As a character noted in Tom Wolfe’s “The Bonfire of the Vanities,” a prosecutor could convince a grand jury to indict anything, even a ham sandwich. And while Texas Gov. Rick Perry isn’t a ham sandwich, he might as well be. Last Friday, a Texas grand jury returned a two-count indictment against Perry that even Democratic strategist and Obama confidante David Axelrod labelled “sketchy.”
So what did the governor do to attract the attention of a Travis County prosecutor? He vetoed a proposed spending bill, a clear exercise of his executive power under Article 4, Section 14 of the Texas Constitution, one which is shared by virtually every other state governor and, at the federal level, by the president. Certainly, there’s a bit more to the story—the sausage-making of state politics that many find unsavory.
Travis County district attorney Rosemary Lehmberg was busted for drunk driving—her blood alcohol level was nearly three times the legal limit, she was driving erratically and into oncoming traffic, and she had an open bottle of vodka in her car. Beyond that, she became belligerent following her arrest, telling the officers that she was a district attorney and that they were going to be the ones who would wind up behind bars. She eventually pled guilty and was sentenced to 45 days in jail and fined $4,000. Perry, who thought (as did others) that Lehmberg ought to resign, threatened to veto funding for a unit in her office if she did not do so. When she refused to resign, Perry made good on his threat and vetoed the proposed $7.5 million funding for an investigative unit that reports to her. That veto was not overridden by the required two-thirds of both houses of the Texas legislature, and so the funds were not appropriated.
Sounds like a typical day in Austin, right? What happens next is truly shocking. Lehmberg’s office decided to convene a grand jury which returned a “true bill,” authorizing the DA’s office to move forward with charges against the governor for, believe it or not, doing something which the Texas Constitution clearly empowers him to do. The first count involves the alleged “misuse” of government property worth in excess of $200,000 (a first degree felony) in violation of Tex. Penal Code § 39.02. The second count involves an alleged attempt to influence a public servant in a specific exercise of his official power or a specific performance of his official duty by means of coercion (seemingly a felony in the third degree, although that is a bit unclear) in violation of Texas Penal Code § 36.03.
Could Perry’s attempt to get an intoxicated and belligerent DA to resign constitute a “misuse” of his veto power? Clearly not. The Texas Constitution gives the governor the authority to decide which laws, which would include spending bills, to approve and which to disapprove. And how does one place a value on a veto anyway? Presumably, the bill that included the proposed appropriation isn’t worth more than $200,000 — in fact, it isn’t worth anything, at least not until after the governor signs it and the funds are actually appropriated! As UCLA law professor Eugene Volokh notes, one of the elements of the crime is that the funds be in the “custody or possession” of the alleged criminal, but here Perry never had the $7.5 million in hand. Indeed, nobody did — that was the point of the governor’s veto. The various cases interpreting this part of the Texas penal code generally deal with things like ordering an IT staffer to install a computer in your home at government expense, or using governmental supplies for personal political campaigns. Here, Perry has been charged with abusing his authority by signing a piece of paper indicating that he is vetoing a proposed bill, something he has every right to do under his state’s constitution.
The second charge (the alleged violation of § 36.03) is even more spurious. Beyond the same line-drawing problems that are evident in the first count of the indictment, § 36.03 explicitly provides:
(c) It is an exception to the application of Subsection (a)(1) of this section [making it a crime to influence or attempt to influence a public official in the performance of his or her official duty] that the person who influences or attempts to influence the public servant is a member of the governing body of a governmental entity, and that the action that influences or attempts to influence the public servant is an official action taken by the member of the governing body….
In other words, the law specifically provides a public official (in this case, Perry) cannot be found guilty of coercing a public servant if he is merely exercising his official powers (in this case, vetoing a bill). The indictment attempts to skirt this exception by stating that Perry is “not [a] member[] of the same governing body or a governmental entity” as Lehmberg, but that is ridiculous. That is like saying that Attorney General Eric Holder is not a member of the same “governing body” as President Obama, since Holder is part of the Justice Department and Obama is part of the Office of the President, and that, therefore, the Department of Justice could seek an indictment against the president for vetoing a proposed bill funding a component of the Department of Justice.
The alleged coercion in the second count is Perry’s “threat … to take or withhold action as a public servant,” in this case by threatening to veto a proposed funding bill, something he is constitutionally empowered to do. As Volokh notes, any law that would criminalize a statement to the effect of “If you enact this bill, which I do not like, I will veto it,” would be overbroad and unconstitutional. Were that not so, every president or governor who announced his intention to veto a proposed bill in its present form could be subject to criminal indictment. It would be a totally different story if a public official threatened to do something he has no lawful right to do as part of an attempt to influence a public official, but that is not what happened here. Here Perry has been indicted for threatening to do something he had every right to do.
This indictment is sheer political theater. While the Travis County DA was not required to step down following her own drunk driving shenanigans, she certainly shouldn’t be ginning up charges against Perry who was just doing his job. This indictment is a disgrace and should be dismissed. Don’t believe us? Ask David Axelrod.
