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
If one hopes to solve an ongoing issue, one has to address the root of the problem.
Annie, I have deleted another comment by you which continues the tit-for-tat involving another poster in violation of civility rule. Please return to the merits of this discussion or turn to another thread.
@elaine.
I think I answered your question. The article doesn’t match the headline. The tone is “anti-Perry” while the article is just a bunch of nothing. One of the commenters there, 1bimbo, put it well:
“700 words of ‘uh, i don’t know, maybe, wait and see, perhaps something, maybe nothing, could be but possibly not, even if we know what we don’t know, we won’t know until we know..’ great piece all right”
Squeeky Fromm
Girl Reporter
I have deleted a couple of comments by Annie containing a personal attack directed at another commenter. I deleted a comment by Davidm responding to that violation to end this personal thread. There is a small number of regulars on this blog who seem incapable of discussing the merits of these stories without attacking those individuals who voice opposing views. We are not interested in such personal attacks.
Elaine M, I have deleted a comment containing the comment that I deleted to end this tit-for-tit. The solution to any “ongoing problem” is to stop the personal dialogue and attacks. As for comments remaining, I try to minimize deletions but I review comments flagged by posters on this blog or sent by email. I have not seen other clear violations. If I do, I will delete them.
Criminal Minds
By Charles P. Pierce
August 21, 2014
http://www.esquire.com/blogs/politics/Crimes_And_Whispers
Excerpt:
For some reason that I cannot fathom, fair-minded liberals have become agog at the charges filed down in Texas against Governor Rick Perry. In truth, the charges seem based in arcane provisions of Texas law that strike me as odd — In Texas? Unpossible! — but the prosecutor in the case, Michael McCrum, seems to be a judicious fellow, appointed by a Republican judge, and McCrum says he has a case, so off we go. Nevertheless, there seem to be a lot of people with the vapors over what is happening to poor Goodhair right there in the middle of his ophthalmological makeover. The most recent occupant of the fainting couch is Ruth Marcus, Washington Post columnist and scourge of teenage potty-mouths everywhere. Marcus is Very Concerned that the charges against Perry don’t rise to the level of those leveled at former Virginia governor Bob McDonnell in the carnival of fools that is his ongoing trial. Also, she is also Very Concerned about prosecutors and their ability to inconvenience politicians.
“The over-criminalization of politics is not a left-right issue. Prosecutors have overstepped when it comes to Democrats (former North Carolina Sen. John Edwards) and Republicans (former House Majority Leader Tom DeLay). Criminal law is a powerful tool for overseeing politicians. Which is why it needs to be used sparingly, and with exquisite care.”
Squeeky,
You didn’t answer my questions.
Robert, The meme is already the Christie is a big, fat, “Eyetalian” bully. That will be hammered by the cultists and MSM incessantly. It was started by female teachers in NJ but the public sided w/ him, BIG TIME. Just as they did w/ Scott Walker. There’s been a paradigm shift, public employees and the MSM just don’t want to admit it. Maybe some will start to get it in November. Some, will never get it.
Oh Robert, I have no problem wih big dogs. I usually nip at their heels before I outrun them. 😉
@ Annioe, then it was directed at you I guess. Can’t run with the big dogs, stay on the porch
@elaine
It is more that the article doesn’t provide anything new, much less “What The Pundits Don’t Get.” The “pundits, like Prof. Turley, know quite well what the indictment says. After all, it is very short. It is the nature of the underlying code sections, and whether those are appropriate for actions of the sort done by Perry. Some, like Prof. Turley, think a court may dismiss the indictment outright.
Everybody gets that. The article adds nothing when they just repeat the indictments, and say, “Yes, the law does too permit this!”, then go on to admit, “Yes, the whole thing may legally fizzle.” In fact, the authors get exactly what the pundits do, that the whole thing is legally suspect as the facts are currently known.
Squeeky Fromm
Girl Reporter
mmc wrote: “The detail you’re missing is that Perry had called two other cases of DAs convicted of DUI (one for the second time) “local Issues” and refused to take any action.”
Perry’s press secretary Lucy Nashed explained this. She said that the DA’s supervision of a unit with jurisdiction over state officials was the key difference between Lehmberg’s case and the others. She said the other DA’s were not in charge of the Public Integrity Unit, which receives state taxpayer dollars. In other words, Perry had control over the State funding for Lehmberg’s office but not the other DA’s who did not receive State funding. That is what is meant by saying it was a “local issue.” Perry’s secretary also said, “… we don’t have any evidence that they behaved as inappropriately and abusively to law enforcement as Lehmberg did.”
http://www.dallasnews.com/news/state/headlines/20140819-travis-das-drunken-driving-arrest-riled-perry-others-didnt.ece
Incidentally, the Kaufman County GOP chairman, Bill Baker, did call upon the Kaufman County DA, Rick Harrison (a fellow Republican), to resign. The fact that the governor or the State GOP did not get involved is not really significant given the facts.
@nicks
I have fallen for my fair share of such links. It seems like everything is some kind of ploy to get you to click a link, or watch a certain show on a channel. It seems like half of the commercials on SyFy are advertisements for other shows on SyFy. And for this, they will chop up a movie and interrupt you every five or six minutes.
Squeeky Fromm
Girl Reporter
Squeeky, somebody seems to think you are incapable of doing your own thinking….almost like a cult leader!
@ Annie, this is not a dig at you personally, but more of an indictment of a lazy, cliche riddled society. The term “bully” has become worthless, because it is now being used to describe everything in the world that is not sunshine and peaches. If you want to run with the big dogs and take a stab at governing in the real, rough and tumble world where real good and evil exist, than you have no business complaining about “bullying”, because this is not teasing an 8 year old girl because of her weight, or even a criminal act like a 4th grader trying to take a 1st grader’s milk money. Sometimes people are going to be direct, forceful, and even impolite, and even ask and make demands of others that are not their preferred choice. If you can’t take that, you don’t belong in an adult world, let alone a position of leadership.
Squeeky,
Do you think the article was one-sided? Or do you think it provided more than one side of the story.
Speaking for myself: I can’t say whether Perry is guilty or not. I don’t have all the facts that the grand jury had when it chose to indict him. I’m not ready to judge him–or the grand jury’s impartiality.
Squeeky, You have to consider the source and sources when wading through comments here and elsewhere. I know the Texas Observer from other people posting links. It is not a left wing rag like Media Matters, Mother Jones, etc. But, it is left of center. And, websites that are trying to get hits will use tactics like that. But, you’re an urbane young woman, you know all this.
@elaine
My complaint is with the article, not you.
Squeeky Fromm
Girl Reporter
Squeeky,
I didn’t post an excerpt from the article–just a link to it in hopes that people would read the entire article. People can read the article in any partisan light that they so choose. Had I been attempting to “slip a fast one” past anybody, I would have carefully selected an excerpt to prove a partisan point. I did not, however, do that. Yet, I have still been accused of doing so.
What the Pundits Don’t Get About the Rick Perry Indictment
http://www.texasobserver.org/pundits-dont-get-rick-perry-indictment/
@nicks.
I was not trying to be picky, but when a link reads, “What the pundits don’t get”, implying the article is going to tell you what they don’t get…then the authors admit they don’t know what its about either, it’s like the bait and switch stuff. That’s not elaine’s fault, because she didn’t write it. But still, people shouldn’t write articles like that. The title could just as well have been, “We Don’t Get It Either, But One Day We Might!”
Squeeky Fromm
Girl Reporter
Dredd, McCrum said that the bribery charge was explored thoroughly. He doesn’t specifically say that the bribery charge was put before the Grand Jury, but the implication was that it was along with other possible charges. Apparently, the Grand Jury rejected the bribery charge.
There is no honor in being a bully, it’s dishonorable to most people.