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?
Disingenuous bunk, once again.
Liberals are showing their homophobia equating being identified as gay as being defamed. Liberal Anti-Semitism, homophobia and white guilt is epidemic here during the waning days of a failed Presidency and the death knell of the philosophy that govt. is the answer to our problems. The party of big govt. has been an abject failure and the true colors of their hatred and bigotry are showing.
It amazes me how the (purported) Christian righteous are so unwilling to gorgive a prosecutor – who paid her debt to society “righteously” (and its bogus to argue what a drunken person did to require restraints).
And yet the GOP hardliners are willing to be totally obtuse to how Perry assisted the state to murder an innocent (Willingham); while also (corruptively) shelving the investigation into Cameron Todd’s saga.
It is, as if, there’s some secret part if the Bible that syipulates all things liberal are the devil; and there’s justification for any GOP/ RELIGIOUS malfeasance
If a liberal can be blamed for it all.
Ssshhheessshhh!
Integrity…. Oh yeah.. The governor getting involved in a shooting up in Justin. It seems his uncle has a nice house there. People were on the golf course and a couple of balls hit his house. Oh yeah, he shot one…. He made a call to the sheriffs office… Got involved…. No charges ever filed…. I wonder why?
Annie;
It serves to show how desperate the fiends are. Like in Trayvon Martin case (pointing out misteps of youth to justify GZ killing him) and the Ferguson deal showing a still (ancient pic) to justify the shooting an unarmed youth in the head.
Attack the character of the victim is GOP Playbook 101.
Laser wrote: “Attack the character of the victim is GOP Playbook 101.”
Yes, character is very important and should be examined. Apparently since Bill Clinton, Democrats no longer care about a person’s character.
David,
Once elected to office, even if disbarred is not a disqualification to hold the office. You talk about things you know about and leave the rest to others…. Calling her gay was one of your famous defamation of women…. I get it, unless you can control them you have no use for them. They forget their place.
Anonymously said:
“Once elected to office, even if disbarred is not a disqualification to hold the office. You talk about things you know about and leave the rest to others…. Calling her gay was one of your famous defamation of women…. I get it, unless you can control them you have no use for them. They forget their place.”
Well said.
AY wrote: “Once elected to office, even if disbarred is not a disqualification to hold the office.”
I never claimed there was anything illegal in her staying in office. Integrity goes way beyond the requirements of law. If I held public office and saw myself on video doing what she did, and my governor asked me to resign to restore public trust in the Public Integrity Unit, I would do so immediately.
At David, that’s because you lack integrity You only concern seems to be power – anyway you can get it. Typical Republican.
You clowns including Turley have missed the key here…. This is a state wide office…. It’s like cutting off funding to the AG or Treasure or Public University’s.
Perry should have resigned for the wrongful death of Todd Willingham…. Results have proved he did not commit arson. Perry on the other hand burnt the governors mansion down… Asked for the resignation if the governors reps on the specially created task force by the legislature to on the day set to release it’s report…. Speaking of integrity….
AY wrote: “This is a state wide office…. It’s like cutting off funding to the AG or Treasure or Public University’s.”
It is a county office which assumed statewide influence because it is located in the capital and was able to receive State funding. Once it received State funding, it was expected to have State wide influence. This is part of the problem because the person who heads it up was not elected by the State but by the county. Therefore, it is not fairly representing the State because most people in the State did not elect her. If the State wants a Public Integrity Unit, then the legislature should establish one under the AG and then you might have a valid point.
Tex, Paul isn’t an attorney, he’s a retired school teacher.
Gay Dist Attorney… First of I heard of this one…. More smoke I guess….. Speaking of smoke…. Integrity…. Legislature created a special panel to investigate the circumstances of Todd Willingham…. Convicted for Arson…. 1) Perry was asked to stop the execution; 2) fired the governors members of the task force the day before they were to release the results of the investigation… That’s integrity….. Maybe some folks have a bone for Perry, including the GOP, since as David has stated the district attorney is gay and has no use for one….
The last part is tongue in cheek….
Wow, first I heard that she was gay. I suspect that bringing up her sexual identity serves several purposes in this argument.
🙂
I’m the typo king!
Paul;
I appreciate the concern. Usually I’m at Starbucks on my laptop. These last few days have been burdensome (including theft of my Blackberry). Therefore I’mon an LG antiquated phone, real small.
I will try to proof read henceforthe.
——-_—————__-
As for your liking me as a person – thanks.
If you were to argue less biased, and beore receptive to facts, you might see (as you are open minded in Haas v Romney) that. Governor Perry deserves a prosecution.
Je,s a real baf guy!
david – it does seem strange that the head of the public integrity unit should have integrity, but I guess in Texas, not so much.
It seems strange to me that some people seem to be unable to comprehend the difficulty of a governor funding a Public Integrity Unit that is led by a person who has displayed publicly a great lack of integrity. Is it really that strange that Perry expects people of integrity to run that unit if he is going to approve funding it? It seems kind of fair on Perry’s part to tell the leader of the unit to practice some integrity or lose your funding. Maybe the animus here is actually because the district attorney is gay? I suspect that gay advocates would not want to lose a gay district attorney, but they surely can’t say that so they ramble on about Perry’s alleged abuse of power.
DavidM,
She did show integrity. She is one of 3 DAs convicted of DUI. One was a 2 time loser and both the others are Republican. This DA said she would not run again. She served her jail time. She was adjudicated for fitness by people who are given that duty and it isn’t King Perry.
What she didn’t do is take Perry’s bribe that he would get her another job if she would just quite and let him pick the head of the unit that was investigating a $3B operation know as Cancer Research and Prevention Institute (CPRIT) where the scientist have quite in protest over grants to Perry cronies. Nor did she quite when he cut funding and said he would restore it if she resigned.
No… Perry is going to have to suffer the investigation anyway. She isn’t going quite. Because she has integrity.
I think Richard Nixon had more integrity. At least he resigned for the good of the country.
Lehmberg clearly has put herself above her office and the people she serves. Maybe you want criminals heading up your Public Integrity Unit, but I wouldn’t and I don’t think most people do. I can certainly appreciate Lehmberg’s apology and remorse for the way she acted, and her responsibility to seek out professional help for her alcohol problem, but that does not mean she is to be trusted in office. She should not trust herself given the facts of her case.
david, I am disappointed since you usually make better points than this. if getting a DUI is an indication of a lack of integrity, then how the hell could you support Bush and Cheney who each had DOUBLE the number of DUIs Lehmberg now has. Bush even got arrested in New Haven, CT for drunk and disorderly. Cheney had a liquid lunch and shot a fellow hunter in Texas and was never charged or even reported to the police! Of course, given their conduct in office, one has to see that they totally lacked integrity, so maybe getting not one but TWO is the dividing line here. My Congresscritter,Rep Brady, got a DUI and even got re-elected and thought that his integrity was still intact.
Perry is not known for his integrity at all, yet he has so far avoided being arrested for DUI, but one never knows. If he moves to CA, he better watch out since the cops there won’t look after him as they do here in Texas.
randyjet wrote: “if getting a DUI is an indication of a lack of integrity, then how the hell could you support Bush and Cheney who each had DOUBLE the number of DUIs Lehmberg now has.”
No doubt these were stains upon these men. It made me very hesitant to vote for Bush. However, these were not recent stains. If they did these things while in office, then they also should step down for the sake of the country. If Lehmberg’s DWI was twenty years ago and she had reformed herself, then I would have little problem at all with it.
I should point out that it was not just her DWI, but the fact that she was spending $60 a week on Vodka and displayed such an atrocious attitude toward the system she leads on publicly released film. The attitude she displayed was that all she cared about was herself and her precious career. She had an uppity attitude toward everyone else. That revealed the kind of person that she is. You guys trust that kind of person. I do not.
David, first Bush’s last DUI was not so far in the past since as I recall he was about 45 at the time. Then he had a lot more moral failings in business when he was given a pass by the SEC for insider trading when his father was President. Then, as Governor, he appointed the guy who gave him a sweetheart deal on buying his share of the Rangers to the U of Texas board of regents where he took millions in commissions by using his own firm for trading in U of Texas endowment fund. As I recall the Texas legislature after this made it illegal for any future regents to do the same.
As for supporting Lehmberg, I could not vote for her, nor would I support her for office now. She even admitted she will not be running again. Then you try and indicate she had something to do with the indictment which is an outright lie. It shows a serious lack of knowledge of the facts since it was a GOP judge from Bexar County, who appointed the special prosecutor who was supported for office of US Attorney by Bush. THAT is NOT partisan criminal witch hunting.
randyjet wrote: “… Bush’s last DUI was not so far in the past since as I recall he was about 45 at the time.”
Bush’s DUI was in 1976. He was 30 years old. It was 24 years before the 2000 election. Bush gave up drinking completely in 1986. Cheney was only 20 & 21 back in the 1960’s when he was convicted.
Davidm, I hope this doesn’t post twice.
So you think running a burglary ring is worse? And you think Richard Nixon resigned for the good of the country? Ah.. I will let you rethink that.
Lehmberg has no choice here. If she quits, she gives Perry control over the unit and he gets to appoint one of his cronies. James Moore’s article puts his finger directly on the point.
“Perry is arguing he eliminated the $7.5 million dollar budget that Lehmberg managed for the Public Integrity Unit (PIU) because she was no longer responsible enough to run the operation. But the governor probably had another motive.
The PIU had been investigating the Cancer Research and Prevention Institute (CPRIT), a $3 billion dollar taxpayer funded project that awarded research and investment grants to startups targeting cancer cures. The entire scientific review team, including Nobel Laureate scientists, resigned because they said millions were handed out through political favoritism. Investigations by Texas newspapers indicated much of the money was ending up in projects proposed by campaign donors and supporters of Governor Perry. In fact, one of the executives of CPRIT was indicted in the PIU investigation for awarding an $11 million dollar grant to a company without the proposal undergoing any type of review.
Perry might have been the next target.
The same cronyism appeared to be at work in two other large taxpayer accounts called the Emerging Technology Fund (ETF), and the Texas Enterprise Fund, (TEF), which were supposed to be used to help technology startups and assist companies wanting to move to Texas. In total, the governor and his appointees had purview over about $19 billion and where they wanted it invested.
Why not make sure your contributors get some of that sweetness?”
So Lehmberg will retire. And we will get someone new. But we sure as hell are not going to let Rick Perry control that. Nor should we.
In the meantime, a lot of Republicans have put in place this indictment. Rick Perry did try to coerce Lehmberg in the performance of her duties and that isn’t disputed. Special Prosecutor Mike McCrum at the bequest of Republican judges (including one appointed by Rick Perry) took testimony from 40 witnesses. Let’s hear what they have to say, shall we? We will see who has integrity. But if you are still defending Nixon, well…..
Anne;
You wash my heart girl.
Thanks.
Laser, you always make more sense to me than ol’ Paul here, even with the typos.
And Paul;
Skip the fault finding (evn his lordship Professor Turley) does typos in this realm.
So skip the bleeding obfuscating;
And answer the bloody f—— questions!
Well, I (for one) ain,t having a stroke.
Auto trxt n cell phone keyboard mesns results less than spectacular.
laser – glad you are okay. I have complained several times about the typos in Turley’s blogs (threads). Just because I don’t agree with you doesn’t mean I am not concerned about your health. I like you as a person.