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?
@groty
Opps, didn’t mean to post your link again. I was working on the comment when yours hit. Sorry.
Squeeky Fromm
Girl Reporter
@dredd
I have given you two examples, and an Irish Poem, of how the law could be logically misread, and how any INTELLIGENT reading of the law requires an examination into both the object and means. You persist in reading coercion in the “cosmic” sense. Oh well, to each his own. Fortunately, many people have the ability to make better choice, such as Alan Dershowitz:
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“This is another example of the criminalization of party differences,” said Dershowitz, a prominent scholar on United States constitutional law and criminal law who writes the “Legally Speaking” column for Newsmax. “This idea of an indictment is an extremely dangerous trend in America, whether directed at [former House Majority Leader] Tom DeLay or [former President] Bill Clinton.”
Further, Dershowitz said, such indictments are something that’s done in totalitarian countries and should not be done in the United States.
In such countries, “if you don’t like them, you indict,” Dershowitz said. “In America, you vote against them…this should be up to the voters. There is no room in America for abuse of office charges, and this has to stop once and for all. This is a serious problem.”
Dershowitz also told Newsmax Perry was well within his rights when he vetoed the money for Lehmberg’s office, as he “saw a drunk serving as DA” who “shouldn’t be enforcing criminal law.”
Dershowitz believes Perry will be acquitted, and the indictment will become an embarrassment to those involved.
http://www.newsmax.com/Headline/dershowitz-perry-indictment-outraged/2014/08/16/id/589179/
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Squeeky Fromm
Girl Reporter
Blindly partisan political hacks won’t care, but former law professor and Constitutional scholar Alan Dershowitz – who describes himself as a “liberal Democrat who would never vote for Rick Perry” – has joined the ranks of the sane in denouncing this grotesque abuse of prosecutorial power. Dershowitz says, “Everybody, liberal or conservative, should stand against this indictment.” He also correctly uses words like “dangerous” and “outrageous” in denouncing it.
http://www.newsmax.com/Headline/dershowitz-perry-indictment-outraged/2014/08/16/id/589179/
Squeeky Fromm, Girl Reporter
@dredd
Well, legal dictionaries are nice, but let’s look at the specific Texas law from the link in the article:
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty;
…
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It has nothing to do with voters, so I ignore your Irish poem on that part of it.
I gave you the definition of “coercion” because the law requires “means of coercion,” as the operative dynamic.
Thus, one can’t grasp the meaning of that law if one does not understand what “coercion” is.
Along with that goes:
“… attempts to influence a public servant in a specific exercise of his official power …” (that includes coerced resignation, which would leave the elected office vacant, mandating an expensive special election process, or the Governor benefiting himself by replacing her)
or
“… attempts to influence a public servant in… a specific performance of his official duty …”
or
“… influences or attempts to influence a public servant to violate the public servant’s known legal duty …”
How that is done is irrelevant.
Two methods were used, line item veto, and absconding with $200,000 still remaining from the previous budget and not subject to line item veto.
Oh, and something else. Since a weekend blogger was nice enough to do an article about prior alleged bad police acts in Ferguson, Mo., could a weekend blogger here do a similar article about the indictments against Kay Bailey Hutchinson and Tom DeLay???
Because if the Ferguson, Mo. article is relevant, wouldn’t prior politicized indictments in Texas be relevant, too???
Squeeky Fromm
Girl Reporter
Bailers
ME: Debate this:
“If your wife does not nave sex with me and distrubute $50,000 to my bank account I will veto that line item.”
Is that legal just because a line item veto is legal or is there a line in the sand around the line item veto?
Can a crime can be committed in concert with the legal use of a line item veto?
Obviously the coercion is the crime, not the line item veto.
It is the duty of the jury to determine if the line was crossed.
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YOU: Dredd,
We’re you still asleep when you wrote that? I’m not even sure where to begin pointing out the flawed logic employed here.I’ve had more reasoned arguments with my kindergartener.
I can’t imagine a situation where any state executive would have the ability to use his office for personal gain like you so amusingly suggest. Perry however does have the legal authority to veto funding line items. Your scenario would never be legal.
Would you also suggest that police officers can be tried for coercion by threatening arrest if a drug dealer doesn’t become informant or give cooperation? You sure seem to be.
Your hatred for Perry is coloring your legal and logical analysis.
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Wow, from kindergartener to hatred in one textual blast of nonsense.
Now that we have debated one count, let’s focus on the other.
It has nothing to do with a line item veto.
The first count of the two count indictment is his illegal use of funds that had not been vetoed.
Specifically, $200,000 had been approved by the legislature and signed by the governor prior to the next budget where the whole shebang was line item vetoed.
Those funds by law were already appropriated to the Public Integrity Unit before the budget that got the line item veto had arisen.
That count charges him for absconding with those funds and using them for something else.
The charge is that Gov. Perry “intentionally or knowingly misused government property by dealing with such property contrary ot an agreement under which defendant [Perry] held such property or contrary ot the oath of office he took as a public servant, such government property being monies having a value of in excess of $200,000 which were approved and authorized by the Legislature of the State of Texas to fund the continued operation of the Public Integrity Unit of the Travis County District Attorney’s Office, and which had come into defendant’s [Perry’s] custody or possession by virtue of the defendant’s office as a public servant, namely, Governor of the State of Texas.” (Indictment, Count I).
In other words, that budget money was from an previous time, and was not the monies involved in the line item veto.
Dredd – using your analysis of the law, Janet Napolitano would be in jail in Arizona and would be buried so deep she would be sucking sunshine through a straw. Janet swept the funds of various organizations to make up the budget shortfall when the recession hit. She really did not have the authority to do it and still doesn’t (although she is Chancellor of the Univ of Calif. which is punishment enough).
@dredd
Well, legal dictionaries are nice, but let’s look at the specific Texas law from the link in the article:
(a) A person commits an offense if by means of coercion he:
(1) influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty; or
(2) influences or attempts to influence a voter not to vote or to vote in a particular manner.
(b) An offense under this section is a Class A misdemeanor unless the coercion is a threat to commit a felony, in which event it is a felony of the third degree.
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.
– See more at: http://codes.lp.findlaw.com/txstatutes/PE/8/36/36.03#sthash.yBTXKu4M.vyQZD6QM.dpuf
Now, under this statute, if read in a cosmic sense, if a voter calls up the mayor and says “if you don’t quit euthanizing animals at the shelter, I am never voting for you again!”, then the voter is guilty.
Sooo, you are kind of left with a choice. Read the “coercion” as cosmic coercion and you have plenty of potentially bad results. Therefore, I submit, that the object of the coercion, and the means, are of tantamount importance and part of the essential nature of the definition. Not to mention, once again, issues of constitutional vagueness. You can not reasonably just separate “coercion” from the mix.
Squeeky Fromm
Girl Reporter
Squeeky Fromm, Girl Reporter
@dredd
Sooo, you are arguing that “coercion” is of the free-floating cosmic sort??? My goodness, under that analysis any state supervisor who tells an employee “Start getting your @ss to work on time or you’re fired!” is guilty under the same law. Not to mention, any issue of constitutional vagueness.
…
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Not really squeeky, coercion is defined as:
“Coercion
The intimidation of a victim to compel the individual to do some act against his or her will by the use of psychological pressure, physical force, or threats.” (Legal Dictionary)
1. psychological pressure (yes, psychological pressure was used)
2. physical force (no, physical force was not used)
3. threats (yes, threat was used).
The three methods do not have to be illegal in and of themselves. There is legal psychological pressure, legal physical force, and legal threat.
It is just that none of them, even though legal alone, can be done “to compel the individual to do some act against his or her will” that the individual did not have to do.
@dredd
Sooo, you are arguing that “coercion” is of the free-floating cosmic sort??? My goodness, under that analysis any state supervisor who tells an employee “Start getting your @ss to work on time or you’re fired!” is guilty under the same law. Not to mention, any issue of constitutional vagueness.
Once again, that is the whole point here. It is the nature of the coercion. The coercion and its nature go hand in hand, which is why people are looking fish-eyed at the Perry indictment, (except for the cultists, who can’t see past “Yea, they got Perry! Maybe they’ll get Walker next!” etc.)
That is why your example stank. You substituted an object of personal gain into the example which would clearly be against the law. If you wish to argue cosmic coercion, then pick better examples that relate to Perry.
And, since you asked for an Irish Poem
Dredd Locks???
An Irish Poem by Squeeky Fromm
There once was a poster named Dredd.
Whose example left lots to be said.
He used quid pro quo.
He shouldn’t have though,
When sine non qua is better instead.
Squeeky Fromm
Girl Reporter
Annie, I’m glad you understand nuance so much better than the rest off us, now let’s work on plain language.
(c) It is an exception to the application of Subsection (a)(1) of this section that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body. For the purposes of this subsection, the term “official action” includes deliberations by the governing body of a governmental entity.
Not seeing much nuance here, unless you don’t believe the governor a member of a governing body.
Dredd,
We’re you still asleep when you wrote that? I’m not even sure where to begin pointing out the flawed logic employed here.I’ve had more reasoned arguments with my kindergartener.
I can’t imagine a situation where any state executive would have the ability to use his office for personal gain like you so amusingly suggest. Perry however does have the legal authority to veto funding line items. Your scenario would never be legal.
Would you also suggest that police officers can be tried for coercion by threatening arrest if a drug dealer doesn’t become informant or give cooperation? You sure seem to be.
Your hatred for Perry is coloring your legal and logical analysis.
Dredd, people who don’t understand nuance usually become fundamentalists.
Squeeky, get it right, I’m rabid anti-fundamental of any stripe. I have nothing at all against run of the milll Christians, Jews or Muslims.
Squeeky Fromm, Girl Reporter
@dredd
Well dredd, Perry didn ‘t hreaten to cut off funding if somebody didn ‘t have sex with him, now did he. The whole point here is the underlying nature of the threat vis a vis the nature of what wss sought.
You using a threat for PERSONAL gain as an example therefore is both not germane and a little hysterical.
Squeeky Fromm
Girl Reporter
=================================
The issue is did he coerce an elected official, which would be an abuse of his power, under Texas law?
The method of coercion does not have to be illegal.
The fulcrum is not the lever, this is probably why there are two words to describe them.
Like coercion and veto.
Neither an illegal fulcrum nor a legal fulcrum is a lever.
Like I said, nuance is difficult for some folk.
Stick to the Irish poetry.
Or quote some cases.
@annie
Hmmm. Any rabid anti -Christians around, who see Torqemada behind every tree???
Squeeky Fromm
Girl Reporter
http://www.dallasnews.com/news/politics/state-politics/20140816-perrys-prosecutor-isnt-prone-to-partisanship-say-those-who-know-him.ece “AUSTIN — It didn’t take long for Michael McCrum to become a bull’s-eye for Republicans outraged by the felony charges against Gov. Rick Perry.
But those who know the 57-year-old McCrum say the sweeping partisan attacks against him won’t stick.
As the special prosecutor in the Perry case, McCrum is a veteran attorney — and former cop in Dallas and Arlington — who’s been on both sides in legal skirmishes.
He’s got plenty of fans, both Democrats and Republicans. And his political leanings largely are muted.
As a federal prosecutor in San Antonio, he oversaw the unit that focused on money laundering, public corruption and criminal tax fraud cases. After 14 years as a private attorney, he’s on the short list of highly sought criminal defense attorneys.
Among his recent cases: working on the defense team for former Dallas Cowboy Sam Hurd, who pleaded guilty last year to a federal drug charge.
Solomon Wisenberg, a Washington lawyer who has known McCrum since 1989, when they worked together as assistant U.S. attorneys, said his friend is not partisan.
Referring to Perry’s indictment, Wisenberg said: “There are people who are politically motivated who are probably happy about it. There are people on the other side who think it must be politically motivated.
“I know Mike well and I don’t think he would be that way. He is not readily identifiable as a Republican or a Democrat.”
Gerald Reamey, a professor at St. Mary’s University School of Law in San Antonio, taught McCrum criminal law and procedure.
“In his personal life and his professional life, there is some evidence that he is a fairly conservative person,” Reamey said. “He was prosecuting high-profile drug offenses. At the same time, he fits well into the criminal defense role.’
Another cultish bunch, the Birthers. Any of those around these parts?
The word “cultist” was being thrown around here by people who could rightfully be seen as cultists themselves, which made it all the more ridiculous. There are certain blind followers of Hillary Clinton called PUMAs. Never did understand that kind of allegiance.
@dredd
Well dredd, Perry didn ‘t hreaten to cut off funding if somebody didn ‘t have sex with him, now did he. The whole point here is the underlying nature of the threat vis a vis the nature of what wss sought.
You using a threat for PERSONAL gain as an example therefore is both not germane and a little hysterical.
Squeeky Fromm
Girl Reporter