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?
Would Darren or someone – Please Retrieve – my vanished comment ….?
I think the root problem is that government employees have no accountability. When they do wrong, they cannot be fired. In this case, a DA had been convicted of a DUI and then behaved badly during her arrest. How will this affect her prosecution of DUI cases? But she was able to figuratively thumb her nose at anyone calling for a consequence for her actions.
If we’re going to indict politicians for threatening a veto, then every single governor and president ever would be indicted. It sounds like Gov Perry followed the law. He has not threatened everyone of opposing political views; he just used the powers available to him to remove a DA who broke the law. Because you know who abused their position? The DA, when she tried to use her authority to fight the booking in the video above. Why is that OK?
He was not using his congressional authority to obstruct justice; he was trying to get justice. Since she comes from a Liberal area of Austin, she will likely be replaced by another Liberal.
Why are government employees immune from the consequences of breaking the law?
Paul;
As I’m one living an actual saga of many courts/including Circuits, engaging in “Color of Law” deprivation of Civil Rights; providing me an individual case (even though you failed to “actually” cite it) – to prove a perverted point
is far from dispositive.
You simply ignore the well documented case I speak of, where 8 U.S. Attorneys were fired – for not “playing {corrupt} ball”.
An even worse case, is that of Rick Convertino, the AUSA who put away the first terrorists after 9/11. When he publicly spoke out about the abject failures of his boss (USAG Ashcroft); the venal powers that be actually released the terrorists in their bogus attempt to imprison Convertino. That prosecutor (Morford) is the one and same man who deported an exonerating witness (Okolo) and suborned Perjury by witness Detore (who confessed such before Congress {on CSPAN}) in the James Traficant case.
If not for the dedicated works of an American Patriot (Mo Hurley/Eliot Ness on web), we would have had a Craig Morford USAG after Gonzales.
We simply can’t have anyone in political office bartering to get another out. (Which is what the Governor of ILL. was convicted for).
Our nation suffers GREATLY from corruption (which is more norm – rather than exception). As I pointed {way up thread} and was joined by others, Governor Perry (and many others) needed to be prosecuted for the Willingham affair. This prosecution is long overdue and is a Capone-Tax Evasion type method of nailing a criminal mastermind. (A subject I’m well versed upon).
It is encouraging that such a step has been taken and it instills hope in me that such powerful (above the law) persons can actually face justice.
Here’s the link to 18 U.S.C. 242 “Color of Law” (a prosecutor’s tool that is almost never utilized – like RICO; but has razor sharp teeth in these instances.
http://www.law.cornell.edu/uscode/text/18/242
And – before you argue to the contrary – take a look at what the FBI stipulates about Civil Rights violations via “Color of Law” per Title 42 Section(s) 1997 and 14141;
Governor Perry should negotiate a resignation as a “No Contest” plea;
but will (instead) believe his above the law status will prevail.
Currently, the FBI is depriving me of my Civil Right to have them address the organized crimes within the U.S. Trustee program protecting the RICO violations of those I’m suing in “Haas v Romney”.
Corruption is as corruption does.
LaserDLiquidator, I retrieved your comment at 10:51.
Laser – US Attys serve at the will of the President. Janet Napolitano became US Atty in Arizona because Clinton became President and he wanted to pay off the firm of Lewis and Roca who are huge Democratic fund-raisers in Arizona. She was chief research attorney for the firm.
Keith
Gotta disagree with Turley. Of course it was the threat of the veto that makes this a crime. That makes perfect sense. Think about it in terms of leaving feedback on ebay. I am perfectly allowed to leave negative feedback for a transaction I’m not happy with. But I am NOT allowed to threaten a Seller with negative feedback, unless he gives me a refund. That is called Feedback Manipulation and is against the rules. What Rick Perry did was the legal equivalent of Feedback Manipulation. If he wanted to do the veto, he should have done it without the threat. Perry is guilty and should go to prison for 20-25 years.
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What about the other charge?
A lawyer has to deal with the facts and law in each count separately.
Bailers
Dredd,
You are quite literally the only person I have seen argue that Count 1 is not related to the veto.
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That I am the only one on a thread that sees them as being different is surely not a coherent argument against what the two different texts of the two different counts and the two different texts of the two different statutes say.
Show me anywhere in the text of Count I that “veto” is mentioned.
I have shown you where it is mentioned in Count II.
I have shown you it is not mentioned in Count I.
Two separate and distinct statutes are used in each count.
The two charges are utterly unrelated in the sense that Count II has to do with a line item veto ($7 million dollars), while Count I has to do with misappropriation of government property ($200,000) already in Perry’s possession or control.
I await your argument that $200,000 is the same as $7,000,000 and that “misappropriation of funds” without coercion is the same as “coercion … by veto.”
Gotta disagree with Turley. Of course it was the threat of the veto that makes this a crime. That makes perfect sense. Think about it in terms of leaving feedback on ebay. I am perfectly allowed to leave negative feedback for a transaction I’m not happy with. But I am NOT allowed to threaten a Seller with negative feedback, unless he gives me a refund. That is called Feedback Manipulation and is against the rules. What Rick Perry did was the legal equivalent of Feedback Manipulation. If he wanted to do the veto, he should have done it without the threat. Perry is guilty and should go to prison for 20-25 years.
Bailers – that is because literally Dredd is OCD.
Dredd,
You are quite literally the only person I have seen argue that Count 1 is not related to the veto.
Paul C. Schulte
… I am not a lawyer and I could beat Count I in court.
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Paul C. Schulte
… since the state is picking up the tab, I would get the best money could buy. No sense taking a chance.
…
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That is intellectually dishonest on its face.
You would soil yourself and could not beat your way out of a wet paper bag in such premises.
Hence the walking back your false assertions.
Nice try.
Paul C. Schulte
Dredd – since the state is picking up the tab, I would get the best money could buy. No sense taking a chance. However, his hiring an attorney has nothing to do with your intellectual dishonesty.
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Correct, it is all about your BSd in intellectual dishonesty.
Dredd – I actually got parking tickets overturned in the entire state of Arizona. Had to do it on appeal, but I got it done. They had to redesign the way they give parking tickets.
I could do it, but if I could have someone else pay for a top flight attorney, I would jump at the chance.
“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.” – JT
Count I has nothing to do with any line item veto of anything.
Count II of the indictment is the only count that mentions the threat of veto and the subsequent line item veto:
(Count II)
Paul;
Your remark that “President’s threaten to veto all the time” is disingenuous.
Governor Perry personally desired that the person resign;
and threatened to yank funding if “that” person didn’t do so.
The person in question is an elected official who was brought to justice; and paid the proper penalty for her civil disobedience.
Can we have any Governor – next week – engage a task force to go after “certain” elected (or even appointed officials); because their opinion is that particular person is not fit for the position?
Doesn’t anyone here remember Karl Rove/Gonzales firing of 8 USAs; all of who were REFUSING to utilize their office as a political hatchet?
Laser – as I said waaaaaay upthread, we had an issue like this in Arizona many years ago and the official was convicted but the appeals courts eventually said threats were just part of politics. Sadly, he had already served his sentence by that time.
Janet Napolitano pressured people on the Landmarks committee to quit so she could get a new name for Squaw Peak. Was that illegal? Under this view of the law, yes.
You are a BSd.
Paul C. Schulte
Dredd – you are intellectually dishonest because you continually twist what everyone says. Dude, no one said you cited it wrong, just that it was all ready handled by Turley. Civics is not your strong suit is it? I am not a lawyer and I could beat Count I in court.
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That is a misrepresentation of this thread.
So now you are immune from a criminal charge of misappropriating funds, a felony, because you are not a lawyer so you can win by your criminal defense savvy?
But Perry hired a top gun defense lawyer … why … he is not as caperable as you the caper meister?
You should have called him and coached him then reported anecdotally as much of the text of the conversation as you could.
So we could all grasp your astute repute.
Dredd – since the state is picking up the tab, I would get the best money could buy. No sense taking a chance. However, his hiring an attorney has nothing to do with your intellectual dishonesty.
Gov. Perry has previously announced that he will not run for reelection, and will leave office soon, in January.
To those who say that a prosecution for misappropriating funds is “politically motivated” (even though the special prosecutor and judge are republicans) what do the republican judge and republican prosecutor gain politically by indicting him?
Paul C. Schulte
Dredd – you sleep through grade school civics class didn’t you? I cannot believe you do not know this stuff. My 7th grade grand-nephew knows more about state government than you do.
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Paul C. Schulte
Dredd – I do not care who you cite. Your material is so fuzzy I would not trust it. And another ad hominem attack to make my day. You never disappoint.
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Paul C. Schulte
Dredd – quit citing your own stuff. It is bad form.
You have no concept of civics do you? If one legalizes something, i.e., torture, it cannot be criminal, therefore there is nothing to apologize for.
Ninety-Eight percent of reason is subconscious, 2% conscious.
Got anything to back this up? Are you speaking for everyone or just yourself?
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So why did you ask for a cite?
You make everything up as you go.
And what you make up is nonsense.
Dershowitz advocates torture and should not be used in place of the actual text of Count I.
Your not posting the text shows that I correctly posted it to wit:
The charge is that Gov. Perry “intentionally or knowingly misused government property by dealing with such property contrary ot an agreement under which defendant [Perry] held such property or contrary ot the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into defendant’s [Perry’s] custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.”
(Indictment, Count I).
Paul C. Schulte
Dredd – you are intellectually dishonest by trying to say we have not dealt with Count I. We have, you just do not like our answer.
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Bunk.
I said you will not post the text you allege is in Count I to show that I did not copy it correctly.
Crickets.
You can’t deal with the text unless you show the text you are talking about as I did.
You can’t handle the truth about what the text actually says, so you use deception to infer that it says something else without displaying the text you allege is written in Count I.
Your fear is not good for you or anyone else.
Dredd – you are intellectually dishonest because you continually twist what everyone says. Dude, no one said you cited it wrong, just that it was all ready handled by Turley. Civics is not your strong suit is it? I am not a lawyer and I could beat Count I in court.
Dredd – I do not care who you cite. Your material is so fuzzy I would not trust it. And another ad hominem attack to make my day. You never disappoint.
Paul C. Schulte
Dredd – quit citing your own stuff. It is bad form.
You have no concept of civics do you? If one legalizes something, i.e., torture, it cannot be criminal, therefore there is nothing to apologize for.
Ninety-Eight percent of reason is subconscious, 2% conscious.
Got anything to back this up? Are you speaking for everyone or just yourself?
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The link provided in my comment which quotes a Professor who teaches “brain science.”
There are no quotes of holy-roller ministers to satisfy your belief that religion is the one true science.
So, move along to another attempt at deception.
Paul C. Schulte
Dredd – your correction of what was still an ad hominem attack does not make it any better.
And I think we ALL (expect you and the Democrats in Texas) agree that Turley dealt with count 1 very well.
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Bailers
I did, but you ignored it. You are reading count one incorrectly.
You are also ignoring that a Governor’s office never has custody of of funds appropriated for another office outside their control. What the indictment is saying is impossible in the world of government finance. If your reading was correct, it would be the State Treasurer, not the governor, who would likely be charged.
Government finance – Legislature appropriates through spending bill, governor veto or approval follows. Money then goes from state treasury to department. Not to the Governor personally. The indictment would only work if Perry had a check shoved into the bottom of his desk and refused to turn it over.
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It is not my reading of it you are ignoring.
You are ignoring the text itself … a matter of writing not reading.
What the text says is the beginning of a reasonable person’s discussion of any text.
If your biases won’t let you read what the text of Count I of the indictment says, then you certainly can’t be reasonable about what it means.
Are you saying I did not copy what it says.
If so, provide the correct text of Count I or stop being intellectually dishonest.
Dredd – you are intellectually dishonest by trying to say we have not dealt with Count I. We have, you just do not like our answer.