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?
“at this point, what difference does it make?”
The governor doesn’t need to be found guilty. Even the rabid anti republicans here have to know he won’t be found guilty. But the goal of damaging his chances in the presidential election had been achieved. Good job dems, you won.
I’ll say it again. A governor was just indicted for exercising the legal power of his office. Spin it anyway you want, the prosecutor injected the court system into a political dispute.
Your poor jokes and attempts marginalize my comments aside, the grand jury system in Texas is flawed, and extremely one sided.
Max
I am a Texan, born and raised. I’ve practiced law for 35 years. I confess I am no fan of the Governor, who is all hat and no cowboy. I believe that his efforts toward the public corruption unit went deeper than the District Attorney’s drinking and confinement. Should she have resigned? Texas law does not require it. She did her time. Now move on. If the people do not believe she is fit, they will take care of that. Similarly, the people, having heard a lot of evidence, decided that a different bunch of people should decide whether the facts warrant a conviction. A trial judge, and likely several afterward, will decide whether under the law, even given those facts, there is a violation. Isn’t that the way our system is supposed to work? Why is a mere indictment a failure of the system? Should we have some tribunal decide first what should be considered by a grand jury and what not? That is the start of a slippery slope. If the Governor is not guilty, or there is not a chargeable offense, the system will take care of that. Until then, the system seems to be working fine. I do not think that the Governor should resign at this point from the indictment (though Lord knows there is over a decade of stuff to warrant that he go). He should honor the system he was elected to protect and deal with his day in court like everyone else.
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Bingo.
Bailers
Dredd,
The Texas grand jury system has been well documented as corrupted. That a prosecutor was able to induct a ham sandwich for being a turkey sandwich doesn’t indicate a crime actual occurred.
==========================
The Earth was once flat but librul scientists of the devil made it into a globe.
Thanks for your detailed information that clears everything up.
Dredd – this is going to come as a major shock to you, but Vatican scientists knew the earth was a globe long before Columbus. And it was sailors who probably discovered it was a globe rather than scientists since they were familiar with the curvature of the Earth when they were sailing.
Dredd,
The Texas grand jury system has been well documented as corrupted. That a prosecutor was able to induct a ham sandwich for being a turkey sandwich doesn’t indicate a crime actual occurred.
Paul C. Schulte
ARE – a DUI is not a disqualification for running for office, but it is usually a disqualification when in office.
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Not so” “Perry can continue to serve as governor while under indictment. He can also continue as governor if convicted, but he could be stripped of office through a separate legislative removal process.”
(see my link to Local Texas News – Austin in my last comment).
The same goes for any elected Texas Official., including the DA who got Perry’s knickers in a knot.
Dredd – so, I was right.
Paul, You don’t think Cheney had enough pull in TX to have the sheriff look the other way? From what I’ve heard about bird hunting, the only way you shoot someone in the face is because you’re drunk or because you intended to shoot him in the face, or both.
bettykath – I come from hunting country, where there a gun accidents frequently enough to know something about them. All it takes is the smallest inattention and you walk into the line of fire. No one I ever hunted with took alcohol with them. That was a serious no-no.
Local Texas News – Austin
The judge who appointed the special prosecutor is a republican.
That same judge is currently running for a seat on the Texas Court of Criminal Appeals.
The special prosecutor was once made a U.S. Attorney by George H.W. Bush.
The Grand Jury was convened according to Texas Law.
What is “political” about this in the sense the “war on whites” mentality of the right-wing troll infestation suggests?
Dredd – where do you get a war on whites from this?
I am a Texan, born and raised. I’ve practiced law for 35 years. I confess I am no fan of the Governor, who is all hat and no cowboy. I believe that his efforts toward the public corruption unit went deeper than the District Attorney’s drinking and confinement. Should she have resigned? Texas law does not require it. She did her time. Now move on. If the people do not believe she is fit, they will take care of that. Similarly, the people, having heard a lot of evidence, decided that a different bunch of people should decide whether the facts warrant a conviction. A trial judge, and likely several afterward, will decide whether under the law, even given those facts, there is a violation. Isn’t that the way our system is supposed to work? Why is a mere indictment a failure of the system? Should we have some tribunal decide first what should be considered by a grand jury and what not? That is the start of a slippery slope. If the Governor is not guilty, or there is not a chargeable offense, the system will take care of that. Until then, the system seems to be working fine. I do not think that the Governor should resign at this point from the indictment (though Lord knows there is over a decade of stuff to warrant that he go). He should honor the system he was elected to protect and deal with his day in court like everyone else.
Lamar W. Hankins, thank you for your post.
Oh, and for all the supporters of King Obama, this from the Leftist Bible, the NY Times: “[Maliki’s] decision to step aside came after heavy pressure from the United States, which has deployed warplanes in Iraq to target Sunni Islamist militants and suggested that more military support would be forthcoming if Mr. Maliki was removed from power.”
I’m thinking of asking the Dallas County DA to indict King Obama on charges of abuse of power.
Mespo, please hurry to post the White House talking points; I want to go to bed early tonight and I need 5 minutes to refute your (Oops! I mean your handlers) spin.
METRO | Lamar W. Hankins : Rick Perry investigation may have legs
Posted on May 1, 2014 by Thorne Dreyer
Did Governor Perry try to strong-arm Rosemary Lehmberg into resigning? Upon reflection, some of the criminal complaints against Perry may have a legitimate basis.
By Lamar W. Hankins | The Rag Blog | May 1, 2014
AUSTIN — When they were first announced, I was skeptical of the criminal complaints lodged against Rick Perry by Texans For Public Justice. I began to get more interested when Perry hired, at taxpayer expense, a $450-an-hour attorney to represent him. When Thorne Dreyer asked me to examine the allegations closely, I agreed to do so. Looking at the four criminal charges made me realize that some of the charges may be reasonable.
Last summer, Governor Perry threatened to veto funding for the Public Integrity Unit (PIU) of the Travis County District Attorney’s office unless District Attorney Rosemary Lehmberg resigned from office. Perry “believed” she had lost the confidence of the people after she behaved atrociously immediately after her arrest and while being booked, pled guilty to DWI, served a 45-day jail sentence, and paid a fine.
Of course, vetoing legislation and line items in the budget is among the things governors do. Such actions in and of themselves do not constitute criminal conduct. But circumstances can turn otherwise legal behavior into violations of the law.
The PIU has statewide jurisdiction over crimes involving many state officials who engage in misconduct. When Lehmberg did not resign her elected position, Perry made good on his threat and vetoed the $3.7 million appropriation. After the appropriations veto, the Travis County Commissioners Court provided some funds to keep the PIU operating at a reduced level, and that money was supplemented with some discretionary funds from forfeitures that are controlled by the District Attorney.
As many newspapers around the state noted at the time, the PIU was investigating misconduct involving one of Perry’s pet projects — the Cancer Prevention and Research Institute of Texas — which could have influenced his unhappiness with Lehmberg, along with the fact that she is a Democrat and he is a Republican.
Texans For Public Justice accused Perry of four criminal offenses provided in Texas statutes: Official Oppression, Abuse of Official Capacity, Coercion of a Public Servant, and Bribery. To understand these accusations, it is not enough to read the plain words of the statutes because the definitions of key words used are different from the common meanings of those words. A third level of inquiry is to look at how the statutes and the words have been interpreted or understood by the appellate courts and the attorney general.
Official Oppression occurs when a “public servant acting under color of his office,” that is, acting in some official capacity, “intentionally…impedes another in the exercise…of any right, privilege, power, or immunity, knowing his conduct is unlawful.” To be “unlawful,” the conduct must be criminal or tortious (civil wrong-doing) or both.
It is difficult to understand how Perry’s conduct could be tortious, but it could be criminal. A key to this aspect of the charge would be proving that Perry had been advised by a legal confidant that the conduct was criminal, otherwise he could claim he didn’t “know” his conduct was unlawful.
Abuse of Official Capacity can be a crime if a “public servant (such as the governor) intentionally or knowingly violates a law relating to the public servant’s office” with the “intent to obtain a benefit.” In this case, “benefit” appears to refer to something that can be measured in pecuniary terms, that is, as an amount of money. I doubt Perry stood to gain money from Lehmberg’s resignation, but even that is possible.
Coercion of a Public Servant can occur when a person, using coercion (like threatening to withhold nearly $4 million from a public official’s budget), “attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty…or attempts to influence a public servant to violate the public servant’s known legal duty.” There is an exception to this conduct if the the person attempting to do the influencing is a member of a governing body. “Governing body” refers to a legislative body, which does not apply to the governor since he is not a member of any governing body.
Bribery, in one of its forms, occurs when a person “intentionally or knowingly offers, confers, or agrees to confer on another…any benefit as consideration for the recipient’s decision…or other exercise of discretion as a public servant… .”
A 39-year old Attorney General opinion issued by John Hill makes clear that a similar bribery statute requires a showing that there was “a representation or understanding that (the public servant) would be influenced in a specific exercise of his official duties.” This became relevant when it was revealed recently that Gov. Perry was willing to make sure that Rosemary Lehmberg would have another position in the Travis County DA’s office if she would resign as District Attorney.
A 1989 case, Kaisner v. State, applies the bribery statute to a situation closely parallel to this one. The Denton County Sheriff was forced into a runoff in the 1988 Republican primary. An intermediary of the sheriff offered the runoff challenger the position of Chief Deputy in the sheriff’s department if the challenger would withdraw from the race. The sheriff, at his trial for prosecution for bribery, denied having made the offer of a job for his opponent’s withdrawal from the ballot. Nevertheless, the appellate court found that “[t]he decision to withdraw from the runoff would have been the exercise of discretion as a public servant. Under [the bribery statute], the offer of the job was the offer of a benefit.”
If this report of Perry’s offer of another job to Lehmberg is accurate, it may fit the definition of bribery discussed in the Denton County case. If a grand jury believes it does and Perry is indicted and then convicted of the charge, he might also be found guilty of Abuse of Official Capacity, and (as noted earlier) if Perry knew that his conduct was unlawful, he could be guilty of Official Oppression.
When the allegations were made, they were referred to San Antonio Senior Judge Robert C. Richardson, who named attorney Michael McCrum as a special prosecutor to investigate whether Perry tried to strong-arm District Attorney Lehmberg into resigning. After concluding his investigation into the matters, McCrum had a grand jury impaneled to hear the evidence against Perry. We are now awaiting the outcome of that grand jury’s assessment of the evidence, which may take several months.
While I am not saying that Perry is guilty of any of the allegations made by Texans For Public Justice, I am now less skeptical of the charges. McCrum’s investigation could have found sufficient evidence to secure an indictment of Perry and perhaps enough evidence to convict him of bribery and more.
David Gregory was CURRIED as in Ann Curry.
Rick Perry was DELAYED as in Tom Delay.
That is what I think.
Rick Perry is a great governor especially compared to Obama
@paulS
It is “them.” I was on my Kindle this morning, and I spend half my time typing “backspace” when I am.
Squeeky Fromm
Girl Reporter
squeeky – I stay away from small typewriters. 🙂 Thought it was a new Jewish term I had not heard before. Or Yiddish.
Steve H, one of your comments have been deleted. After making substantive points, you turn to a personal attack on another poster in violation of our civility rule.
bettykath, seriously, not job related? It’d be my guess she said she’d never been convicted on her employment application. And it would only not be related based on some ridiculous UNION rule. Of course it relates when any employee is convicted of a serious crime. Let’s see, Nixon had a file removed from a file cabinet and it related to his job.
Newspeak of the Brave New World.
This country needs to be fundamentally transformed to the Preamble, Constitution and Bill of Rights, those which the Founders wrote about and LIVED. This racist/sexist/biased, irrational and incoherent communism/socialism/collectivism/liberalism has got to be fundamentally transformed to the dust bin of history.
http://talkingpointsmemo.com/cafe/rick-perry-and-the-criminalization-of-politics More than a few liberals think this indictment of Rick Perry is unfair.
http://www.jsonline.com/news/statepolitics/special-prosecutor-rejects-scott-walkers-partisan-take-on-john-doe-b99296379z1-264102151.html?ipad=y
Special Prosecutor rejects Scott Walker’s ‘partisan’ take on John Doe investigation. Francis Schmidt, the Special Prosecutor, is a Republican.
@Annie, an extremist is someone with a strong opinion with which a progressive liberal disagrees, so yes, John is an extremist. Labeling is such an agreeable way to classify someone whom you wish to dismiss. It’s also infantile.