case, there is clearly authority to seek defunding of state programs or offices through the budget process. This was not an executive order but an executive veto that is part of the legislative and appropriations process. (Even with what I consider to be executive orders that violate the U.S. Constitution, I still do not believe that they have risen to the point to warrant impeachment)
The U.S. Congress recently took such a step over an official who was denounced by conservatives as an advocate for undocumented persons. Congress passed a bill containing a bar on the use of federal funds to support the work of the “Public Advocate” at the Immigration and Customs Enforcement (ICE). The ban on funding of the controversial positions passed both houses and was signed into law by President Obama. The Department of Homeland Security Appropriations Act of 2013 stated clearly that “None of the funds made available by this Act may be used to provide funding for the position for the position of Public Advocate within U.S. Immigration and Customs Enforcement.” However, the Administration simply gave the same official a new title and continued the same work, unimpeded by the congressional action. There is now an effort to again seek to defund the entire office.
Governors and presidents routinely seek to defund or cut the funding of offices that they view as unnecessary or abusive. It becomes a matter of legislative and executive debate. Ironically, the greatest concern in Perry’s action would be the effective nullification of the underlying laws enforcing public integrity. However, the legislature can cut such budgets and, under the Texas Constitution, governors are allowed to do so as well (while subject to a veto override). Nullification controversies (like the one involving President Obama in areas like immigration) arise when agencies retain both the authority and budgets to enforce the laws. These are difficult questions to be sure but this dispute occurred in the context of the legislative-executive budgetary process.
In the end, I have great reservations over the use of a criminal indictment in a case of this kind. In the very least, this should have been a matter for the use of prosecutorial discretion in declining a criminal case given the vague or inapposite character of the underlying provisions.
What do you think?
Maybe one of you legal artists can explain why withholding IRS tax credits for the “non-state” ACA exchange enrollees or the individual mandate are not coercion but Perry’s actions are?
John
Perry VETOED, therefore he had the power to veto.
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He also did not VETO, therefore he had the power not to veto.
Pull up your pants now and move on.
Perry VETOED, therefore he had the power to veto.
Perry informed and suggested.
There are consequences to being convicted of a felony.
Political reality may intimidate, the bearer of bad news does not.
Case dismissed.
Charges filed: Egregious abuse of power by Travis County DA and Grand Jury.
Squeeky Fromm, Girl Reporter
@dredd
I don’t give a flip whether you “like” Dershowitz or not. If you think he is wrong on this, then say so, don’t just skirt around the issue by dissing Dershowitz. So, here is a direct question for you.
Do you think that criminalizing uses of executive power, such as the instant example of Perry, is a good thing, or a bad thing?
Squeeky Fromm
Girl Reporter
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Dershowitz and Perry are cut from the same cloth.
Their concept of justice and the constitution is based on partisan wrong-wing culture.
Fully explained up-thread in comment after comment.
Dredd – Alan Dershowitz has forgotten more about Constitutional Law than you will every learn if you live to be 100. Painting with a broad brush there to put Dershowitz and Perry together.
Bailers
Dredd, money appropriated by the legislature are never in possession of the Governor. But since you asked:
Count 1 of the indictment lists the harm as occurring on or about June 14, 2013. From a press release from the Governor’s office dated June 14, 2013:
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Like I wrote upthread, quoting the indicment text, not the news media, it says:
Go figure.
@dredd
I don’t give a flip whether you “like” Dershowitz or not. If you think he is wrong on this, then say so, don’t just skirt around the issue by dissing Dershowitz. So, here is a direct question for you.
Do you think that criminalizing uses of executive power, such as the instant example of Perry, is a good thing, or a bad thing?
Squeeky Fromm
Girl Reporter
Can’t say whether impeachment or indictment is warranted. However, Turley apparently has ignored a salient fact worthy of consideration. Regardless of her DWI conviction, Lehmberg does not work for Perry, but is an elected official in Travis County. Perry, or any Texas governor, does not have any legitimate or constitutional right to fire Lehmberg, or any other elected official, from her job. Clearly his threats to withhold funding were a form of coersion to remove Lehmberg from office, where Perry otherwise did not legally have that power. Therefore, it appears Perry has attempted to unlawfully coerce or force Lehmberg to resign under threat of withholding funding. Perry’s alleged crime occurred even before the veto was ever executed and attempts to cloud the issue by focusing on the veto itself miss the point of the indictment completely. This attempt at coercion by Perry and threat is the subject of the indictment and we shall see how the courts handle that.
Texas Governor Perry had the power to VETO and to inform any and all of his intent to veto. Clearly, criminals convicted of DUI should not hold positions of public trust and a request to resign would be submitted by all elected officials at all levels and must be considered standard policy and protocol.
Perry should declare Marshall Law and incarcerate the DA and Grand Jury for abuse of power and perpetrating an egregious perversion and travesty of justice. Marshall Law may be declared in response to an “act of God” which this usurpation by the radical democrat party is. Exercising his power under Marshall Law, Perry should declare this indictment a criminal act and null, void and entirely without force.
Further, a Special Prosecutor should be enacted by Congress to investigate a conspiracy to falsely incriminate Governor Perry involving Travis County, the Justice Department and the White House.
This usurpation of power is not tenable.
This preposterous act will NOT stand.
Dredd, money appropriated by the legislature are never in possession of the Governor. But since you asked:
Count 1 of the indictment lists the harm as occurring on or about June 14, 2013. From a press release from the Governor’s office dated June 14, 2013:
Article IV – The Judiciary
Judiciary Section, Comptroller’s Department
D.1.4 Strategy: PUBLIC INTEGRITY UNIT, $3,742,829 $3,830,597
TRAVIS CO & UB
Public Integrity Unit, 53rd Judicial District.
Despite the otherwise good work the Public Integrity Unit’s employees, I cannot in good conscience support continued State funding for an office with statewide jurisdiction at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence. This unit is in no other way held accountable to state taxpayers, except through the State budgetary process. I therefore object to and disapprove of this appropriation.
http://governor.state.tx.us/news/veto/18674/
John, I like your contribution since it shows the ignorance and stupidity of those who are defending Perry. First off, I see that you have no problem with supporting and voting for W Bush and Cheney who are TWICE convicted DIUs which in some states makes them felons. Then my GOP Congresscritter, Brady, was arrested for a DUI, and was re-elected despite this. Of course we all understand that you mean this rule should only apply to those you hate.
Then I get a laugh out of your use of MARSHALL LAW. The correct term is martial law. I know of no provision in the US Constitution which allows the Governor or President to declare martial law except in cases of invasion or civil insurrection. Maybe you could show me where in the Texas Constitution the Guv can declare himself dictator, which is exactly what you and the other supporters of Perry would like to see.
Then you do not know that it was a GOP judge and a GOP special prosecutor who came up with the indictment, NOT the Travis County DA. I think you need to demand that these people be expelled and jailed by the GOP for treason to your party. Maybe you can convince them to have them shot too. Stalin and Hitler would be proud of you.
randyjet – a riot is an insurrection.
Squeeky Fromm, Girl Reporter
@dredd
Prof. Turley adequately disposed of Count I, above. I saw no reason to supplement his response, which was:
“That statute is extraordinarily vague and ambiguous. It is also not clearly intended for this type of conflict where a governor uses his right to veto a budgetary provision, even if his motives are viewed as an effort to replace one of the last Democrats holding a statewide office.”
Also, your Dershowitz Response is rather puerile. The “I dismiss X as a source, because he/she/it once said “fill in the blank” is sophomoric and laughable. Like Dershowitz, or not, he has paid his dues, and should be given some credit for opinion. If you disagree with his conclusion, then you should say so. If, in opposition, you believe the following:
This idea of an indictment is NOT an extremely dangerous trend in America, whether directed at [former House Majority Leader] Tom DeLay or [former President] Bill Clinton.
then just say so.
Squeeky Fromm
Girl Reporter
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Ok, ok.
Without addressing your apologetic and diversion away from his diseased mind in general, let me say: Dershowitz is wrong on the Gov. Perry Indictment.
It is Texas statutory law, not federal constitutional law that applies here..
P.S. At this time he also really, really sucks at 4th, 5th, 6th, and 7th Amendment U.S. Constitutional law (Why Trial By Jury?).
Bailers
Dredd,
“It has nothing to do with a line item veto.
The first count of the two count indictment is his illegal use of funds that had not been vetoed.”
I have seen no one else claim that count one is unrelated to the line item veto. Count one is related to the actual veto. Count two is for the threat to do so. I don’t know where you are getting the information otherwise.
Count one is claiming that since the legislature appropriated in excess of $200,000, and the governor vetoed it, he “stole” it. A very difficult claim to make in light of the legal line item power, and that the governor hardly had control over the money.
I really, really don’t understand how you are reading that to say the governor took money from a previous budget, and spent it on something else. And that the veto is completely unrelated. Because that’s not what the indictment says at all.
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The line item veto of the department’s budget was over $7,000,000 …
Count one mentions $200,000 of government property, money.
The $200,000 was in his possession and control, therefore not vetoed or it would not exist.
A line item veto of a budget item means that the money is not appropriated, thus non-existent, and therefore not in anyone’s possession.
Squeeky Fromm, Girl Reporter
@dredd
Prof. Turley adequately disposed of Count I, above. I saw no reason to supplement his response, which was:
“That statute is extraordinarily vague and ambiguous. It is also not clearly intended for this type of conflict where a governor uses his right to veto a budgetary provision, even if his motives are viewed as an effort to replace one of the last Democrats holding a statewide office.”
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Show me where Count I has anything to do with a line item veto.
Count one sets the date of offense as June 14, 2013.
Lehmberg’s arrest was on April 12, 2013.
It says he redirected funds that had been appropriated and were in his possession and control, but were for The Public Integrity department of the county.
If it involved a line item veto there would be no money appropriated, so perhaps we need to take another look at that one.
Any guesses?
Annie, I have often wondered that.
Dredd,
“It has nothing to do with a line item veto.
The first count of the two count indictment is his illegal use of funds that had not been vetoed.”
I have seen no one else claim that count one is unrelated to the line item veto. Count one is related to the actual veto. Count two is for the threat to do so. I don’t know where you are getting the information otherwise.
Count one is claiming that since the legislature appropriated in excess of $200,000, and the governor vetoed it, he “stole” it. A very difficult claim to make in light of the legal line item power, and that the governor hardly had control over the money.
I really, really don’t understand how you are reading that to say the governor took money from a previous budget, and spent it on something else. And that the veto is completely unrelated. Because that’s not what the indictment says at all.
Leej, I agree with you on Dershowitz. What the heck happened to him?
Newsmax is right wing biased (Why Dershowitz writes for them loses him credibility points in my mind)
and he advocates for torture:
“Moreover the rights of the suspect would be better protected with a warrant requirement. He would be granted immunity, told that he was now compelled to testify, threatened with imprisonment if he refuses to do so and given the option of providing the requested information. Only if he refused to do what he was legally compelled to do – – provide necessary information which could not incriminate him because of the immunity – – would he be threatened with torture. Knowing that such a threat was authorized by the law, he might well provide the information. IF HE STILL RUFUSED TO, HE WOULD BE SUBJECTED TO JUDICAILLY MONITORED PHYSICAL MEASURES DESIGNED TO CAUSE EXCRUCIATING PAIN WITHOUT LEAVING ANY LASTING DAMAGE (caps mine) A sterilized needle underneath the nail might be one such approved method. This may sound brutal, but it does not compare in brutality with the prospect of thousands of preventable deaths at the hands of fellow terrorists. ”
Ah yes cause excruciating pain but leave no lasting damage. Obviously he luckily has never experienced excruciating pain. I have, and continue to, and even though a major part of the pain has been resolved I fear every day, 16 years after it stopped, that it will come back. It may have been someone else causing the pain but it never leaves you. (I know a victim of spousal abuse torture (her doctors called it such) She has had bad psychiatric problems ever since.
Dershowitz used to be a trustworthy go to guy. Now, not so much
@dredd
Prof. Turley adequately disposed of Count I, above. I saw no reason to supplement his response, which was:
“That statute is extraordinarily vague and ambiguous. It is also not clearly intended for this type of conflict where a governor uses his right to veto a budgetary provision, even if his motives are viewed as an effort to replace one of the last Democrats holding a statewide office.”
Also, your Dershowitz Response is rather puerile. The “I dismiss X as a source, because he/she/it once said “fill in the blank” is sophomoric and laughable. Like Dershowitz, or not, he has paid his dues, and should be given some credit for opinion. If you disagree with his conclusion, then you should say so. If, in opposition, you believe the following:
This idea of an indictment is NOT an extremely dangerous trend in America, whether directed at [former House Majority Leader] Tom DeLay or [former President] Bill Clinton.
then just say so.
Squeeky Fromm
Girl Reporter
Alan Dershowitz wrote an essay advocating that U.S. courts should give torture warrants that allow police to torture suspects.
His constitutional wisdom soured, rotted, and then puked on us.
Squeeky Fromm, Girl Reporter
@dredd
I have given you two examples, and an Irish Poem, of how the law could be logically misread, and how any INTELLIGENT reading of the law requires an examination into both the object and means. You persist in reading coercion in the “cosmic” sense.
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You have not addressed Count I.
Count II is the only one where coercion is part of the statute.
You be a cosmic comic.
And really full of it.
Squeeky Fromm, Girl Reporter
… Since a weekend blogger was nice enough to do an article about prior alleged bad police acts in Ferguson, Mo., could a weekend blogger here do a similar article about the indictments against Kay Bailey Hutchinson and Tom DeLay???
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Suffice it to say that a jury of DeLay’s peers convicted him of crimes.
Judges subordinate to his ideology (activist conservative judges) un-convicted him by saying the jury was not as savvy as them.
Activist judges trump juries some times, singing “We don’t need no stinkin’ juries.”