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
187 thoughts on “THE PERRY INDICTMENT: ALL HAT, NO CATTLE”
Today’s American Statesman. I did make a mistake, but the gist was the same. The actual quote is as follows: “But the division has grabbed the most headlines for its prosecution of elected officials: 21 from its inception through 2012 — 15 Democrats and six Republicans” I apologize for the error.
The article is entitled: Public Integrity Unit Faces Another Battle for Funding. It’s written by Statesman writer Jazmine Ulloa.
A cursory look at http://www.wnd.com shows that it is right wing site, despite its protestations otherwise. Unfortunately, right wing sites repeat a lot of falsehoods that serve their ideological ends. Example: Fox “News.”
Obviously, wnd.com quoted Tom Delay, someone known for a lot of things, but concern about facts, accuracy, or truth are not among them. And Delay dislikes Earle, who is well respected.
McCrum is not a Democratic partisan. He was appointed by a Republican judge who was appointed by a Republican to this position and to his initial judgeship.
Nonsense masquerading as fact.
Bob Binder – McCrum has an appeal going on a major ethics violation and made a contribution to the judge who appointed him. FYI, John McCain is a registered Republican, but he is a RINO. No one is quite sure where McCrum is politically, but he is anything but ethical, according to his loss on the ethics violation.
Bob, I find it interesting that you criticize right wing sites for repeating a lot of falsehood, and especially accusing Tom DeLay as someone who is not concerned about facts, accuracy, or truth, yet you are the one who repeated false facts. Notably, you apologized for doing so, but only when asked for your source.
As far as I can tell, concerning assigning McCrum to a political aisle, Tom DeLay is the only person quoted in this forum who actually knows McCrum and has had extensive experience with the Public Integrity Unit of Travis County. I tend to trust his analysis that McCrum is a left leaning Democratic Party partisan. Republicans are generally very fair minded and so it is easy to think that Republicans supported McCrum despite his Democratic leanings.
One thing you should notice about the 21 indictments is that they represent indictments against “ELECTED” officials. As DeLay points out, they were primarily against Earle’s political opponents. Remember that the Travis County DA is an elected official, and so he or she is in a position to use that office against political opponents within their own party. Furthermore, if we exclude political motivations as you suggest, then indicting more Democrats might be interpreted to mean simply that there is more criminality and political corruption among Democrats than Republicans. Is that really where you want to lead this discussion?
You might want to fact check now and then. Here are a few facts for you to think about.
Lehmberg’s conviction was a misdemeanor, not a felony as you claim.
Lehmberg did her time (22 days) and paid her fine and stayed in office.
Two other Texas DA’s in the last few years have also stayed in office after each was convicted of a DWI — but Perry was not upset. They were Republicans.
The Public Integrity Unit has indicted 21 Democrats and 6 Republicans — so don’t think this group indicts on a partisan basis, it does not.
The only people trying to make this a partisan or political matter are Republicans.
It is a criminal matter, not a political one.
Nor is it brought by Democrats: Lehmburg recused herself, as did her department. The area presiding judge, a Republican from Georgetown TX, selected a Republican judge (and Perry appointee) in San Antonio to preside. He, in turn, selected a former federal prosecutor who has worked for Republicans and Democrats. He, and at least one grand juror, have spoken out that politics was not a consideration at any time.
Because of Perry’s veto, 400 cases of the unit have had to have been dropped, cases that involved Medicaid fraud and other white collar crimes against the state of Texas.
John wrote: “Hold whatever power you can by any means per Rules For Radicals and the Communist Training Manuel. [sic] Progressivism/liberalism/socialism/communism will wither on the vine if left to its own devices. Parasites feed off their hosts. [agreed] The American Founders required honorable and moral men for the republic to exist. The republic may be in decline.”
Due to the above nonsense, I will no longer respond to your comments.
My original comments were directed to Prof. Turley’s column, which left out many important facts.
Where did you get the indictment statistics of 21 D vs. 6 R?
According to Tom Delay:
“… Lehmberg sought cover in Perry’s case by seeking the appointment of a special prosecutor, Michael McCrum.”
“But McCrum is a Democratic Party partisan who worked real hard to be appointed U.S. attorney by Obama, but it didn’t go through,” DeLay said. “But his connections are with the Democratic Party”
DeLay discounted the Travis County district attorney’s office claims that its indictment of Texas Democrats proves it’s non-partisan.
“When Ronnie Earle went after Democrat Party officials, they were his political enemies that he sought to destroy, even though they were Democrats,” DeLay argued.
“For the most part, the Travis County district attorney’s office targets Republicans. They even went after former U.S. senator from Texas Kay Bailey Hutchison, when she was Texas state comptroller. She successfully defended herself and the case collapsed from a botched prosecution by Ronnie Earle. You have to understand that Ronnie Earle was extremely partisan and extremely leftist, and he abused this office for the 30 years that he held the office. Lehmberg is no different.”
Read more at http://www.wnd.com/2014/08/tom-delay-i-tried-to-warn-perry/#shfixsDsMltYMgRS.99
Oh for the love of god …. You should stop writing columns about this. You are a professor? A republican judge appoints a republican special prosecutor who spends a lot of time investigating and then talks to a duly constituted grand jury about it. They think something may be wrong here and issue an indictment. That’s the way it is supposed to work. Now some other judge will listen to a motion to dismiss. That’s the way the system works. If he thinks there is something to have a trial about, then he (or she) will hold a trial and bring in some more citizens. I really do not care that the Governor is inconvenienced. What a shame that he isn’t able to control this part of the government. Maybe he should spend more time in the state governing than campaigning out of state while we pay him for a job he isn’t doing. If the charges get dismissed then we should all be glad there was due process. That does not mean that the prosecutor or anyone else abused the sanctimonious Governor’s rights. It does not mean they abused system. That is our system and rather than all this jibber jabber about what may or not happen, we should celebrate the fact that we don’t have a system where the Governor was seized and beheaded.
Max – that “Republican” prosecutor has yet to be proved to be a Republican. And he made a significant donation to the judge who appointed him. He is also under an ethics cloud for trying to stop a witness from testifying. It is on appeal right now. So currently we can say the prosecutor was convicted of a major ethics violation.
PCS, there is an entity on this site that fills the bill of the post at 12:24 to a T.
So you’re saying that someone on this thread who has been dating himself may marry himself?
That would appear to be the final phase of the following condition:
Medical Definition of Narcissism:
Narcissism is the pattern of traits and behaviors which involve infatuation and obsession with one’s self to the exclusion of others and the egotistic and ruthless pursuit of one’s gratification, dominance and ambition. In everyday use outside the field of psychology, the word generally refers to people who just are inordinately fond of themselves, without the pathological connotations.
Anecdotal Definition of Narcissism:
“A NARCISSIST IS ALWAYS RIGHT AND HAS THE URGE TO MAKE YOU FEEL LESS THAN HIM/HER.”
A narcissist is someone who suffers from a narcissistic personality disorder.
1.Excessive love or admiration of oneself.
2.A psychological condition characterized by self-preoccupation, lack of empathy, and unconscious deficits in self-esteem.
3.Erotic pleasure derived from contemplation or admiration of one’s own body or self, especially as a fixation on or a regression to an infantile stage of development.
P.S. I anxiously await my wedding invitation.
John – there is a guy who has filed a court case to allow him to marry his computer.
PCS, point taken.
Look where “the smartest guy in the room” has gotten us. This whole Dems are smart and Rep are stupid is horseshit. Truman was a great President. He had common sense and knew how to lead. He wasn’t a Rhodes Scholar. He went to UMKC. I am done w/ Ivy Leaguers in the WH and in SCOTUS.
“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.”
Like those are the only choices. Maybe among those Republican candidates you’re right about that.
Well, it may start off with just dating yourself, but I just bet people will soon be trying to get the right to marry themselves.
OK. You said all that.
Now. How does it feel?
I’m giving up now.
John – it is always nice to be with someone who loves you. 🙂
mespo wrote: “Perry is one of the dumbest guys in politics.”
Has this witness submitted credentials as an expert in “dumb” to the court?
How does it feel to date one’s self?
I fear the moment is lost.
Alas, c’est la vie.
John – ah, now the dim light burns bright. It is in the multiple meanings of the word date. As used that sentence, it means to identify yourself as being of a certain age because you are familiar with or have used something from a previous era. For example, if I say that I saw the 3-D film, ‘Fort Ti’ in the theatre, it would put me at a certain age bracket. I have ‘dated’ myself.
PCS, I should think the obvious solution would be to revert to your immediately previous, related comment.
John – sorry, but I cannot find the related comment. I do apologize, but am glad to respond if you would refresh my rapidly fading memory.
PCS, did you ask him how that feels?
John – what are you asking about?
The yahoo Judge in the peoples republic of austin is alarmed by the sudden number of death threats coming in since Perrys comments.
Which pale in comparison to the Dole/McCain assertions
” my opponent, NOT my enemy”
mespo wrote: “Perry is one of the dumbest guys in politics. In saner times we’d throw him out for terminal stupid, now we have to wedge him out the door with dicey indictments. I guess it’s progress.”
This is the same elitist complaint made against President George W. Bush. 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.
I’m having trouble understanding your point. So the same complaint against Bush is that he was also one of the dumbest guys in politics. OK, I get that.
But then you suggest that dumb guys have a backbone and are honest and trustworthy. Well, Bush had a backbone as he pushed the lies about WMDs and then joked about there being no WMDs after taking us to war. How is that honest and trustworthy? And who is the genius without character? I can’t think of a genius politician with or without character.
Have a cite… I am sure the elections bureau Would love this limitation…..
You’re right Paul… But when they are tied together……it’s a criminal act…..
AY – there is a Texas case on point that says you cannot convict someone for threatening to do a legal act or threaten someone to do something that is legal. I am not sure that given a fair judge this gets past the motion stage.
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