On Friday, special prosecutor Michael McCrum secured an indictment of Texas Governor Rick Perry. Perry, whose 2012 campaign is the first abortion Republicans have celebrated in years, is accused of coercion and abusing his office when he threatened to, and subsequently did, revoke funding for the Public Integrity Unit. That unit is charged with rooting out government corruption, and Perry took away its budget because the district attorney in charge of the unit — a Texas Democrat — was convicted of drunk driving and wouldn’t step down. Perry thought she should leave her post because she had lost the public trust over her conviction and not at all because she had been investigating possible corruption related to Perry’s signature project, the Cancer Prevention and Research Institute of Texas.

If you don’t think this is shady and improper, you’re a hyperpartisan for Perry. Entirely obliterating the agency charged with protecting citizens from official corruption because you don’t like the person in charge — for whatever reason — smacks of overreach. Imagine Congress and the President zero-funding the Supreme Court because they wanted one justice to resign. It’s just cockroach hunting with a bazooka.

Still, is it criminal as opposed to just shady? That’s a different question. Law professors weigh in….

Count I of the indictment alleges:

[Rick] Perry, with intent to harm another, to-wit, Rosemary Lehnberg and the Public Integrity Unit of the Travis County District Attorney’s Office, intentionally or knowingly misused government property by dealing with such property contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant

Professor Eugene Volokh thinks this theory is highly suspect:

To begin with, the law applies to a public servant’s misusing property that is in his “custody or possession.” What property was in the governor’s custody or possession? The $7.5 million, if it had been appropriated, would have been in the custody or possession of the district attorney, not the governor.

But, more important, this money was never appropriated, precisely because of the governor’s veto.

Sometimes the most devastating truths are the simple ones. The underlying statute doesn’t seem to deal with a situation where a governor uses the constitutionally sanctioned veto power to prevent an agency from receiving funds from the treasury. The language of the statute seems to deal with using cop cars to clear the streets so your friend can get to the airport with his entourage of hookers rather than budgetary disagreements.

The second count of the indictment also raises quibbles:

A person commits an offense if by means of coercion he … influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant’s known legal duty….

Professor Volokh sees a more pressing constitutional problem here:

it seems to me, the statute — as understood in the indictment — is unconstitutionally overbroad. It would, for instance, punish clearly protected speech such as, “If you Legislators enacts a bill with this language rather than the version I like, I will veto it,” since that too would be “threat[ening]” “to take … action as a public servant” by vetoing the bill in “attempt[ing] to influence” legislators in “specific performance of [their] official duty,” namely drafting and enacting legislation.

He specifically cites the case of State v. Hanson for the proposition that the relevant statute is unconstitutionally vague as applied. In Hanson, a county judge threatened to terminate the “salaries of a deputy district clerk and an assistant district attorney in an attempt to coerce the district judge into firing the county auditor and the county attorney into revoking a misdemeanant’s probation.” That sounds shady. But the court held that the county judge — who was the budget officer at the time — was threatening a legal act to coerce a legal action, which is constitutionally protected free expression.

Other law professors join in this assessment. Jonathan Turley opined:

One of the laws being used is hopelessly vague, the other really doesn’t appear to fit

And Jennifer Laurin, a University of Texas law professor, said:

The statutes do pose some challenge for the prosecutor, especially the misuse of public authority… Those elements will be difficult to show.

Professor Michael Dorf agrees that while this is a tough case because of some “murky questions of fact,” he counters that the vague “legal acts can coerce legal acts” logic is a bit screwy:

Once one thinks this through, one realizes that the defense Perry has thus far publicly mounted is inadequate. It would be as though someone who was charged with committing murder by deliberately running over his victim with his car protested: “But I have a license to operate a motor vehicle.”

The question of Texas law is whether one can be guilty of abusing one’s official capacity and/or attempting to coerce a public servant (the charges in the indictment) even if one is trying to coerce someone to do something that is in the public interest. I don’t know the answer to that question under Texas law but I suspect that the answer is yes. Otherwise, one opens up an enormous loophole for people to violate the law based on their claimed subjectively pure intentions. Consider, e.g., Oliver North’s no-doubt sincere view that he was serving the public interest in defeating communism in central America.

Meanwhile, others take a broader view than the particulars of this indictment and decry the criminalization of politics. Professor Alan Dershowitz thinks this case represents an attack on the very foundations of America:

Further, Dershowitz said, such indictments are something that’s done in totalitarian countries and should not be done in the United States.

In such countries, “if you don’t like them, you indict,” Dershowitz said. “In America, you vote against them…this should be up to the voters. There is no room in America for abuse of office charges, and this has to stop once and for all. This is a serious problem.”

And indicting a politician, rather than fighting back through a ballot box, “is so un-American.”

In fairness, in totalitarian countries they usually just kill people rather than bother with the indictment. But that’s not even the biggest problem with this logic, which is the exaltation of popular democracy as though all abuses of power can and should be settled by majoritarian vote. I can think of a number of minority viewpoints in this country that feel a lot better off knowing that the legal system protects them from popular will.

Professor Rick Hasen joins in decrying criminalizing politics and outlines some pols who’ve previously felt the sting of prosecution:

Perry joins the list of other politicians prosecuted under controversial or dubious theories, including Tom DeLay, John Edwards, Scott Walker, Don Siegelman, and Ted Stevens. Some go to jail; some don’t. Some get convicted by juries; some don’t. Some have their prosecutions overturned on appeal; some don’t.

But where Professor Hasen goes beyond Professor Dershowitz, he succinctly hits on the fundamental truth:

Texas Governor Rick Perry has been indicted for coercion and abuse of power in a potentially politically motivated prosecution for actions Perry possibly took out of political motivation to shut down possible politically motivated prosecutions. Got that?

The voices from both liberal and conservative corners calling this indictment a political stunt gloss over the fact that it’s just the latest salvo in a tug-of-war of politically motivated — if non-criminal — abuses of power flying around Austin. While the Rick Perry indictment offers an opening to hate on the quality of Michael McCrum’s legal theories, if you’re going to do that you should pull back and hate the game as well as the player.

Is the indictment of Texas Gov. Rick Perry inconsistent with a Texas Court of Appeals precedent (as to the ‘coercion’ count)? [The Volokh Conspiracy / Washington Post]
Does a governor have ‘custody or possession’ of funds the legislature wants to appropriate, in a bill that he vetoes? [The Volokh Conspiracy / Washington Post]
Prosecutors may have a tough time making Perry indictment stick [Houston Chronicle]
Rick Perry’s Indictment [Dorf on Law]
https://townhall.com/tipsheet/danieldoherty/2014/08/18/lefty-law-professor-that-lawsuit-against-rick-perry-is-unamerican-n1879826“>Dershowitz ‘Outraged’ by Perry Indictment [Newsmax]
Rick Perry and the Criminalization of Politics [Election Law Blog]


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