Much has been said about Texas governor Rick Perry’s recent indictment on two corruption charges, with Perry’s defenders—including some prominent liberals and Democrats—dismissing it as politically motivated, and his detractors calling for him to resign the governorship. Much of the news coverage of the story has been light on legal analysis, focusing instead on the political implications for Perry’s potential 2016 presidential bid. This article attempts to provide a serious legal analysis of the charges against Perry, in an accessible format, with a minimum of legal jargon.
The background facts and the charges
The indictment stems from Perry’s 2013 veto of $7.5 million in appropriations for the Travis County District Attorney’s Office Public Integrity Unit. Texas’s capital, Austin, is located in Travis County, and the Public Integrity Unit has the power to investigate and prosecute crimes by state elected officials. In 2013, Rosemary Lehmberg, the Travis County District Attorney, was convicted of drunk driving, with a blood alcohol level nearly three times the legal limit, and served 45 days in jail. Video footage from Lehmberg’s booking shows her kicking her cell door, being combative with jail personnel, and eventually being restrained in a chair and “spit mask”:
In the wake of Lehmberg’s arrest, Perry threatened to veto the Public Integrity Unit’s funding unless Lehmberg resigned. When Lehmberg refused to step down, Perry vetoed the funds.
The relevant portion of § 39.02 states: “A public servant commits an offense if, with intent to obtain a benefit or with intent to harm or defraud another, he intentionally or knowingly . . . misuses government property . . . that has come into the public servant's custody or possession by virtue of the public servant's office or employment. According to the indictment, Perry misused the $7.5 million earmarked for the Public Integrity Unit by vetoing the appropriation of the funds.
The relevant portion of § 36.03 states: “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 or influences or attempts to influence a public servant to violate the public servant's known legal duty.” The theory here is that Perry’s veto threat was an unlawful attempt to coerce Lehmberg to resign her office.
Both charges have serious legal deficiencies, and it seems unlikely that either will result in conviction.
The abuse of official capacity charge: the veto itself
The indictment conflicts with the Texas Constitution
The first major problem with this charge is that it attempts to criminalize Perry's use of the veto power. Perry vetoed the specific line-item containing the appropriation for the Public Integrity Unit from a larger appropriations bill. Article 4, Section 14 of the Texas Constitution explicitly authorizes such line-item vetoes. The indictment thus violates a basic rule of legal interpretation by placing a statute above the Texas Constitution.
Think of the United States’ system of laws as a pyramid. At the top is the United States Constitution, which is the supreme law of the land. One level down are federal statutes and treaties. Below those are state constitutions, then state statutes, then local ordinances. A law at one level automatically trumps a law from any lower level. This principle is what allows courts to strike down statutes for being unconstitutional.
Since the Texas Constitution authorized Perry to veto the funds, a court would most likely deem § 39.02 unconstitutional to the extent that it prohibits the governor from exercising his veto power. But that is unlikely to happen. When interpreting laws, courts tend to avoid making a decision based on constitutionality if they can decide the case on another basis. Here, instead of making a constitutional ruling, a court would probably rule that § 39.02 simply does not cover the behavior described in the indictment.
The fact that the Texas Constitution gives the governor veto power does not necessarily mean that a governor could never be legitimately charged with a crime in connection with a veto. For example, if a governor took a bribe in exchange for vetoing a bill, that would probably be an actual crime. But in that case, the criminal act would be the bribery, not the veto itself.
The $7.5 million was never in Perry’s “custody or possession”
§ 39.02 only applies to misuse of government property “that has come into the public servant's custody or possession by virtue of the public servant's office or employment.” In Texas, as in most jurisdictions, the state treasury disburses appropriated funds to the various government agencies. The governor merely authorizes appropriations, and never takes custody or possession of the funds himself. Moreover, in this case, the money for the Public Integrity Unit never left the treasury, because Perry vetoed the appropriation. In essence, Perry’s veto short-circuited the appropriations process so that the Public Integrity Unit funds never officially existed in the first place. Therefore, it is difficult to see how a court or jury could find that Perry ever had the funds in his “custody or possession.”
The coercion charge: the veto threat
Vetoes and veto threats are a ubiquitous part of politics. The President and state governors can propose and negotiate over legislation, but the veto is generally the only explicit power chief executives have to affect the legislative process. And the threat of a veto is their primary negotiating leverage in that process. Veto threats are a classic example of political speech, which is among the most protected categories of behavior under the First Amendment. As such, the Perry indictment is on shaky ground to the extent it seeks to criminalize Perry’s veto threat.
The United States Supreme Court has long advised caution in this area. In the 1969 case Watts v. United States, the Court stated that “a statute . . . which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.” The Court went to state that such laws must be interpreted “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
Indeed, as First Amendment scholar and blogger Eugene Volokh has pointed out, the Texas courts may have already issued a ruling that controls the outcome of this case. In the 1990 case State v. Hanson, a judge threatened to cut off county funds for court support personnel and an assistant district attorney in an attempt to coerce other public officials to fire the county auditor and revoke probation for a criminal defendant. Like Perry, the judge was indicted under § 36.03. The Texas Court of Appeals held that the indictment was groundless, stating that “[c]oercion of a lawful act by a threat of lawful action is protected free expression” under the First Amendment.
In this case, Perry threatened to perform a lawful act (vetoing the appropriation for the Public Integrity Unit) in an attempt to coerce Lehmberg into performing another lawful act (resigning her job). It is thus difficult to see how the charge against Perry can survive a challenge on First Amendment grounds.
The case against Perry is still in its infancy, and future factual developments may change the analysis of the charges against him. But based on the facts currently available, the charges seem weak at best.
Photo credit: salon.com