Monday, August 18, 2014

Rick Perry's Indictment

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.


Hashim said...

I think you're missing the point. While it's true that discretion is not always unfettered, sometimes it is. And, more to the point, normally that discretion can only be constrained by the source of law that granted the discretion (or a higher source of law).

Thus, the question here is whether the Texas legislature through its criminal statutes can purport to constrain the Texas Governor's constitutional power to exercise the veto.

Since I don't know anything about Texas law, let me use the federal analogue. I seriously doubt that Congress could pass a statute prohibiting the President from vetoing a law if he's doing so for "improper" purposes, however defined, unless perhaps those purposes are unconstitutional. Do you disagree?

Michael C. Dorf said...

Hash: That's a really interesting question. US v. Klein seems to me the most relevant precedent for your view, but even it seems to me unclear here. We know that in general the Constitution gives the President unfettered power to grant pardons in the sense that Congress cannot restrict the effect of a pardon. But I don't think it's at all clear that a general law--say the bribery prohibition--couldn't be applied to the use of the pardon power. (Think of the Mark Rich case, depending on what Clinton was promised, etc.). And like you, I don't know what the answer is under Texas law--but I do think that if the argument is the one you're making rather than the simpler one I've heard, we would need to know more about Texas constitutional law.

Unknown said...

Governor Perry is LONGGGG overdue for a comeuppance (see Cameron Todd Willingham debacle).

This is simply a Capone-Tax Evasion way to bring down one who believes he's above the law.

Michael C. Dorf said...

Here's another example in response to Hash's comment: Suppose that Governor G makes a contract with Hitman H that H will murder G's romantic rival R, but G is not entirely sure he wants to go through with it. So G and H agree that H will only carry out the hit if G gives the signal: If G wants H to carry out the hit, G will veto a bill sitting on his desk about which G doesn't really care. (Let's say it's a bill designating paprika as the official state spice.) G thinks it over and vetoes the bill. H murders R. I think G can be prosecuted for murder based on the veto, even though a court almost certainly couldn't invalidate the veto and thus make paprika the state spice. That seems to me what's happening here (assuming the evidence and Texas law otherwise support the result).

Hashim said...

I disagree with your bribery and hitman examples. In both of those cases, the legislature is regulating *conduct separate* from the veto power -- namely, *receipt of money* for taking official acts, and *killing people.* The veto is not the illegal act *itself*: it's just a component of a broader illegal scheme. By contrast, here, the *only conduct* taken was the veto (though purportedly with bad motives).

matt30 said...

I think the real question here is whether Perry's actions are the type usually accompanied by a veto.

I don't think anyone would find it problematic that a governor vetoes legislation because it funds a program he finds is ineffective (either because the policy is bad or he doesn't have faith in the people running the program). How closely do courts want to regulate speech that accompanies a political action? They'll probably give it a wide berth.

What if Rick Perry also holds the honest belief that the Public Integrity Unit under the direction of a partisan elected political figure is bad policy but never vocalizes it? Is Perry now estopped from ever vetoing funding for the program until that DAs office has new leadership?

The Texas coercion statute cannot mean what it literally says. A person is guilty of coercion of a public servant if she "influences" a public servant into "a specific exercise of his official power" or "influences" a public servant to violate a duty. Setting aside the fact that staying employed doesn't really seem to be contemplated by the plain language of the statute, does a legislator violate this law if she vows not to sponsor a single bill authorizing the department until it has new leadership (legislative immunity notwithstanding)? Does a protester violate the statute if they engage in civil disobedience in contemplation of influencing some policy change?

The more I think about it the less of a case I think there is here.

Michael C. Dorf said...

Hashim: You said that normally "discretion can only be constrained by the source of law that granted the discretion (or a higher source of law)." I gave two examples where I think, and it looks like you agree that, a subordinate source of law in fact can constrain the discretion conferred by the higher source of law. But you now claim that in my examples the legislature is regulating other conduct, namely taking money and murder. But that's true in the actual case too (if the facts are proved): The regulated conduct is not the veto power; it's influencing an elected official. In the actual case, as in my examples, the veto (or pardon) is not the object of regulation. It is just incidental that this is the way in which the illicit act occurs.

Nor is it true that the veto is, as you put it, the "only conduct" that triggers the indictment here. It's the veto in combination with the threats, just as in the hitman example, it's the veto in combination with the agreement and the hit.

None of this is to say that Perry is guilty or that it's a good idea to criminalize this sort of thing. I agree with matt30 that, taken at face value, the Texas statute seems overbroad as a matter of policy and perhaps as a matter of state separation of powers.

I am simply swatting away bad or incomplete arguments as they arise. There may well be better arguments available for Perry's position.

Hashim said...

In my mind, this boils down to the "only conduct" issue.

Bribery and murder statutes ban a certain type of conduct by the executive that's not authorized by the state constitution and thus not protected from legislative impairment. Accordingly, the use of the veto, although constitutionally authorized and protected, is just a component of the larger banned course of conduct.

By contrast, your comment suggests that, here, the only conduct that's triggering the "improper influence" statute is the veto and the threat to use the veto. But if the veto alone can't constitutionally be the basis for the prosecution, then it's hard to understand how the prosecution becomes viable for "threatening" to engage in constitutionally protected conduct.

Joseph said...

I don't think speaking in abstractions and potentially errnoeous analogies is helpful. The argument that the governor's veto power is plenary is certainly fleshed out in legal filings.

The idea that a veto can be used for an "illegal purpose" is interesting, though it too needs to be fleshed out. As Hashim has noted, there is no crime piggybacking on Perry's veto, as in your examples. Or are you contending that not funding the office in question may be criminal? That there may be a political motivation certainly does not make a veto criminal (unless we wish to finally drop the pretense and declare politics to be criminal).

Will Sunday said...

Here is another hypothetical to consider. Under Perry's reading of the statute, could Gov. Perry publicly threaten to withhold all state funds from the city of Houston until the Mayor resigns because Perry does not like gay people and thinks that they cannot be trusted to hold elected office? It would seem, under the thinking that the prosecution is dubious, that one could never actually coerce a public official without the underlying act being criminal in nature, no matter the consequences of such action. And, by the way, I am more than a little curious at how this actually "hurts" the DA. (Meaning, seems like this money is blatantly being withheld to stop certain prosecutions within that office which have no effect on the DA but does have an effect on those being prosecuted)

matt30 said...

I don't think that's a good hypothetical because it rests on some tension with federal equal protection rights. Certainty trying to purge gays from public office would be wrong regardless of the method.

But if those tensions were not in place, I'm inclined to believe that a political official is entitled to express distasteful views and use his political powers to see those views become effective. The remedy is the political process, not the criminal justice system.

Joseph said...

I belive that Will's hypothetical is unhelpful for the reasons given by Matt. But even in that case, I wonder what the remedy would be. Would the court essentially deem the bill to be law? Award funds to the city on behalf of the mayor? Award money to the mayor? The veto itself still seems a problematic case better left to the political process. Because how happy will all those citizens be with the governor if he pulled such a stunt. It is understandably an unpopular position that the courts shouldn't intervene but the courts stay their hands on other big political issues where the Constitution speaks.

Michael C. Dorf said...

I think the hypothetical offered by Will Sunday works because it is predicated on the assumption that anti-gay discrimination is not (yet) (presumptively) unconstitutional. But the larger point he is making--which is in line with my views here generally--is that otherwise permissible conduct can become illegal if undertaken for a bad reason. Blackmail is a good example. If X threatens to reveal that Y had an affair unless Y resigns her job, X commits the crime of blackmail, even though X has the right to reveal the information.

As for the remedy, I've already said quite clearly that the remedy would NOT be to invalidate the underlying act, especially where the "act" is a veto.

Anyway, this has been an interesting discussion which, from my point of view, has run its course. But feel free to talk amongst yourselves.

Will Sunday said...

Well, the point of the hypothetical was to probe 1) how big, if there is a limit, a threat could be levied against someone without it being deemed coercion but 2) whether the motives or reasoning for the veto matter at all. (considering that the Governor has to make a statement as to the reasons for the veto)

And 3) does it matter that the person the Governor is trying to force to resign was elected by the voters rather than appointed or hired?

Also, how is this not bribery in the sense that Perry is offering a "benefit" aka funds for the Public Integrity Unit in exchange for a public official taking an action? Because, its either a "benefit" that is used to coerce the DA to resign, OR the funding doesn't matter to the DA, in which case, the questions need to start at, "Who benefits (or is ultimately harmed) by defunding the Public Integrity Unit?"

Joe said...

Go read State v. Hanson, 793 S.W.2d 270 (1990)

As the Court of Appeals explained:

"Bosque County could legally terminate its funding of employees in the district attorney's office or district clerk's office, and Judge Hanson could legally request the county attorney to institute proceedings to revoke a misdemeanant's probation. Likewise, the district judge had the legal authority to terminate the county auditor, and the county attorney was the appropriate official to file a motion to revoke a misdemeanant's probation. See TEX.LOC. GOV'T CODE ANN. §§ 84.002, 84.009 (Vernon 1988); TEX.CODE CRIM.PROC. ANN. art. 42.12, § 5 (Vernon 1979). Assuming the allegations were true, Judge Hanson could have lawfully taken the actions threatened, and the district judge and county attorney, had they acted as she desired, would have acted lawfully."

"When applied to Judge Hanson's alleged conduct, the penal provisions clearly implicated her First Amendment rights because she was indicted for words allegedly spoken to other public officials. Essentially, 272*272 she was charged with having made a threat to take action as a public official in an attempt to coerce another public official into performing an official act."

"Coercion of a lawful act by a threat of lawful action is protected free expression. See Wurtz, 719 F.2d at 1441.",44

Joe said...

The case "Joe" (not me) cited can be read here:

and it has been cited by some commentary. Eugene Volokh adds an important addendum, though he argues that the indictment still looks weak to him:

I would add though that he did veto and this 'action' seems to be part of the two charges:

Anyway, esp. with Prof. Dorf's "better defense" (free of charge!), I agree this is a weak charge and problematic for separation of powers and perhaps other reasons (see, e.g., Hanson).

Joe said...

original indictment:

A. said...

Mike's creative example about the hitman seems fishy: The crime is complete without the legislative aspect of the signaling, isn't it? I haven't fully digested the issue, but seems to me there is something different in an example (spicy as it may be) where the signal was accidentally legislative (could have put a potted plant out on balcony instead) versus necessarily legislative (in case of Perry) --- Perry couldn't possibly have achieved his aim of defunding without the veto, bringing the conduct more closely into a sort of traditional legislative/judicial/executive immunity-based or separation of powers world.

Which leads me to my real question: Aren't traditional doctrines of immunity, say, Judicial Immunity or Legislative Immunity instructive? Some applications/formulations of these have been essentially considered absolute: you cannot be haled into court for anything done in the execution of those functions. So, what might be slanderous cannot be so when spoken during a parlimentary session, eg. Why wouldn't that concept apply here? I guess a test scenario would be something like this: Suppose Senators Reid and McConnell, along with Rep. McCarthy conspired and then got Congress to pass a law convicting Boehner of a new crime of "gross offensiveness," the new penalty for which was lifetime imprisonment, and then caused marshalls to arrest him. Would those legislators face Bivens (or other) liability for their knowing violation of Article I section 9?

Kazinski said...

I posted this hypothetical at Volokh, but I am interested in hearing how its different than the Perry indictment:

A legislator is upset at Perry for using his veto to try to make the DA resign. The Legislator tells Perry that if he does not resign then he will introduce articles of impeachment against Perry. Perry refuses to resign, the legislator introduces articles of impeachment.

The Legislator under the prosecutor's theory is now guilty of at least 1 felony. To wit:

[§ 36.03:] (a) 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 ….

[§ 1.07(a)(9):] “Coercion” means a threat, however communicated:
(F) to take or withhold action as a public servant, or to cause a public servant to take or withhold action.

David in Cal said...

I'm not a lawyer, but this case looks wrong to me. The example of the hit man is not relevant.

Suppose the signal to go ahead with some crime is to eat a sausage roll (as in The Grand Duke.) Then, eating a sausage roll would be part of a criminal conspiracy. However, that sort of comic opera fantasy has no relevance to this case.

David Skurnick

Unknown said...


Hoya32 said...

I agree that there is a murkiness here and that a veto by itself is legal, as is, in one of the hypotheticals, instituting articles of impeachment. But Professor Dorf has, rightly, emphasized that the veto itself is not the illegal action here. You are allowed to purchase antifreeze: the illegal act is putting it in someone's food, for instance. The purchase is, however, an integral part of the case, as is the motivation behind it.

Putting politics aside for a moment, which will be difficult in a place like Texas, where judges are elected, the timing and mental state of the person in my hypo buying antifreeze will most likely determine whether it is murder--purchased with the intent to commit murder--or manslaughter--purchased for the car but in a fit of passion used to kill. Perhaps this is an overly dramatic hypothetical, but I think the reasoning still works here.

The prosecution and defense will be looking at Perry's mental state at the time and the time leading up to the veto. Perry can swear up and down that the veto had nothing to do with the threats, but if emails or phone calls or other such evidence exists to the contrary, it seems to me that it creates a question of fact to be determined by the jury. To the extent that such a mixed motivation is illegal is even more unclear, especially when there is a preference to infer the constitutional over the unconstitutional.

Unknown said...

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