The Perry Indictment: Not So Farfetched

Texas Governor Rick Perry was indicted August 15 for engaging in what most Americans think of as politics as usual — or at least usual as practiced in Texas.  Perry was charged with abuse of office and coercing a public servant because he threatened to veto funding for an anticorruption unit attached to the Travis County District Attorney’s office unless DA Rosemary Lehmberg resigned.  Lehmberg, a Democrat, had been convicted of drunk driving and a video of her inebriated while in police custody had gone viral.  As Perry explained in vetoing the legislation after she refused to step down, he could not “in good conscience support continued State funding for an office . . . at a time when the person charged with ultimate responsibility of that unit has lost the public’s confidence.”

While Democrats saw a darker motive in Perry’s threat, the chance to replace a Democrat who had been a thorn in Republicans side, few think his threat was illegal.  The Washington Post and New York Times editorial pages, neither enthusiastic backers of Perry’s firebrand Texas conservatism, both sharply questioned the indictment as did President Obama’s former top political adviser David Axelrod.  Veto threats are part of the everyday give-and-take between governors and state legislatures and between Presidents and the Congress.  Indeed, as recently as the 2013 confrontation over the shutdown of the federal government President Obama used the threat of a veto to get his way with the  Republican Congress.  How can that be illegal?   And if it wasn’t, why is Perry’s?

But before politicians write the Perry indictment off as farfetched, they best consult a lawyer.  Consider that –

* Had Perry threatened to veto the legislation unless the DA re-hired someone, he would have almost surely been guilty of bribery under New York law (People ex rel. Dickinson v. Van De Carr, 87 App. Div. 386, 84 N.Y.S. 461 (App Div, 1st Dept));

* Were Perry the Arizona Governor and demanded that one of his appointees to a state commission vote for his choice to lead the commission or be dismissed, he would have been charged with extortion;

* Under Arkansas’ abuse of office statute or Colorado’s attempt to influence law, Perry’s veto threat would also be indictable.

Perry’s problem is that he governs one of several states with loosely written laws criminalizing “abuse of official capacity,”  “official oppression” and similarly vague statutes and so granting prosecutors enormous discretion to decide what conduct is abusive or oppressive.  Nor are these the only laws giving prosecutors the power to say where politics ends and corruption begins.  As Lowenstein, Hansen, and Tokaji note in their authoritative text on American election law, many states make legislative logrolling a criminal offense, and even on such a basic question as when is a campaign contribution a bribe, the federal courts are hopelessly at sea.

Most of the time the vague, uncertain rules governing the American political process do no harm, for most of the time prosecutors exercise their power to define what is corrupt and what is not with restraint.  Even when, as in Perry’s case, the system of self-restraint breaks down, the harm is often minimal.  The trial court is likely to dismiss Perry’s case, and if it doesn’t an appeals court surely will as it did in the Arizona action above.  The case may even be a boon for Perry’s political future, boosting his visibility among the electorate and while creating sympathy for him as a victim of partisan “justice.”

But for so important a question as where the line between “normal” and “corrupt” politics should be drawn, it seems risky to rely on the prudence and self-restraint of prosecutors.  Even more so with partisanship on the upswing.  Will more Perry-style indictments calm America’s troubled political waters?  Make for a more civil political discourse?

What is ironic is that those best placed to fix the problem are those most at risk from the status quo: state and federal legislators.  They are the ones who conduct their daily business at the sufferance of prosecutors, and they are the ones who can tighten up the fuzzy statutes that give prosecutors so much power over them.  Perhaps they aren’t willing to reform the laws governing their profession because they fear doing so would put them in the position of okaying, or at least not outlawing, practices that many voters might deem unseemly.  The reluctance may be understandable — but if doesn’t make for good public policy.

Perhaps the media could help here.  The next time a politician holds a press conference to denounce the criminalization of politics, ask what he or she is doing to change things.  Come to think of it, that might be a fair question for the latest of victim of the current situation.  “Governor Perry, how do you propose reforming Texas law?”

1 thought on “The Perry Indictment: Not So Farfetched

  1. Governor Perry’s attorneys have asked the trial court to dismiss the indictment in an application filed August 25, 2014, and available at:

    The principal argument is that the Texas laws criminalizing abuse of office and misuse of government property are so vague that individuals do not have fair warning of what conduct they permitted and what they do not. Perry makes two other arguments as well, one based on the separation of powers and another on the constitutional immunity Texas legislators enjoy.

    On separation of powers, the governor argues that the Texas Constitution gives him unfettered power to approve or veto legislation. Were the case to proceed to trial, the court would have to inquire into whether the governor used that power properly, compromising the governor’s power under the Texas Constitution. A more curious argument is the legislative immunity one. Under the Texas Constitution a legislator’s reasons for voting for or against a bill are cannot be questioned in a court of law. The governor argues in vetoing legislation he is acting in a legislative capacity and that the immunity from prosecution for legislative “speech and debate” should extend to gubernatorial vetoes. .

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