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?
randyjet:
Our discussion about arming pilots reminded me of this recent news story:
http://www.foxnews.com/us/2014/08/17/florida-homeowners-child-survive-shootout-with-intruder/?intcmp=latestnews
Someone broke into a house at night, and the 50 year old homeowners was beaten with a blunt object. He and his wife retrieved their guns and they both shot the intruder. Luckily, a child sleeping in the house was unharmed. At least they didn’t have to just sit there and be murdered.
I know we disagree in some areas, but not the 2nd Amendment. 🙂
Dredd – according to your definition, vetoes are illegal and will land every politician in jail.
How is exercising the constitutional right to veto “misusing government property?” He had cause to want her to resign.
LaserDLiquidator
Texas $39.02 stipulates that the “Abuse of Office” goes from Misdemeanor to 1st Degree felony when;
(7) a felony of the first degree if the value of the
use of the thing misused is $200,000 or more.
=================================
That addressed the sentencing phase.
First comes the indictment, arraignment, and trial phase which are addressed by:
“(a) A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly:
(1) violates a law relating to the public servant’s office or employment; or
(2) misuses 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.” (Texas Statutes – Section 39.02: ABUSE OF OFFICIAL CAPACITY).
Ink stating that $7,000,000 is appropriated for a certain state department on a budget bill delivered to the Governor is not “government property.”
It has to first be appropriated and funded to be property (money, funds).
If Count I is claiming that proposed funding in a budget line is “government property” in the “custody or possession” of any government official before that bill is signed into law, then that charge is invalid IMO.
Vetoing the bill is not doing anything to “government property” because the veto stops it from becoming property.
Vetoing it is simply a proposal that has not been realized yet.
Count I does not mention the veto.
If it relates to the veto, then it is not a valid charge IMO.
Count II specifically says the veto was used to realize a threat that was being used to coerce another official’s activity.
That is a valid charge so long as the threat is proven and the purpose of the threat was toward an improper action.
Lee:
“RD give me money or I will shoot you, Hire me or I will publish those photos you want hidden, resign or I will veto the budget. They sound similar to me,.”
Well, no. One threatens murder. One threatens blackmail. And the resignation was for CAUSE when someone refused to do the right thing.
randyjet:
“After 9/11 I was part of the Airline Pilots Security Alliance which was formed to arm pilots at the airlines. We finally got legislation passed to that effect, but made an error in not specifying HOW to do that. We left it up to the TSA which was a major mistake. The first head of the TSA told our people that we may have gotten the bill passed, but that they would make DAMN sure no pilot would ever want to apply.. They effectively gutted the bill by obstruction and making absurd requirements. That was how W Bush destroyed the bill he did not like or want. I guess that was OK for the Republicans here.”
I think arming pilots is an excellent idea. What is the TSA afraid of? They ALREAY FLY THE PLANE! Plus many pilots come from the military.
You stated that the TSA destroyed the bill, but then you blamed Bush. Why do you blame Bush for what the TSA did?
I’ve posted before that the TSA is a waste. They’re terribly run, and they fail almost every time they’re tested for detecting security threats. I’d rather they rotate the military through on short tours. We’re already paying them anyway, they’re highly trained, and short tours in airports will prevent brain fog. I’d also like to learn how they do it in Israel. When you’re surrounded by countries that chant for your death every morning, you get pretty good at security, and pretty much don’t care about PC. I’ve read that some of their methods involve detecting guilty mannerisms, regardless of ethnicity.
Many airports I’ve flown through have armed soldiers.
Karen, the reason I blame Bush is that he appointed the head of the TSA who was his Secret Service detail man and he and Bush hated the idea of pilots being armed. We had a common sense and cheap approach that any pilot who had military or law enforcement background could be armed immediately, and have six months to get trained by authorized agencies for certification. We proposed that pilots buy their weapons from the government who would decide which ones would be acceptable. There was another proposal to have pilots who had magnetic badges have their ID number encoded on their airline badges and put in scanners like even hot dogs stands have to take plastic credit cards. That way, pilots would not have to submit to the strip searches I had to go through every day at work. But of course, common sense was secondary to this project and they preferred making pilots a propaganda tool for themselves to show Bush was doing something.
I was outraged at ALPA for not blasting Bush when he said he did not much care what happened to Bin Laden. That alone should have resulted in his defeat, but he got re-elected any way.
Lee:
“RDBrewer there is a threat to veto, which is the right of the Pres and governor, and there is the threat to veto unless you do something I want you to do that is not a part of the bill, or the vote and veto process. That is called blackmail”
According to your definition, Obama used blackmail when he threatened to veto any House funding bill that would fund the National Institute of Health during the government shutdown so that sick kids would be able to get care. He also threatened to veto any funding bill that did not fund Obamacare. He abused his office to get Conservatives to do his bidding, completely against the constitution and the separation of powers.
So, to be fair, you must agree that Obama should be getting a mug shot right now, too. Otherwise, it’s “one way for thee, another for me.”
Of course, Perry was not trying to influence another government official to abuse their power, he was trying to prevent it.
The Texas AG – in 2006 – put out a warning list to public officials. It states (of Section 39 “Abuse of Office”) that;
https://www.texasattorneygeneral.gov/AG_Publications/pdfs/2006trapshb.pdf
Darren:
“The justice system should not be a political tool.”
So true – for every party.
Is it not an abuse of power for a Liberal group to indict a conservative on purely political grounds? Because he clearly used his constitutional authority.
Sounds like political blackmail to me. The threat of criminal action for using a veto is pure politics.
It sounds like Liberals think a DA can try to abuse her position with absolute impunity. It’s political abuse of the court system. It took 2 grand juries to indict him.
Given what I saw in the video of the DA’s abuse of power, it makes we wonder if she had a similar attitude in her office to investigate public corruption. If Liberals would threaten a conservative with criminal action for purely political reasons, would they operate the same in an investigative office into pubic corruption?
The public corruption unit is still operating under county funding. It is my understanding that the Cancer Research fund was one of Perry’s initiatives, and that an official is under investigation for the handling of a grant. I have not heard of any evidence that Perry himself was in any trouble.
I can tell you that fraud in grants is rife in the government. In fact, every public grant program should probably be investigated, or have oversight, to avoid fraud and waste. There’s just something about spending “other people’s money” that invites mismanagement, corruption, and waste. That’s actually one of the reasons why people become fiscal conservatives, like me. So that’s no bombshell news.
Texas $39.02 stipulates that the “Abuse of Office” goes from Misdemeanor to 1st Degree felony when;
John Oliver;
A lengthy comment on discussions of “Color of Law” vanished (when I posted the link thereto). I believe the Civil Rights violations under Color of Law are almost never addressed; but – more often than not – in need of being done so!
randyjet:
1) If you oppose a one-party state, then I suppose you also have a problem with the Democratic stronghold in CA? It has been a one-party state for quite a while, with limitless power. In fact, Gov Brown is illegally raiding Cap & Trade funds to build a pork vacation train to the tune of $65 billion to San Francisco, which will do zero to improve the gridlock and potholes in our LA roads. But it will benefit his union donors. In one section alone, they will seize 582 properties by eminent domain. The meetings I’ve attended were packed to overflowing with citizens who fiercely opposed the project, but they were told they would not be allowed to ask any questions. They had to submit questions in writing as “feedback” which would not be answered. I spoke with several officials privately who said that they were aware most people hated the project, and they assumed a movie will be made the first time this thing crashes or there’s an earthquake. Talk about abuse of power!
2) What’s the difference between a representative and a DA who get convicted of DUI? Well, the DA actually PROSECUTES DUIs. Do you not see a conflict? What about if a DA was convicted of battering his wife, would that make it difficult for him to do his job prosecuting other wife beaters? Plus, she tried to use her position to fight the booking in the video above. If any government official tried to abuse their authority to avoid prosecution, including your rep, then they should also be fired. But if they cooperate, and are not in a position where it is a conflict of interest, then, no, they should not lose their job.
LDL,
I am not sure where OS has been…
“If one legalizes something, i.e., torture, it cannot be criminal, therefore there is nothing to apologize for.”
Paul,
I understand your point but this is a bad assumption to make. I’m sure the Executive and Legislative branches would endorse your opinion. SCOTUS might get kind of lonely.
Every thread in JT’s blog exposes the weakness of the constitution and more importantly, it demonstrates how vulnerable natural rights are to the designs of unscrupulous politicians under the color of law? Well, I can just imagine Law schools giving every first year student a bucket of gray paint and over the next 3 years teaching them how to paint over “the rule of law”. Ultimately, what’s left is some attorney’s masterpiece that has the appearance of law but in effect infringes the natural rights of our citizens. Mix in a little red paint and the left objects; mix in some blue and the right objects.
What I respect about Professor Turley’s approach is he “seems” to be painting his opinions with respect for both the constitution AND rights. What follows in the thread is simply an effort to paint the picture into a left or right masterpiece. It’s interesting to watch you all at work.
WOW – AY, I was already impressed by your candor & knowledge;
but this one launches you even further.
Cool
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BTW – where’s our buddy Otteray?
Paul C. Schulte
… I am not a lawyer and I could beat Count I in court.
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Paul C. Schulte
Dredd – I actually got parking tickets overturned in the entire state of Arizona.
…
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Paul C. Schulte
Bailers – that is because literally Dredd is OCD.
===========================
Count I is not a parking ticket and the “entire state of Arizona” is not in Texas.
BSd: “Yo honna … I want this Count I thinky dismissed before I finish my cup of coffee cause I beat a parking ticket rap in MyZona.”
Judge: “I want a psychological exam done on Mr. Schulte prior to proceeding in this matter. So ordered.”
That said, I disagree with unfunding her entire office, and I would feel very differently if Perry used this tactic to simply remove anyone he disagreed with. But I also do not expect him to look the other way when a DA abuses her authority in this way. She clearly feels she’s above the law, which is a serious problem given her position.
I have a question for the lawyers here – how can a district attorney lose his or her job? Are there any means to remove one for cause?
BTW – Dredd & Paul;
It would seem to me – that (instead of the debates of not liking each other), this thread would be better served if we delve where the Professor neglected to traverse.
Each crime alleged has requisites, beyond the mere remarks of what the Statute(s) are about – to be proved beyond reasonable doubt – in order for a guilty verdict to ever become a reality.
Such a discussion will be much more apropos.
Perry is as big of an embarrassment as Bush. You condem Obama for the use of executive order.
In texas the comptroller certifies the budget the legislature passes. The treasure signs the checks. The governor unless they have vetoed an item is obligated to administer the budget as passed.
If any of you knew how it really worked, you’d be as upset with perry doing this as Obama and the executive order.
I used to work for the majority leader….