by Michael Dorf
I begin with a disclaimer: My judgment regarding Rick Perry is questionable. When he first announced his candidacy for the 2012 Republican Presidential nomination, I thought he was a lock to get it. But in my defense, that was before I had any real exposure to Perry, as opposed to seeing his paper credentials. By early January 2012 I did recognize that Perry's main obstacle to obtaining the GOP nomination was what I called his "difficulty sounding like an adult human with the capacity for speech and thought." Until Friday, it looked as though Perry and his advisors had concluded that he had overcome that obstacle for 2016, probably counting on some combination of popular amnesia, the magical smarts-conferring power of glasses, and the revelation that Perry's dreadful performance in the 2012 campaign may have been a product of health and medication issues. But now this.
Governor Perry's defense team is at least initially taking the position that Perry has done nothing wrong because he was simply exercising one of the powers that the Texas Constitution vests in him as governor, namely vetoing legislation, in this instance the entire budget of the public corruption unit overseen by the Travis County District Attorney. This strikes me as a very weak argument, at least if not further qualified.
In numerous ways and circumstances, the law confers power on people but restricts--sometimes with criminal penalties--the means by, and purposes for which, they may permissibly exercise that power. Governors and other state officials have the power to make personnel decisions. Some of these decisions are considered discretionary, in the sense that they are not subject to review by others who think that they reflect a poor policy or personal judgment. Nonetheless, such decisions are not wholly unconstrained by law. For example, a public official who fired or refused to hire someone based on race would thereby violate the Constitution. A public official who made a personnel decision based on a bribe would thereby commit a crime.
All of this seems perfectly routine and must be obvious to special prosecutor Michael McCrum. He is not charging Perry with making a poor or even foolish decision by vetoing the public corruption unit's budget. The indictment charges that Perry used what would otherwise be a perfectly legal tool for an illegal purpose, and thus committed unlawful acts. 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."
None of the foregoing is to say that Perry might not be able to mount a more successful defense. If I were working on his defense team (a job for which I am not volunteering!), I would make an argument that goes something like this:
Governor Perry concluded that Rosemary Lehmberg's disgraceful and criminal conduct leading to her conviction for DWI, which included an attempt to abuse her office by claiming to be above the law, rendered her completely unfit to continue to serve as Travis County DA for any period of time, especially given that office's role in ensuring the rectitude of other government officials. She therefore had an obligation to the people of Travis County and of Texas to resign. When she failed to do so, Governor Perry used all of his lawful means to induce her to step down.
Whether that is a successful defense seems to me to depend on a question of Texas law and some pretty murky questions of fact. 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.
Even if ultimately good intentions are a defense, there remain questions about Rick Perry's intentions, which will be difficult to prove one way or the other. Viewed from a distance, it looks like Perry saw an opportunity to replace an unfit Democratic DA whose office was investigating his conduct with a compliant crony who would kill or slow-walk the investigation into Perry's dealings with the Cancer Prevention and Research Institute of Texas. Are those bad intentions? Does the answer depend on whether Perry would have tried to force Lehmberg out even if she were perfectly qualified to continue? If it does, then Perry would seem to have a good defense, because he did not attempt to force out Lehmberg before her DWI incident.
My analysis thus contains a silver lining for Perry. It probably counts as an improvement in his general standing that the public is now wondering what was going on in his mind, rather than whether anything was.