As we have discussed in the past, there is always a debate with celebrities on how to appear in a mugshot. If you smile, you can be viewed as cocky or unrepentant. If you frown, you can look guilty. You know that whatever picture you take, it will be plastered around the world. Perry went the faintly bemused route and I think it was the best optics under the circumstances for a sitting governor. Former Illinois Gov. Rod Blagojevich went with a more determined look that came across like a trapped animal.
To smile in such a circumstance is no easy task.
As I have written on this blog and in a column, I believe that the indictment is factually and legally weak. The indictment dangerously blurs the line between political and criminal actions. It also raises serious problems under the separation of powers doctrine. This week, the New York Times, USA Today, Washington Post and a number of liberal figures also denounced the indictment as excessive or abusive. There remains some who cannot see beyond their intense dislike for Perry to see the dangers inherent in this type of criminalization of political decisions. As I stated before, I believe that Perry was wrong to veto the funding for this office, but he has a constitutional right to veto such funding (subject to a legislative override).
Forcing a governor to take a mug shot and appear in such a facially weak case is deeply disturbing. This was a case that should never have been brought with the simple use of prosecution discretion. Neither of these state provisions clearly put a governor on notice that such decisions could lead to criminal prosecution — nor should they. I have been a regular critic of Perry but I believe that he was wrongly charged unless the prosecutor has some incredible evidence (and a likely superseding indictment) in mind. I cannot think what that evidence would be however. Perry publicly threatened to veto funding after the incarceration of Travis County District Attorney Rosemary Lehmberg. I believe that there is a strong case for dismissal to put before the court as a threshold legal matter.
This office has had a questionable history of prosecutions, including the charging of former U.S. Senator Kay Bailey Hutchison two decades ago (this case is being brought under the authority of the office but through an outside special prosecutor). She was charged with using state employees to plan her Christmas vacation in Colorado and write thank-you notes. The case was so weak that it took only 30 minutes for the jury to find her not guilty on all charges. It was a manifestly weak case that should not have been brought. This case presents the same concern in stretching these provisions to breaking point to criminalize the threat and the veto of the appropriations line.