220px-Felthat300px-Muddy_Water_Red_desertBelow 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


  1. Folks. Mespo is just venting his anger over a failed Presidency, but more importantly, a failed philosophy. He and all the Dem cultists here believe govt. is the answer. Everyone else has seen that is a lie. They are looking @ a long tenure as back benchers. But, Rep. will eventually screw the pooch and Dems will come back into vogue. We need to destroy the duopoly.

  2. ” I suppose some people would rather have a dim man with a backbone who is honest and trustworthy than a genius who has no character.”

    If those are the choices maybe we ought to rethink this whole democracy thing…

  3. ps
    One of the Governors dream team lawyers is-
    Thomas Phillips an attorney with the Baker Botts firm in Austin, Texas, who was from 1988 to 2004 the Chief Justice of the Supreme Court of Texas. With nearly seventeen years of service, Phillips is the third-longest tenured Chief Justice in Texas history. In May 2011, Phillips and his wife privately settled a wrongful death lawsuit in which they had been accused of having permitted minors to consume alcohol at their home in Bastrop, Texas.
    the case against Kay Baily became weak, after the judge thru out the search warrant served on Hutchinsons offices- fruit from a poisonous tree, i think its called. Why Ronny Earl then folded.

  4. Mr Turley
    Your interns must be lazy…
    The Texans for Public Justice filed their complaint before the veto.
    Perry offered Rosemary a high paying job & restoration of the funding
    ‘if’ she would just resign
    Perrys cronies were siphoning money from a 3 BILLION dollar fund that was supposed to go to children’s cancer research.
    Their entire medical advisory board resigned en masse, as protest
    yea, stealing money from kids w/ cancer, Texas sized hubris at its finest
    If a moran like me can dig this stuff up, shouldn’t your interns be able to also?
    & since Im outta town, i havent yet talked to Lehmbergs fellow travelers in the lesbian mafia.
    Dog willing, intrade will have odds on this

  5. warns against Perry grand jury threats

    By Tim Eaton
    American-Statesman Staff
    A state district judge in Austin said Thursday that she intends to protect members of the grand jury that indicted Gov. Rick Perry from any threats — veiled or direct — from the governor or anyone else.
    Judge Julie Kocurek of the 390th District Court, a Democrat, said Perry’s Saturday statement, issued a day after the indictment, could be construed as a threat and possible violation of the law. Kocurek, as the administrative presiding judge of all criminal courts in the county, said that “no one is above the law,” and the public needs to know that grand jurors are legally protected from any threat.
    “I have a duty to make sure that our members of the grand jury are protected,” Kocurek said. “I am defending the integrity of our grand jury system.”
    The judge said that Perry might have made a veiled threat when he said: “I am confident we will ultimately prevail, that this farce of a prosecution will be revealed for what it is, and that those responsible will be held to account.”
    The only people that Perry could be referring to as being accountable are the grand jurors, judge and prosecutor, Kocurek said.
    The Texas Penal Code that outlaws obstruction and retaliation says that anyone who “intentionally or knowingly harms or threatens to harm” a grand juror faces a second degree felony, which is punishable by up to 20 years in prison.

    1. Annie wrote: “The judge said that Perry might have made a veiled threat when he said: ‘I am confident we will ultimately prevail, that this farce of a prosecution will be revealed for what it is, and that those responsible will be held to account.’ ”

      Now I’m really starting to wonder what kind of yahoos are running the legal system in Texas. Who would have thought that “those responsible will be held to account” is some kind of veiled threat? I have little doubt that this judge has uttered those exact same words in the past.

    2. Annie – regarding the judge ‘protecting the grand jury.’ Democrats are so wimpy. She should be trying to find out who is leaking from the jury. Supposedly 6 jurors have talked to the press. In Arizona that is illegal for the grand jurors to talk to the press. Regular jurors can when the cases is over.

  6. Please indulge me momentarily.

    To the powers that be, I am simply seeking clarification.


    Did you or did you not state for the record on August 21, 2014, at 7:23 pm,

    that Mespo dates himself?

    A brief, succinct response is all that is required.

    Thank you.

    1. John – what I said is that if Brylcream no longer exists mespo is dating himself. According to mespo it can still be purchased.

  7. Mespo,

    I really hope you enjoyed your vacation. My how time flies. Let me know when you’ve had enough.

    Many DUI convicts resign.

    To wit:

    Cedar City • A Cedar City police officer has resigned after he was arrested for suspicion of driving under the influence in his patrol car while off-duty and leaving the scene of an accident. Cedar City Police Chief Bob Allinson told The (St. George) Spectrum Friday that Officer Jed Imlay resigned two weeks after his June 2 arrest. Investigators say the 9-year force veteran was off duty when he allegedly hit a wall with his car near the Little League Baseball Complex about 7 p.m. just after witnesses say he had dropped a child off at the field.

    INDIANAPOLIS, Ind. (July 30, 2014)— An Indianapolis Metropolitan Police Department officer who was arrested on drunk driving charges for the second time has resigned. IMPD officials said Kevin Brown, a 16-year veteran of the department, turned in his resignation Tuesday. Brown was arrested early Monday morning after testing for a blood alcohol content of 0.099. It’s the second DUI case for Brown, who was arrested last year and served an unpaid suspension for a separate case.

    MILTON, Ga. – The principal of Milton High School has resigned after sheriff’s deputies arrested him twice within a few hours on charges of drunken driving.
    Authorities in Forsyth and Cherokee counties arrested 37-year-old Nathan John Buhl of Canton, who faces DUI charges in both counties.

    Forsyth County Deputy Robin Regan says Buhl is accused of leaving the scene of a crash in northern Forsyth County shortly before 10 p.m. Saturday. Deputies say Buhl was also involved in a crash in Cherokee County, and was hospitalized after that wreck.

    BRUNSWICK COUNTY, NC (WWAY) — A North Carolina Highway Patrol trooper has resigned after being arrested this week with DWI in Brunswick County. The Brunswick County Sheriff’s Office arrested William Bryan Thompson around 11:30 p.m. Wednesday, according to documents, for allegedly having a blood alcohol level over the legal limit of .08.

    The Atlanta Journal-Constitution By Alexis Stevens
    The principal at Milton High School in north Fulton resigned Wednesday, one day after being released from jail following DUI arrests in two counties. Nathan John Buhl, 37, of Canton, is accused of causing two wrecks Saturday night in Forsyth and Cherokee counties, according to the sheriff’s offices in each county.
    Shortly before 10 p.m. Saturday, Buhl allegedly left the scene after striking a parked car in northern Forsyth County, Deputy Robin Regan with the sheriff’s office said. But the owner of the damaged vehicle provided deputies with a tag number, which showed the car was registered to a Cherokee County owner, Regan said.

    A Bellevue police officer who was charged with DUI and reprimanded for an off-duty incident during a Seahawks game has resigned. Bellevue Police Department announced the resignation of Officer Andrew Hanke, effectively immediately. As we move forward, my hope is that we rebuild the public’s trust and continue our focus on the great work that the men and women of this Department do every day, Bellevue Police Chief Linda Pillo stated in a news release.

    By JOHN MILBURN – Associated Press – Monday, March 31, 2014
    TOPEKA, Kan. (AP) – Rep. Marc Rhoades unexpectedly resigned Monday as chairman of the Kansas House Appropriations Committee, saying he couldn’t support the House Republican leadership’s school funding bill because of how much it would cost and the lack of control over how the money would be spent.
    One of Lexington County’s deputy coroners was arrested Tuesday after a West Columbia police officer said he found the deputy coroner asleep behind the wheel of a vehicle in the middle of a road. Barry Wright, former Lexington County deputy coroner, was arrested on a DUI charge Tuesday. Barry Wright resigned from his position at the coroner’s office Wednesday, according to Coroner Earl Wells. Wright was charged with DUI and having an open container of beer or wine in a vehicle. He was arrested around 4:45 p.m.

    By Nicole La fond Published July 16, 2014, 4:57 PM EDT
    Alabama County GOP Official Resigns After Marijuana Possession Arrest
    The chairman of the Cherokee County, Alabama Republican Party has resigned after he was arrested Friday when police allegedly found marijuana plants on his property, the Gadsden Times newspaper reported on Tuesday.

  8. That’s the point though, he’s specifically allowed to make this kind of threat though. Sure, he can’t remove her directly, but in his political judgment, she is ‘so bad’ that he, in his judgment, doesn’t want to waste the state’s money on the unit so long as she is running it, and he’s allowed to do that actually. Its actually ONE of the reasons FOR a veto power actually.

    As for him and his cronies benefiting, the indictment doesn’t allege those facts, does it? The misuse of funds is a contortion of where the vetoed funds were going, the coercion charge is tied to the resignation. There’s no other charge in there.

  9. Unfortunately the Dem cultists will vote for him. Name recognition is what the duopoly relies upon. Both parties cult followers walk into the voting booth and say, “Yeah, I heard of him.”

  10. You are right he has the ability to line item veto…. But when tied to a threat in which he and his cronies benefit… It’s extortion, bribery etc…. A misue of office…..

    Just like if a politician runs for office and accepts money to pass certain legislation….. Or appoint someone to a specific office or block then same…. Misuse of office and indictable…. Ask Ray Nagen…. Rod B….

    1. AY – your examples are not the same. Resigning from office is a legal act. Asking someone to resign from office is a legal act. The governor of Texas has a line item veto. All legal acts. I cannot get to how two legal acts make a criminal one. How do two rights make a wrong?

  11. The analogy is apt because I’m not arguing they should be arrested, it’s ridiculous to suggest they could be arrested at all even, particularly since it would entail indicting entirety of the legislature, indeed acting in their legislative capacity, and that is exactly what Perry was doing in his executive capacity, there are powers vested in the Executive Branch. Your individual judgment of his political judgment is one thing, but he can absolutely veto funding to this unit because she wouldn’t resign. His veto is a check on the legislature, perfectly allowed and itself checked by the power of the legislature to override. If Perry should have no say over it, have the funding sourced from he county, but that’s not what the people of TX did, that funding needed Perry’s approval and there’s nothing which compels him to sign anything into law.

  12. I hope Cuomo loses to his challenger in the Democratic primary. The party would be better off without politicians Ike him.

  13. A resolution has no force of law behind it … So it would be a hollow point…

    Bush got legislation passed all the time without funding….. Try no child left behind….

    So long as they are in the legislative mode, they have immunity from prosecution….. They cannot even be arrested for criminal acts committed…..

    So all of your points indicate you have no understanding of how art 1, 2 or 3 offices work…

  14. Governor Cuomo is refusing to debate after having said, “Debates are what a campaign is all about.” Hillary is scorching the earth to her left and right. Warren better circle her wagons.

  15. Consider if the legislature, having passed a resolution condemning the DWI and calling for her to resign, then proceeded to pass legislation without the appropriate funding. Would you indicat the legislature, or those legislators who so voted?

  16. And the next time I’m called a cultist on this blog, I hope I get equal justice.

  17. JT,
    Did you delete Spinelli’s taunting comment? No, I see it’s still there.

    on 1, August 21, 2014 at 1:45 pmNick Spinelli
    Squeeky, Elaine has been busted before. She posts so many links she tries to slip fast ones by this blog figuring no one will read them all. The better poet knowet.

    1. Annie, I have deleted that comment to try to end these personal attacks. However, you have had an number of deletions today despite warnings that we are all tired of the personal attacks and commentary. Please comply with our civility rules or refrain from commenting.

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