Below is my column today on the Perry indictment. I have previously raised my serious reservations about the factual and legal basis for a criminal charge. We obviously do not know what evidence will be presented, particularly evidence of back channel communications that might have occurred over the threatened veto. Such conversations can have a highly damaging effect on jurors as shown by the trial of Illinois Democratic Gov. Rod Blagojevich. They can also damage someone politically by exposing uninhibited moments or comments. I have heard from reporters in Texas that there might have been communications between Perry and Lehmberg about her resigning but I have yet to see clear accounts of such communications. However, at the moment, I cannot see the basis for these charges. Perry publicly stated his intent to use his lawful power to veto the line item for the office budget if Lehmberg did not resign. I do not see how the use of such a lawful power in this case would rise to the level of a criminal act.
At the moment, I see a compelling case for dismissal as a threshold legal question for the court. However, the degree to which the court views this matter as turning on the factual allegations as opposed to the legal questions, it could be held over for trial. That is the problem with such ambiguously written provisions is that the court may feel more constrained in dismissing the counts. The result for Perry can be damaging even if he is acquitted as was former U.S. Senator Kay Bailey Hutchison two decades ago. Hutchinson 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. The political danger is the exposure of private communications. Few of us are as crude as Blagojevich or his wife even in private but none of us is likely to look good if our unguarded comments were played out for a national audience. Once again, only time will tell what type of evidence was heard by the grand jury. Yet, my view is that this indictment is very problematic from a constitutional standpoint and offers little to support such a major prosecution.
Here is the column:
The news of the indictment of Texas Gov. Rick Perry late Friday thrilled many of his critics around the country, but it perplexed anyone who actually read the indictment. The charges against Perry, who was scheduled to be booked on Tuesday, stem from his carrying out a threat to veto the funding of a “public integrity” office after its chief prosecutor was incarcerated. How a seemingly political act became an alleged criminal offense is a Texas tale more twisted than the Brazos.
The controversy began on April 12, 2013, when someone called 911 to report a vehicle driving dangerously. Inside the car, the police found District Attorney Rosemary Lehmberg. Inside Lehmberg they found almost three times the legal level of alcohol. Worse yet, videos showed a combative Lehmberg badgering officers, invoking her status as district attorney and, according to police, acting so violent that she had to be restrained.
Many people (including Perry) called on Lehmberg to resign, particularly after she was sentenced to 45 days in jail. Lehmberg refused.
Perry then publicly threatened that he would veto the budget for her office if she remained in her position. In my view, he was wrongheaded in making such a threat, particularly given Lehmberg’s position heading the Public Integrity Unit with jurisdiction over politicians like Perry. However, Perry made good on his word and, when the budget came through, he vetoed the $7.5 million in funding for the Travis County Public Integrity Unit.
The threat led a liberal watchdog, Texans for Public Justice, to file a complaint alleging a variety of crimes, including an implausible allegation of bribery, against Perry.
The indictment in Texas v. Perry is based on two state laws, including one that is maddeningly vague and another that has little applicability to this type of circumstance. The charge, Abuse of Official Capacity, refers to public servants who “intentionally or knowingly” misuse government property or services or personnel. It is a provision that would be more fitting if Perry used the $7.5 million for a romp in Vegas. The state provision is incredibly ambiguous, and there is no direct precedent for its use in this type of case. Indeed, such vague provisions are often passed because most prosecutors practice discretion and restraint — both of which was missing here.
The second count refers to attempting to influence “a public servant in a specific exercise of his official power or a specific performance of his official duty.” The “specific exercise of his official power or a specific performance” in this case would be the resignation from office. That is obviously not the intent or purpose of this law.
Perry made this threat publicly. He was using (unwisely) the threat of a budget cut to deal with someone that he (wisely) viewed as a disgrace to her office. There is no precedent directly supporting this charge against Perry, but at least one case seems to contradict it. In 1990, a Texas appellate court ruled that a threat of a lawful action cannot constitute coercion of a public official. Perry is allowed under the Texas Constitution to veto a budget item, and the legislature may override him. Indeed, most of this case turns not on the vetoing of the appropriations line, but threatening to do so in advance. Had he simply cut the funding with little more than a smirk, he would have presumably been free and clear.
When you decide to criminally charge a governor in a case with serious constitutional implications, you should have strong facts and clearly applicable law. Few people (including Perry) would have been put on notice that such laws could be used to criminalize this political dispute. Michael McCrum, the special prosecutor handling the case, had to pound very hard to get these square facts into round holes. A bit too hard.
The problem is that such constitutional concerns can get lost in a trial, as shown by the trial of another governor: Illinois Democratic Gov. Rod Blagojevich. Blagojevich was given a 14-year sentence for seeking a quid pro quo arrangement in exchange for the appointment of a replacement for the Senate seat Barack Obama vacated to become president. Many of us criticized the indictment for criminalizing common political horse-trading. However, Blagojevich was hurt by witness testimony and recordings with vulgar and raw exchanges between politicians. It reaffirmed the view of many that politicians are untrustworthy and sleazy.
In fairness to the prosecutor in Texas, we have not seen the evidence he intends to bring to court. Raw behind-the-scenes testimony can color a case and distract from what might seem abstract arguments based on inherent executive authority. Many jurors find it a challenge to give any politician a presumption of innocence in any forum.
However, at the moment, this indictment is short on the law and even shorter on the facts. It looks like what they call people in Texas who dress up to look like cowboys but have never gotten closer to a steer than a T-bone at an overprized Dallas steakhouse. To put it simply, the Perry indictment is “all hat, no cattle.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
August 21, 2014 USA Today
What the Pundits Don’t Get About the Rick Perry Indictment
http://www.texasobserver.org/pundits-dont-get-rick-perry-indictment/
AY – could not disagree with you more. This is clearly within his powers. She had the chance to keep the money in the office, but chose to stay in office rather than resign. He has the right to veto the funds for the office and his signing statement is very clear why he did it.
Part of politics is trading favors. I vote for your bill if you vote for mine. Under this law, that would be illegal. The entire legislature would have to be arrested.
But that is simply questioning the mode of utiliziing the power. His power to veto is checked by the legislature, he’s not constitutionally obligated to wield the power well. Indeed, he can actually wield the power ‘badly’ — just so long as the “quo” itself isn’t illegal. He can’t ask for sexual favors, a bribe, etc. but he absolutely can have the political opinion that she should resign, basic I Amendment no less, on top of which he couldn’t directly terminate her position, but he absolutely DID have power of the funding == and he exercised it. He didn’t need any given reason to exercise the power (the TX constitution says he’s supposed to tell the legislature the reason for the veto so they can discuss it and override or alter the legislation); but somehow this particular reason is a crime? The unqualified and unconditional power to veto doesn’t become illegal because the person wielding the power decides to qualify and condition it. At the end of the day he’s saying, “I’m not going to fund this unit as long as she’s in charge of it” — and he’s allowed to do that.
Never said he couldn’t use his veto… But he can’t make it a quid pro quo….
Bill Clinton etched the Dem template that you never resign your office. This battleax was just following that new rule. As I’ve stated, I consider Perry to be a buffoon. But, he was correct in doing what he could to get that DA to resign. She has forfeited her moral authority to prosecute and had to go. So much of our culture, political and otherwise, used to be based upon fundamental issues of honor. Well, honor has vanished from our duopoly and most of our culture. This horseshit is the result.
This is nothing more than questioning the equity underpinning the use of the veto. In essence, your argument can be summarized that Perry shouldn’t be able to use the veto as he did, but therein lies the rub because that is the essence of the political question; you’re answering the ‘should he do it’ question when the indictment is really asking, “Can he do it?” — Two fundamentally different questions.
What Justice Holmes said. Let the process play out and let’s see if Mr. Perry can still smile.
ARE PUBLIC THREATS ANY WAY TO RUN A GOVERNMENT?
It would be entirely reasonable (and unarguably legal) for an executive-branch official to announce a future veto of funds for an agency with questionable capability for carrying out its duties. Governor Perry could have said that, and none of this would have happened.
Instead, he made a personal threat to the arguably discredited District Attorney. By doing so, he manufactured a confrontation that served the transparent purposes of (A) enabling him not to fund the Public Integrity Unit while (B) making it seem like it was Someone Else’s Fault.
That the Governor is a Republican and the District Attorney is a Democrat speaks to the transparency of the alleged crime.
That the Governor belongs to a political party which finds the Public Integrity Unit, centered in the majority-Democratic Texas capital, distasteful, adds to the transparency of the alleged crime.
Then, too, as stated above, the Governor threatened the duly elected office-holder rather than the agency speaks to Republican respect for our “rule of law.” Or lack thereof. (The general Republican attitude toward our duly elected President, since 2008, speaks to this same relationship with elections and the law.)
____________________
Many fans of Governor Perry’s pre-presidential-bid political style may be disappointed by such failures as this one:
Few of us want to see political leaders whose method involves the kind of public bullying which makes it harder to avoid peaceful resignations or stand-downs, and easier for enemies to save face by going to war.
____________________
But Governor Perry is innocent until proven otherwise. Let us see what the jury decides.
Regards,
(($; -)}
Gozo!
At least he lost the glasses for the mug shot.
This certainly does not help to portray the indictment as anything other than political.
Another thing to consider is that if the veto truly is an unlawful exercise of the governor’s constitutional powers under the TX constitution, why an indictment? Why not an action seeking a writ to compel him to sign the provision into law? Instead, there’s an indictment?
Texas is a part time legislature…. It’d be nearly 17 months before funding could legally be restored unless he wants to call a special session at about 5 million…
Granted a trial and ‘dirty laundry’ typically leaves a stain. However, the laundry has been hanging out for all to see from the beginning. There is a good chance that the left will be stained for leading this charge. In the end the voters want competence and not witch hunts. Perry could very well come out better viewed after this. We will have to wait for the rest of the muckraking. As a democrat I have no love for Perry. He is extreme and potentially dangerous for America. That is why you have to be careful.
What a shame… that we can’t prosecute him just for being a huge A-hole…..
Subject to further factual allegations, Perry should be able to do such a thing. Ultimately the veto power, at its root is a ‘check’ on legislative power and is part and parcel of separation of powers. The legislature made provision for funds, Perry vetoed those funds based on the factual circumstance that somebody was in charge of this unit who had been convicted of DWI. That’s within his power to do and frankly that power is checked itself by the power of the legislature to override the veto.
Politicians do this all the time and he was doing it on the principle of the thing-public integrity office, indeed!
My politically minded husband, not knowing of the facts of the case, thought that anything to get a republican was fine-till he heard the charges. Now even my hardcore, democrat hubby is standing on the side of Perry on this one unless and until there is something more to this than first appears.
I don’t think that funding an office/department that is clearly not running on any kind of priciples is a waste of public money. Texas isn’t so rich that we can throw money at publicly funded offices that are run by convicted criminals.
The governor of the state if Texas is a figure head… No real power except over calling the legislature to session…. When he vetoed he should have kept his mouth shut…. Since he is a bafoon…. He had created these issues in trying to influence an office that investigates public corruption…..
Once vetoed I know of no mechanism that restores the funding…. For all intensive purposes the comptroller if public accounts has more power than any elected office in the state of Texas…..
The case Kaisner v State written by Burgess, Justice, indicates that a crime brought about by a legal action is still a crime.
He said. Yes I did it and I’d do it again. The only quest is whether the “it” he did was defensible under the law. I say no. But I guess we will see what the jury says.
Reminds me of the Siegleman case … lots of conflict of interest too.