Texas Rick Perry Indicted On Abuse of Power Charges

225px-rick_perry_photo_portrait_august_28_2004Late 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?

549 thoughts on “Texas Rick Perry Indicted On Abuse of Power Charges”

  1. “This realm should be free from worry; and simply just doing progressive business!

    But we can’t; because there are bad faith rotten apples among U.S. who are trying their best to ruin any conversation they don’t approve of. And that ain’t right. We should be able to debate Hillary, Kerry or Obama’s policy and programs free from worry of being ganged up on.

    After all – we are all adults – and should be able to be free of RWNJ Playbook tactics!

    I’m just sayin………”

    Are these your words LDL?

    If you are finding it difficult to convince people such as myself why this is nothing other than a partisan witchhunt then look no further than YOUR OWN words. If that’s the reputation you’ve built for yourself then you only have yourself to blame. You also make a considerable effort to convince people that:

    “In the past I’ve worked real, Real, hard at trying not to be one of those phony glory hounds. It is super frustrating to talk about something going on and work with each and every sentence to try to say “we”, they, our or them; and stay away from saying me and/or I. Fighting the mindset about narcissistic trends is a daunting task. Even when I did, the hating gang go “who is this we”.”

    And you say that AFTER you said:

    “I’ve paid the filing fee, thrown stones at some of the most important people and corporations in our country; and I’ve sworn to my allegations Under Penalty of Perjury.

    That’s all the qualification needed to make this a huge reality show.”

    You’ve created your “huge reality show” and now you don’t like the reality. Go figure.

  2. David now you change the direction of your comments. it is not that it was political or that you are wrong in saying “especially when the person bringing the indictment is not a Republican ” (and you march in step with Perry; he says it is “political” the implication being it is democrats who have orchestrated this)
    And using the penultimate sentence, 99 years is also silly. even murderers rarely get the maximum.

    1. leejcaroll wrote: “And using the penultimate sentence, 99 years is also silly. even murderers rarely get the maximum.”

      Not exactly silly at all. Lehmberg got the maximum sentence for her DWI. Harsh sentences are expected of public officers because they know better. Besides, I want to know where he stands on this supposed criminal action by Perry.

      We know now where you stand on the maximum sentence, but what about the minimum sentence? The minimum sentence for Perry if convicted of the first count is five years in prison. Do you think Perry deserves at minimum five years in prison for allegedly abusing his official capacity?

  3. randyjet, do you believe that Gov. Perry committed a crime deserving 99 years in prison? That is the maximum sentence that might be given for this indictment.

    From my perspective, Perry did nothing wrong. He saw the Public Integrity Unit being headed up by a drunk DA convicted of a crime while in public office. He gave sufficient warning that he would veto funding if she did not resign her office. He even offered to help her find a position where her criminal failing would not be so detrimental to the government. The DA is the one who chose to keep her position and lose the funding, even though she had announced prior to this whole fiasco that she would not seek another term as DA. So why not simply resign early? She was certainly in a position to negotiate with Perry who her replacement would be if she did resign. I think we all know the answer to that question by watching the video of her playing hardball with the officers who arrested her for DWI.

    1. david, Perry should get the same sentence as the Sheriff got for doing the same thing, only a bit longer since he is the Guv.

  4. John Oliver;

    If you hold to that professed ideology; then apply it!

    In our banter on the “Haas v Romney” debacle, you’ve not once offered any genuine debate upon the merits of the allegations.

    I agree that THE LAW is noble

    —————– it’s those doing the adjudicating that are the problem.

    It’s called “Color of Law” and its a Civil Rights violation for judges, prosecutors, officers and lawyers to engage in such “pretending” to apply the law.

    A crime under 18 U.S.C. $ 242


    By studying the law online, case cites, Opinions -etc;
    (especially the DOJ website & U.S. Attorney Manual)
    I’ve become an apprentice very knowledgeable
    (in bankruptcy ethics/law violations and Civil RICO)

  5. As a person that exists outside of the legal system, I read all of the outrage in this thread and elsewhere and it just makes me want to spit. I’ll believe you’re truly interested in ending political corruption when a) you recognize and admit that behind every corrupt politician is a lawyer advising them b) you can for a nanosecond pry yourself away from whatever ideology drives your opinion and represent THE LAW that USED TO have a noble purpose.

  6. re diff between what dems do and repubs, Senate candidate John Walsh was forced out of his senate race because of allegations of plagiarism while Rand Paul, a proven plagiarizer remains in the senate.

  7. Proof that Governor Perry lied;

    Stacy (Cameron Todd Willingham) had this to say – to the New Yorker;

    Willingham had often not treated her [wife Stacy] well, she recalled, and after his incarceration she had left him for a man who did. But she [Stacy] didn’t think that her former husband should be on death row.

    “I don’t think he did it,” she said, crying.

    Cameron’s wife NEVER stated Cameron confessed!

    If you read the entire New Yorker story and do not come away with a heart saddened on how a youthful offender was slaughtered by state sponsored murder;

    than you likely don’t have a heart!

    I still weep to this very day – about the obvious injustice;
    and remain enraged at the corrupt Governor Perry!

  8. Per Wikipedia on Perry/Willingham;


    The Texas Forensic Science Commission was scheduled to discuss the report by Beyler at a meeting on October 2, 2009, but two days before the meeting Texas Governor Rick Perry replaced the chair of the commission and two other members.

    The new chair canceled the meeting – sparking accusations that Perry was interfering with the investigation and using it for his own political advantage.

    emphasis in bold/underline – mine

    Perry – Out Right Lied – in the interview.
    (Stipulating CTW wife testified CTW confessed)

    This is – proof irrefutable – that Perry “rigs” what he controls;
    and could’ve done the same with the Public Integrity Section.

  9. Perry = Cameron Todd Willingham CORRUPTION; an execution of an innocent and investigation buried. CRIME of Murder!

    And then, the “independent” investigation was obliterated by Perry.

    Crime and Cover Up = Corruption of highest order.

    Here’s Gov Perry lying threw his teeth;
    also erroneously stipulating the [forensic] science was proper.


  10. David,

    Your tea party bias underwater is showing…. You can be for both of the propositions and still be logical….

    How does a governor restore funding after a veto? Seems like an art 2 issue…. Plus he would have to call a special session to do what you propose at a present day cost of more than 5 million…

    Make the taxpayers pay again for political games….. Good point…. Ted Cruz is in his camp….

  11. Randyjet;

    They don’t care how logical n sound your reasonings are. A liberal didn’t leave office when a GOP’r demanded it. As far as they are concerned, Perry is allowed to abuse power.

    Governer Siegelman went to jail for far less an infraction; and you don’t ses multiple state AG’s snding letters in on Perry’s behalf.

    (Btw – the corrupt judge fuller who locked Governer Siegalman up;

    Was removed from all his cases due to his wife beating.

  12. J.O. (yo);

    You are the one who begins eith the snide whilst remaing hands- off from.the crux. Your folly is blantant in your less than slick sidestep of the apropos most important and serious questions.

    Are Romney &/ or Perry – corrupt?

    Just answer the bloody floghon questions!

  13. Oh boy, cocktail hour (or two) LDL?

    In less than 10 minutes I discovered I’m obtuse, duplicitous, suffer from cognitive dissonance, assault the truth and may or may not be a paid troll. I’m sure to be more things you haven’t thought of yet so I’ll save you the trouble and just agree right now. Oh, the good ole days when everyone simply agreed, right? I hope that helps you. Thanks.

  14. AY;

    This blog,s goal is to the veil. Be that as it may, we met here and others.like U.S. shall pass this way too. Hence our efforts are not in vane (lest JT totally dive off and redact the bulk of our remarks entirely).

    Until.that time, I’ve learned that the simple solution to ignirance -Is to ignore ( they – the veiked/ trolls n paid assassins) feed on the arguing and are hell bent to find thi.gs contrary, even if G-d hkmself were to provide facts via Moses Stones.

    BTW – had a wonderful conversation with Otteray today
    (In between his interviewing of officers)

  15. David;

    Of course they’re after the gelt;
    That’s ehat “selling out” means.



    I’m. Not a debator I’m a VICTIM!

    And the way you stay obtuse to the fscts about Romney, Bain Cap., and Perry’s corfuption in the Willingham and other affairs; clearly demonstrates that I’m ‘Spot On’ about the dissonance.

    (That is – if course – unless you are outright duplicitous with an agenda to assault tbe Truth).



    It is (of course) possible that AY and others such as I are biased against faux news; but given the empirical evidence abundant – its odds on favorite that it’s justifiable {in spite of any probability your case/gal in point may be a legitimate anomally aberrant}.


    Would you consider writing the “Haas v. Romney” saga?

  16. Rubguy;

    Delay is a perfect example of a convicted putz getting off ‘Scot Free’! If you want the real skinny on what Delay n Abramoff did; then look at Alex Gibney’s “Casino Jack” documentary (instead of the Hollywood bomb stsrfing Kevin Spacey).

  17. Swartmoremom;

    It would be a gross underestimate to presume they will pnly try every “legal” move under the sun.

    Be assured there are many discussions in the venal backroom, on how to scuttle this issue.

    (That is – of course – if it’s not the super right wing thayt be behind this to begin with

    N’est-ce pas!

  18. Governor Perry has had a lifetime appointment to the governorship sustained mostly through Texas-sized, legalized electoral fraud by comming up with new identification and redistricting laws before each of his “elections”, and massive petroleum interests. A blatant display of pirmitive Civic Public Administration from an equally primitive state, i.e. human rights police abuses and rank corruption. If he gets any more power, may the almighty creator help us, we’ll all be in the hole for another 100 years, and the world will catch hell again. Get your popcorn ready, here we go again, the petroleum cartel is on the way again ready to be the true highjackers of the once beautiful US of A. Perry has acted like a god destroying lives and not granting clemency, he made this bed, now he needs to sleep in it and enjoy it. He’s a white collar political thug, lets start cleaning up and putting them away, lets get corruption under control!

  19. Iam astonished by the lack of knowledege of basic facts here in the case of Tom Delay and Rick Perry. FoOr the uninformed that stated Delay’s conviction was overturned because the funds were transferred by check, you aren’t even in the ballpark. The check thing is something to do with ethics rules written by democrats concerning donations accepted while a legislative body is in session. Delay’s conviction was overturned because, in the words of the Court of Appeals, “The fundamental problem with the State’s case was its failure to prove proceeds of criminal activity.” The state never proved a crime was comitted, let alone that Delay commiited it. The court ruled that with no underlying criminal activity, the crime of money laundering cannot exist, therefore, Delay was not guilty of money laundering.
    For the uninformed that were arguing about coercion in TX law, here is what the the Cort of Appeals has ruled. “Coercion of a lawful act by a threat of lawful action is protected free expression”. So unless it was unlawful for Perry to say the DA should resign, or her resignation itself would be unlawful, then no crime has taken place.

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