Tuesday, September 20, 2022

Ron DeSantis Appears to Have Admitted to Violating the Texas Criminal Law

 by Michael C. Dorf

Let's begin with the moral point. Even if one believes that federal immigration policy needs drastic reform, using undocumented immigrants as pawns and weapons is despicable. A recent Washington Post story thus aptly compared Texas Governor Greg Abbott and Florida Governor Ron DeSantis to Belarusian dictator (and Putin ally) Alexander Lukashenko, who sought to weaponize migrants by deceiving them and sending them across the border to ostensibly more welcoming states but jeopardizing their health and safety in the process. The WaPo story also calls out Turkish President Recep Tayyip Erdogan for a similar policy.

To be clear. It should be acceptable for an immigration hardliner to make the rhetorical point that liberals are hypocrites for opposing immigration crackdowns while secluded in exclusive enclaves like Martha's Vineyard. Maybe they're right; maybe they're wrong. The "limousine liberal" charge is an old one that may have more or less force depending on the circumstances. But one can make the rhetorical point--one can even dramatize it--without turning undocumented immigrants into what, by analogy to the notion of human shields, we might call "human spears." That, however, is what Abbott and DeSantis have lately done.

The Abbott/DeSantis stunts are thus plainly immoral. Are they also illegal? So asked a recent NY Times article. The article quotes a law professor and a lawyer for the respective propositions that inducing people onto airplanes to fly them somewhere other than where they were told they were going is tortious and, under some circumstances, perhaps even unconstitutional. I agree. But the article's author goes on to state:

While critics have compared the actions of Mr. DeSantis and Mr. Abbott to human trafficking or kidnapping, multiple lawyers cast doubt on the possibility that they could be prosecuted for such crimes because no evidence has surfaced that the migrants boarded the flights or buses unwillingly.

Well, it depends on what one means by "unwillingly."

As I read the Texas and federal definitions, the GOP governors did not commit kidnapping. And with respect to the Texas kidnapping law, that's because the statute requires either the threat or use of force or the secreting of the victims. But note that the federal kidnapping prohibition can be violated if the perpetrator merely "inveigles" or "decoys" the victim. One can commit federal kidnapping simply by telling one's victims lies, so that they board a bus or plane "willingly" in the sense that they are not under threat of force. Nonetheless, I don't think the governors violated the federal statute, because there isn't evidence that they held their victims, which the federal statute also requires. By the time the migrants discovered they had been lied to about where they were being taken and why, they were released.

However, Texas law also defines the crime of "unlawful restraint," which DeSantis has pretty clearly committed. Abbott may have committed that crime too, but it's less clear that his agents lied to the migrants they put on buses than it is that the agents of DeSantis lied about where they were flying the migrants he boasted about weaponizing. Thus, I'll focus on DeSantis.

Subject to defenses that are not relevant here, the Texas criminal law just linked provides: "A person commits an offense if he intentionally or knowingly restrains another person." What does it mean to restrain another person? The immediately preceding code section answers that question as follows:

"Restrain" means to restrict a person's movements without consent, so as to interfere substantially with the person's liberty, by moving the person from one place to another or by confining the person. Restraint is "without consent" if it is accomplished by: (A) force, intimidation, or deception . . . . 

There it is. The use of "deception"--such as telling people you're flying them to Boston to waiting jobs when you're flying them to Martha's Vineyard without any prior preparations--counts as restraint. Unlawful restraint is a Class A misdemeanor, which allows for a maximum penalty of a year in jail and a fine of $4,000.

Is prosecution nonetheless fanciful? Apparently not. In fact, yesterday brought news that Javier Salazar, the sheriff of Bexar County, which includes San Antonio, where the flight to Martha's Vineyard originated, has opened a criminal investigation. The NPR story just linked quotes Salazar stating that the people who "lured" the migrants onto the planes with false promises committed "at worst some type of crime."

Let me suggest that it's not "at worst" a crime. It is a crime. And not merely some unspecified crime but the Texas offense of unlawful restraint. Perhaps the Bexar County District Attorney, Joe Gonzales, can assist Sheriff Salazar in zeroing in on the right offense and also on the criminal mastermind behind the plot--Ron DeSantis--rather than simply going after the people on the ground who acted as DeSantis's agents.

Both Salazar and Gonzales are Democrats, so one can expect that the Texas Republican statewide officeholders--Governor Abbott and Attorney General Ken Paxton--will portray the criminal investigation and any resulting prosecution as politically motivated, even if an apolitical assessment of the facts supports charges. But other than bloviating on FoxNews, is there anything the state officials can do to stop Salazar and Gonzales from bringing DeSantis and his minions to justice?

Maybe not. According to the official Texas AG website that Paxton presumably oversees:

In Texas, the county or district attorney has original jurisdiction to pursue alleged violations of the law. These prosecutors are granted discretion in determining which cases will be prosecuted. The Attorney General has no role or oversight of their decisions.

Thus, on my analysis, it's at least within the realm of possibility that the two leading contenders for the 2024 GOP Presidential nomination--DeSantis and his fellow Floridian TFG--could be running their campaigns from behind bars.

I'll conclude with two caveats.

(1) I'm not an expert in Texas law. I looked at the statutes and the reported decisions. Perhaps I'm missing something that would let DeSantis and others off the hook. Or perhaps I'm missing something that would make them liable for an even more serious offense.

(2) I'm also not an expert in Texas politics. Perhaps there's some extra-legal reason why DeSantis will not be charged.

Those caveats concern the likelihood of legal accountability. As I said at the top, the moral issue is clear.