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?
“That is why Faux viewers have such poor scores on tests about current events and knowledge of most anything.”
Randyjet,
Please provide the source. Thank you
John Oliver, all one needs to do is give a current events test made by NPR to conservative people who do not listen to NPR. Now you have a basis for claiming how uninformed they are. Can you imagine how the NPR viewers would fair on a test given by the O’Reilly Factor? People who use their own bias as a standard will be deceived easily by the results.
@randyjet
Oh, how easily you dismiss people who watch FOX as having no regard for facts, and how easily you ignore Megyn ripping the people who said the Hobby Lobby Court’s 4 contraceptives weren’t abortifacients with those inconvenient facts from the FDA.
Yeah.
Squeeky Fromm
Girl Reporter
“Cognitive dissonance works well with GOP playbook 101”
LDL,
Are you even aware how childish that statement is? You might as well say “I know you are but what am I?” You have demonstrated an ability to be better than that; your frustration seems to be clouding your debate skills.
I know that there’s near ZERO chance that they will let this go to trial.
My daughter was abducted on my birthday – in 2004 – when I submitted the proofs of crimes to the Delaware bankruptcy court and my own attorney emailed me a threat to “back off” OR ELSE.
I reported all this corruption to the Public Corruption Task Force on December 7, 2007 (and got each page Time Stamped -as instructed by a federal justice who was assisting); and the result was (12 weeks later) the Public Corruption Task Force was SHUT DOWN and career federal agents were Threatened to keep their mouths closed – Or Else!
http://articles.latimes.com/2008/mar/20/local/me-shakeup20
And your yawning – because I’m telling my own tale.
but – if I don’t tell it – They get away with it all.
What will happen – when they “get me” and Mitt gets elected in 2016?
LJC,
If you’re watching any news channel expecting to find one that does all your critical-thinking for you then by all means, just pick one and settle in. It really won’t matter which way they lean, you’ll deserve what you get.
The reason I enjoy this blog is the same reason I watch FoxNews. JT will provide a story and then we get opinions from both sides of the political spectrum. There are some very smart people in this blog but it’s easy to determine those blinded by their ideology. This is the same with FoxNews; since I don’t align with either “side” I listen (or read) and when some point seems illogical or unreasonable then I start fact-checking.
This is precisely why I don’t support any political party. This is why it’s so disappointing to see how politicized the legal profession is. I realize you all are human and will have certain beliefs. But when you allow that to determine “how” you will twist the law to suit your beliefs, well that’s unacceptable to me. I know, I’m a bit naïve but I can hope JT will inspire others to think differently. At least Reagan could make a joke about hoping his surgeon was a Republican.
Here’;s a fact for you.
Romney = Bain Cap
Bain Cap = Clear Channel
Clear Channel = Red McCombs
Red McCombs = Chairman of Blackwater (renamed Academi)
You have brother of Asst US Attorney DEAD.
eToys shareholder Robert Alber had to shoot/kill career criminal Sesseyoff
http://kdminer.com/main.asp?SectionID=1&SubSectionID=797&ArticleID=39481
Here’s one for you –
Romney = Bain Cap = MNAT law firm = partner of MNAT Colm Connolly.
Connolly partners MNAT from 1999 to August 2001 (becoming US Attorney)
Romney claims to be retroactively retired August 2001; back to Feb 1999.
John (Jack) Wheeler walks into the Nemours Bldg New Year’s Eve 2010.
Winds up dead in a dump.
http://usatoday30.usatoday.com/news/nation/2011-02-22-1Awheeler22_CV_N.htm
Guess who’s office is in the Nemours building?
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I’m giving – REAL TIME – reporting on one of the biggest cases of all time;
and everyone’s yawning – because I’m telling me own story.
That’s the point (answer to Ollie’s remark “what does it matter who reports”)
If JT, WaPo and/or Taibbi reported any of these DOCUMENTED facts;
what would happen then?
Not in my circles but provably thru the internet from legit sources.
Here’s one on O’Reilly form the Tampa Times http://www.politifact.com/personalities/bill-oreilly/
and here’s a plethora http://mediamatters.org/tags/megyn-kelly
No no need to watch her, or fox. If I want to watch fiction I will watch law and order or some other drama or comedy show
leejcaroll wrote: “Not in my circles but provably thru the internet from legit sources.”
Except Politifact and Media Matters are unreliable sources! They are in your circles. Who would go to such internet sites for truth when time and time again they lead you on a wild goose chase. Most people who read these sites just read the punchlines. They do not dig down to the original sources to see if what is being said is true.
Take this one case for Politifact found on your link: “O’Reilly denies accusing WH of political motives in early Benghazi response.”
What is their conclusion?
“O’Reilly said he didn’t tell viewers that the Obama campaign hid news about the motives behind the attack in Benghazi because he was running for re-election. While O’Reilly did not use those exact words, he consistently said that someone was trying to mislead the American public.”
So they rate this statement as “mostly false” even though they admit that O’Reilly told the truth. O’Reilly raised questions about it and believed there was more to the story, but he constantly refused to speculate that the White House was the source of the lies. This evaluation of his statement should have been rated as mostly true, but that wouldn’t bring readers to them who only like reading how much O’Reilly supposedly lies.
Here’s another example of main stream (even purported – on the good side) being biased to/ nixing the story/facts.
I’m THE motivating source for Taibbi’s Rolling Stone “Greed n Debt” story (have the email correspondence and registered delivery proofs documented).
But – the story skipped over eToys part of the saga;
only naming Stage Stores and Kay Bee.
By nixing our phone call – Taibbi missed simple facts;
such as Michael Glazer was also at Stage Stores.
The real title should be “Greed and Debt” PART of the True Story About Mitt Romney and Bain Capital.
http://www.rollingstone.com/politics/news/greed-and-debt-the-true-story-of-mitt-romney-and-bain-capital-20120829
Ollie
Obviously!
Cognitive dissonance works well with GOP playbook 101
@leecarroll
They may be “renowned ” for whatever in your circles. But maybe you need to step outside your circles and just watch for youself. I used to watch MSNBC for several hours per day, but it got to be so partisan, and so oblivious to any problems with Obama that I stopped. Be brave! Try watching Megyn for a few weeks.
Squeeky Fromm
Girl Reporter
John the point isn’t that even you could verify the inaccuracy. she presents it as news, not as opinion or commentary. Squeeky says this is one of the people on whom she relies for accurate news. On the contrary Kelly et al are renowned for their lies and absolute spin to turn almost anything into anti administration, antiObama.
You may not like MSNBC but they don’t become contortionists to change facts to fit their bias.
leejcaroll wrote: “she [Megyn Kelly] presents it as news, not as opinion or commentary.”
The name of Megyn Kelly’s program is “The Kelly File.” That should give you a clue that it is not a hard news reporting program, but rather it is a news analysis program. Her entire program is opinion and commentary, contrary to your assertion otherwise.
Media Matters is not to be trusted. They spend their time fabricating so-called lies being told by conservatives. Well, in this case, they botched this so-called lie. If you follow the trail to the FAA alert, it is one given out in April that expired on June 30th, before the timeframe alluded to by Megyn Kelly. It expired before the Malaysian plane was shot down in July. Furthermore, the FAA alert did not cover all of Ukraine. Here is the direct link to the actual alert from Media Matters. If you actually read it, the alert proves that Media Matters lied instead of Megyn Kelly:
http://www.faa.gov/air_traffic/publications/ifim/us_restrictions/media/2014_04-03_fdc_notam_4-2816_ukraine.pdf
The truth is that all public speakers make mistakes and often represent issues inaccurately. Anyone who has ever been featured on the news knows this very well first hand. It would be child’s play to watch for them and then spin a story of lying and dishonesty. An honest news person will admit mistakes and correct themselves. Media Matters does not give them the chance to do that. If Media Matters was interested in the truth, they would routinely ask for comment from the people they regularly crucify and allow them to publish their response on their website. The reason they don’t do that is because it would foist their goal of creating a climate of hatred against conservatives.
leejcaroll wrote: “You may not like MSNBC but they don’t become contortionists to change facts to fit their bias.”
This assertion is HIGHLY debateable.
LDL,
Why are you pressing your Romney case so hard in this thread? If you have a case then make it in court; otherwise it just comes off as desperate and appears you believe it’s weak. But then what do I know; I’m just too ignorant to know better.
“The FAA had already prohibited flight operations over Crimea beginning in April. After Flight 17 was shot down July 17 in a separatist-controlled area of Ukraine, the FAA expanded the prohibited area to encompass the eastern part of the country. [The Washington Post, 7/22/14]”
LJC,
Even we ignorant folk were able to verify the inaccuracy of that statement. I did think it was curious the administration would take action before a crisis. And then I realized if Hamas, even accidentally, shot down an airline, then they would completely turn public sentiment against them and for Israel. FAA did the right thing. Too bad they had to wait until after a plane was shot down to take action in eastern Ukraine.
I’m sure your right AY. Now, back to you thinking Turley is a sellout…if your only response is to send me off packing to read a book then my ignorant mind concludes you’ve got nothing.
Need a hanky?
@laserd
I tried to read through some of your legal issues, and even I am not entirely sure what your claim is about. The MSM is not very good on financial reporting. A Bernie Madoff is easy to explain, while picking the asset base for a Derivative, betting against it, without disclosure is over most people ‘s head. Even most lawyers, who have no idea what debits and credits are all about.
A clear, cogent, and easily understood narrative is essential. Unfortunately, we live in a sound bite world.
Squeeky Fromm
Girl Reporter
Here’s another neat issue of questionable alliances in main stream media.
The Volokh Conspiracy website has vanished and redirects you to
the Washington Post!
Laser – The Volokh Conspiracy is now part of the Washington Post because it is going after the money. Somebody wants to get paid. You might want to read the following article:
http://www.abajournal.com/news/article/around_the_blawgosphere_volokh_dynamic_pricing_ponzi_schemes_snow_on_cars?utm_source=maestro&utm_medium=email&utm_campaign=tech_monthly
Oh – yeah – I wanted to leave links out of the comment there;
to make sure it wouldn’t go into the bot censor twilight zone.
Here’s the proof that MNAT is Bain Capital law firm in the $18 million that Glazer paid himself and $83 million he paid Bain Capital before filing bankruptcy of Kay Bee.
Could you or I, pay ourselves $100 million and then file bankruptcy;
never to be (properly) held accountable for the crimes?
Helps when the one representing Bain is MNAT;
and the one asking to be prosecutor is Paul Traub.
That’s Paul Traub of Traub Bonacquist & Fox who worked for Romney/ Glazer/ Barry Gold at Stage Stores in 2000/2001 – who then became Creditors counsel of eToys that was sold to Romney/ Bain/ Glazer/ Kay Bee – while Traub inserted his secret partner (Barry Gold) into eToys as post-bankruptcy petition CEO
Whilst MNAT partner Colm Connolly became the Delaware US Attorney;
who buried the case from investigation/prosecution for 7 years.
MNAT – representing Bain in the $83 million – LINK
http://petters-fraud.com/Proof_MNAT_Represents_Bain_DelawareKB_case.pdf
Oliver;
PUHHLLLEEAASSEEE…!
Interested in the truth. Would you like to come again? Do you want the truth that Romney’s a Racketeer? He, himself, bragged (often) about getting many millions each year from Bain Capital. I’ve got federal agents, agencies, Chief Justice’s, all bending over backwards to keep the official story from making it into court docket records for review.
SPECIFICALLY;
Romney’s Bain Capital law firm in Delaware, has confessed supplication of over 15 erroneous Bankruptcy Rule 2014/2016 Affidavits in the Delaware case of In re: eToys (01-706). Where the Debtor’s counsel and creditors counsel both worked for Romney and/or Bain interests (prior & during) the eToys case. They then inserted (AFTER the US Trustee’s office forewarned them NOT to do such a thing) – another Romney affiliated party into eToys as post-bankruptcy petition President/CEO. They then offered me a bribe; which was turned down and reported.
Then (reportedly) Mitt “retroactively” resigns in August 2001.
Guess what else happens in August 2001? Romney/Bain Cap (secret) law firm partner (CC) is promoted out of the firm to the position of U.S. Attorney in “DEAL”aware!
Funny how Mitt seeks to be “retroactive” from August 2001; back to February 1999 and this person who was partners in his law firm – was a partner from 1999 to August 2, 2001.
eToys was sold (by me – the court approved party) to Bain/Kay Bee – for tens of millions of dollars. Then, the (unlawfully) inserted post-bankruptcy petition filing CEO (Barry Gold – who worked as Stage Stores director’s assistant to Michael Glazer {also CEO of Kay Bee Toys at the time}). Where the Debtor’s counsel and creditors counsel both lied and Continue to Not reveal their serious/obvious Conflict of Interest. And retaliated against me for blowing the whistle and turning down the bribe. As Bain/Kay Bee tell WSJ they purchased eToys for $5.4 million (I sold them the domain name alone for $10 million).
————————————-
It obviously matters WHO/what media entity reports this story. PoliticusUSA.com has, along with Liberal Unite and Addicting Info (getting over 2 million web views and more than 200,000 FB likes/Twitter Tweets).
How many millions would go nuts and viral the story – if it were main stream?
Bet you never will tell the tale of corruption and woe!
(Because it is “we v them” – a GOP does its okay – Correct – just business)!
Here’s a question I beg;
Are you, Nick, David, PS, in the same room together;
or – do you utilize Free Conference Call dot com – to do your campaigns?
Can’t force you to read, some are complacent being ignorant.