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
Misinformation Junkie…. Can’t have an effective veto unless a budget is passed….. And certified by the comptroller…. Man…. Get better source of information…
First, I am not sure at all that the “Republican Judge” just goes around appointing special prosecutors, sua sponte. Perhaps that is job, to oversee the Grand Jury, but I suspect not. My GUESS is that someone made a Motion, or presented him with an Order to be signed, and that is the extent of his “appointment”. If anybody knows for sure, then I would appreciate them letting me know.
Second, whether or not Perry can “tell a duly elected official to resign or he will de-fund a constitutionally created office” without it being an abuse of power is the question. It is not a slam dunk that it is, as explained several times by Prof. Turley.
Squeeky Fromm
Girl Reporter
Bob Binder, The MSM has little to report about SERIOUS allegations against Governor Cuomo who is in a middle of an election. He tried to thwart an investigation coming close to him. When he was unsuccessful, he disbanded the commission conducting the investigation. the DOJ is now investigating. So, why does this story get national news and the Cuomo story get buried?
Bob, go find something, anything of value. The budget appropriation was not property, the money was never controlled by the governor, because in a legal sense, it didn’t exist because the law did not pass.
Funding the unit had value, over $7 million and many employees who were let go would have kept their jobs. As it is now, Travis County is funding the unit for the state of Texas at its own expense, reduced in amount. The head of the unit is chosen by Travis County, not by the governor. He tried to usurp the county’s authority to choose the head of the unit. The constitution setting up the office could have read the other way, but it didn’t. Perry was substituting his preference for that of the constitution.
Not according to TX legal precedent. Unless something is offered in value, or he is encouraging an unlawful act, the governor is fine. They didn’t charge bribery, and that would be the crime if something of value had been offered.
Prosecutor McCrum, appointed by a Republican judge, is a former federal prosecutor and brought 40 witnesses to the grand jury. There is likely more evidence presented that has not been made public yet. Also, the examples you gave are not parallel. This is not simply free speech. Some speech is circumscribed, for example, if you don’t settle this case with me, I’ll file criminal charges against your client for what he did. That’s extortion, but it’s also just speech. Similarly, a governor cannot tell a duly elected official to resign or he will de-fund a constitutionally created office (Public Integrity Unit) that oversees and prosecutes state officials’ corruption. Not extortion, but definitely abuse of power.
I will have to check that next time someone jars me to the same level of incredulity
Did you meet up with Mr. Spacely? Get the space sprocket issues worked out… I have heard the coffee on Mars is to die for….
I would not be surprised if some lawyers thought there was substance to the charges. A plain reading of the text does permit the interpretation of “Cosmic Coercion.” That would be a free-floating sort of coercion.
Under that analysis, a state supervisor who tells an employee, “Start getting to work on time, or I am firing you!” would be guilty of “Cosmic Coercion.” Similarly, a voter who calls the mayor with, “Stop euthanizing kittens at the pound or I am not voting for you again!” would be guilty of attempting to influence a public servant in the performance of their duties.
Now, those examples are overtly blatant, and hopefully a prosecutor would use his discretion to not prosecute. But Perry’s actions are in the same vein. His coercion, unless viewed under the Cosmic Coercion Standard, are lawful acts he is permitted to take.
There is no legal presumption that he is acting for his own good, for example to stop a pending investigation of his cronies. Such may indeed be the case, but it is not revealed in the indictments. But as I said before, lawyers taking a simplistic, facial view of the statutes might think Perry is guilty as charged. Perry’s lawyer ain’t going to make that mistake.
Squeeky Fromm
Girl Reporter
Kind of reminds me of Ferguson.
Sorry about that, I just others to experience that same feeling I did when I read your comment.
Why bother tattling? The justice is one sided. No Justice. No Peace.
Jonathan,
Sorry…I have to disagree with you. You wouldn’t have the ongoing “tit for tats” if people weren’t allowed to continually personally attack others whom they don’t like–or with whom they disagree. The instigators’ initial attacks are rarely deleted–while the comments of those who respond are. Some of us who comment on your blog aren’t in the habit of tattling on those who attack us.
I can’t disagree with you or your mind…. After all… This is Res Ipsa Loquitor…. Some things just need no comment…. But, how was the space lunch….
You had a great lunch too Anonymous? I have some friends that are multi-zillionaires and they bought me lunch on Jupiter today. That was pretty cool too.
I would hope that people would actually refer to what the law actually says when they emphatically state what people are “allowed” to do. Professor Turley did in his column. What you say he is not allowed to do is called free speech by most people in this country, and has been reinforced by TX appeals courts in the past when they said that a government official exercising their free speech rights to urge another government official to take a lawful action is not illegal in Texas. The statute he is charged with violating actually has an exception for members of a governing body. Hmm, wonder if the governor is part of a governing body?
Robert wrote: “The statute he is charged with violating actually has an exception for members of a governing body. Hmm, wonder if the governor is part of a governing body?”
Did you notice that the indictment tried to make it clear that Perry and Lehmberg were from DIFFERENT governing bodies? It seems kind of convoluted when Perry was from a governing body that funded Lehmberg’s office.
Good Grief…. Everyone has the answers…. Those that have the best answers provide support…. Then those folks are attacked for posting…. Good grief….
Today I had lunch with about 30 attorneys in Dallas…. Only one was could be described as a democrat…. About 75% think he’s guilty as charged, they are the GOP main stream of Dallas area. All fairly well financially off.
I wonder what they know? I will trust these insiders better than folks that can’t support statements with facts. One even said “I’m glad he had those stupid glasses off.”
AY – so, you had lunch with 30 attorneys all at the same table?
Perry was trying to force a duly elected Travis County DA to resign, which he’s not allowed to do. Not just exercising a veto. That is abuse of power. Our DA pleaded guilty and received a sentence harsher than any other non-injury DWI ever had in Travis County — 45 days plus a fine. For good behavior, she was released after 22 days. She paid the price and then some. Had she resigned, Perry would have been able to appoint her successor, a sweet deal for him, as the office (by state law) was charged with investigating corruption in office, and was doing so against Perry’s contributor-cronies with a fund administered by Perry associates. The Travis County DA has indicted more Democrats that Republicans, despite what the right wing media machine would have you believe.
Squeeky, I read the piece and had the same take as you. Although Grand Jury evidence is supposed to remain confidential, they leak worse than a govt. made boat. If there were some bombshell evidence not included in the indictment I think some hints would have leaked by now. But, I am a patient man by nature and profession. So many of the problems in our culture are because of impatience. The shooting in Mo. is another example of impatience.