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?
“Read the Dulles brothers book before you comment any further… Your ignorance is in full bloom… I just though it was rag weed.”
Beggin’ yer pardin AY, but I gotta rispond. First, I guess my ignorance is like ragweed and you have serious allergies; got it. Second, I’m still working on the connection between you thinking Turley is a sellout and the Dulles brother’s book. Maybe you can enlighten me on that as well.
http://tribtalk.org/2014/08/18/why-the-indictment-matters/ “Lost in all the mooing is the simple thought that savvy, experienced special prosecutor Michael McCrum likely agrees that Perry has the right to veto things he doesn’t like, such as appropriations for the state’s public integrity unit at the Travis County district attorney’s office. McCrum wouldn’t stand by and let the grand jury indict the Constitution. He and the grand jury clearly have something else in mind.
My suspicion is that all this jumping over the moon with indignation took place before the jumpers considered just who was behind the Perry indictment. It was not Austin liberals or Democrats. Not a single Democratic official was involved at any point in the process, except to recuse him or herself. That’s what the victim of Perry’s “offers,” Travis County District Attorney Rosemary Lehmberg, did. So did District Judge Julie Kocurek.
Kocurek referred the criminal complaint to Judge Billy Ray Stubblefield, a Republican and Perry appointee. Stubblefield could have dismissed the complaint. Instead, he assigned it to Judge Bert Richardson, also a Republican. He, too, could have dismissed the complaint. Instead, he appointed conservative, well-respected former federal prosecutor McCrum as special prosecutor. Republican U.S. Sens. John Cornyn and Kay Bailey Hutchison once recommended McCrum for the job of U.S. attorney for the Western District of Texas. McCrum could have dismissed the complaint. Instead, he took it to a grand jury.
The hatred for the public integrity unit among Perry and his right-wing allies is well known. At the time of Perry’s alleged threats and attempts to entice Lehmberg, her office was investigating the notorious scandal at the state’s Cancer Prevention and Research Institute of Texas. Perry himself was promising CPRIT money to a contributor before the agency was even established. Attorney General Greg Abbott, a fellow Republican, was on CPRIT’s oversight board when the scandal occurred. Ouch.
The integrity unit is currently investigating University of Texas System Regent Wallace Hall, a Perry apointee, and a complaint has been filed with the unit against GOP attorney general nominee Ken Paxton. Surely Perry must have suspected that there were cabinets full of files on him and his friends in that office. How he must have wanted to take over the district attorney’s office and get control of all this. The motive behind his mission is not hard to spot.
So when Lehmberg was convicted of drunken driving, Perry took the opportunity. He threatened to kill the integrity unit unless Lehmberg — who was elected by the citizens of Travis County, not appointed by Perry — resigned. When she resisted, he vetoed the funds.
swarthmoremom, that’s a good article. And I have thought along the same lines. I still don’t see how Michael McCrum can fit count 1 to the elements of the statue. Count 2 is coercion and that is easier for me to see. However, the indictment is sketchy alluding only to the veto and not the other items of coercion that your article mentions. How closely does the actual case have to align with the indictment? I don’t know that.
Squeeky, Kelly lies, a lot here’s just one example, not misspeak or misunderstanding outright lying to prove her bias against the president. http://mediamatters.org/research/2014/07/23/fox-host-megyn-kelly-flubs-ukraine-flight-limit/200196
You can google and find all sorts of sources proving the lies of Oreilly, Kelly, et al over at Fox,.
leecaroll, I think it is a futile exercise since folks who watch FAUX do not concern themselves with nasty things like FACTS or even thinking. That is why Faux viewers have such poor scores on tests about current events and knowledge of most anything. They will simply blow the errors off as not big deals. I rather like it when Kelly said that a lie would be a great talking point if it were true, but truth has been shown repeatedly to be the last concern of FAUX.
Talk about babbling BS obfuscating – how about that line;
That’s just one of hundreds of questions that beg – such as;
Did Marty & his AUSA brother – EVER talk about the case?
Are there emails, phone conversations, letters, memos?
“Were” there communications (destroyed)?
When did the MN U.S. Attorney’s office – KNOW?
Highly specious no arrest of Marty – EVER!
What about his personal gains (tragic as it is – belongs to victims)!
AUTOMATICALLY disqualifies MN – U.S. Attorney’s office – Correct!
Why did Marty Lackner kill himself (where did pressure come from)?
NOTE: – There was NO suicide note to Wife & 3 Kids
SPECIAL NOTE – I know, because we were “supposed” to meet.
Even I (at 1st) didn’t believe Marty (thought they were setting me up).
Romney’s Bain Cap/Goldman Sachs involved in Tom Petters Ponzi
They made Petters attorney to be the Petters Ponzi fed Receiver.
Larry Reynolds laundered $12 Billion for Ponzi – While IN WISTEC!
If the feds did tell Petters attorney – it’s a breach not to seek VENUEs!
and the REAL Biggie – DID Marty Kill himself?
Main stream – Lame Stream – including JT turning a blind eye to the stories!
I’m just sayin……….
LDL,
What difference does it make what news source you use if you’re interested in the truth? Anyone with the ability for critical-thinking would know you need to independently verify the validity of what you read and hear.
Main stream is lame stream.
I have email, after email, of reporters asking for facts in my “Haas v Romney” case. Then asking for proofs (easy to do when you have confessions). Then they all bark its not possible, or it isn’t a story – or no one cares.
All lame duck babbling banter obfuscating.
Such as the fact that, in the Tom Petters Ponzi case, Marty Lackner was involved in a feeder fund of Lancelot/ Sky Bell (with David Bell). But you don’t see no arrests, prosecutions and indictments of the billion dollar fraud guy.
That’s because he’s DEAD!
Reportedly, by suicide, Marty Lackner bailed out in mid 2009 (almost a year after the FBI raided and arrested a dozen in the Tom Petters Ponzi). As melodramatic as that is, it’s not the biggest issue. The Wall Street Journal, Star Tribune and Chicago biggie papers, the US Today, NY Times, Bostons, WaPo and NBC all passed on reporting THE most important issue. Because – if you ask, how did Petters and/or Madoff get away with it for decades; isn’t it germane that a participant in the Billions of dollars of Ponzi schemes –
Is brother to an Assistant U.S. Attorney/head of Criminal Division?
http://www.twincities.com/alllistings/ci_12969455?source=rss
John,
Read the Dulles brothers book before you comment any further… Your ignorance is in full bloom… I just though it was rag weed…. You show me different….
Squirmy,
I trust unbiased news…. It’s hard to find here in the alledged land of the free….
Call me…. You see they can’t blame some democrat…. So they still try and blame one…
David…. Did you read the legislation that created the public integrity unit…. Until then I’ll consider your ignorance as uninformed….
Just think, before you speak…. I am a male… I am not subservient to you male dominance… If your wife wants to play that game… Fine with me…. But don’t call someone a lesbian without proof… And even if she is…. What does it matter to you….
Based upon your denigration of her drunk driving… Bush nor Cheney should have ever run for office…. Is this your male dominance double standard?
@laserdliq
Try watching Fox news, particulary Megyn Kelly. I bet you change your mind.
Squeeky Fromm
Girl Reporter
David;
Leave to you to twist the words so eloquently;
:0P
Squeeky;
The wonderful poet – who just broke my heart.
“Trust more than other mouth pieces of big government”;
is an endorsement of Frgd Up Faux News.
I’m just sayin……….
That last comment was for AY.
“Just like Turley selling out to the highest bidder Faux news….”
What’s more likely, Turley selling out to anyone or him expressing legal opinions that are based in, I don’t know, “just law”? The fact you see it as the former speaks volumes of your objectivity on the latter.
I have no idea about Turley. He shows up at Pete Sessions congressional hearing saying we should sue Barack Obama rather than impeach because some don’t like how Obama is implementing ACA. Then he argues that we should impeach but not go to court with Rick Perry before seeing the evidence. Sometimes he wants a judge to intervene with the executive branch and sometimes he doesn’t.
@anonymously yourss
Do you actually watch Fox News??? They have some idealogues here and there, but they also have some great hosts, like Megyn Kelly, Bill O’Reilly, Shep Smith, Greg Gutfield, etc. I trust them more than the other mouthpieces of big government.
Squeeky Fromm
Girl Reporter
And Bernie Sanders is an Independent. We can always trust the letter after the name, right?
John, Bernie Sanders was not appointed by Rick Perry or George Bush. Nor does he carry endorsements from Texas Senators. I ask again, what Democratic official is bringing an indictment against Rick Perry.
You call the American newspapers unbiased? And that they are capable of responsible reporting? Do you need remedial education….
Just like Turley selling out to the highest bidder Faux news….
The games rigged…
SWM excellent addition….
If it is overreach, it is Republican overreach because Democrats are not involved in bringing this case.
—————————
That’s some pretty tortured logic there Tex.
Bailers, I don’t see how stating a fact is tortured logic. What Democratic official is involved in bringing an indictment against Rick Perry?
Are you Blouise’s “Tex?”
The NYT just came out w/ an editorial calling this an overzealous prosecution!! For chrissake, the NYT!
Nick, the NYT doesn’t say anything about overreach. It says we have not seen the case yet. If it is overreach, it is Republican overreach because Democrats are not involved in bringing this case. All the officials are Republicans. The NYT also analogizes to other Governors and the President. As has been pointed out, other Governors and the Federal code don’t have anything that mirrors the Texas statue.
Let’s see the case. I have trouble myself seeing how he meets the elements for count 1. But count 2? Let’s see.
David, Bubba changed everything. He taught Dems to hang on to power no matter what. Demonize your opponents and never resign.